With grateful thanks to Jan Luba QC and HHJ Madge’s housing update in the December 2014/January 2015 Legal Action, here are a few recent County Court cases on unlawful eviction and harassment.

Alabbas v Uppelle. Leicester County Court, 8 October 2014
Mr Alabbas was Ms Uppelle’s assured shorthold tenant from April 2008. In April 2009, Mr A complained to Ms U that water was leaking through to the kitchen from the bathroom. The ceiling partially collapsed as a result. Ms U did nothing.

Mr A complained to the local council’s environmental health department. When the EHO contacted Ms U about the issue, Ms U served a purported notice on Mr A. He had this checked and found it was not valid notice. Ms U than rang Mr A several times telling him to leave, including two calls in which she swore at him and made threats down the phone that his legs would be broken if he did not go. Mr A stayed put.

In September 2009, Mr A was thrown out of the property by four men, found to be acting at the instigation of Ms U. They let themselves in using a key. One man had a knife. They shouted racist abuse, punched and beat Mr Alabbas and threatened to kill him. They told Mr A that the reason he was being evicted was that he owed rent.

Mr A went to hospital, where he then stayed overnight. He sustained soft tissue injuries to his nose with a lasting small scar. He was treated for PTSD over the next two months.

He spent the next 16 days street homeless, sleeping in the doorway of a local mosque, before then moving into unsuitable hostel accommodation (his own room but shared facilities with at least 10 others) for a further 160 days.

At trial, Miss Recorder McNeil QC awarded damages in the total sum of £34,209, made up of:
£1,000 for the pre-eviction harassment;
£4,950 for the first 16 days post-eviction, during which time he was street homeless, calculated at £330 per night (being at the top end of the usual scale and with the addition of a further ten per cent – Simmons v Castle;
£17,600 for the 160 days during which he was in a hostel, calculated on the basis of £110 per night for the whole of that period (for the whole period as Mr A had attempted to mitigate his losses by searching for alternative accommodation).
The Recorder was also satisfied that it would have taken Ms U a significant period of time to evict Mr A lawfully given that no valid s.21 notice had been served as at the date of the unlawful eviction;
£300 for the disrepair;
£3,000 for the personal injuries;
£3,000 aggravated damages;
£2,500 exemplary damages [The basis for this presumably being the cost of a lawful eviction – NL];
£230 special damages; and
£1,629 interest.

Bitan v Holme, Stockport County Court, 14 April 2014
Ms Holme was Mr Bitan’s assured shorthold tenant. In about 2012, Ms H complained of disrepair. There was water leaking from the bathroom into the property’s dining room, and draughts through a hole in an exterior wall and a defective window. The ceiling in the dining room began to perish, and Ms H became anxious about her family’s safety. A later surveyor’s report identified many other items of minor disrepair.

Mr B did nothing and Ms H threatened to withhold rent. Mr B then became difficult and abusive, regularly telephoning and knocking on the door of the property. On several occasions, two large men attended the property and told Ms H she would be evicted and made homeless with her children.

Mr B claimed possession against Ms Holme. Ms H counterclaimed for breach of covenant for quiet enjoyment, harassment, housing disrepair and breach of statutory tenancy deposit provisions. The possession claim was struck out [Possibly because of the failure to serve the deposit prescribed information – NL] and the counterclaim proceeded to trial.

Deputy District Judge Buckley awarded damages of:

£2,592.94 for a course of conduct of harassment in breach of Protection from Harassment Act 1997 s1. (Updating the figure recorded in Fakhari v Newman June 2010 Legal Action 35 and a ten per cent uplift (Simmons v Castle));
£1,525.38 exemplary damages, including interest [It is not at all clear on what basis exemplary damages were awarded. See below – NL];
£5,783.22 were awarded for the disrepair, based on a diminution of the monthly rent of £550 by 40 per cent over a period of 23.5 months, plus an uplift of ten per cent (Simmons v Castle), and an award of interest. An order for specific performance was also made.
£1,000 for breach of HA 2004 s213(6) (failure to provide information about the tenancy deposit).

Comment

It is good to see the Simmons v Castle uplift being applied to unlawful eviction and harassment damages, as well as disrepair. Also good to see the top end daily rate of £300 (plus 10%) being applied for unlawful eviction.

The basis for exemplary damages in Bitan v Holme is not clear. If it is on the harassment claim, it is hard to see how this could be considered ‘profit-seeking’ conduct, unless there was unlawful eviction or threatened unlawful eviction included. Given the absence of aggravated damages, maybe this is another case of confusion between aggravated and exemplary damages? If anyone involved can shed some light, I’d be grateful.

With very grateful thanks to Beatrice Prevatt’s annual disrepair update in the December 2014/January 2015 Legal Action, here is a bumper pack of County Court cases and settled cases on damages for disrepair.

Armes v Wheel Property Co Ltd, Clerkenwell and Shoreditch County Court, 17 May 2013
Claimant had been the protected tenant of a two bed flat in a Victorian terrace conversion for 30 years. Current rent was £191 per week.

There was dampness to walls and floors in the living room, kitchen, bathroom and one of the bedrooms for many years. This had caused some plaster to ‘blow’. The housing file recorded a number of leaks into the property from various sources and the tenant asserted that she had notified her landlord about these.

Following the tenant starting a claim, dehumidifiers were installed at the property in August 2012 to confirm that the damp found in April 2012 was not caused by a flood, which took place in August 2011. The parties’ experts subsequently agreed that the property suffered from disrepair caused by penetrating/ rising dampness and agreed a schedule of remedial works.
The matter went to trial where the landlord disputed notice, but lost on that point.
The judge awarded £18,161 and ordered specific performance of the schedule of works.
Damages were:
General damages of £15,701 (6 years x 30 per cent rental liability reduction).
Special damages of £2,460.

Nzau v Gani, Croydon County Court, 21 November 2013
Private tenancy commencing in late 2006. The Claimant tenant was evicted in August 2012. Monthly rent of £1,150.

The Claimant alleged damp and water penetration from the start of the tenancy to the kitchen and bathroom (partly situated under a balcony). There were also historic issues with a defective boiler, and other more minor issues. In February 2011 the Council had served an abatement notice (s.80 EPA 1990) requiring the water penetration to be addressed.

At trial of the claim, Deputy District Judge McCloskey found the landlord liable for the water penetration into the kitchen and bathroom as well as the heating defects, from January 2007 [allowing a reasonable period to remedy, presumably. Though if the defects preceded the tenancy, this is surely questionable. – NL].

Damages for the water penetration were discounted by 50 per cent because there was no conclusive evidence from either side about whether the damp at the property was a mixture of condensation damp and penetration damp.

Damages: Water penetration: Over the 24-month period from January 2007 to December 2008, general damages were assessed at ten per cent of rent (following the 50 per cent discount), making an award of £975. For the period from January 2009 to March 2012, when there was more disrepair at the property, damages were assessed at 50 per cent, which was reduced to 25 per cent to account for condensation, giving damages of £7,717.
For the period from April 2012 to August 2012, damages were assessed at five per cent, which was discounted to 2.5 per cent, giving a figure of £101.
Total award of £8,793 for water penetration.
Defective boiler awarded damages of £10 per week from November 2006 to October 2009.
(Averaged over the year). Total: £1,560.
Special damages claim, (reduced by a third) in the light of the condensation: £550.
Overall total £10,903.

Clark v Affinity Sutton Homes Ltd, Barnet County Court, 28 March 20146
Claimant was the tenant of a one-bedroom flat from 29 November 2004 until 10 February 2014 when he was decanted. The tenant brought a claim alleging damp penetration from January 2007. The Defendant had carried out remedial works in 2008 and again in January 2013, but without resolving the issue.

The expert evidence found water penetration to the bathroom with condensation dampness and mould growth to the living room, bedroom and kitchen. However, following the claimant’s decant (and shortly before trial) it was found that the damp problems had been caused by a defective damp proof course.

The claimant suffered from poor health. He had had chronic obstructive pulmonary disease since 2006, rheumatoid arthritis since 2007 and also had bladder cancer.

A default judgment was obtained against the defendant on 14 October 2013. Remedial works were carried out in 2008 and again in January 2013. The expert evidence records water penetration to the bathroom with condensation dampness and mould growth to the living room, bedroom and kitchen. However, following the claimant’s decant it was found that the damp problems had been caused by a defective damp proof course.

Deputy District Judge Gillman awarded damages for the period 1 April 2007 to 31 August 2008 at 30 per cent of the rent and for the period from 1 January 2012 to 10 February 2014 at 45 per cent of rent. No award for the period from September 2008 to January 2012, as the Court found that on the balance of probabilities it was unlikely that there were any significant problems in this period. There were no complaints logged during this period and not a single e-mail, although there had been extensive e-mail correspondence in 2007 and again in 2012/13.

General damages were £6,779.88, which was uplifted by ten per cent (Simmons v Castle) to give a total general damages award of £7,457.86.
Special damages £2,667.60 (discounted the figures claimed by 25 per cent for depreciation, save in respect of the carpet, which was allowed in full as it would be difficult, if not impossible, to purchase second-hand carpets).
Plus £20 per week for the use of a dehumidifier 24 hours a day for eight weeks (having received details of average running costs).
Plus £5 per week for additional heating costs for 183 weeks in the six years claimed.
Total special damages £3,742.60.
Total award: £11,200.46.

Wade v Dormeuil, West London County Court, 8 August 20148
Private tenant of a two-bedroom flat, from 19 October 2010 until 12 October 2013. Rent £18,000 pa (£1500 per month). Landlord brought possession proceedings and tenant counterclaimed in respect of disrepair.

The tenant sought damages for a defective roof/gutters causing water penetration to the rear bedroom and hallway, with some intermittent penetration to the main bedroom and some current dampness to the living room, a defective flush to the toilet, two gas leaks resulting in the lack of hot water for five days, a slow water flow into the water tank, defective and cracked plaster, defective windows to the living room, a defective radiator and some external defects, namely, defective gutters, cracks to the render and rot to the joinery.

The defence to the counterclaim was struck out and the case proceeded solely on the basis of the tenant’s evidence.

District Judge Rowlands found all the claims made out and identified the three main claims as follows:
The damp and cold to the living room, which meant the tenant had to buy additional covers to sit underneath.
The problem with the toilet, which did not flush to the extent that the tenant had to use plastic gloves to clear the toilet for approximately two years.
The damp to the second bedroom, which could not be used for any purpose.

He took account of the fact that the tenant had moved in with her autistic son, who was then aged four, to give him more space, and had been distressed at not being able to give him the experience she wanted. He questioned why the tenant had not given up the tenancy [this is surely nonsense, no requirement to give up tenancy as mitigation] but accepted that she was unable to raise a deposit, would have had difficulty finding other accommodation, and was realistic in her hope that taking proceedings would have caused the disrepair to be rectified.

Damages:
General damages: 40 per cent of the rent for the first two years when all the problems existed, and 25 per cent of the rent for the third year when the toilet had been fixed. This amounted to a total award of £18,900, plus an additional ten per cent (Simmons v Castle), making a total of £20,790.
This was substantially in excess of a Part 36 offer that had been made, meaning an additional ten per cent in damages, plus 5.5 per cent interest, making a total award
of £24,203.35.
Costs up to the expiry of the Part 36 offer on a standard basis and from the expiry of the Part 36 offer onwards on an indemnity basis, and interest on those costs at 5.5 per cent.

Whittingdon v Uddin, Clerkenwell and Shoreditch County Court, 14 August 2014
Private tenant. Claim for three years of disrepair, breach of quiet enjoyment and harassment. For a period of three years the premises suffered from defective windows throughout, water penetration in the bedroom, some internal leaks in the kitchen and WC, and some external disrepair. The landlord failed to carry out any repairs despite repeated complaints.

At trial, District Judge Sterlini awarded:
General damages of £1,800, being a 100 per cent reduction in the rent for a six-week period in November and December 2013 when the claimant had to move out because the premises were uninhabitable and a global award of £7,500 to reflect the other items of disrepair over a period of three years (including a 17 per cent reduction in rent during this period);
£1,000 for defective chattels that were provided under the terms of the tenancy agreement and that were broken but not repaired/replaced
£350 for the cost of plumbing repairs paid for by the tenant.
£16,000 was awarded in respect of the harassment claim.

Holmes v Lambeth LBC, Lambeth County Court
Leaseholder of a two-bedroom maisonette complained of disrepair from 2008. There had been a number of external defects including an excessive gap between the brickwork and window frame to one of the bathroom windows and fungal decay to two other windows. There was also spalled brickwork over the main structure at the front of the premises, missing and defective pointing to the right of the chimney stack, cracking to the chimney stack itself, missing slates to the roof covering at the rear and cracked areas of concrete to the rear concrete staircase. For a period of three years there was water penetration through the roof causing cosmetic damage to the plaster in the eaves storage area and relatively minor staining to the plaster and decorations on the stairs.

The defects mainly affected the exterior of the premises and therefore the inconvenience caused to the leaseholder was minimal. The cost of repairs was estimated to be £9,000.

The claim settled in October 2014 at the point after which listing questionnaires were filed. Special damages were claimed in the region of £1,400. The second-hand value of the special damages was worth in the region of £500. Settlement negotiations were entered into on the basis of Earle v Charalambous [2006] EWCA Civ 1090, 28 July 2006, by using the starting point for calculating damages for leasehold premises as a percentage of the market rental value. The average market rental value for a comparable property in the area was in the region of £19,500 per annum (£1625 per month).

The local authority made a global offer in the sum of £15,000 and also agreed not to seek to recover the leaseholder’s share of service charges in respect of the works (these would have been approximately 50% of the £9000). Taking special damages at full value, this amounts to some 12% of rent for the full period of claim).

As part of the settlement Lambeth also agreed to pay for an inspection by the single joint expert and carry out any works found to be incomplete.

Comment
Always worth remembering that leaseholder claims can go back 12 years, not 6. And the measure of quantum is the notional open market rent, which can be substantial. However, the leaseholder may well be liable for a proportion of the cost of works through the service charge, and, as in this claim, that should be dealt with.

Coleman v Peabody Trust, Lambeth County Court
A tenant’s two-bedroom flat had cracked and defective windows throughout the premises (five in total), which were draughty, from end of 2009 to August 2014. The claim settled in August 2014 for £7,500. The rent was £124.17 per week (£6,456.84 per annum) so this settlement equates to approximately 23 per cent of the rent.

Lawrence v Lambeth LBC, Lambeth County Court
Secure tenant of four bedroom flat brought a disrepair claim, limitation took effect from May 2007.

Disrepair alleged was that the windows at the premises were in poor condition with four of the windows rotting away, letting in water and with mould growth around them. Patch repairs to the windows were carried out in June 2012. The central heating was defective for several years. The claimant could only use the heating and hot water together and was unable to use the services independently of each other. It also took quite a while for the water to heat up and none of the radiators heated up properly. Some of the radiators did not heat up at all and some of them only heated at the bottom. The heating was remedied by the Defendant in December 2011. There was an intermittent leak under the sink and from behind the toilet. The premises were infested with mice for around four years, possibly coming from underneath the floorboards.

The tenant suffered from constitutional asthma and recurrent bronchitis, which had been exacerbated by the cold and damp conditions at the premises, and was admitted to hospital with shortness of breath on two occasions and thereafter experienced symptoms of central chest pain, poor respiratory function and nocturnal coughing.

Post issue, the landlord agreed that some of the internal works could not be done with the tenant in occupation. The tenant was prioritised for a permanent transfer but no suitable properties became available and so the landlord started works in or around late August 2013 with the tenant still in occupation.

Lambeth defended on the basis that the standard of repair was commensurate with the property’s age, condition and status as public sector housing and that works were carried out as required when notified to the landlord. It was also alleged that the tenant neglected the garden to the extent that overgrown ivy had caused damage to the windows.

The claim settled within a few weeks of the trial date, in June 2014, for a global figure of £12,500.
Components of damages:
£1,500 for exacerbation of asthma due to the damp conditions;
£9,500 general damages, amounting to £1,583 per annum for six years, where the rent was
£144 per week. This equates to approximately 20 per cent of the rent for the full period of the claim;
£1,500 special damages, most of which was a contribution towards the tenant’s care costs.

A substantial discount was agreed in respect of the special damages as the tenant had smoked for most of her adult life. The defendant also agreed to carry out additional works, above the repairing obligations, as part of the settlement including decorating throughout, dry lining of walls, repair to the boundary fences and insulation of the loft.

Thomas v AJ Bradburn (acting as receiver for Adelphi Properties Ltd), Manchester County Court, 17 October 20134
Private shorthold tenant of a two-bedroom mid-terrace house from 5 November 2007. His rent was £85 per week until April 2009, when it went up to £95 per week.

There were problems with the hot water system and the storage heaters from the start of the tenancy. Central heating was installed in March 2008 but that did not work properly and the landlord failed to repair it satisfactorily until May 2011.

From late 2008 the roof had a hole in it, which allowed water to leak through on to the ceilings upstairs. Damp patches developed and water leaked into the bathroom. Patch repairs by the landlord were inadequate. The roof problems had worsened by late 2009 such that water leaked in through the ceilings and the claimant’s bedroom ceiling collapsed. The claimant had to sleep downstairs for a period of a year because of the leaks and dampness and state of his bedroom ceiling. The claimant had a pre-existing diagnosis of asthma, which he complained had been aggravated by the condition of the property.

At trial, District Judge Moss found the landlord liable.

Damages found:
£750 for the defective storage heaters and faulty hot water system for the period November 2007 to the end of March 2008 (equating to around 40 per cent of the rent for that period).
£3,750 for the intermittently functioning heating and hot water system from November 2008 to May 2011 (equating to approximately 30 per cent of the rent for that two-and-a-half year period);
£1,500 for the disrepair to the roof and the associated state of the ceilings upstairs and of the damp from late 2008 to late 2009 (equating to approximately 30 per cent of the rent for that year).
£2,500 for the leaks and dampness between the end of 2009 until the end of 2010 when the position worsened significantly and the claimant had to sleep downstairs and was unable to use the upstairs of the property (equating to approximately 50 per cent of the rent for that year).
(In total, between the end of 2008 and the end of 2009 general damages of approximately 60 per cent of rent. For the period from the end of 2009 to the end of 2010 general damages of approximately 80 per cent of rent).
£850 for the aggravation of asthma by the conditions of the property, the aggravation being to the extent of 20 per cent.
£1,250 in special damages.

Comment
it is good to see a greater adoption of the English Churches v Shine approach of a notional reduction of rent. For social tenants, whose rents have risen considerably, this makes more sense than the old Wallace tariff, as well as making sense in law.

There also seems to be a greater consistency of awards than in previous years, though as Wade v Dormeuil shows, there are District Judges willing to entertain nonsense arguments – not giving up a tenancy cannot be a failure to mitigate loss.

Leasehold disrepair will be a growing trend, certainly I have quite a few case, but there are uniqoe issues. While the damages will be higher, based on notional open market rental value (Earle v Charalambous) and potentially for a 12 year period, there will be the potential for a proportion of the costs of work to be recharged to the leaseholder. This needs to be dealt with, and I suspect many practitioners won’t know how.

Legal aid is all but unavailable, except for counterclaims to rent arrears possession claims. Legal Aid will only cover an order for works for urgent, health threatening, defects, not a damages claim. The flip side of this, for defendants, is that they should be aware that a claim funded by a CFA means that the Claimant’s solicitors are pretty confident about their case.

In R(Hillsden) v Epping Forest DC [2015] EWHC 98 (Admin), McCloskey J held the council’s allocation scheme valid in circumstances which, I must say, did not seem propitious to the council.  The council’s new allocation scheme, which came in to force in September 2013, had a qualification criterion which required applicants to have a continuous residence for three years and, for those already registered, to have two and a half years.  It was argued by the council that there was no “exceptional circumstances” get-out clause, because, apparently, the council “wanted clear rules that left no room for doubt about whether an individual qualified in the first place”.  Now, like Ms Hillsden’s counsel (Jan Luba and Bethan Harris), I would have said that whole criterion was a real problem – indeed, our past notes on this precise issue have argued this too.  So, fair play to Epping – how did they win?  Will it survive an appeal?

Ms Hillsden’s first argument focused on para 7.2 of the scheme.  This paragraph recognises an exceptional circumstances rule, with decision-making delegated to the Director of Housing.  However, the council argued that the scheme, taken as a whole, meant that this exceptional circumstances rule was actually about allocation and not qualification.  The council’s witness statements on this point were disregarded by the Judge: “Had I been prepared to consider them, these aspects of the Council’s evidence would have to be treated with some circumspection given that it was deemed necessary to prepare a second witness statement for the purpose of both clarifying and augmenting the first.  Furthermore, there is a risk that averments of this kind will, inadvertently or otherwise, be self-serving, the more so when they cannot be tested by reference to contemporaneous records and in the absence of cross-examination” ([20] #ouch).

As a pure question of construction, however, Ms Hillsden’s argument was unsuccessful.  The qualification provisions were “framed in uncompromising and unambiguous terms.  They disclose no intention to reserve to the Council any power, or discretion, of relaxation or dispensation.  Their language confounds the contention that they are to be read as if followed by words such as “subject to the exceptional circumstances dispensation contained in paragraph 7.2 above””.

I imagine at this stage that Ms Hillsden would reckon that her claim would have been successful – without an exceptionality rule, surely the scheme infringed the fettering discretion rule because Epping Forest had to close their eyes and ears to Ms Hillsden’s circumstances (which in outline seemed pretty awful).  Not so, according to the Judge, whose close analysis of British Oxygen disclosed the following principle:

A  decision which is the product of an inflexible rule or policy adopted by a public authority governing, or informing, the exercise of its statutory discretion, in circumstances where the statute allows its adoption, is liable to be held unlawful, since the discretion must not be fettered in this way.  The main reason for this, in my estimation, is that decisions of this kind defeat the intention of the statute and do not represent a true and proper exercise of the discretion conferred by Parliament. [29]

However, there was nothing in the 1996 Act which required the council to have an exceptionality provision: “the absence of a residual, or overarching, discretionary provision in the impugned Scheme is not attributable to the erection by the Council of some inflexible rule or policy relating to how it will exercise a statutory discretion. I consider that the legislation did not give the Council a choice in this respect. … I consider that the fundamental duty imposed on the Council was to devise a HAS which accords with the multiple requirements of the statutory regime.  The Claimant’s challenge fails to identify any disharmony or incompatibility in this respect”.

Other public law arguments – irrationality, reference to the Code and previous versions of the legislation – were unsuccessful.

The third ground of challenge seems to me to be a makeweight ground – the argument was that the allocations Code of Guidance required the adoption of an exceptionality clause.  It certainly does say that they should have explicit provision for dealing with such cases (para 3.25) but that was never going to get over the hurdle that it is just guidance to which the council is required to have regard.  The Judge held that Ms Hillsden had not shown – and the burden was on her – that the council had not had regard to the Code.

Although the Judge refused leave to appeal, I think that there are some really important points here which demand an appeal.  There was written argument taken by the Judge on the subsequent decision in the Jakimaviciute JR [2014] EWCA Civ 1438 and second appeal in Nzolameso [2014] EWCA Civ 1383 but neither affected the Judge’s decision.  How does this case fit with Jakimaviciute?  I suspect that there may be relatively simple solutions but they demand rather more attention than was given here.  My sense also is that the Judge was rather more lenient to the Council than, perhaps, some other judges might have been, but that may be unfair.  I certainly think that this judgment appears as something of an outlier in the emerging jurisprudence on allocations post-Ahmad [2009] UKHL 14 and it is important for that reason alone.  (En passant, I thought it interesting that the EU argument run in the successful DHP JR was not run here; although I guess the facts themselves did not raise that point)

… doesn’t mean that they aren’t out to get you.

The MoJ and Legal Aid Agency have put out a leaflet on Legal aid and “Help for people at risk of losing their home“. The trouble is that that it doesn’t mention, anywhere, at all, not even in little small print, that tenants facing possession proceedings can seek face to face advice from a solicitor. Instead, all requests for help are channelled to the LAA phone line.

Now, while mortgage possession cases might have to go via the telephone gateway (due to an entirely arbitrary reclassification of such cases as ‘debt’ matters, just to give the phone line something to do), tenant possession cases can be funded as face to face cases from the get go, with no phone line involvement. Strangely enough, the LAA leaflet doesn’t mention that, while at the same time, the LAA announces that fewer housing matter starts have been used than was expected.

Of course, this dodgy advice leaflet might be an accident. I have asked the MoJ. But answer came there none.

Another Court of Appeal disrepair judgment! I can barely contain myself. And on a fairly important issue too. So..

Edwards v Kumarasamy [2015] EWCA Civ 20

Mr Edwards rented a second floor flat from Mr Kumarasamy. Mr K was the leaseholder of that flat, but did not own any other part of the property. Mr K’s lease granted him “the right to use on foot the entrance hall, lift and staircases giving access to the flat; the right to use an access road and parking space and the right to use the Bin Store (which is part of the Communal Areas as defined) and other facilities provided by the landlord. Regulations forming part of the lease in fact require all domestic rubbish to be placed in the Bin Store.”

While the freeholders of the block covenanted under Mr K’s lease to “keep the Communal Areas in good and substantial repair, and to keep passageways and footpaths forming part of the building in good order and condition”, but the lease also contained a clause limiting the freeholder’s liability for any defect unless the tenant (Mr K) had given notice of it and freeholder had had a reasonable time to carry out repairs.

Mr E was taking rubbish out to the Bin Store when he tripped over an uneven paving stone in the pathway between the front door of the block and the communal bins in the car park and injured his knee. It is worth noting that this paved path was the principal means of access to the whole block of flats. It was common ground that Mr E had not given previous notice of the uneven slab to Mr K, nor had Mr K to the freeholder.

Mr E brought a claim under s.11 Landlord and Tenant Act 1985 against Mr K.

At first instance, the DDJ found that the path was part of the structure and exterior of the flat, so fell under Section 11(1). Damages of £3750 were awarded. This was overturned on appeal to a Circuit Judge, who found it was not part of the structure and exterior. However, a new argument was raised by Mr E before the CJ, that Mr K’s liability for the path fell under s.11(1A). The CJ found that this liability was not engaged because there had been no notice of the defect.

Hence to the Court of Appeal.

S.11 Landlord and Tenant Act 1985 (as amended) provides – as far as relevant:

(1) In a lease to which this section applies …there is implied a covenant by the lessor—
(a) to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes)…
(1A) If a lease to which this section applies is a lease of a dwelling-house which forms part only of a building, then, subject to subsection (1B), the covenant implied by subsection (1) shall have effect as if—
(a) the reference in paragraph (a) of that subsection to the dwelling-house included a reference to any part of the building in which the lessor has an estate or interest…
…
(1B) Nothing in subsection (1A) shall be construed as requiring the lessor to carry out any works or repairs unless the disrepair (or failure to maintain in working order) is such as to affect the lessee’s enjoyment of the dwelling-house or of any common parts, as defined in section 60(1) of the Landlord and Tenant Act 1987, which the lessee, as such, is entitled to use.
(3A) In any case where—
(a) the lessor’s repairing covenant has effect as mentioned in subsection (1A), and
(b) in order to comply with the covenant the lessor needs to carry out works or repairs otherwise than in, or to an installation in, the dwelling-house, and
(c) the lessor does not have a sufficient right in the part of the building or the installation concerned to enable him to carry out the required works or repairs,
then, in any proceedings relating to a failure to comply with the lessor’s repairing covenant, so far as it requires the lessor to carry out the works or repairs in question, it shall be a defence for the lessor to prove that he used all reasonable endeavours to obtain, but was unable to obtain, such rights as would be adequate to enable him to carry out the works or repairs

There were two key issues before the Court of Appeal.

i) Were the paving stones part of the ‘building’ for the purposes of s.11(1A)?
ii) Did liability under s.11(1A) arise only on notice of the defect?

Firstly – and very interestingly – the Court of Appeal found that Mr K’s “right to use the front hall, the car parking space and Bin Store and other facilities provided by the landlord take effect as legal easements. He therefore has an estate or interest in the paved area where Mr Edwards sustained his accident”. This will be of wider effect, as any leaseholder landlord in a block will usually have similar rights to common parts, access ways etc.. So s.11(1A) will apply in respect of those areas, given that a right to use them is to be taken to be equivalent to ‘an interest’ in those parts.

The answer to i) was fairly brief. The ‘building’ in s.11(1A) must be understood as ‘structure and exterior of the building’ (Niazi Services Ltd v van der Loo [2004] EWCA Civ 53). The paved path, as the entrance way to the building, should be considered as part of the exterior (Brown v Liverpool Corporation (1983) 13 HLR 1). It was the ‘exterior of the front hall’.

On ii) the Court of Appeal (rightly) observed that the common law position was that liability for lack of repair commenced as soon as the defect arose. “The general rule is that a covenant to keep premises in repair obliges the covenantor to keep them in repair at all times, so that there is a breach of the obligation immediately a defect occurs”. The exception to this rule is where the defect arises in the demised premises themselves, in which case liability arises only when the landlord “has information about the existence of the defect such as would put a reasonable landlord on inquiry as to whether works of repair are needed and he has failed to carry out the necessary works with reasonable expedition thereafter” (British Telecommunications plc v Sun Life Assurance Society plc [1996] Ch 69).

In terms of this case, there is also a common law principle on easements, where “there has been an express grant of an easement the grant will carry with it an ancillary right on the part of the dominant owner to carry out repairs on the servient owner’s land in order to make the easement effective. Thus in the case of the grant of a right of way the dominant owner is entitled to repair the way.” On this principle, Mr K did have the right to repair the path, something that the Judge below had considered that he did not.

The interrelation of common law and s.11(1A) had been dealt with by the Court of Appeal in Passley v Wandsworth LBC (1998) 30 HLR 165, where pipes on the roof of a block had fractured in a cold snap, flooding Mr P’s flat. Wandsworth were found to be liable under the covenant irrespective of notice.

The landlord’s covenant to repair under the statutory covenant depended on the facts, whether the defect was part of ‘the structure or exterior’. This was regardless of the extent of the demise (Campden Hill Towers Ltd v Gardner [1977] QB 823). [Though this was a pre 1985 Act case, and how does it sit with Lucie Marie-Antoinette Campbell v Daejan Properties Ltd [2012] EWCA Civ 1503 – though that lease did distinguish between ‘house'(building) and ‘premises'(demise) – NL]

Campden Hill was decided after O’Brien v Robinson [1973] AC 912, which concerned the predecessor to s.11 had had found that the repairing obligation only arose on notice (but was a case concerned with the interior of the demise). The lack of any reference in Campden Hill to O’Brien should be taken to mean that the principle that notice requirements only applied to the demised premises, not the broader ‘structure and exterior’ was approved, at least tacitly.

Lastly, there was no provision for notice in, or attached to s.11(1A) in statute, despite the pre-existing common law position.

S.11(1A) did not only apply to defects that in the structure and exterior of the building that affected the demise:

Although this might be a pragmatic way of limiting the landlord’s liability I cannot find it in the words of the statute. An argument of this nature would have been equally applicable to the landlord’s covenant considered in Sun Life, and indeed a similar argument was advanced on the landlord’s behalf. But in Sun Life, as we have seen, the critical division was between what was demised and what was not. Moreover, as I have said we are in the territory of implied terms, and necessity rather than mere reasonableness is the touchstone.

S.11(3A) was not rendered useless by immediate liability, contra Mr K’s argument. While the landlord might not have have the chance to use ‘reasonable endeavours’ to get the superior landlord to carry out works without notice, it would still operate to limit liability over an extended period:

I acknowledge that a conclusion that liability arises without notice does mean that section 11 (3A) has a lesser effect than it might otherwise have had. But it is by no means useless. It is a commonplace that a liability to repair is frequently a continuing liability and many tenants make claims for loss and discomfort sustained over lengthy periods. In the Niazi case, for instance the complaint lasted for the best part of three years. In such a case section 11 (3A) would enable the landlord to stop liability from continuing to accrue.

With a brief, polite disagreement with Dowding & Reynolds (5th ed para 20-37) on notice being required for the extended covenant, the Court of Appeal concludes. A last ditch argument by Mr K that the paving stones were uneven, not in disrepair had not been raised below and could not be considered now.

Appeal allowed.

Comment

In some part, this is simply a confirmation of Passley v Wandsworth principles on immediate liability on the defect arising, without notice. But there are some very interesting additions.

The disrepair to ‘structure and exterior’ under the extended S.11(1A) covenant does not have to directly affect the tenant’s demised property.

The landlord’s ‘interest’ in the part of the ‘building’ – construed as ‘structure and exterior’ – can be a right of use or passage granted under the lease, in effect an easement.

The common law right of the dominant owner of an easement to carry out repairs to the subservient owner’s property – in situations where the claimant’s landlord is a leaseholder, this could well be of significance.

There is a lot worth thinking about here in respect of disrepair claims, both under section 11, and, in respect of the easement right to repair point, perhaps some disrepair claims by leaseholders too, where there is an intermediate head leaseholder (as s.11 doesn’t apply).

The out of borough temporary accommodation position continues to get worse, with increasing numbers of homeless shipped out of borough (and for London councils, often out of London). London Councils (pace Nzolameso v Westminster CC ) have put the DCLG ‘Supplementary Guidance on the homelessness changes in the Localism Act 2011 and on the Homelessness (Suitability of Accommodation) (England) Order 2012‘ at naught.

Confirmation, if any were needed, is to be found in LB Waltham Forest’s current consultation “Changes to temporary accommodation location guidelines“. The current guidelines set out who, as a matter of policy, will usually be found in-borough temporary accommodation, who will be found temporary accommodation “in a borough which is one hour’s travelling distance on public transport from LBWF”, and then the rest, who will probably be offered temporary accommodation wherever (anywhere).

The proposed new guidelines involve two groups – those who will “where possible, be offered temporary accommodation in Waltham Forest, adjacent boroughs, or boroughs in the East London sub-region” and those who, well, won’t: “All other homeless households would be offered temporary accommodation wherever the borough is able to procure it, provided that it is suitable for the household’s needs”.

Note that ‘provided that it is suitable’ – added, one suspects, by Waltham’s lawyers. We’ll come back to this.

So, currently, Waltham has a policy with a Group A – accommodation in East London. Those are:

a child in secondary school in their final year of key stage 4 (generally year 11)
a child who has a Statement of Special Educational Needs
a child who is the subject of Child Protection Order Plan
someone who is receiving NHS treatment for mental health problems other than from their GP and/or is on the Care Programme Approach
someone who is caring for another person in the borough, subject to certain criteria.

And Group B – accommodation one hour away by public transport:

a child in primary school in LBWF or neighbouring boroughs
a child in secondary school either in LBWF or neighbouring boroughs
somebody in permanent or settled employment
somebody who is receiving medical treatment that can only be provided by a specific medical facility
Lone parent households with a baby under 6 months at the time of allocation

And a Group C – everyone else, “who are offered temporary accommodation where the borough is able to provide it.” (Meaning out of borough and quite probably out of London).

The consultation proposal is to drop Group B entirely, with an adjustment to Group A. So Group A (who “would, where possible, be offered temporary accommodation in Waltham Forest, adjacent boroughs, or boroughs in the East London sub-region”) would be:

a child in secondary school in their final year of key stage 4 (generally year 11)
a child who has a Statement of Special Educational Needs
a child who is the subject of Child Protection Order Plan
someone who is receiving NHS treatment for mental health problems other than from their GP and/or is on the Care Programme Approach
someone who is caring for another person in the borough, subject to certain criteria.
someone who is receiving medical treatment that can only be provided by a specific medical facility

Everyone else would be expected to go wherever they are sent, ‘provided it is suitable’. That would include lone parents with children under 6 months old, families with children in local schools (unless in year 11), or someone in employment in the borough.

Waltham are perfectly clear that this is about restricting costs.

Homelessness services and temporary accommodation are paid for by the Council’s General Fund and currently cost over £3.8 million annually. There has been a sharp rise in homelessness presentations in Waltham Forest over the past year, largely due to local increases in rent and to welfare benefit reforms. Rent increases also mean that temporary accommodation for homeless households is becoming scarce and expensive, both within Waltham Forest and in the surrounding areas.

Because of this, there is a risk that the annual cost of temporary accommodation will increase significantly, with a possible overspend of £861,000 in 2014-15, and additional expenditure of £2,440,000 in 2015-16.

Of course, this policy (both current and proposed) is contrary to the Government’s 2012 statutory guidance. For example:

47.Location of accommodation is relevant to suitability. Existing guidance on this aspect is set out at paragraph 17.41 of the Homelessness Code of Guidance offers. The suitability of the location for all the members of the household must be considered by the authority. Section 208(1) of the 1996 Act requires that authorities shall, in discharging their housing functions under Part 7 of the 1996 Act, in so far as is reasonably practicable, secure accommodation within the authority’s own district.

48.Where it is not possible to secure accommodation within district and an authority has secured accommodation outside their district, the authority is required to take into account the distance of that accommodation from the district of the authority. Where accommodation which is otherwise suitable and affordable is available nearer to the authority’s district than the accommodation which it has secured, the accommodation which it has secured is not likely to be suitable unless the authority has a justifiable reason or the applicant has specified a preference.

49.Generally, where possible, authorities should try to secure accommodation that is as close as possible to where an applicant was previously living. Securing accommodation for an applicant in a different location can cause difficulties for some applicants. Local authorities are required to take into account the significance of any disruption with specific regard to employment, caring responsibilities or education of the applicant or members of their household. Where possible the authority should seek to retain established links with schools, doctors, social workers and other key services and support.

The proposed policy simply tears up any considerations of employment, schooling, established links with doctors, social workers or other support, at least as a matter of policy priorities. It also, it should be noted, makes no mention at all of taking into account distance and ‘nearer’ suitable accommodation (though as it stands after Nzolameso, that latter is rather an empty exhortation anyway).

Let us just pause there for a moment and take stock. Waltham are proposing that, as one example, someone who has secure employment in the borough will not, as a matter of policy, be considered to have a need for nearby accommodation, and could be accommodated anywhere ‘where the borough is able to provide it’, quite possibly, indeed probably, too far away for the person to keep their job.

Of course, this is quite probably unlawful. Waltham have been here before – in Arfon Abdi v LB Waltham Forest. Bow County Court 2 July 2012, where Waltham’s attempt to tell a homeless woman, whom they proposed to ship two and a half hours travel away, that she should just find another job nearer the accommodation came to grief badly on s.204 appeal. That appeal found that Waltham had failed to consider travel time to work as a relevant factor, yet now Waltham propose to institute this same failing as a matter of policy.

I would quite happily declare both the existing policy and the proposed replacement as very likely to be unlawful, except for the lawyer’s codicils – people will have to go where they are sent, ‘provided it is suitable’ and ‘It is important to note that a household’s individual circumstances (i.e. the household’s needs) will always be taken into account when making an allocation of temporary accommodation’.

The trouble is that either the policy or those codicils are meaningless. If – as is the legal requirement – the assessment is of suitability of proposed accommodation in terms of the specific individual circumstances of the applicant and household, then the policy/guidelines are a nonsense and cannot be allowed to have a bearing on any individual decision.

If, on the other hand, the policy/guidelines are to be followed, then they clearly override any individual assessment, by setting a presumption that out of borough/out of London is suitable unless the applicant is in Group A, or can somehow establish themselves as exceptional to the policy presumption – and in that, employment in the area, as one example, has already been ruled out.

And of course, if there is to be adequate consideration of individual circumstances, Waltham can have no idea of the likely savings, if any. The presumption on their part clearly is that Waltham have somehow already been favouring people for whom out of borough/out of London accommodation would be perfectly suitable (such as those employed in the borough, or lone parents with a child under six months). But they have no way of knowing.

The cynical view is that Waltham will operate the policy, without the lawyer’s codicils, and will indeed concede or lose some challenges to individual decisions, banking on the fact that most homeless applicants aren’t represented and won’t fight a decision.

Just as a last reminder that the financial and housing stock difficulties facing Waltham Forest cannot be determinative of its statutory duties, the Court in Arfon Abdi concluded that, while the scale of those difficulties was huge:

the Respondent fell into the error of allowing those difficulties to be determinative of its decision in this case. In so doing it failed to consider the suitability of this property for this applicant.

Waltham now appear to be turning that error into policy.

As an illustration of the perils of a claim in nuisance, here is Yianni v Shakeshaft [2014] EWCA Civ 1639 [Not on Bailii. We’ve seen a transcript]

Ms Y is the leaseholder of a flat below that of Mrs & Mr Shakeshaft, who had a tenant in theirs. There had been repeated leaks, and floods, into Ms Y’s flat over a period of 4 years or so, originating in the Shakeshaft’s flat above and causing considerable damage. Ms Y had brought a claim which, by the time it reached trial at first instance, was purely a claim in nuisance against Mrs & Mr S for the water originating in their flat.

At first instance, the Circuit Judge broke the claim down as follows:

1. Water ingress in December 2007

2. Further water ingress in December 2008

3. Some lesser leaks in January 2009

4. Flood from washing machine in the S’s flat in about May 2009 (following a first flood from the washing machine in April 2009, which was – quite properly – not claimed for)

5. Water ingress in September 2010, apparently with further leaks to June 2011

The actual cause of the problem (apart from the washing machine) was a cracked waste pipe from the shower to the waste stack. The pipe was half buried in the floor. The lower part of the pipe and junction could not be seen by a visual inspection, as it was encased in concrete.

In  (failed) responses to the complaints of flooding, Mrs & Mr S had (in order as above)

1. regrouted the bathroom.

2. replace the old hip bath with a shower, regrouting the bathroom.

3. told their tenants to keep the shower drain free of obstruction

4. (Separate issue – a stopcock had been installed 4 weeks after the first washing machine flood, but not before a second one had occurred).

5. After too-ing and fro-ing about possible causes, surveyors confessing themselves bewildered, and the expense and practicalities of breaking up the bathroom floor (and the difficulties in obtaining permission required from the freeholder to take up the floor), eventually the cause was discovered and repaired.

The first instance CJ stated he followed Sedleigh-Denfield v O’Callaghan [1940] AC 880 and Lord Wright:

The liability for a nuisance is not, at least in modern law, a strict or absolute liability…he is not liable unless he continued or adopted the nuisance, or, more accurately, did not without undue delay remedy it when he became aware of it, or with ordinary and reasonable care should have become aware of it.

So the question was whether the actions of Mrs & Mr S were such as to be those of reasonable user once notified of the nuisance, acting without undue delay. In each instance, the CJ found that the steps taken were those of ‘reasonable user’ such that Mrs & Mr S could not be found to have continued or adopted the nuisance, despite the 4 years it took to remedy the cause of the floods (except the washing machine – but there 4 weeks to prevent reoccurrence was found to be the action of a reasonable user).

Ms Y sought permission to appeal to the Court of Appeal, but it was refused.

Mr Paget relied on obligations in the lease by the defendants to their occupying tenants, but, as it seems to me, that is not something of which Miss Yianni can take any advantage. Likewise he sought to rely on obligations in the lease from the freeholder to the defendants, but that is not a cause of action on which the defendants were sued, therefore it seems to me to be that the obligations under that lease are also irrelevant for present purposes. The same is true of statutory obligations to the defendants’ occupying tenants.

It seems to me the force of Mr Paget’s submission is undermined by Lord Wright’s reference to undue delay. How can one judge what is undue delay without having regard, certainly to the nature of the problem and its consequences, but also to what efforts are reasonably required to work out what is the cause of the problem and to see to it being resolved? Mr Paget submits that the judge was wrong to apply a reasonableness test as regards what the defendants did and caused to be done, and the time under which those things were done, between December 2007 and June 2011. It seems to me that that is a submission which is legally untenable.

Mr Paget does not challenge the judge’s factual findings as to what was done and the difficulties that the defendants experienced in working out the cause. In particular, although he criticises the judge’s finding, he has to accept that the judge found that the freeholder objected in early 2011 to the defendants undertaking the works that he says were necessary, and which it turned out were indeed necessary. But, as it seems to me, if the freeholder was taking the position that the defendants are not entitled to open up the floor, then it cannot be said that the defendants were unreasonable in not doing so immediately.

So with respect to Mr Paget’s able arguments and with a great deal of sympathy for Miss Yianni’s traumatic experience over a lengthy period, it seems to me that there is no reasonable prospect that the judge could be demonstrated, on an appeal to the Court of Appeal, to have adopted the wrong approach. To the contrary, it seems to me that he applied exactly the right approach and he made findings which are not, and cannot be, challenged, which led to his conclusion that the defendants were not liable because there was no question of unreasonable delay, or unreasonable lack of effort, in the course of action followed once they were on notice of the problem.

Permission to appeal refused.

This is harsh on Ms Y, who suffered repeated floods over 4 years without, it turns out, having any remedy against the owners of the flat causing the flood. But it is a cautionary lesson that ‘taking reasonable steps’ to abate a nuisance can still fall a long way short of actually abating it without being unreasonable.

After the Teather ‘revenge eviction’ member’s bill was talked out by a couple of Tory MPs, (Chope and Davis), the question was would the proposals survive in another form before the election.

Well today, the DCLG announced the Government’s proposed amendments to the Deregulation Bill – just headed to the Lords before Third reading in the Commons. We assume that Chope and Davis won’t pull silly games with Govt amendments…

The proposals aren’t wholly the same as the Teather version. There are some distinct problems, both practically and legally, but also some additional amendments around s.21 that are of interest.

The substance of the retaliatory eviction amendments are:

Preventing Retaliatory eviction

(1) Where a relevant notice is served in relation to a dwelling-house in
England, a section 21 notice may not be given in relation to an assured shorthold tenancy of the dwelling-house-
(a) within six months beginning with the day of service of the relevant notice, or (b) where the operation of the relevant notice has been suspended, within six months beginning with the day on which the suspension ends.

(2) A section 21 notice given in relation to an assured shorthold tenancy of a dwelling-house in England is invalid where-
(a) before the section 21 notice was given, the tenant made a complaint in writing to the landlord regarding the condition of the dwelling-house at the time of the complaint,
(b) the landlord-
(i) did not provide a response to the complaint within 14 days beginning with the day on which the complaint was given,
(ii) provided a response to the complaint that was not an adequate response, or
(iii) gave a section 21 notice in relation to the dwelling-house following the complaint,
(c) the tenant then made a complaint to the relevant local housing authority about the same, or substantially the same, subject matter as the complaint to the landlord, (d) the relevant local housing authority served a relevant notice in relation to the dwelling-house in response to the complaint, and
(e) if the section 21 notice was not given before the tenant’s complaint to the local housing authority, it was given before the service of the relevant notice.

(3) The reference in subsection (2) to an adequate response by the landlord is to a response in writing which-

(a) provides a description of the action that the landlord proposes to take to address the complaint, and
(b) sets out a reasonable timescale within which that action will be taken.

(4) Subsection (2) applies despite the requirement in paragraph (a) for a complaint to be in writing not having been met where the tenant does not know the landlord’s postal or e-mail address.

(5) Subsection (2) applies despite the requirements in paragraphs (a) and (b) not having been met where the tenant made reasonable efforts to contact the landlord to complain about the condition of the dwelling-house but was unable to do so.

(6) The court must strike out proceedings for an order for possession under section 21 of the Housing Act 1988 in relation to a dwelling-house in England if, before the order is made, the section 21 notice that would otherwise require the court to make an order for possession in relation to the dwelling-house has become invalid under subsection (2).

(7) An order for possession of a dwelling-house in England made under section 21 of the Housing Act 1988 must not be set aside on the ground that a relevant notice was served in relation to the dwelling-house after the order for possession was made.

A ‘Relevant Notice’ is

(a) a notice served under section 11 of the Housing Act 2004 (improvement notices relating to category 1 hazards),
(b) a notice served under section 12 of that Act (improvement notices relating to category 2 hazards), or

(c) a notice served under section 40(7) of that Act (emergency remedial action);

“section 21 notice” means a notice given under section 21(1)(b) or (4)(a) of the Housing Act 1988 (recovery of possession on termination of shorthold tenancy).

Note, not a hazard warning, or an EPA s.80 notice. Nor an early notification letter from a legal representative, or service of an expert’s report under the pre-action protocol, or anything else one might reasonably regard as a trigger event for the landlord having failed to carry out repairs.

So, the process is: tenant writes to landlord or agent (assuming either can be found) giving notice of problem. landlord has reasonable time to sort. If not, tenant complains to Council. EHO inspects. Improvement/remedial action notice issued. At that point, any s.21 issued after the tenant’s written notice becomes invalid, including in ongoing possession proceedings (see (6)).

What this means is not only that an Improvement/Remedial notice is the only way to trigger the ‘invalid s.21′, but that there is a definite timescale – if a possession order has already been made, a subsequent notice by the Council is of no effect in overturning the possession order.

There is an exception for the defect/issue being caused by untenant-like behaviour (which will be fun with mould issues), or where the property is up for sale (with restrictions).

The whole shebang is utterly reliant on Council EHOs reacting and serving notice within the ‘section 21 notice period and possession proceedings before possession order’ timescale. Say 3 months – but could be less, depending on ‘reasonable period from tenant’s notice and date of service of s.21. This action by the council is crucial.

And of course, tenants will have to know to go to the Council EHOs (and persevere in doing so).

Also, Housing Associations are excepted (why?) and this will, for the first three years, only apply to new ASTs after the Act to be is in force. This latter puzzles me, as service of a s.21 after the commencement date would not be retrospective legislation. Does the DCLG want to give landlord a chance to retaliatorily evict their existing tenants?

The other interesting bits are a ban on service of a s.21 with the first 4 months of an AST and a provision that:

21A Compliance with prescribed legal requirements

(1) A notice under subsection (1) or (4) of section 21 may not be given in relation to an assured shorthold tenancy of a dwelling-house in England at a time when the landlord is in breach of a prescribed requirement.

(2) The requirements that may be prescribed are requirements imposed on landlords by any enactment and which relate to-
(a) the condition of dwelling-houses or their common parts,
(b) the health and safety of occupiers of dwelling-houses, or
(c) the energy performance of dwelling-houses.

(3) In subsection (2) “enactment” includes an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978.

(4) For the purposes of subsection (2)(a) “.common parts” has the same meaning as in Ground 13 in Part 2 of Schedule 2.

(5) A statutory instrument containing regulations made under this section is subject to annulment in pursuance of a resolution of either House of Parliament.

So, we shall see what, if anything, turn out to be prescribed requirements.

There is a further provision for a requirement for provision of information to the tenant by the landlord, such as may be prescribed by regulation. Again, we shall see.

And I can’t resist – given that the RLA maintain their ridiculous claim about already existing defences to a s.21 possession claim, despite it being dismantled – pointing that the RLA put out a press release claiming that the Govt amends meant that a s.21 notice was invalid if served after a tenant had made a repair complaint. The RLA really do have an interesting approach to legal analysis.

Anthony Aquilina v Malta 11/12/14

This is the latest in a line of judgements from the ECtHR dealing with rent control and Article 1 of Protocol 1 (see previous reports here and here).

Mr A was the owner of a property in Malta, which he had inherited from his parents in 1984. Mr A’s mother leased the property to a couple in 1970 and the rent payable for the property was capped at a level which was substantially lower than the level that could be obtained on the open market. A court-appointed architect valued the market rent at 2,900 EUR p.a., whereas the rent payable was only 382 EUR p.a. (or 13%).

The national courts dismissed Mr A’s application and on 20/12/2011, he petitioned the Strasbourg Court. The question for the Court was whether the national legislation struck a fair balance between the interests of the general community and Mr A’s fundamental property rights. The Court noted that only 2% of the Maltese population requested assistance with social housing, the Government had provided no information on the numbers of tenants who still benefited from protected rents, the Maltese minimum wage had increased from 1979, when rent controls were introduced, the tenants in question were spending a only a small fraction of their yearly income on rent and it was only possible for Mr A to recover possession where there had been a breach of the tenancy agreement. The Court therefore found that a disproportionate and excessive burden had been placed on Mr A, who was forced to bear the social and financial costs of supplying affordable housing to his tenants.

The Court awarded damages of 14050 EUR and costs.

 Akhverdiev v Azerbaijan 29/1/15

On 8/10/05 Mr A acquired ownership of a property in Baku, Azerbaijan. On 14/5/04 the Baku Executive Authority issued an order granting permission for the design of a commercial and residential complex on land of which Mr A’s property was part. Towards the end of 2009, Mr A was asked to relocate to a 5 room flat which had been built over a relocated cemetery. Mr A refused, arguing that there was no lawful basis for the demand. Mr A and his family were forced to move out because of the surrounding construction works and the property was demolished in December 2009.

The national courts dismissed Mr A’s claim for compensation, finding that he had been ‘compensated in kind’ by virtue of the offers of alternative accommodation.

The ECtHR found that the expropriation was not in accordance with the law and that Mr A had been unlawfully deprived of his possessions under A1P1. It was surprising that the Authority had asserted Mr A’s right to ownership of the property a year after the order which, the Government claimed, provided the authority to expropriate it. Furthermore, the order was merely in the form of a permission to a private developer and there was no formal notification to Mr A of the legal basis of the proposals. Furthermore, the Authority appeared to have no jurisdiction to make an expropriation order and the Housing Code upon which the offer of compensation was made was inapplicable.

The Court reserved its decision on just satisfaction.

[NB this case is to be compared with another recent case, Saghinadze v Georgia, where the Court accepted the governments proposals for relocation of the applicant to accommodation which provided living space similar to that which the applicant and his family occupied previously, plus 3000 EUR in pecuniary damages]

Stolyarova v Russia 29/1/15

Ms S became the owner of a flat in Moscow on 17/3/05, which followed a series of transactions later impugned by the Moscow housing department as improper and unlawful (namely there had been an exchange of flats after one of the parties had in fact died). Ms S argued that she was the bona fide purchaser of the flat and she contested the department’s application to rescind her title to the flat and to have her evicted. The national courts granted the department’s application and Ms S petitioned the ECtHR.

Notwithstanding the government’s argument that States enjoyed a wide margin of appreciation in taking steps to preserve their housing stock, The Court found a violation of A1P1. It was not for a bona fide purchaser to pay the price for inadequate supervision by the State of earlier transactions. The State must assume full responsibility for its errors and Russia failed to strike a fair balance between the public interest and Ms S’s property rights.

The Court also found that the interference was not necessary in a democratic society under Article 8 and it makes the following interesting observation (at para.61):

The Court observes that the applicant’s home has been repossessed by the State, and not by a private party whose interests in the flat would have been at stake (see Orlić, cited above, § 69). Insufficient details were given about the intended beneficiaries allegedly on the waiting list for social housing to allow the Court to weigh their personal circumstances against those of the applicant. In any event, no individual on the waiting list would have had the same attachment to the flat as the applicant; nor would he or she have had a vested interest in that particular dwelling, as opposed to a similar one.

This suggests that there are cases (although perhaps only where private ownership rights are at stake) where the State is expected to particularise the intended recipients of social housing.

Russia was ordered to restore Ms S’s title to the flat and to pay her 7500 EUR in non-pecuniary damages, plus costs.

As well as the clauses introducing the retaliatory eviction proposals, the Government’s proposed amendments to the Deregulation Bill would make some other changes to s.21. The effects would be:

No s.21 notice can be served within the first 4 months of the shorthold tenancy, thus ending the all too widespread practice of serving a s.21 at the time the tenancy agreement is signed (though I’d still say that was probably caught by the deposit rules). The proposals also make clear that possession proceedings cannot be begun before 6 months from the start of the tenancy (that disposes of an idea some bright spark landlords had, that it was OK to start proceedings before 6 months so long as the possession order was made after the 6 month date).

The codification of Spencer v Taylor in removing the need for a s.21 notice to specify the exact date of the end of a period of the tenancy (not, as the DCLG notes wrongly have it ‘the exact date a tenancy comes to an end’).

A prescribed form of s.21 notice which must be used, with an information pack for the tenants.

A ban on serving a s.21 notice when the landlord is in breach of ‘a prescribed requirement’. The ‘requirements':

A short Upper Tribunal decision has put an end to bedroom tax appeals based on the ‘part-time’ residence of a child of a separated family with shared care.

MR v North Tyneside Council and Secretary of State for Work and Pensions (Housing and council tax benefits : other) [2015] UKUT 34 (AAC)

The FTT in this case had found that the tenant was entitled to an ‘extra’ bedroom, as under a shared residence order, her son spent alternate weeks with her. The father received the child benefit and child tax credit, though in practice this was split. The FTT ‘treated ‘dwelling’ and ‘home’  in regulation B13 as undefined ordinary words’ and so found the son was dwelling with both parents.

The Upper Tribunal found that Regulation B13(5) – ‘occupies the dwelling as their home’ had to be read in the context of the Housing Benefit Regulations overall.

“Regulation 7(1)(a) is part of that context. It provides that ‘a person shall be treated as occupying as his home the dwelling normally occupied as his home … by himself and his family’. Section 137(1)(c) of the Social Security Contributions and Benefits Act 1992 defines ‘family’ as ‘a member of the same household for whom that person is responsible and who is a child’. This leads to regulation 20(2)(a), which provides that when ‘a child … spends equal amounts of time in different households … the child … shall be treated … as normally living with the person who is receiving child benefit in respect of him’.”

As a result, the child could only be treated as occupying the home where child benefit was received in respect of him. This was fatal to the tenant’s case. DWP appeal allowed and the 14% one room deduction was re-applied.

I recently found myself reading and writing about the Court of Appeal judgement in Edwards v Kurasamy (our report here). Doing so made me think about the recent spate of judgements given by Lewison LJ that have touched on the private rental sector. I am thinking here of Spencer v Taylor (which we analysed here), Charalambous v Ng, and now Edwards v Kumarasamy. (our report). All of these are cases that touch primarily on the Private Rented Sector and all of them feature leading judgements by Lewison LJ. These are not of course the only big PRS cases to come from the CoA recently so I am not suggesting that Lewison LJ is the only CoA judge dealing with the PRS (see McDonald v McDonald for example) but he does seem to be getting a healthy majority right now.

There are notable parallels in these judgements:

• They were fairly controversial
• They all involved a return to the statute and a tight reading of it
• They upset received wisdom about what the provision meant.

To throw in my own piece of controversy I also think every one of these decisions was absolutely correct. Not correct in a moral sense or even correct on the sense that this is what was intended all along but undoubtedly correct in that they give a precise reading of the statue and must therefore be seen as an accurate reflection of the will of Parliament. The fact that they caused surprise and upset is perhaps more a reflection of the manner in which housing lawyers (and I include myself in this critique) have become complacent in their reading of the law.

Consider the evidence more carefully.
In Spencer Lewison engaged in a close reading of s21(1) and 21(2), Housing Act 1988. He concluded that s21(2) used the word “may” and therefore must on a plain English reading be seen as permitting the service of a notice under s21(1)(b) rather than directing it. He then looked at s21(1)(b) and again reading it plainly concluded that it in no way prevented the service of a notice provided that there had previously been a fixed term tenancy of some sort. Notably this was not how the case had been argued before him and differed somewhat from previous readings but he drew support from this material and used it to bolster the essential close reading of the Act. This decision has been criticised but notably primarily on the basis of policy and on what Parliament is assumed to have intended more than on the actual wording of the Act.
In Charalambous we had a close reading of s213 and particularly s215, Housing Act 2004. Here a diasctintion was drawn between the financial penalties fund under s213 and the s21 penalties under s215. Lewison LJ made clear that the penalties under s215 bite on this case because they plainly state that they required the registration of a deposit before service of a notice under s21. Again the intention of Parliament was raised but dismissed as a point in the face of the cold wording of the Act. It is worth noting paragraph 17 of this decision in which Lewison LJ begins:

Let me begin by looking at what section 215 (1) actually says.

No clearer statement of his approach to these cases could be made by me.
In Edwards Lewison’s attention was turned to s11, Landlord & Tenant Act 1985. By this stage we should have been expecting it. But actually Lewison LJ tells us again how he is reading these statutes. In dismissing an argument put to him he states that he “cannot find it in the words of the statute”. Again, no clearer statement of his approach is required. And so we find that a landlord’s repairing obligations extend beyond that which he has demised to the tenant and into any part in which he has a property right and further that outside the ambit of the demised property a tenant is not obliged to give notice to the landlord of a want of repair.

Lewison LJ appears not to be the only judge doing this. Consider Superstrike v Rodrigues (our report here) in which Lloyd LJ gave the leading decision (although Lewison LJ was on that panel too and may well have had an influence). There the word “received” in s213(1) of the Housing Act 2004 was given a very plain reading. Lloyd LJ concluded that this meant any receipt of money in respect of security whether as a direct payment or by way of transfer from one contract to another. Not as clear an example as those given above and without the very direct flags given by Lewison LJ but still with a similarity of approach.

So what does this mean for housing law?
It is a concern that these cases have come up recently. It leads me to the conclusion that I have been lazy! Essentially residential landlord and tenant lawyers have stopped looking closely at the legislation and simply become parrots of received wisdom. In the terms of an Americanism that I heard recently we have been “drinking the Kool Aid”. If there are three or four areas in which we are wrong as to what the law says then there are likely to be more. The second point is that the CoA here appears to be looking at the legislation without considering the policy issues and largely avoiding the Hansard as an aid to interpretation unless the wording of the Act is very unclear. Is this the start of a new trend in the CoA? If so then lawyers approaching them had best make sure they know what the relevant Act really says rather than what they think or want it to say.

I expect there will be more surprises to come in 2015. I know I will be looking at the core legislation that I previously thought I knew to make sure I am right!

Yesterday, the Welsh Government published the Renting Homes (Wales) Bill.  The Bill seeks to implement the Law Commission’s Renting Homes Bill, with some major amendments partly reflecting the devolution settlement (ie what can be done) and partly to update the Bill.  There are also some rather interesting and slightly more subtle alterations in the Welsh Bill.

With the publication of this Bill, it is becoming more apparent how the devolved governments are putting the failure of the Westminster government to deal properly with renting housing in to sharp focus.  The “no more red tape” nonsense that is randomly distributed by English housing ministers is intellectually and practically incoherent, when so much basic law remains up for grabs – see, for example, David Smith’s blog post about plain English.

Anyway, back to Wales.   The Bill is also a little controversial – on the one hand, registered social landlords [this is Wales, where RSLs are RSLs and not PRPs] will lose Ground 8; on the other hand, private rented sector tenants will lose the six month moratorium on their landlord obtaining possession.  Both are, actually, imho completely understandable but they remain controversial.

The real purpose of the Bill is to simplify, pretty dramatically, both the law and the vast array of housing tenures currently in existence.  There are generally to be only two types of “occupation contract”: secure (which it is presupposed will be granted by “community landlords”, ie local authorities and RSLs), and standard (which it is presupposed will be granted by private landlords, and modelled on the AST).  There are only a few exceptions to this new, much simplified regime, unlike the various types of tenancy excluded from the current statutes.  Equally, the new regime extends to all occupation contracts, including licences to occupy.

Rather than the statute and common law reading terms in to the agreement, the whole purpose of Renting Homes is that the occupation contract will provide all the terms in writing (failure to provide a written statement is subject to a penalty).  Certain terms are prescribed on the face of the Bill as having to be included in that written contract (fundamental terms); certain terms will be prescribed in secondary legislation (supplementary terms); and the parties are, of course, entitled to specify their own terms (additional terms).  Although some of the fundamental terms and all the supplementary terms are capable of amendment, the reason for using them as they appear is that they are deemed to comply with the consumer regs.

The major innovations lie in the following provisions regarding fitness for human habitation; ending joint tenancies; abandonment; rights of review; supported housing; prohibited conduct standard tenancies; variation of terms; and retaliatory evictions.

However, the Bill will be controversial not necessarily for those innovations but because of getting rid of the six month moratorium and Ground 8 for community landlords.

As regards the latter, the decision is understandable both as a matter of theory as well as a matter of practicality.  As a matter of theory, it has always struck me as being odd that a social landlord can rely on a two month arrears provision as a mandatory ground for possession.  As a matter of practicality, few social landlords tend to rely on it as a ground for possession, although they may use it as an effective debt collection tool, but there are other methods available to them.  Further, I have always been less convinced that, if one talks to RSL lenders, they really care too much if at all about the mandatory ground for possession, as opposed to the solvency, business planning and risk management of the RSL.

The six month moratorium appears harder to explain on the surface, and Shelter are conducting a campaign to reinstate it.  My sense, though, is that reading the Bill and the previous Law Commission work, there is a rationality to dropping it as well as a significant number of quid pro quos.  The rationality is that losing the six month moratorium enables the Bill to have much broader coverage across tenancy types leading to greater coherence and structure.  Next, it is likely to facilitate landlords wishing to let properties for the short term, so as to contribute to the revival of the sector.  Third, it is assumed, as basic economics, that most landlords are likely to retain the current length of term so as to ensure that their income stream remains in place, and that they do not lose money with a turnover of occupier.  Fourth, there are the various protections in the Housing (Wales) Act, including the homelessness provisions (which are not affected by this Bill).

Then there are the quid pro quos as to the state and condition of the property, and retaliatory eviction.  Here, I think that the Welsh Government has been pretty bold – effectively, section 8, Landlord and Tenant Act 1985, which is a dead letter because of the low rent levels, will be given full effect by removing the rent levels (h/t to S); the retaliatory eviction provision offers rather better protection than the one suggested by DCLG and critiqued by NL.

Actually, I think that the most interesting provisions are those relating to supported housing.  These seek to provide some structure to the provision of supported housing occupancy agreements which, frankly, does not exist at the moment, and about which there is an imbalance between provider and occupier.  The Bill goes some way to meeting those concerns, although not as far as the original Law Commission Bill.

The publication of the Bill represents a major h/t to Martin Partington, who led the Law Commission project,  and to  Richard Percival (who can be named as he is now an academic) and Helen Carr, who worked on the Law Commission project tirelessly, as well as to various Welsh civil servants (who cannot be named) and housing ministers (too numerous to mention).

• I am tempted to write “for the short term”

There must be times when Court of Appeal judges think that they have bit parts in an ongoing drama – they have a walk on role.  And that must be how the Court felt in Sanneh v SSWP and others [2015] EWCA Civ 49, which concerns the eligibility rules for Zambrano carers of a raft of social assistance benefits.  Leading QCs and junior barristers appeared on all sides in a right ding dong that is bound to end up at the Supreme Court, which almost certainly will refer the issues to the CJEU.  It also provides a glimpse of how the recent, potentially contradictory, judgments of the CJEU in Brey and Dano are, or might be, treated (although it looks like the UKSC will have the next bite of those rather earlier, in the Mirga and Samin appeals in March) and the question of the ambit of “social assistance”, which in itself is not uninteresting, is also raised, but parked by the CA, in these appeals ([84] – note: this is an important point for the future).

In short, it’s all going on in these appeals.  Eligibility is, of course, difficult enough without Zambrano carers, but they make it even more difficult.  In essence, a Zambrano carer is a person from a non-EU state whose residence is required in order to enable a child, who is an EU citizen, to exercise their (ie the child’s) treaty rights.  As they say in Captain Underpants (my youngest’s favourite book), keep up now.  Zambrano carers were made ineligible for most forms of social assistance and homelessness assistance by SIs in 2012.  The question in these appeals was as to the lawfulness of those regulations.

There were four main questions: when does the Zambrano carer status arise? Does it confer any rights to social benefits? If the rights are different to EU citizens, does that difference breach the principle of non-discrimination? And, did the Secretary of State properly take in to account the public sector equality duty in making the regulations?

For most of us mere mortals, my best advice is to start reading this case by reading Elias LJ’s short judgment, which begins at [165] (I kid you not).  He savages (that’s the only word for it, really) the Secretary of State’s position on the first question.  The SoS’ argument was that Zambrano status only arises at the point at which the carer’s removal from the UK is imminent.  If that was right, then their entitlement only arises at that point.  Arden LJ labours over her answer to this point in endless paragraphs, but Elias LJ just wholly rejected it  as “barely coherent” and regarded it as “bizarre”.  I have to agree.  The only proper basis for the SoS’ position is something akin to the tolerated trespasser – the implication from their continued residence in the UK is that they are tolerated but have no right to do so and, further, commit a criminal offence in so doing.  The only proper answer to the first question is that the right arises when the caring obligation begins or when the carer’s leave to remain ends (what Arden LJ describes as the “first date”).

However, that does not mean that they are entitled to social assistance.  Here, Arden LJ draws on Baumbast to argue that the nature of Zambrano carer’s rights are not exceptional nor unprincipled but part of what she terms the “effective citizenship principle”, viz that the child would be deprived of the genuine enjoyment of their citizenship rights by having to move from the UK.  Nevertheless, the Zambrano carer gets their rights not from the Citizenship Directive (2004/38) but from Article 20, Treaty for the Functioning of the EU – a non-discrimination provision.  Here the SoS had a point.  If that was the correct analysis, then “there is no basis in that scheme for holding that the Zambrano carer has a right to receive social assistance, the Zambrano carer cannot claim a benefit under it.  In the case of EU citizens it is exhaustive of EU law rights and any further right can only be found in national law” ([79]), a finding consonant with the CJEU’s analysis in Dano.

The question then was whether the SoS’ frankly unpleasant argument that the carer was not entitled to assistance was correct.  Here, the court disagrees but only to the extent that the carer is entitled to basic support, such as that provided under s. 17, Children Act 1989.  As Arden LJ put it, “The law must here be interpreted in the real world and freed from the shackles of unreality.  The need to find that someone will be forced to leave the UK is therefore equivalent to saying that the Zambrano carer and the EU citizen child must not be left without the resources which are essential for them to live in this jurisdiction” ([90]) and

In those circumstances, in my judgment, the effective citizenship principle must be taken to mean that the member state will not undermine the right to reside of the Zambrano carer conferred by EU law by failing to meet the basic needs of the Zambrano carer.  These needs of course include the need to be able to care for the EU citizen child. [91]

The question, then, was whether this was proportionate, a position which Brey suggests requires an individual assessment.  Arden LJ distinguished Brey, however, on grounds which may come back to bite, because, in her view, as they have no citizenship rights, the EU principle of proportionality does not apply (even if it did, she would have accepted that it was proportionate: [98]).  Instead, all that is required is basic support, and although concerns were expressed about the sufficiency of s.17 assistance, “this court is not in a position to determine that the basic support test is not met” ([95]).  Further, there was no requirement for an individual assessment.

We then move on to the third question – the non-discrimination issue – which, bearing in mind the findings on the first two points was not going to go well for the carers.  Richard Drabble QC made the really important point that it isn’t really about the carer but about the child: “EU citizen children of Zambrano carers are treated differently from other EU citizen children in the United Kingdom.  Their family life is adversely affected” ([113]).  However, that was batted back with the observation that EU law permits reverse discrimination (ie treating your own nationals less favourably).  Thus, we are back in Article 14, ECHR territory and one could not say that the policy was manifestly without foundation.

On the final question, that of the public sector equality duty, the Court invoked the principle that the duty is sensitive to the particular context.  The context here was that carers were granted rights by the CJEU that they did not have previously; removing those rights to social assistance and restoring the status quo involved no change of policy.

Finally, the court has an extended riff on whether, despite their judgment, they should refer it to the CJEU.  There are some interesting observations here on the acte clair principle.  Arden LJ says that the non-discrimination argument and Brey fact-specific proportionality arguments are not acte clair, but she refuses to refer because that would be to divorce those issues from the others in the case and the argument that carers have better rights than economically inactive EU citizens (who, currently, are not entitled to claim benefits) would make EU law internally inconsistent and incoherent, and so unlikely to find favour with the CJEU.  Elias LJ would also not refer in the circumstances, and said “Although I would not personally go as far as to say that the position is acte clair, if only because the Zambrano resident is a judicially created concept of uncertain scope, that is debatable” ([172]).

But, imho, it won’t be long before these issues and more are referred.

A brief note on Hussain v LB Waltham Forest [2015] EWCA Civ 14, which concerns the definition of ‘other violence’ in s.177(1) of the Housing Act 1996.

In Yemshaw v LB Hounslow [2011] UKSC 3, the Supreme Court held that ‘violence’ under s.177(1) included behaviour which fell short of actual physical contact with the victim. The question in Hussain was whether there was any difference between ‘domestic’ and ‘other’ violence under that sub-section and whether the judgement in RB Kensington & Chelsea v Danesh [2006] EWCA Civ 1404 , where the Court of Appeal held that non-domestic violence required physical contact, was still good law.

Ms H was a single parent who lived with her daughter in a housing association property. Over a period of time, Mrs H was subjected to anti-social behaviour and harassment from the son of a neighbour,  ranging from racial abuse to threatening gestures and criminal damage. Ms H suffered from depression and the neighbour’s behaviour left her distressed and anxious. She made an application to LBWF as homeless on 12/9/2012 but the council found that it was reasonable for her to continue to occupy her accommodation in Bounds Green. The reviewing officer accepted that Ms H was suffering emotional upset and distress but concluded that the neighbour’s conduct fell short of actual violence or threats of violence that were likely to be carried out.

Underhill LJ, giving the lead judgement, held that there was a single concept of ‘violence’, of which DV was a sub-category. It would be wrong to deprive victims of neighbour harassment of the same protection that has been extended to DV victims and threatening or intimidatory behaviour may come within s.177(1) if it is of such seriousness to cause psychological harm (i.e. harm that is more than passing upset or distress-see paragraph 32). Psychological harm may therefore include a range of conditions and it is effectively a measure of the seriousness of the violence perpetrated against the victim.

The Council’s appeal was therefore dismissed and given the lapse of time since the date of the review decision, the matter was remitted to the Council for a further review to be carried out.

Best, R (On the Application Of) v The Secretary of State for Justice (Rev 1) [2015] EWCA Civ 17

The Court of Appeal considered the clash of s.144 LASPO and the rules on adverse possession, on appeal from the Administrative Court. Our report on the Admin Court judgment is here, and, to be honest, I’m not sure that the Court of Appeal adds much to that judgment. Much the same arguments were rehearsed and much the same conclusion is reached.

On the one hand, the public policy behind adverse possession. On the other, the principle that the courts should not support someone benefiting from a criminal act. And policy, in the form of statutory provisions for adverse possession, wins out, in the absence of anything express in s.144 LASPO to the contrary.

Per Sales LJ

1. In my view, the best guidance on the relevant analytical framework for present purposes is given in the speech of Lord Wilson JSC (speaking for the majority) in Hounga v Allen [2014] UKSC 47; [2014] 1 WLR 2889. In that case, an employee who had been brought from Nigeria by her employer so as to enter the United Kingdom in breach of immigration control, to take up employment here illegally, was then dismissed by the employer. The employee sought to bring a claim for unlawful race discrimination in relation to her dismissal. Her claim succeeded in the employment tribunal, but the Court of Appeal set its order aside, holding that the illegality of the contract of employment formed a material part of the claimant’s complaint and that to uphold it would be to condone the illegality. The Supreme Court allowed the employee’s appeal.
2. In doing so, the Supreme Court confirmed the position arrived at in Tinsley v Milligan [1994] 1 AC 340: the law of illegality does not operate to confer a broad discretion on a court to take any illegal actions on the part of a claimant into account when deciding the extent to which such illegality has an impact upon the relief sought by the claimant. Rather, the task for the court is to identify in the specific context in question a particular rule which reflects in an appropriate way the relevant underlying policy in that area:

And while:

1. […] It could be said that to leave open any scope for the illegality defence to operate in this area would undermine to an inappropriate degree the public policy benefits associated with the adverse possession regimes for both registered and unregistered land, and the legal certainty that those regimes are intended to promote in relation to dealings with land. I observe that the public policy benefits of completely excluding the operation of the illegality principle are especially strong in relation to unregistered land, for which there is no definitive register of title to give assurance to those entering transactions relating to land and no supervising regulator to police title and the operation of any illegality argument. Moreover, since the same concept of adverse possession is employed in Schedule 6 to the LRA (see para. 11 of Schedule 6), it can be argued that these points of distinction should make no difference so far as the operation of the illegality principle in relation to registered land is concerned, so that it might be said that even in respect of registered land it is the position in relation to unregistered land which provides the correct context for application of the public policy balancing test.

This case needed only be decided on a narrower approach to adverse possession and the illegality principle, in relation to the specific illegality of Mr Best’s occupation:

1. […] Although the public policy concerns underlying acquisition of title by adverse possession are very strong, especially in relation to unregistered land, I have some doubt whether Parliament can be taken to have intended the illegality principle to be wholly excluded from having any potential impact whatever in relation to the operation of paragraph 1 of Schedule 6 to the LRA. The difficulty with Mr Rainey’s wider submission is that it covers such an extensive and protean category of conduct that it might be said to be difficult to say, in advance, of every conceivable form of criminally unlawful action bearing upon acquisition of title to registered land by adverse possession that Parliament intended it should have no impact at all upon the operation of the LRA. For example, I would wish to reserve my opinion regarding a case in which a trespasser in occupation of a residential building bribed a police officer not to expel him in reliance on section 144 of LASPOA, thus procuring or participating in an offence of corruption in a public office to gain the benefit of being registered as the proprietor with the title to the land; or a case in which a trespasser murdered the true owner in order to prevent him from claiming possession of the property.

And thus:

1. […]the relevant balance of public policy considerations shows clearly that the fact that a relevant period of adverse possession for the purposes of the LRA included times during which the possessor’s actions constituted a criminal offence under section 144 of LASPOA does not prevent his conduct throughout from qualifying as relevant adverse possession for the purposes of the LRA.

There is an extended discussion on Parliamentary intention in enacting LASPO, and the materials around it indicating that while the interaction with adverse possession has been raised, it had not resulted in a specific provision. The policy purpose of adverse possession is also addressed at length.

Meanwhile, in a short Judgment, Arden LJ finds the same result, but based simply, she states, on the basis of statutory interpretation:

1. […]the true interpretation of schedule 6 of the LRA and section 144 of LASPOA, it is the intention of Parliament that an application for registration of adverse possession should not be barred by reliance on acts in contravention of section 144 of LASPOA. The subject matter is sufficient to exclude ex turpi causa in this instance. The provisions of schedule 6 of the LRA must be interpreted to give effect to that intention. Section 144 and schedule 6 operate independently of each other. Parliament’s decision to enact section 144 in separate legislation reinforces this conclusion. The Registrar was right to raise the questions that he has done. But in my judgment, the ex turpi causa principle is excluded from schedule 6 of the LRA to the extent of any criminal conduct under section 144 of LASPOA.

The Admin’s Court’s decision upheld. Whether on policy considerations, or because LASPO failed to make specific statutory address to the interrelation of s.144 and adverse possession may be less clear…

R(Anon) v LB Southwark (Claim No CO/2035/2014 – settled by consent)

Courtesy of Hansen Palomares Solicitors comes news of this settled Judicial Review of LB Southwark’s gatekeeping practices on homeless applications. It appears, to put it mildly, that Southwark have had a range of what should have been obviously unlawful policies on homeless applications, and even put them into leaflets and their website.

The Claimant (Mr C) is a refugee from Iran. He was granted leave to remain in July 2013, and was joined by his wife and two children. They stayed with friends until 30 January 2014. Mr C approached Southwark as homeless but was simply sent away. He tried again a few days later with a letter from his GP. On this occasion, the family was provided with temporary accommodation of a single room for all 4 of them, for two weeks, because, as Southwark told them, they were expected to find their own private sector accommodation.

After Mr C instructed solicitors, Southwark did accept a homeless application, but Hansen Palomares pursued a judicial review of Southwark’s conduct nonetheless, issuing in May 2014. Mr C was still in unsuitable accommodation and his homeless application was dated over a month after Mr C had approached Southwark.

Southwark’s defence was, in effect, that the policies and practices addressed in the Claim (on which more below) existed but Mr C had suffered no prejudice thereby.

Remarkably, despite Mr C’s immediate issues having been resolved, at an oral hearing in August 2014 the Admin Court decided that it was in the public interest for the claim to proceed.

Why, you might ask, given that the claim had arguably become academic? The Claim and the witness evidence in support set out substantial and documentary evidence of Southwark’s approach to dealing with homeless applications which went far further than the specifics of Mr C’s treatment, and which clearly the Court considered merited a hearing.

The issues raised were:

a). Treating homeless applicants as ‘housing options clients’ for a period (14 days in the case of Mr C) before they would be seen by a homeless caseworker, while telling the applicant to find private sector accommodation. The homeless application would be dated from the interview with the caseworker, not earlier.

b). Southwark’s website set out its ‘Housing Options Service’. On the main page for Housing Options, there was no mention of homeless assistance at all. A link to ‘How can we help you’ lead to a further page giving a number of examples of advice – homeless assistance was sixth in the list. A link on ‘homeless’ lead to a page stating:

“While we will try to help everybody who approaches us as homeless, we can’t provide everyone with temporary or emergency accommodation. If you have nowhere else to go the night you are made homeless, the council may to provide accommodation if you can prove that:

• You are homeless through no fault of your own

• You have lived in Southwark for the last six months or have another strong connection to the borough

• You are entitled to benefits in the UK

• You have children under 18 or you are vulnerable in some way”

Note the ‘lived in borough for 6 months’

c). A number of examples of homeless applicants being sent away without an application being taken because they did not have ‘required documentation’ (Passport, birth certificate, tenancy agreement).

d). Examples of homeless applicants being made to sign up to a ‘housing options action plan’ and no application being taken.

e). Homeless applicants being required to complete an ‘online wizard’ to ‘explore housing options’ No mention of a homeless application was made in the ‘wizard’, nor in the ‘action plan’ it generated.

f). A leaflet given to all homeless applicants called “Housing Options Service” and on the other side “Your Housing Options Guidance – guidance notes”. The leaflet states that an appointment with a ‘filtering officer’ is required before an appointment with a ‘housing options officer’. There is no mention of homeless assistance. The leaflet states that the following documents are required for a housing options assessment (not yet a homeless interview) to be carried out: “proof of identity, proof of homelessness, proof of residence in Southwark, proof of homelessness and proof of income/benefits”. For people without dependant children, 12 months proof of residency was required.

g). Southwark’s form for internal use by housing options officers. This stated:

“Housing option scheme. The Finders Fee Scheme is now available to both single person household and families. If the applicant is not homeless tonight and is unlikely to be homeless within the next 5 days and is eligible for assistance you should advise them of the details of the Finders Fee Scheme at this stage. You should give the applicant a leaflet and they should be advised to go away and find their own accommodation in the private rented sector. There is no need to complete this form any further. […] If you have not advised the applicant about the Finders Fee Scheme or feel that there is something about this household’s circumstances that make them unsuitable for this Scheme, please give your reasons why.”

It should not need to be said that all of these amount to unlawful gatekeeping, individually and collectively. And the documents and website materials were absolutely clear. These could not be explained away as the actions of one officer who had misunderstood matters, or an accidental mis-statement in guidance.

The requirements of s.184 and s.188 have been explored by the Courts often enough. Section 184 states

(1)If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves—
(a)whether he is eligible for assistance, and
(b)if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.

This obligation to make inquiries arises as soon as the LHA has ‘reason to believe’ that the applicant may be homeless or threatened with homelessness. That is from the point that the applicant first presents to them. The point that the application is made cannot be delayed by sending the applicant away to complete an ‘action plan’ or telling them to ‘go away’ with a fee finders leaflet, or providing very short term accommodation under ‘housing options’ before a homeless application is taken.

While the LHA may well require documents as a part of its inquiries, they cannot be a pre-condition for taking the application.

Section 188 states

(1) If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part.

This duty to secure accommodation arises once the low threshold of of ‘having reason to believe’ has been passed. It cannot be delayed until effective completion of s.184 inquiries, or by demanding proof of homelessness, eligibility and priority need.

And of course, there is no possible lawful ‘residence requirement’ of 6 months or a year in the borough. Potential local connection to another borough is a matter that is to be considered in the course of s.184 inquiries.

In view of all of this, it is perhaps surprising, even astonishing, that Southwark continued to defend the claim after the August 2014 hearing. But eventually, it appears, someone involved with the case did figure out that they were likely to lose and lose badly. The consent order settling the claim is here (courtesy of Hansen Palomares) and makes remarkable reading.

Southwark agree to withdraw all the leaflets and policies mentioned above, including the residence requirement, (and also to stop requiring homeless applicants to be unemployed before they were assisted), to include reference to homeless applications in the ‘wizard’, issue new leaflets, retrain housing options staff and, well, comply with the law in terms of taking homeless applications and providing temporary accommodation.

Oh and pay 85% of the Claimant’s costs.

This is remarkable work by Lara ten Caten of Hansen Palomares, and counsel Jamie Burton of Doughty Street. These are exceedingly difficult claims to bring, as individual claimants get their issues resolved and the case risks becoming academic. That internal ‘fee finder’ guidance has been known about in the area for some time, but no cases had got this far that I know of. Putting together a broad, substantiated and solid range of evidence of gatekeeping practices and policy, sufficient to get over the ‘broader public interest’ hurdle is a great achievement.

But, as the housing pressures get worse and worse in London, Councils do continue to adopt gatekeeping practices, in an attempt to minimise the number of people they must accommodate (regardless of the actual duty owed). Southwark were not the first and most certainly won’t be the last.

A quick note to record that the judicial review of the bedroom tax regulations as being discriminatory on the basis that a ‘panic room’ equipped for domestic violence victims was classed as a ‘spare bedroom’ failed. The judgment does not appear to be on Bailii, but a DWP bulletin records the case. Unsurprisingly, the fact that DHP was in payment was key to the Court’s decision. The rest of the note of the judgment is of the now familiar path of ‘discriminatory, but not manifestly without reasonable foundation, and DHP as mitigation’. The Court also suggested that the number impacted would mean ‘micro-managing’ in legislation.

To be honest, the result cannot be taken as a great surprise, given the line of reasoning in previous bedroom tax JRs and in the Court of Appeal in MA. But I understand that the Claimant intends to seek permission to appea, and of course MA & Ors in the Supreme Court could change the whole picture.

That same DWP bulletin contains a ‘clarification’ which helpfully confirms that I was entirely right in my previous criticism of the guidance in HB U6/2014. In fact the clarification so closely resembles my post, I am considering billing the DWP. It contains the glorious ‘clarification’ that:

“It was not intended that HB decision makers themselves would re-designate the property or review the rent levels as it is recognised that this is outside their remit, especially where the landlord of the property is not the LA.”

We don’t usually (indeed ever) repost previous material on NL. But I’m making an exception for this one, because I think it is timely. Flexible tenancies have been in existence for a while in some boroughs and I would expect that it is round about now that possession proceedings for a fault based grounds (rather than the end of the term and non-renewal of the flexible tenancy) would be starting to happen. I haven’t seen any yet, but my local boroughs don’t have flexible tenancies.

So, for tenant advisors and indeed for council landlords, here is a reminder of the high degree of complication involved in ending a flexible tenancy during the term, and the many opportunities for getting it wrong.

As before, this is based on an excellent article in the Journal of Housing Law (Vol 17 Issue 1) by Andrew Dymond of Arden Chambers. His article really should be read – anything of interest in the following is due to him, and any errors are of course my own. (Also, if you are not reading the JHL, why not? It routinely has very good and useful pieces in it.)

The first thing to note is that because a flexible tenancy is not a weekly or monthly periodic secure tenancy, Housing Act 1985  s.82(1), (1A) and (2) do not apply. Instead sections (3) and (4) do.

(3) Where a secure tenancy is a tenancy for a term certain but with a provision for re-entry or forfeiture, the court shall not order possession of the dwelling-house in pursuance of that provision, but in a case where the court would have made such an order it shall instead make an order terminating the tenancy on a date specified in the order and section 86 (periodic tenancy arising on termination of fixed term) shall apply.

(4) Section 146 of the Law of Property Act 1925 (restriction on and relief against forfeiture), except subsection (4) (vesting in under-lessee), and any other enactment or rule of law relating to forfeiture, shall apply in relation to proceedings for an order under subsection (3) of this section as if they were proceedings to enforce a right of re-entry or forfeiture.

So, i) the tenancy agreement must have a provision for re-entry or forfeiture. ii) A possession claim is actually forfeiture proceedings. iii) when an order is made under s.82(3), it terminates the fixed term, but a periodic tenancy arises, via s.86:

(1)Where a secure tenancy (“the first tenancy”) is a tenancy for a term certain and comes to an end—
(a)by effluxion of time, or
(b)by an order of the court under section 82(3) (termination in pursuance of provision for re-entry or forfeiture),a periodic tenancy of the same dwelling-house arises by virtue of this section, unless the tenant is granted another secure tenancy of the same dwelling-house (whether a tenancy for a term certain or a periodic tenancy) to begin on the coming to an end of the first tenancy.
(2)Where a periodic tenancy arises by virtue of this section—
(a)the periods of the tenancy are the same as those for which rent was last payable under the first tenancy, and
(b)the parties and the terms of the tenancy are the same as those of the first tenancy at the end of it;except that the terms are confined to those which are compatible with a periodic tenancy and do not include any provision for re-entry or forfeiture.

This means, I think, that any claim to bring to an end a flexible (fixed term) secure tenancy as a forfeiture claim should also simultaneously be pleaded a claim for possession against the periodic tenancy that arises via s.86 on an order made under s.82(3). I suspect this may not be widely understood.

The grounds for possession are the familiar grounds of Schedule 2 Housing Act 1985, and there are the usual requirements for it to be reasonable to make a possession order and/or suitable alternative accommodation being available. But the notice seeking possession is in a different prescribed form, as per Part II of the Schedule to the Secure tenancies (Notices) Regulations 1987.

And then to the good bits. Remember s.82(4) HA 1985 above?

Section 146 of the Law of Property Act 1925 (restriction on and relief against forfeiture), except subsection (4) (vesting in under-lessee), and any other enactment or rule of law relating to forfeiture, shall apply in relation to proceedings for an order under subsection (3) of this section as if they were proceedings to enforce a right of re-entry or forfeiture.

I suspect not that many housing lawyers, let alone Council housing departments, will be altogether familiar with the enactments and rules surrounding forfeiture. A few quick points…

The forfeiture clause in the tenancy agreement, for rent arrears cases, must specify that the right to forfeit arises ‘whether rent has been formally demanded or not’. If it doesn’t then the landlord must formally demand the rent before the right to forfeit arises on arrears of rent.

Rent arrears claims do not require the additional step of a notice under s.146 Law of Property Act 1925, on which more below. But they are not without perils of their own for the landlord.

The provisions for relief from forfeiture in the County Courts Act 1984 apply.

S.138(2) provides that if the lessee (tenant) pays all the arrears of rent and the costs of the action into court or to the landlord not less than 5 clear days before the return day of the claim (first hearing), then the action shall cease and the tenancy continue without interruption. This is perhaps a little unclear, as forfeiture ends a tenancy on issue of claim – hence the emphasis on ‘without interruption’, but s.82(3) require an order of the court to end the tenancy. Quite what the courts ill make of that remains to be seen, but the best guess is that making the payments in s.138(2) 5 clear days ahead of hearing would stop the landlord obtaining an order ending the fixed term.

But, if this payment of arrears and costs is not made 5 clear days ahead of hearing, then s.138(3) applies. This means an order for possession must give at least 4 weeks before date of possession, and if the arrears and costs are paid within that 4 weeks, the possession order will not take effect. In terms of a flexible tenancy, this presumably (though not certainly) means that the fixed term would be re-instated.

For non-rent arrears claims (e.g ASB, or other breach of tenancy), there must be another step. S.146 Law of Property Act 1925 requires service of a notice, which must:

1. Specify the breach complained of
2. If the breach is capable of remedy, require the tenant to remedy it (no time period needs to be specified but a reasonable time must elapse before proceedings)
3. require compensation in money for the breach (though a failure to require compensation does not invalidate the notice)

This, it is worth noting, is in addition to the Notice Seeking Possession. It is a separate notice.

There is also a requirement, for non-rent forfeiture claims, for a court or tribunal (First Tier Tribunal (Property Chamber)) to have determined that a breach of tenancy conditions has occurred before a s.146 notice can be served (which is 14 days after the date for appeal of the determination has passed). As far as I can see, this would apply to flexible tenancies. So, for instance, a possession claim based on tenant nuisance would require a court or tribunal to have determined that a breach had occurred before a s.146 notice could be served – possibly at the same time as the Part II 1987 regulations notice – and then the possession claim commenced. So, a whole preliminary set of proceedings.

Then there is a whole set of case law on whether nuisance and annoyance is a remediable breach, entirely separate and quite different from the Housing Acts. I’m not going to go into detail here, but this is something people should be aware of.

It is also worth noting the very wide discretion of the court to grant relief from forfeiture under s.146(2):

Where a lessor is proceeding, by action or otherwise, to enforce such a right of re-entry or forfeiture, the lessee may, in the lessor’s action, if any, or in any action brought by himself, apply to the court for relief; and the court may grant or refuse relief, as the court, having regard to the proceedings and conduct of the parties under the foregoing provisions of this section, and to all the other circumstances, thinks fit; and in case of relief may grant it on such terms, if any, as to costs, expenses, damages, compensation, penalty, or otherwise, including the granting of an injunction to restrain any like breach in the future, as the court, in the circumstances of each case, thinks fit.

Again, relief from forfeiture would presumably mean that the fixed term tenancy continued. But if forfeiture is granted, as noted above, a periodic tenancy arises under s.86 Housing Act 1985. So the possession claim must deal with both.

Waiver. Now waiver is going to be an issue! If the law on forfeiture applies, as s.82(4) states, then the common law rules on waiver must also apply.

Once the landlord has elected to forfeit, any action incompatible with the decision to forfeit can (and often does) amount to the landlord having waived the breach. The most common example of waiver would be a demand for, or acceptance of rent after service of a s.146 notice.  So, if there is a demand for, or acceptance of rent by the landlord, in the period between electing to forfeit (service of notice seeking possession and/or a s.146 notice) and the issuing of proceedings, there is an arguable waiver of the right to forfeit.

While in rent arrears cases any payment will usually be appropriated to the arrears, and thus not be taken as an acceptance of post-election rent, it remains the case that a demand for rent – for example, a post-NSP letter demanding payment of arrears and current rent – could arguably be a form of waiver. If the courts do apply the law of forfeiture rigorously, this will present difficulties for the local authority landlord.

S.86 also has a curious effect on the mandatory ground for possession under s.107D Housing Act 1985 (as amended). This is the ground for possession at the end of the fixed term.  But consider the position if the landlord has brought possession proceedings during the fixed term (so not under s.107D), and has either not sought at the same time to terminate the periodic tenancy that arises under s.86, or perhaps the court has terminated the fixed term but made a suspended possession order on the periodic that arises.

The fixed term has been terminated, so s.107D is of no use to the landlord (including all the potential reasons for not granting a further term – earning too much, not being in employment or training etc.). But a periodic secure tenancy has raised by operation of s.86 and has not been terminated. The result is that the tenant has an old style secure periodic tenancy, albeit potentially one with an SPO hanging over it. Perversely, then, the former ‘flexible tenant’ who has faced possession proceedings may be in a rather better position than a flexible tenant who hasn’t.

Overall, there appears to be quite a lot of action in the courts ahead to be had.  Housing lawyers should be doing a crash course in forfeiture, for starters…

Assorted things of note.

The closing date for applications for the Tower Hamlets Law Centre Housing Solicitor post has been extended to 11 March 2015.

Southend have been refused permission to appeal to the Supreme Court in Southend v Amour (our report on the Court of Appeal hearing here). So this is a successful article 8 defence to possession, effectively confirmed by the Supreme Court.

In 2014, Leeds City Council obtained an injunction, applying to the city centre and Leeds City Station, “preventing all persons from sitting or loitering on a thoroughfare or Leeds City Station with any article to be used for begging, such as caps, hats, boxes or similar receptacles.” under s.222 Local Government Act 1972. That injunction has now been discharged, on the basis that it could not actually be maintained against anybody. For more details – and this is a significant case on the use of s.222 injunction powers to effectively make byelaws – see the Garden Court North website.

As a cautionary tale, do not effect a surrender by operation of law of a lease when expecting compensation under a compulsory purchase order. Obichukwu v London Borough Of Enfield [2015] UKUT 64 (LC)

And our friends Charles Henry & Co (the “not solicitors”, aka Legal Action) have also seen more action in the High Court: Law Society (Solicitors Regulation Authority) v (1) Charles Henry & Co (2) Kevin Gregory (2015) QBD (Elisabeth Laing J) 29/01/2015 [not on Bailii. Note on Lawtel]

When last we saw Kevin Gregory, in August 2014, it was the making of a General Civil restraint Order against him. A GCRO against Charles Henry/Legal Action was adjourned. It appears that a GCRO was subsequently made against Charles Henry/Legal Action too, as it is noted in this judgment. As per that previous case, the SRA might not have regulated Charles Henry/Legal Action as a ‘charity’, they were interested in the solicitors recorded as working for them. That interest continues, bolstered by the GCROs. We saw that the solicitors had previously said that none of them really had anything much to do with Charles Henry/Legal Action, honest, but the SRA applied for, and got, a disclosure order against Charles Henry/Legal Action for various documents concerning the solicitors’ involvement in matters (despite a ‘lengthy witness statement’ from Mr Gregory. And we have seen just how opaque that involvement by solicitors could be).

The charity appealed but did not seek a stay and remained in breach. The SRA then sought a disclosure order against Kevin Gregory personally. Mr Gregory put in another witness statement stating variously “that the documents were in paper form only, had been destroyed, were in the possession of clients, or were confidential”. (Uncharitably, I have tended to consider such assertions as the ‘dog ate it’ defence. Which may of course be true, depending on the dog.)

Counsel was instructed for this hearing, so the Defendant was actually there on this occasion. Mr Gregory, via counsel, further argued, variously that:

(1) the statutory test for the making of the order had not been met;
(2) he could not be joined to proceedings which had been concluded;
(3) in respect of each file sought the SRA had to show what misconduct was alleged and the roles played by the solicitors;
(4) the order would breach his art.8 rights as files were sought in respect of cases in which he was the claimant;
(5) the SRA was unable to establish that the files were in his possession, custody or control.

This did not go well. The Court held:

(1) The statutory test had already been made out against the charity at the previous hearing. There had been no change in circumstances. The practice manager had been involved in the unmeritorious actions in respect of which the SRA was seeking documents. Mr Gregory’s first witness statement had contained irrelevant matters which gave the court cause to doubt the statement’s reliability. His second statement night have been shorter but wholly ignored the fact that an order had already been made.
(2) The proceedings would not be at an end until the order was complied with and the SRA had received the documents it sought.
(3) It was sufficient under the Solicitors Act 1974 s.44BB that the SRA had a general concern that the three solicitors had not supervised litigation conducted by the charity and the practice manager, and that GCROs had been made against the charity and practice manager while the solicitors were practising at their office.
(4) While there would be an interference with Mr Gregory’s Art 8 rights, such interference was taken into account by the statutory scheme, which involved a balancing exercise between the public’s interest in the investigation of solicitors’ misconduct and their art 8 rights. Requiring disclosure of the files was not therefore disproportionate.
(5) Mr Gregory’s second statement was vague and only referred to paper files. It could not be the case that there were only paper files in this day and age.

A disclosure order was made against Kevin Gregory.

We await the next instalment breathlessly, but as ever must note that ‘Legal Action’ has nothing at all to do with the estimable Legal Action Group.