Tenancy News

Westminster Council have long had a problem with homelessness. I’m sure you will recall the Westminster Council’s housing leader’s letters to Grant Shapps of last year, imploring him to let them discharge duty by offering an out of borough private tenancy. Then there was Westminster’s prediction that homelessness from private accommodation would double as a result of the coalition’s housing benefit proposals.

Now Westminster have come up with a rather different solution to the problem of street homelessness and rough sleeping. Under a proposal now out for consultation, Westminster intend to ban it. Draft bye laws ban ‘lying down’, ‘sleeping’ and ‘depositing bedding’ in an area of Westminster around Victoria, down to Vauxhall Bridge Road and over to Buckingham Place and Birdcage Walk. And, for good measure, ‘distributing free food’ would also be banned, a move aimed directly at soup runs. On summary conviction, the rough sleeper or soup kitchen volunteer would be fined.

Pubs would still be able to give away nuts outside, apparently, which is nice.

Westminster generously observe that this would not prevent people from sleeping rough ‘elsewhere in London’, even ‘elsewhere in Westminster’ (although probably not for long?).

We await Grant Shapps reaction with interest. While I may well have considerable doubts about large swathes of Mr Shapps policies, it has to be said that he has long held a principled view that street homelessness was under recorded, and was not being approached adequately. In office, he has taken steps on changing and improving the recording of street homelessness. For that he should be applauded. Now, does Westminster’s contemptible, mean minded, short sighted, and pointless act of street cleansing appeal to the minister?

One also wonders, should the proposed byelaw go through, exactly how long it would be till it faced a challenge in the Admin Court.

* For those whose history of 18th century Russia is a little rusty, see here. There are mutters that the forthcoming formal broadening of the Royal gene pool may have something to do with Westminster’s proposed social OCD. No cardboard or sleeping bags to sully the royalist tourists’ views of London. That seems a little petty for such a vindictive little bit of local legislation.

We noted Craftrule Ltd v 41-60 Albert Palace Mansions (Freehold) Ltd when it was in the High Court (see our note, here). I won’t repeat our earlier note – it’s basically about what it means to be a “self-contained part of a building” under s.3, Leasehold Reform, Housing and Urban Development Act 1993 (collective enfranchisement; though it’s also relevant for those doing Right to Manage work under s.72, Commonhold and Leasehold Reform Act 2002). The Court of Appeal has now upheld the decision of the High Ct ([2011] EWCA Civ 185). There is no requirement that the smallest possible “part of a building” be enfranchised, so, on the facts of the case, a building of 20 flats was still a self-contained part of a building, notwithstanding that it was also possible to constitute it as two self-contained parts of 10.

Hounslow v Powell; Leeds v Hall; Birmingham v Frisby [2011] UKSC 8

[This is probably a work in progress. There may be further additions and comments as people get a chance/have a brainwave. We've also ended up writing this as something of a tag team. Chief did most of it and starts us off.]

Sometime ago Dave opened the door to Tarantino references in relation to the vexed issue of Art.8 of the ECHR and possession proceedings. In his post on Zehentner v Austria he pointed out that, just as American hitmen consider that European fast food chains do certain things rather differently, so the appellate courts in England and Wales had viewed the approach of the European Court of Human Rights with bemusement. The latest decision of the Supreme Court on this subject is an unmissable opportunity to consider another famous moment from Pulp Fiction.*

Furthermore, you have written in in your droves [cough splutter - NL] praising our innovative and revolutionary roundtable writing approach to these cases (as seen with Kay v UK and again with Manchester v Pinnock) so we have rolled it out again. Buckle up, it’s going to be a bumpy ride.

Back in Doherty v Birmingham [2008] UKHL 57; [2009] 1 AC 367 Lord Hope said at [20] that:

“I am not convinced that the Strasbourg Court—which did not hear oral argument in McCann —has fully appreciated the very real problems that are likely to be caused if we were to depart from the majority view in Kay in favour of that of the minority. The proposition that it would only be in very exceptional cases that an applicant would succeed in raising an arguable case which the Strasbourg Court adopted in [54] of its judgment appears to set a high standard, one that will be hard to achieve. But it suffers from a fundamental defect which renders it almost useless in the domestic context. It lacks any firm objective criterion by which a judgment can be made as to which cases will achieve this standard and which will not. Unless parameters or guidelines are set down, the judgment in each case will be a subjective one. Every solicitor who is asked to advise an occupier will have to consider whether it is arguable that the decision to seek his eviction was not proportionate. If he decides to raise this argument the court will have to examine the issue. The whole point of the reasoning of the majority was to reduce the risks to the operation of the domestic system by laying down objective standards on which the courts can rely. I do not think that the decision in McCann has answered this problem. Until the Strasbourg Court has developed principles on which we can rely on for general application the only safe course is to take the decision in each case as it arises.”

Although the ECtHR has in a number of cases repeated its insistence that anyone at risk of losing their home should be able to have the proportionality of that measure determined by an independent tribunal, and it may be that from the facts of those cases it is possible to start drawing together some pointers towards objective criterion, it does not appear (to me at least) that principles for general application have yet been established by the ECtHR.

While the Supreme Court accepted in Manchester v Pinnock [2010] UKSC 45; [2011] HLR 7 that the time had come to welcome proportionality into possession proceedings with open arms and a nice piece of pie, Lord Neuberger MR noted that:

“57. The implications of article 8 being potentially in play are much more significant where a local authority is seeking possession of a person’s home in circumstances in which domestic law imposes no requirement of reasonableness and gives an unqualified right to an order for possession. In such a case the court’s obligation under article 8(2), to consider the proportionality of making the order sought, does represent a potential new obstacle to the making of an order for possession. The wide implications of this obligation will have to be worked out. As in many situations, that is best left to the good sense and experience of judges sitting in the County Court.

“59. The conjoined appeals in Salford City Council v Mullen [2010] EWCA Civ 336, which are due to be heard by this Court later this month, involve possession orders made in different and more common circumstances … Those appeals may therefore provide a more appropriate vehicle for the giving of general guidance. … In the light of our decision in the present appeal the lawyers preparing for those appeals will have the opportunity to give particular attention to these aspects of the matter.”

The reference to Salford v Mullen is a reference to the cases considered in the current judgment of the Supreme Court. Last week in anticipation of the Supreme Court’s decision we expressed the hope that these cases would allow us to look inside proportionality.

Therefore, by the time we come to the judgment in Hounslow v Powell, we have reached the point where the Supreme Court has (to borrow from Vincent in Pulp Fiction)** “gotta have an opinion“*** on general guidance and principles for general application.

No Security

While Pinnock concerned one, rather rare, situation where the occupier does not have security of tenure, these appeals concerned two far more common situations. The first is tenants under introductory tenancies (Housing Act 1996, Pt.5). In the course of our introduction to the Supreme Court’s decision in Pinnock, the introductory tenancy scheme was explained as a way of understanding the demoted tenancy regime. To spare you, dear reader, from having to click into another window and to spare my poor typing fingers, I will lazily copy-and-paste:

ITs were brought in by the Housing Act 1996, as a means of tackling anti-social behaviour. They operated as a form of probationary tenancy – indeed the 1995 consultation paper produced by the DoE was entitled ‘Anti-social Behaviour in Council Estates: A consultation paper on probationary tenancies’. Part 5 of the HA 1996 was designed to “enable authorities to deal more effectively with any tendency on the part of new tenants to engage in anti-social behaviour which emerged during the first 12 months of the tenancy … the nub of the scheme is that (provided the authority followed the correct procedures as laid down in the Housing Act 1996 for terminating an introductory tenancy), under section 127(2) of the Housing Act 1996, the county court is obliged to make a possession order.” (Waller LJ at [11]-[12] in R (McLellan) v Bracknell Forest BC [2002] QB 1129). If the procedure (including an internal review) has been carried out an authority’s decision can only be challenged by way of judicial review, see Manchester CC v Cochrane [1999] 1 WLR 809. Cochrane predated the coming into force of the Human Rights Act 1998, but in McLellan the CA held that the IT scheme was compatible with art.6 of the Convention.

Clearly, the decision in Pinnock meant that things had moved on since Cochrane and McLellan.

The second situation, and again one that is statistically far more significant than demoted tenancies, is where local housing authorities grant tenancies pursuant to their duties to the homeless (Housing Act 1996, Pt.7), which are excluded  from security by Sch.1 of the Housing Act 1985.****

Facts

From our note on the Court of Appeal decision in these cases you will remember that there were originally five cases joined together. One of them fell by the wayside (Manchester v Mushin), while another has been granted PTA to the Supreme Court, but has been stayed pending the outcome of these cases (Salford v Mullen – the lead case in the Court of Appeal, somewhat bizarrely as Salford weren’t even represented there).

The three cases that were before the Supreme Court were therefore Hounslow v Powell (a homelessness case where rent arrears had accrued, but full HB was now in payment); Leeds v Hall (an introductory tenancy case where Mr Hall had been accused of noise nuisance, threatening and intimidating behaviour and being verbally abusive towards his neighbours); and Birmingham v Frisby (another IT case, this time where Mr Frisby had been accused of noise nuisance and abatement action had been taken under Environmental Protection Act 1990).

Issues

The leading judgment was given by Lord Hope. This might provide a clue to seasoned observers about whether a wide or a restrictive approach would be taken to Pinnock. Lord Hope identified four issues:

1. What is the form and content of the proportionality review that Art.8 requires?
2. What procedural protections are implicit in Art.8 in homelessness cases before service of a notice to quit and after service but before possession proceedings are commenced?
3. Can the court defer the delivery of possession for a period in excess of the maximum permitted by s.89 of the 1980 Act if it considers that it would be the proportionate course to do so and, if not, should there be a declaration of incompatibility?
4. Can s.127(2) of the 1996 Act be read compatibly with the introductory tenant’s Art.8 Convention right so as to allow him to defend a claim for possession on the grounds recognised in Manchester v Pinnock, or must there be a declaration that section 127(2) is incompatible with the Convention right?

Preliminary – applicability of Art.8

The fact that Lord Hope identified these as the issues will have already told you the answer to what I would describe as the first, almost preliminary, issue – namely whether Pinnock meant that proportionality applied in these two classes of occupation. If Pinnock and proportionality did apply then the Supreme Court would need to grapple with the detail of how proportionality should operate, procedurally and substantively (issues 1-4 above).

In the wake of Pinnock it is almost unthinkable that the Supreme Court could say that the proportionality requirement did not apply (as opposed to that it could not in the county courts due to the statute, on which more below). And so it proved: “In most cases it can be taken for granted that a claim by a person who is in lawful occupation to remain in possession will attract the protection of article 8″ [33].

I (Chief) think that the Supreme Court must be broadly right on this point, if they were right in Pinnock (by which I mean, reading between the lines in Pinnock, right that “in principle” in the ECtHR’s formulation does not beget exceptions based on class of occupancy or the social policy that has led to differences in class and type, but only on the requirement for the occupier to raise a proportionality issue). It might be doubted whether this is right in relation to Pt.7 accommodation that is provided for a really short period of time – see O’Rourke v UK where the applicant had been placed in a hotel room for less than a fortnight before being turfed out and the ECtHR had “significant doubts over whether or not the applicant’s links with the hotel room were sufficient and continuous enough to make it his ‘home’ at the time of his eviction” – but in reality the “home” test under Art.8 is a relatively easy one to pass.

Substance of proportionality

Lord Hope reiterated at [34] that an Art.8 point only needs to be considered if it is raised by the occupier. If it is raised it should initially be considered summarily. If the court is satisfied that even if the facts relied upon were made out the point would still not succeed then the Art.8 defence can dismissed summarily (I pause here to query how many county court judges are really going to be ready to dismiss these defences summarily except in those cases where the defence only amounts to “I don’t want to”. Anything else is surely likely to get a further hearing from many/most DJs. It is at the stage of a possible final order further down the line that the vast majority of occupiers are going to be severely disappointed). Therefore, it followed that in the great majority of cases the local authority (presumably, as with Pinnock, this is being used fairly interchangeably with “public authority”) need not plead its precise reasons for possession, but may plead a more detailed case in reply to an Art.8 defence.

Jan Luba QC (Counsel for the 3 appellants, and a man who should be praised for his tenacious pursuit of this cause in the face of a number of knock-backs from the House of Lords******) is recorded at [35] as accepting that the threshold for raising an arguable proportionality case was a high one, and would only succeed in a small proportion of cases (cf. my query above).

After acknowledging the practical considerations for the judge in the county court (as Norris J noted in the recent case of Leeds & Yorkshire HA v Vertigan [2010] EWCA Civ 1583, the “pressures of a county court possession list are not to be underestimated”), the next part of Lord Hope’s [35] is probably likely to become as quoted by local authorities as Lord Bingham’s “pedantic exegesis” in R v Croydon ex p Graham or Lord Neuberger in Holmes-Moorhouse:

“Local authorities hold their housing stock, as do other social landlords, for the benefit of the whole community. It is in the interests of the community as a whole that decisions are taken as to how it should best be administered. The court is not equipped to make those decisions, which are concerned essentially with housing management. This is a factor to which great weight must always be given, and in the great majority of cases the court can and should proceed on the basis that the landlord has sound management reasons for seeking a possession order.”

[NL taking up the baton after Chief's epic work] The practical upshot of that view, we’ll come back to below. But the immediate consequence is clear in para 36 of Lord Hope’s judgment. The proportionality of making a possession order will be supported by the fact that making the order will (a) “serve to vindicate the authority’s ownership rights and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock”. While in Kryvitska and Kryvitskyy v Ukraine (application 30856/03, December 2010) the ECtHR indicated that the exercise of ownership rights by itself will not suffice where the owner is the state, the twin aims satisfy the legitimate aim requirement.

It follows that there is no need, at least in the overwhelming majority of cases, for the local authority to explain  and justify its reasons for seeking a possession order. It will be enough that the statutory pre-requisites have been satisfied and that “it is to be assumed” [my emphasis] that the authority is acting in accordance with its duties in allocation and management of housing stock.

The court therefore only needs to be concerned with the occupier’s personal circumstances, any factual objections raised by the Defendant [see below for more on factual issues] and in the light of those, what view the Court takes on whether an order would be lawful and proportionate.

This suggests that Lord Hope (and the Supreme Court) was not prepared to see a ‘structured approach’ to deciding proportionality of the kind found in Huang v Secretary of State for the Home Department [2007] UKHL 11. And so it proves. While Huang may be desirable in the context of immigration control, it is not appropriate in the context of a statutory regime, where parliament, for reasons of social policy had not provided the occupiers with secure tenancies. To require an Authority to plead to balance its interests against that of the occupier would be wholly inappropriate [41] and collapse the distinction between secure and non-secure tenancies, as well as giving rise to prolonged litigation. Rather than the Authority having to show its objective was sufficiently important to justify limiting a fundamental right, it should, in the ordinary case, be absolutely taken as read that the objectives (a) and (b) above are sufficient. It is against these aims that the Court should, ordinarily, measure the Defendant’s personal circumstances and factual objections.

Procedure

Turning to general procedural concerns, on which Mr Luba QC submitted that Article 8 would be satisfied by requiring that before possession proceedings are begun, the non-secure occupier knows why the proceedings are being initiated and has the opportunity to make representations to the decision maker. The Court was also asked to answer questions about the way claims for possession should be handled in the County Courts. This was best left to arise from how proceedings were actually dealt with in practice. Lord Hope declines to give a general view that reasons should be given. In the present cases reasons were given – either via the Introductory tenancy review, or in Ms Powell’s case, by warnings and an opportunity for interview on the rent arrears.[47-48]

I’ll pause here for a moment, as does Lord Hope, to deal with the specific issues before the Court on Introductory tenancies and temporary accommodation provided under Part VII Housing Act 1996. The respondent authorities argued variously that the terms of HA 1996 s.127(2) did not admit of having a proportionality review read into it in the same way as the demoted tenancy provision in Pinnock [55], and that Part VII contained no express provision that permitted a court to refuse to grant a possession order [38]. I don’t propose to spend long on this, though as the Court’s responses are not a surprise to anyone who has considered Pinnock.

On s.127(2), there is “a sufficient similarity between s.127(2) and s.143D(2) [demoted tenancies] to apply the reasoning in Pinnock to introductory tenancies also.” While the word “procedure” is not used in s.127(2), it does refer to the procedural requirements in s.128. Lawfulness must be an inherent requirement of the procedure in seeking a possession order and it must be open to the Court to consider whether the procedure has been lawfully followed. No declaration of incompatibility required.

Procedurally, where a proportionality defence is raised to a possession claim against an introductory tenancy, the Court must have in mind that the tenant has a statutory right to request a review of the decision to seek possession under s.129 HA 1996. Parliament withheld the right to a secure tenancy until the end of the trial period and, in the ordinary case, the authority’s presumed legitimate aims (as above) will encapsulate the relevant facts.[45]

On Part VII:

there is nothing in Part VII of the 1996 Act which either expressly or by necessary implication prevents the court from refusing to make an order for possession if it considers it would not be proportionate to do so. In contrast to Pinnock, where the court was faced with a direction by the statute that, if the procedural requirements were satisfied, it must grant the order for possession, no equivalent provision is set out anywhere in Part VII. There is, of course, an important difference between Part VII and the regimes that apply to introductory and demoted tenancies, in that it is likely in homelessness cases that the occupier will be the subject of a continuing duty if she is still homeless, eligible for assistance and has a priority need and will be entitled to contest a finding that she became homeless intentionally. But the legitimate aims that justify seeking a possession order are just as relevant in homelessness cases. The question for the court will always be whether the making of an order for possession would be lawful and proportionate. [39]

I’d note at this point that, as most defences to possession of Part VII accommodation will be for rent arrears or behavioural issues rather than discharge of duty, and a fresh application will only be appropriate on discharge of duty (or negative finding), it is unlikely that the availability of review etc. under s.202 and s.204 will be appropriate in such cases, or they will not be a timely response. But the availability of some other form of challenge or remedy under Part VII should be borne in mind.

Housing Act 1980 – interpretation/declaration?

Then there is the issue of s.89 [Dave taking over the ring in tag blog].  This is dealt with by Lord Hope at [57]-64], and considered also by Lord Phillips at [102]-[103].  It will be remembered that one of the points made in Pinnock (at [63]) was that the acceptance of the proportionality defence may require certain statutory and procedural provisions to be revisited.  One such provision was s. 89.  This provision gives the court discretion, in cases of “exceptional hardship” to postpone a possession but “… shall not in any event be postponed to a date longer than six weeks after the making of the order”.  The SC in Pinnock seemed to be offering a third way between possession and refusal – ie a postponement for a longer period than six weeks – which seemed an elegant compromise.  Although not precisely on point in Frisby, the SC nevertheless consider it authoritatively after full argument (although strictly, I suppose, obiter).  The problem, though, which faced the SC in Frisby was that s.89 could not be read down so as to make it compatible – no interpretive trick is available to get round the words “shall not in any event” – as Lord Hope put it, those words “could hardly be more explicit” (at [61]).  Further, the scheme of the 1980 Act was designed to confer protection on secure tenants (which were created by the Act) and not on other tenancies.  Reading down, then, was out of the question ([62]).  There is the ordinary case management powers open to courts (eg defer a possession order pending an appeal, adjourn to enable proceedings to be brought in the admin court [presumably now a rare occurrence]; if more info was needed to enable the court to decide what order it should make): “But what the court cannot do, if it decides to proceed to make the order, is play for more time by suspending or staying its effect so as to extend the time limit beyond the statutory maximum” ([63]).

If that’s the situation, might s. 89 be incompatible with Article 8 (a straightforward gateway (a) claim in the old money).  Lord Hope considers the incompatibility issue at [64] and gives it short shrift:

No evidence has been put before the Court to show that in practice the maximum period of six weeks is insufficient to meet the needs of cases of exceptional hardship. Furthermore, this is an area of law where the judgment of Parliament as to what was necessary to achieve its policy of restricting the discretion of the court in the case of non-secure tenancies should be respected, unless it was manifestly without reasonable foundation: Blečić v Croatia (2004) 41 EHRR 13, para 65. In these circumstances, as no obvious need for the section to be revisited has been demonstrated, I would decline to make a declaration of incompatibility.

So, what this means, as Lord Phillips explains, is that it limits the type of orders which a court can make (cf Pinnock at [62]).  Lord Phillips, however, is savvy enough to recognise one effect of this finding of compatibility, and it is significant:

The clear limit on the judge’s discretion to postpone the operation of the order may thus, in rare cases, have the consequence that the order is refused, whereas it would otherwise have been granted, subject to postponement of its operation for a greater period than section 89 permits. This is not a consequence that Parliament can have envisaged.

Disposing of the appeals

Ms Powell: Hounslow had decided to offer Ms Powell suitable alternative accommodation after Pinnock on a non-secure basis with her agreement to pay the rent arrears following her.  Jan Luba, however, sought to go further and argued that the order should be set aside because the proportionality of Hounslow’s actions had not been considered at the original hearing.  They agreed that the possession order should be set aside because of the offer of alternative accommodation.  Had there been a live issue, they would have remitted it to the county court.

Mr Hall: Leeds had offered Mr Hall a secure tenancy post-Pinnock but the same issue was raised by Jan Luba about setting aside the possession order.  However, here no grounds had been presented for the suggestion that Mr Hall had a “seriously arguable” case on proportionality – “Had it not been for the offer of a secure tenancy, I would have dismissed his appeal”.  However, in light of the secure tenancy, no good reason would be served by the possession order so the appeal was successful for that reason only.

Mr Frisby: The unluckiest of them all – Birmingham had made no offer to settle and he was unsuccessful on the facts.  There was no reason for thinking that the had a seriously arguable proportionality defence: he hadn’t sought a review of the council’s decision to extend his IT; and did not attend the resumed review hearing of the decision to seek an order for possession: “The facts on which that decision was based are compelling, and no notice has been given of any grounds on which it might be suggested that the making of the order was disproportionate” (at [70]).

I Concur

There is then a second, generally concurring, judgment from Lord Phillips. Some of it has been dealt with above and some of it is dealt with under ‘Some preliminary thoughts’, below.

A couple of points do bear drawing out at this juncture though.

Firstly, Lord Phillips’ flirtation with not accepting the applicability of an independent proportionality determination for introductory tenancies at [78]-[79] has an air of just toying with the respondents. You can tell his heart isn’t really in it.

Secondly, Lord Phillips at [93] states that an authority may properly rely on a breach of a tenancy condition in an introductory tenancy even where it does not have any impact on any third party. This much is probably in accordance with the policy behind the Act, but one would expect that, if the seriously arguable threshold is crossed, different breaches may weigh differently in the proportionality exercise (probably rightly, I might add). However, I’m not certain that Lord Phillips actually goes this far. What he does do is to approve [97] of Waller LJ in McLellan, viz.:

“Under the introductory tenancy scheme it is not a requirement that the council should be satisfied that breaches of the tenancy agreement have in fact taken place. The right question under the scheme will be whether in the context of allegation and counter- allegation it was reasonable for the council to take a decision to proceed with termination of the introductory tenancy.”

As Lord Phillips puts it “if a tenancy has given rise to complaints by neighbours of anti-social behaviour the authority does not have to be in a position to prove that these are well founded in order to justify terminating the tenancy” [93].

Lord Phillips deals with two interesting points in relation to homelessness cases (HA 1996, Pt.7). The first, which is not particularly surprising, is that:

“where the local authority simply wishes to relocate the defendant in alternative accommodation in the interests of the more efficient allocation of limited and fluctuating housing stock, it is not easy to envisage any issue of fact that the defendant could raise that would constitute a substantial ground for making a proportionality challenge.” [111]

The second relevant point in relation to homelessness cases is that “where the reason is non-payment of rent there is not likely to be much scope for bona fide issues of fact” ([112]) – but again, presumably, individual circumstances may count for more than where the homeless applicant has behaved in an anti-social manner.

For the purposes of this brief summary of Lord Phillips’ judgment the next relevant point can be found at [116]-[117], where his Lordship suggests that the homeless applicant must be informed why the local housing authority is seeking possession against them, but that this will not add anything to the obligations of authorities as it is “inconceivable that local authorities are, in practice, seeking possession orders against tenants accommodated pursuant to Part VII without telling them why they are doing so” – and for efficient local authorities this much is true, but it may be that some LAs will want to reconsider their systems and processes, and quite rightly as it is inconceivable to me that fundamental fairness requires anything less.

His Lordship goes on at [117] to stop short of saying that reasons must be given before service of NTQ – a relief perhaps to those few authorities who still have some cases working their way through the system where NTQ was given at the start of the tenancy, as if it were a s.21 notice.

Then finally at [120] the ghost of the “tolerated trespasser” clanks its chains and wails mournfully. You just knew that we wouldn’t be free of it that easily. Lord Phillips’ view is that that there is no reason in principle why “if the validity of the notice to quit is challenged by way of defence to the claim for possession, the judge should not be entitled to deal with that challenge.” [120]. That, I think, must be right and welcomed, but what of the position where the NTQ is valid, and indeed a proportionate response, but subsequent events/personal circumstances call the proportionality into question? One hopes that there will be no barrier to setting aside the NTQ. Certainly this is the inference that I choose to believe that Lord Phillips is making.

Some preliminary thoughts in response

Chief: I don’t think that there was ever much doubt, after Pinnock, that an Art.8 proportionality requirement would be in play in these types of cases. Whilst it is open that the more appropriate result would have been a declaration of incompatibility in Pinnock, once that possibility had been dismissed it seems obvious that the same logic should apply here. To my mind the list of missed declarations of incompatibilities keeps on growing, s.89 being a further case in point.

Once again, the Holy Grail (as it were) of the applicability of art.8 to private sector tenancies has not been grappled with – nor should it have been in this case. But what is probably clear is that if a successful proportionality defence is going to be as difficult to raise as their Lordships think in relation to a public sector tenancy (an issue on which time may well prove them wrong) then it will presumably be even tougher in the private sector where the landlord’s A1P1 property rights will count for a great deal – not to mention that in some cases the landlord may have their own Art.8 rights (consider Gillow v UK (1986) 11 EHRR 335 where the ECtHR appeared to presume that the applicant’s Jersey property was still their “home” even during an extended period where it was let out to other people).

Dave: Forgive the rant but I’m not sure I agree with Chief about the number of cases which are going to cross the “seriously arguable” threshold on a full blown proportionality review.  Lord Phillips even seems to raise the bar when he talks throughout his judgment of the need for a “substantial” ground for a proportionality challenge.  How can a defence advocate plead such a defence without full disclosure from the landlord?  Further, the narrowness of the vision of proportionality (or, rather, blinkered approach to its possibilities) are emphasised throughout, to the detriment of the wide-ranging approach which seemed to have been adopted in Pinnock.  There must be questions as to how this decision sits with Pinnock, which seemed to be suggesting the adoption of a structured approach to proportionality which is dismissed here.  Remember, of course, that 24 paragraphs of the judgment in Pinnock were given over to the application of proportionality to the facts of the case; here, we get just a couple.  The significance of para [35] which Chief highlighted above means that the “social landlord” trumps the usual so that a sort of exceptional exceptionalism applies; personally, I think there’s more purchase in gateway (b) than a proportionality defence (and I never thought it would end up like that).  Conversely, though, if that (ie the logic of para [35]) is the case with social landlords, the same is unlikely to be true of private landlords who have no common public good/interest beyond the pursuit (sometimes) of profit.  So, Chief, I’m not sure that I agree that it will be/should be tougher against private landlords.  How odd to disagree with you, Chief (must be the first time!).

Chief: By way of a brief response, I’m not sure that the difference between us in terms of the end result for an occupier is that great. I still think that the DJ faced with a busy list, still dealing with the 10:30 cases at 12:55, and a duty solicitor (assuming that they will still exist) who is arguing with the LA representative about extracts from both this case and Pinnock, is not going to need too much pressing to grab hold of the opportunity to adjourn and make it someone else’s problem. The ultimate decision is still going to be a possession order most of the time. At least, I suspect that will be the position for a couple of years yet, until we get some loosening of restrictions from the appellate courts. I’m in full agreement over gateway (b) – it is going to be more important to far more occupiers than proportionality than I suspect a lot of people expected.

Following on from that, I must confess that I do wonder whether there will be many, if any, cases where the end result is any more favourable to the occupier than they would have secured post-Doherty and pre-Pinnock. I am left with a nagging doubt whether this is really what the ECtHR envisaged.

NL: I’m coming at this from a slightly different angle – as one who would have to size up the prospects of such a defence quickly on incoming cases. My view is that, while this judgment undoubtedly represents a limiting of the possibilities of Pinnock, it still leaves us in a different place to Doherty, and certainly doesn’t put us back pre-Qazi.

First the difficulties, as noted above. The high initial threshold presents a real and perhaps unbalanced burden on Defendants. A summary consideration, pre disclosure, will be hard where it is the landlord’s failure to consider facts, or follow processes, that is alleged. There were similar problems with Gateway B cases, and it is disappointing that this wasn’t at least reviewed by the Court as a possible issue for practical address in practice directions (HHJ Madge might be busy on those, judging by the reference to him in the Judgment). I fall between Dave and Chief on what will happen in practice. I suspect a lot of cases where the defence is raised will be adjourned out of the possession list, but set down for a short hearing soon afterwards – and at that point, a lot will be dismissed summarily.

The Section 89 point also makes the defence effectively an all or nothing matter. Either no possession order is made or, at best, you get a six week stay that you might have got on exceptional hardship grounds anyway. Perversely, given that the County Court has the acknowledged power to adjourn etc. prior to final hearing, this gives an incentive to the tenant to delay and seek adjournments simply to buy more time where it does not appear that the defence might be strong enough to defeat a possession order altogether. The suggestion in Pinnock that the Court may stay possession for whatever period as was appropriate to satisfy the proportionality of granting the order was both interesting and practical – it is the kind of order that County Court judges would adjust easily to making. It would also have avoided encouraging (at least to the same extent) delay as a legitimate (in the client’s interests) tactic. But here, we are told, 6 weeks will always be enough to satisfy proportionality if an order is to be made.

The presumption of the (public) landlord’s legitimate aims (and with it the abandonment of the structured balancing of interests) places another hefty burden on the the Defendant. But what isn’t addressed here at all is whether this is a) a rebuttable presumption and b) what happens if it is rebutted. For example, and this is one I’ve been thinking about lately, a situation where the public landlord actively procures notice to quit by one departed joint tenant – a la McCann v UK – while having no basis to proceed against the remaining tenant under HA 1985 (or 1988). Can the rule in Hammersmith & Fulham v Monk stand in these circumstances? My view is no – the bare private law right to ownership by itself is not enough to be a legitimate aim. And for anyone saying surely public landlords don’t do such things, they do indeed. Or, for another example, what of a failed successor who will be owed a full housing duty under Part VII if evicted (the facts of Austin v Southwark spring to mind)? If there is no under-occupation, where is the legitimate housing management aim?

On the side of the Defendant, though, I think what we now have is a set of defences that, while they are difficult to sustain and face summary disposal, present a fuller chance of defending mandatory or summary possession claims than previously. Where there is a failure to follow policy, Wednesbury unreasonableness, and other public law grounds, we still have a clear gateway B argument. Where there are personal circumstances, vulnerability etc., we have a proportionality defence and, of course, a combination of the two (as a failure to follow policy also goes to proportionality, for example). Have we forgotten the struggles over what personal circumstances meant in gateway B and whether they could be considered? No longer an issue.

Lastly, and something we raised in response to Pinnock, what of the private sector? Not -rightly- addressed at all in this judgment, but the means by which proportionality is read into statute here and in Pinnock (lawfulness of process and procedure) does not, I think, affect the statutory obligation on the Judge to make a possession order. It seems to me that the ‘shall make an order’ is not actually modified, only the ‘if satisfied that the relevant procedure has been followed’ element. That modification only applies to public body landlords (including RSLs). So there is no precedent at all for the duty of the court as a public body which would be required to deal with, for instance, the proportionality of a s.21 accelerated possession. That would be an entirely different argument.

As mentioned above, this note has been a group effort, so some of the discussion between ourselves is contained in this post. However, we all hope that the debate will continue long into the day/night in the comments below the line (or alternatively long into the next decade in the Court of Appeal).

——
[Chief's footnotes.]

* Or possibly not, depending on your views of the rather strained nature of the theme.

** If you look at the original script this line was probably ad libbed and therefore may have been the creative work of Travolta rather than Tarantino. The mind boggles.

*** NSFW or small children.

**** Including ITs, DTs, and homeless cases Sch.1 excludes a total of 15 categories from security of tenure. It is presumed that proportionality will apply in most of these, although there will be issues about “home” in relation to a number of them and para.11 deals with business tenancies under Landlord and Tenant Act 1954.*****

***** The issue of business premises is the subject of some rather confusing Art.8 jurisprudence from the ECtHR, which is perhaps a topic for another day.

****** We’re told that he rather self-deprecatingly informed the Court of Appeal in these cases that he was in all the cases where the occupier loses.*******

******* Isn’t there some sort of WordPress footnotes plug-in? [Not one that actually works. NL]

The judgment in London Borough of Hounslow v Powell [2011] UKSC 8 (Aka, Powell, Hall and Frisby) is out. We have a detailed post coming shortly on this significant judgment on proportionality defences after Pinnock, but for now, the headlines are:

Introductory tenancies – These are caught  under the proportionality defence. S.127(2) Housing Act 1996 to be read accordingly.

Section 89 Housing Act 1980 – A court can’t make a possession order that defers possession for longer than the maximum period permitted under s.89, even if it considers it would be proportionate to do so. The Supreme Court declines to make a declaration of incompatibility in respect of S.89. There is no evidence that the period of six weeks maximum is insufficient to meet the needs of cases of exceptional hardship.

Temporary accommodation under Part VII Housing Act 1996 – there is nothing in Part VII which prevents a court from refusing to make a possession order if it considered it was not proportionate to do so. Possession proceedings against occupiers of temporary accommodation provided under Part VII can also face a proportionality defence.

There is no requirement for a local authority (public function landlord) to set out its legitimate aims in making a claim for possession, the presumption is legitimate purpose in managing housing stock. (The bare private law right to ownership is not sufficient by itself). The landlord may set out other reasons if it wishes.

In general, the Court views the prospects of a successful proportionality defence as being in ‘exceptional’ cases.

On the actual cases, Ms Powell had been offered alternative accommodation – appeal allowed on the basis there was no good reason to maintain the possession order. Mr Hall had presented no grounds for a seriously arguable case that the possession order in his case would be disproportionate and his appeal would have been dismissed, but Leeds had already offered him a secure tenancy so there was no reason to maintain the possession order and his appeal was allowed. Likewise, Mr Frisby had advanced no grounds for arguing that the possession order in his case was disproportionate – appeal dismissed. Pyrrhic victories on the whole then.

There is a lot more in the detail, and much to discuss – coming soon.

…but what you do at the end of it that counts*

FMB (EEA reg 6(2)(a) – ‘temporarily unable to work’) Uganda [2010] UKUT 447 (IAC)

The Immigration and Asylum Tribunal (Upper Chamber) is not our usual stamping ground, but this is a decision which has considerable broader significance for housing and benefit eligibility. It dates from November 2010, but we’ve just come across it. At issue was the meaning of Regulation 6(2)(a) Immigration (European Economic Area) Regulations 2006, which hold that an EEA worker does not cease to be treated as worker (and hence lose the right to reside and benefit/housing eligibility) if:

that the person “is temporarily unable to work as the result of an illness or accident.

What does ‘temporary’ mean in the context of the regulation? I won’t go into detail of the facts of the case, but it involved someone who had worked for 2 years as a teacher, then was unable to work for 4 years, then became a student. (The immigration question was this person’s right to reside and his daughter’s, a Ugandan, right to come to live with him).

The Secretary of State had refused the daughter a permanent residence card on the basis that the father was not a qualified person who had exercised treaty rights for more than 5 years, relying on that 4 year period of not working. This was overturned by the Immigration Judge, who found that ‘temporary’ in Reg 6(2)(a) meant that any illness or incapacity which was less than permanent must be regarded as temporary.

The Secretary of State appealled, initially on completely misconceived grounds of ‘unreasonable burden to a social assistance system’, Reg 13(3)(b). Unfortunately for the SoS, this regulation only applied to an initial right of residence for 3 months. A day before the hearing, the SoS sought to amend to argue that a temporary period of incapacity could not be as long as 4 years, (albeit with no authority on the point, and without being able to say what third state fell between ‘temporary’ and ‘permanent’).

The respondent argued that the regulations gave set period of time where such periods were intended. The omission in regard to ‘temporary’ was significant. Secondly:

when the EEA Regulations were read as a whole, reg 6(2)(a), relating to temporary inability to work, and reg 5(3)(b), relating to permanent cessation of activity, dove-tailed together in a manner implying that a person not permanently incapable of work was to be regarded as temporarily incapable of work.

The Upper Tribunal held that, if an inability or incapacity to work was not permanent, then it should be considered as temporary, citing the first definition in Collins English Dictionary (1991) of “Not permanent; provisional”. It noted in passing that “A finding of temporary inability to work for an extended period would not be sustainable if a person having given up work owing to illness then abstained from working voluntarily.” The appeal was dismissed.

So there we have it – binding authority for the proposition that there is no set (or arbitrary) cut off to the period for retaining worker status while temporarily unable to or incapable of work as a result of illness or accident. I’ve seen this crop up in homeless eligibility and it would also be relevant for benefit and Part VI eligibility.

*Sorry, sorry. I’m really sorry. I did try, but I couldn’t come up with anything better as a title. Quite a few worse, but none better.

Hat tip to Christian at the Estates Gazette Law blog for this one.

Crown Estates are to sell their London ‘social’ residential estates to Peabody Trust. It appears that they are now urgently seeking a tenant to bring forward a test case for a declaration in the High Court as to the effect of sections 35(5) and 38(1)&(3) of the 1988 Housing Act on its 320 Rent Act regulated tenants on transfer.

The Commissioners of the Crown Estates believe that the upshot would be that the protected tenants become secure tenants, while tenants groups said they had advice that the result would be assured tenancies. While Peabody had covenanted to treat the tenants as protected tenants, there were still issues as to the operation of  rent reviews and possession proceedings.

The Crown Commissioners applied to the High Court for a representation order, to represent the tenants’ interests. This was rebuffed as ‘extremely unusual’ by Mann J, who gave them until 4 March to find a tenant to act, on the basis that this tenant should be assured that their costs would be met.

This looks like it should be interesting. Not least because it would appear in part to bear on whether Peabody Trust is a public body. Hmmm.

For anyone who, like me, needs to look up remind themselves of the relevant sections, here they are..

S.35(5) says:

If, on or after the commencement of this Act, the interest of the landlord under a protected or statutory tenancy becomes held by a housing association, a housing trust or the Housing Corporation or, where that interest becomes held by him as the result of the exercise by him of functions under Part III of the Housing Association Act 1985, the Secretary of State, nothing in the preceding provisions of this section shall prevent the tenancy from being a housing association tenancy or a secure tenancy and, accordingly, in such a case section 80 of the Housing Act 1985 (and any enactment which refers to that section) shall have effect without regard to the repeal of provisions of that section effected by this Act.

S.38(1) says:

The provisions of subsection (3) below apply in relation to a tenancy which was entered into before, or pursuant to a contract made before, the commencement of this Act if,—

(a) at that commencement or, if it is later, at the time it is entered into, the interest of the landlord is held by a public body (within the meaning of subsection (5) below); and

(b) at some time after that commencement, the interest of the landlord ceases to be so held.

S.38(3):

Subject to subsections (4) , (4ZA), (4A), (4BA)] and (4B),] below on and after the time referred to in subsection (1)(b) or, as the case may be, subsection (2)(b) above—

(a)the tenancy shall not be capable of being a protected tenancy, a protected occupancy or a housing association tenancy;

(b)the tenancy shall not be capable of being a secure tenancy unless (and only at a time when) the interest of the landlord under the tenancy is (or is again) held by a public body; and

(c)paragraph 1 of Schedule 1 to this Act shall not apply in relation to it, and the question whether at any time thereafter it becomes (or remains) an assured tenancy shall be determined accordingly.

Anya Thompson v Mendip District Council, Taunton County Court 3 December 2010 [Unreported elsewhere].

This was the s.204 Housing Act 1996 appeal of a decision by Mendip DC that its offer of a two bedroom bungalow was an offer of suitable accommodation under s.206 of the Act and, therefore, it was right to discharge duty under s.193 of the Act.

Ms Thompson had been a traveller for 20 years. In February 2008, she moved her caravan onto land in Glastonbury owned by Mendip. She was served with a removal order in June 2008, but after negotiations, was allowed to stay. Ms T applied as homeless, and was initially turned down as not in priority need. After a report by a consultant psychiatrist, and consideration of a second medical opinion, Mendip revised that decision and in April 2009 accepted that it owed the full duty. Ms T was found to be suffering from anxiety and long-term depression, which was ameliorated by a rural living environment, and that conventional accommodation, certainly in a built up area, would make her ‘very anxious and worsen her depression as well as conflicting with her cultural values’. (This opinion was not challenged at any point by Mendip).

In December 2009, Mendip offered the two bedroom bungalow. Ms T refused and asked for a s.202 review of its suitability. The review letter contained a stated that “As Ms Thompson is a member of the gypsy community, there is a requirement for the Council, when considering the suitability of any offer of accommodation to her, to give special consideration to securing accommodation which will facilitate her traditional way of life”. The review then cites R (Price) v Carmarthenshire CC [2003] EWCA 42 Admin and the relevant passage of the Code of Guidance . Nonetheless, the review concludes that the offer of accommodation was suitable as “it was the only type of accommodation which could be offered at this time due to there currently being no suitable alternative to facilitate Ms Thompson’s cultural lifestyle”.

On appeal, Ms Thompson argued:

The decision was wrong because it failed to consider relevant facts, namely the existence of other sites. The Gypsy and Travelling Strategy document contained a list of potential sites. There had been no consideration of this and thus potnetial provision of accommodation for Ms T.

The decision was wrong because the decision-maker had misapplied the principles in Cadona v Mid-Bedfordshire Borough Council [2004] EWCA Civ 925. and Lee v Rhondda County Borough Council [2008] EWCA Civ 1013 . Cadona concerned urgent circumstances where all the Council could offer was B&B accommodation. This decision was upheld by the Court of Appeal.

Para 59 of Auld LJ’s judgment in Cadona was quoted, to the effect that this was short term accommodation as a short term measure taken as a last resort. It was not the case that there was such urgency in this case.

In Lee, there was no evidence as to psychiatric harm being caused by bricks and mortar accommodation, and, it was submitted, the law in Cadona was not altered by the Court of Appeal in Lee.

The review decision was unreasonable because of the evidence as to the effect of conventional accommodation on Ms T’s mental health. The offer of accommodation made fell below the minimum line.

In response, the Council argued that:

This was temporary accommodation and the situation could be reviewed.

There was no positive obligation on the Council to create a travellers’ site

Enquiries had been made as to the availability of a site via engaging an ‘expert’, Mr Swift. These enquiries did not have to be ‘of a CID standard’ and those made showed no sites.

On the medical evidence, the Council argued there was little it could do. Ms T had chosen an unconventional lifestyle and could do more to help herself.

Held:
In view of the medical evidence, the review decision was unreasonable and must be quashed. ‘Suitable must be given a broad meaning’ and the accommodation offered did fall below the minimum standard when considering Ms T’s circumstances which included her mental health.

This was enough for the appeal to succeed. However, the other grounds would also have succeeded. The decision maker failed to carry out adequate enquiries, failed to have regard to the information that found its way into the strategy document and either did not know of, or ignored, the existence of sites with the potential to accommodate Ms T whether in the ownership of the Council or not.

Further, the decision maker had failed to have regard to the principles in Cadona and Lee. The application of Cadona is limited to circumstances of urgency.

Decision quashed.

Comment
While this is only a County Court appeal, the interpretation of Cadona, on when bricks and mortar accommodation may be considered suitable for travellers, is clear in its direction. Further, on the evidence of the Council’s own strategy document, there were potential sites not considered in the review, strengthening the argument against the ‘this is all that is available’ decision. But it is the medical evidence – unchallenged – that was clearly most persuasive here. It could not be reasonable, or suitable, to place the appellant in accommodation which would exacerbate her depression.

To some extent, that key finding on the medical evidence side steps the issue, raised in a rather unsubtle and unappealing way by the Council, of a distinction between new travellers – a choice of lifestyle – as opposed to gypsies or travellers as an ethnic or cultural group. As we saw, this distinction was raised – without conclusion – by the ECtHR in Horie v UK [our report], with the question being posed whether a ‘personal choice’ of lifestyle would attract the same ‘positive obligation to facilitate a way of life’ as that owed to an ethnic or cultural group. I suspect this a question that will be revisited here in the future.

Sharon Horie v the United Kingdom – 31845/10 [2011] ECHR 289

Back at the end of 2009 we reported the Supreme Court case of Secretary of State for Environment, Food and Rural Affairs v Meier and another, which upheld the use of a quia timet injunction – a prospective possession order – against a group of new travellers, preventing them from occupying any land owned by the Forestry Commission in the area.

Sharon Horie, one of the new travellers, applied to the European Court of Human Rights. This is the decision on the admissibility of the application.

The application was on the basis that:

20. The applicant complained that the decision to grant the injunction violated her rights under Article 8 of the Convention as it impacted on her ability to pursue her way of life as a New Traveller. She argued that Article 8 imposed on the State a positive obligation to facilitate the gypsy way of life (Chapman v. the United Kingdom [GC], no. 27238/95, BAILII: [2001] ECHR 43, ECHR 2001 I and Connors v. the United Kingdom, no. 66746/01, BAILII: [2004] ECHR 223, 27 May 2004) and in granting such a wide-ranging injunction the authorities were acting in violation of this obligation.

21. The applicant further complained that the domestic courts failed to consider the issue of proportionality before granting the injunction. In particular, she submitted that the House of Lords upheld the Court of Appeal’s decision in relation to the grant of an injunction without express consideration of proportionality.

The ECtHR decided otherwise and found the application inadmissible.

On the breach of Article 8:

The applicant had no right under domestic law to camp on any of the land covered by the injunction. The only change in her position effected by the injunction was the risk of imprisonment, which the domestic courts had expressed to be low.

The applicant had no right under Article 8 to establish a camp on the land. Article 8 did not require contracting states to make suitable sites available to gypsies (Chapman v UK). Even if new travellers were analogous to gypsies (on which more below), “Article 8 cannot be interpreted so as to require the Contracting States to tolerate unauthorised camping on land vested in the State.”

Finally, the Court is not persuaded that the injunction was sufficiently wide to interfere with the applicant’s way of life. Although it covered thirteen sites in Dorset, this would only have accounted for a small proportion of land in the county. Consequently, the Court does not accept that following the grant of the injunction, the applicant’s only option was to move to bricks and mortar accommodation. In particular, the Court notes that notwithstanding the shortfall of local authority sites available in the United Kingdom, many gypsies and other travellers still live an itinerant life without recourse to official sites and the possibility that vacancies on these sites might arise periodically could not be excluded.

In any event, if the applicant were to camp on Forestry Commission land not covered by the injunction, the Forestry Commission would be obliged to comply with its procedural code based on the 2004 Guidance before seeking eviction and failure to do so could vitiate its right to possession.

Application dismissed. However, in what would be called obiter remarks if the ECtHR has such a thing, the Court noted that “Unlike Romani gypsies, who are widely recognised as an ethnic group, and Irish Travellers, who are a traditionally nomadic people with their own culture and language, New Travellers live a nomadic lifestyle through personal choice and not on account of being born into any ethnic or cultural group”. While no submissions were sought on this issue and, in view of its findings, there was no need to decide on it, it appears that a distinction between ‘personal choice’ and ‘ethnic and cultural group’ is something that the ECtHR may in the future consider in relation to the ‘positive obligation to facilitate the gypsy way of life’.

Comment
That obiter remark may set down a marker for future cases, and it is an issue that we will revisit in our forthcoming report of the s.204 appeal hearing in Anya Thompson v Mendip District Council, Taunton County Court 3 December 2010.

But otherwise the only particular significance in this case is the clear line drawn between the ‘positive obligation to facilitate the gypsy way of life’ and a requirement to make suitable sites available to gypsies under Article 8, where the 2001 case of Chapman is relied upon.

The UKSC judgment in Birmingham CC v Frisby, Leeds CC v Hall, Hounslow LBC v Powell is due on Wednesday 23 February (court Room 1 at 9.45).  The background in the CA and the foreground (Pinnock) have been discussed in previous posts (here and here) to whet your appetite.  The point at issue is so significant that it involves, hopefully, guidance going beyond the technical way in which introductory and non-secure Part 7 tenancies are brought to an end but nothing less than a new way of thinking about possession proceedings that is both European and national.  If Pinnock provided a slightly out of focus picture, Frisby provides further pixels.  As The Vapors suggested in Turning Japanese: “I want a doctor to take your picture So I can look at you from inside as well”.  Hopefully Frisby will enable us to look inside proportionality.

We will obviously post on Frisby asap.

Vicky Pollard continues the Chief’s west country theme, albeit somewhat stretched, to demonstrate the Con-Dem approach to consultation about their affordable rent tenancy regime (ie what consultation?).   We now have more detail courtesy of the HCA and a brief ministerial statement from Shapps together with a longer press release of the Shapps saves the world type.  In summary, the HCA is giving out £4.5 billion of the £6.5 billion of public funding for housing to affordable rent schemes (if you want a quick recap on these – basically, the schemes enable the landlord to charge 80% of the market rent against fixed term, so-called “flexible” tenancies with special procedures regarding termination at the end of the fixed period:  see HCA, paras 3.14-7). Bidders for this money can include affordable home ownership schemes (ie shared ownership predominantly, but also shared equity, with armed forces personnel particularly marked out as possible consumers of these “products”).  The market rent is assessed in accordance with RICS procedures, on which there is a note from the TSA (see HCA, para 3.5). And it really is 80% – the HCA document says that bidders will have to persuade them that anything less will deliver what they (ie the HCA) want (para 3.11 – localism here being the “yeah but …”).

The idea is that at least 150,000 new-build and re-let properties will be brought into the “social housing” sector in this way but it is to be noted that the HCA scheme applies both to new-builds and re-lets (see HCA para 2.2, 2.13-9) so the 150,000 target needs to be regarded with caution – there’s in-built room to manoeuvre.  The basis for the scheme, as I understand it, is that it moves from the old-fashioned bricks-and-mortar subsidy to personal subsidy of new build (ie new developments will be funded effectively through increased housing benefit receipts).  This assumption that HB will take the strain (which is where the “yeah but, no but” frame is at its most pertinent) is dealt with in the HCA document, where there is a loosely worded pledge in essence not to alter HB rules for PRPs:

Government has already announced its intention to limit Housing Benefit payments to social rented sector tenants who under-occupy their properties, and this policy will therefore also apply to Affordable Rent homes. Other than this, we do not anticipate further changes in the short to medium term. A tenancy where a registered housing association (note that this term includes private Registered Providers) is the landlord is excluded from mainstream Local Housing Allowance rules. (3.6; emphasis added)

Therefore, the maximum rent is not to be fixed by reference to the LHA (para 3.7).

However, landlords will wish to consider the local market context when setting rents, including the relevant Local Housing Allowance for the Broad Rental Market Area in which the property is located. They should also take into account wider benefit policy such as the proposal, subject to the passage of the Welfare Reform Bill, to cap total household benefit payments so that workless families do not receive more in welfare than the median earned income after tax and National Insurance contribution earnings of working families. War widows and households with a member entitled to Disability Living Allowance, Constant Attendance Allowance or Working Tax Credit will be exempt from the cap. (para 3.7)

Equally significant is the intention that the usual players (larger PRPs) will be in competition with smaller players.  This is a point Shapps makes most clearly in the press release, where he “… encouraged not only traditional housebuilders and housing associations to consider building homes through the new scheme, but also smaller developers looking to expand into housebuilding” (all of this being made possible, of course, by the Cave approach to the social housing “domain”).  Whether those smaller developers/builders will be able to survive or bid effectively in the heavily marketised domain, where efficiencies of scale have led to agglommerations of PRPs etc (note the significance of cross-subsidy to the HCA proposals at 2.23-5, “close collaborative working with local authorities”, para 2.36, and VfM, paras 5.4 et seq),  is unclear, but it may point an end to the current identity of social housing.  It is made clear that “social rent” schemes will not be supported unless there is “a strong case to demonstrate why Affordable Rent would not be a viable alternative. All such cases will be considered on their individual merits” (para 4.21 – the last sentence is a particular favourite of mine).

Who is the market for these properties and how will they be allocated/let?  Here, it becomes clear that the primary market, subject to local negotiation, is likely to be low income households in work, allocated through the nomination process, as there is sufficient flexibility in allocations to enable these properties to be marked out for such households.  This, of course, assumes (contra the evidence) that such households stay in work and won’t be caught in the benefit trap as a result of the increased rents.

Zafar v Goddard, Bristol County Court, 13 December 2010

Word reaches us from the West Country of a not uninteresting case heard in Bristol County Court before Christmas.

Although we haven’t seen a transcript, we have been provide with an unapproved note of the judgment of DDJ Batstone.

The case came before the DDJ as a small claims case with a considerable history. Shortly after entering into an AST in 2008 Mr Goddard had left the property, with several months of the minimum period still to run. The first set of proceedings were then commenced by the landlord, Mrs Zafar, for unpaid rent up until the expiry of the tenancy. Mr Goddard counterclaimed for disrepair and raised as a defence that he had never been served with a notice complying with Landlord and Tenant Act 1987, s.48. The DJ who dealt with those proceedings found as a fact that no valid s.48 notice had been given, so no rent was due, and dismissed the counterclaim for lack of notice.

After those proceedings had concluded Mrs Zafar then served a s.48 notice on the Defendant and commenced fresh proceedings for the unpaid rent for the period during which the Defendant had left the property, but would still be contractually liable.

After several occasions where the claim was struck out and then restored it eventually came before DDJ Batstone in December. The principal issue before him was whether a purported s.48 notice could be served after the tenancy had come to an end. Section 48 of the 1987 Act reads:

“(1) A landlord of premises to which this Part applies shall by notice furnish the tenant with an address in England and Wales at which notices (including notices in proceedings) may be served on him by the tenant.

“(2) Where a landlord of any such premises fails to comply with subsection (1), any rent, service charge or administration charge otherwise due from the tenant to the landlord shall (subject to subsection (3)) be treated for all purposes as not being due from the tenant to the landlord at any time before the landlord does comply with that subsection.”

It was not in dispute that subs.(3) was not relevant.

The argument for Mr Goddard was that s.48 required notice to be served on a tenant – once the tenancy had come to an end he was no longer a tenant, therefore he could not be validly served with a s.48 notice.

The DDJ considered the Court of Appeal decisions in Dallhold v Lindsey [1994] 1 EGLR 93 and Rogan v Woodfield [1995] 1 EGLR 72, but noted that they did not address the specific question that was before him. Mrs Zafar relied in part on the Housing Act 2004, but in his judgment that was a different statutory scheme, using different wording.

In DDJ Batstone’s judgment the wording of s.48 is plain. It relates to “landlord” and “tenant”. It is in accordance with the policy of the 1987 Act, which indicates that notice must be served during the course of the tenancy. The judge accepted that there were arguments either way and noted that the policy, as he had interpreted it, might not be achieved by a landlord serving a notice one day before a tenancy ended.

There was a further issue about what the total sum of rent would be if was found to be due, but that need not concern us here.

The DDJ granted permission to appeal, but no word yet on what is happening with that.

Kudos to the University of Bristol’s Law Clinic, which ran the case on a pro bono basis for over two years.

Manchester City Council v Pinnock [2010] UKSC 6

As if to confirm that housing law is, well, complicated, there is a coda to the Supreme Court decision in Manchester City Council v Pinnock, which has led to a supplementary judgment being handed down. This deals with what order should be made and costs.

The first problem was that the parties couldn’t agree on the consequential order from Pinnock 1 – as you’ll recall, Mr Pinnock’s appeal of the possession order made against his demoted tenancy failed. The initial possession order was made on 22 December 2008, with possession to be given by 12 January 2009. Notice of appeal was served by 26 January 2009, as ordered by the first instance judge.

If the original possession order was found to take effect as from 12 January 2009, Mr P would have been occupying as a tolerated trespasser. He would be caught by the Housing and Regeneration Act in May 2009 and a new demoted (replacement) tenancy would have arisen. The Council had brought further proceedings, based on just that eventuality, but adjourned them. The Council argued that it would be against rational principle for them now to have to restart (or continue) proceedings against Mr P afresh. They argued that the Supreme Court Order should vary the date for possession in the original order to 21 May 2009, thus avoiding the creation of the new demoted tenancy.

Mr P took no issue with the merits of the Council’s position, but nargued that there was no jurisdiction to make such an order, even for the Supreme Court:

The first reason is said to be that we cannot in 2011 retrospectively amend Judge Holman’s order, made in December 2008, in order to deprive Mr Pinnock of a tenancy which statute gave to him on 20 May 2009; the second reason is that, by virtue of section 89(1) of the Housing Act 1980, Judge Holman was precluded from making an order for possession which took effect more than six weeks after 22 December 2008, when he made the order for possession, and we cannot amend Judge Holman’s order in a way which would mean that, albeit retrospectively, it would conflict with that provision.

But nobody tells the Supreme Court they can’t do something (or at least not if they have an alternative route)

The wide terms of Rule 29(1) of the Supreme Court Rules 2009 permit us to adopt an alternative way of giving effect to the Council’s justified concerns which is not open to such objections.
We propose to set aside the order for possession made by Judge Holman, and substitute a fresh order for possession to take effect on 10 March 2011. The effect of this will be to preserve Mr Pinnock’s original demoted tenancy, which started on 8 June 2007 (as explained at [2010] 3 WLR 1441, para 16) and which has continued pending the resolution of these proceedings. It will come to an end when possession is obtained against him pursuant to our order for possession.

On costs, the Council argued that it should have costs, having succeeded on the central point of the possession proceedings against Mr P.

Mr P argued “for an issue-based approach, contending that the real issue between the parties, which resulted in most of the costs and justified the case coming to the Supreme Court, was whether he could rely on article 8, and, as he won on that point, the correct order is that the Council pays 50% of his costs, at least in the Supreme Court.”

The Court made no order as to costs on the appeals and the Council’s costs award in the County Court should stand.

The decision to make no order for costs in the Court of Appeal and in this court is arrived at on a somewhat rough and ready basis, but it appears to us to reflect the relative degree of success enjoyed by each party on appeal, and therefore the overall justice of the position. The effect of the appeal process is that the Council has succeeded against Mr Pinnock on the ultimate issue between the parties, namely whether it is entitled to maintain its right to possession, whereas Mr Pinnock has succeeded against the Council in establishing a fundamental general principle, namely that article 8 can be relied on by someone whose home is the subject of a possession claim.

And that should be that.

Or a Naughty Step special edition.

Another Naughty Step post? So soon? Well, yes. I have no control over how these things crop up and not only does this case feature some jaw droppingly bad behaviour, the demise of a whole business legal model and some innovative law, it features Nearly Legal’s own Francis Davey in a starring role (and one that is entirely angelic, I hasten to add, as if it could be possibly be otherwise). Granted there is the drawback that the case has nothing to do with  housing law, but that minor hitch aside, how could I possibly resist? So, I wrote a post about the götterdämmerung of ACS:Law, Andrew Crossley and Media CAT. in Media CAT Ltd v Adams & Ors [2011] EWPCC 6.

The only trouble is that I got so interested, and the story so complex, that the post became an epic. As it has nothing whatsoever to do with housing law and may thus quite possibly be of limited interest, I decided not to put it on the front page. Instead it has a page of its own. For anyone who may be interested in the convoluted tale of hubris, strange contractual provisions and copyright law that unravelled at the recent hearings in this case, the post can be found here. For everyone else – we’ll have some more housing law along in a little while, promise.

R (FZ) v LB Croydon [2011] EWCA Civ 59

-or-

Not In My Admin Court

We have written before about age assessments for those who might be under 18 – see most recently our post on R (CJ) v Cardiff CC and, prior to that, our post on the Supreme Court decision in R (A) v Croydon (which remains our only post to take its title from a Rolf Harris chart topper).

The long and short of Croydon is that an assessment that a young person is over 18 may be challenged by JR in the Admin Court.

In FZ the applicant sought to do exactly that, but was refused permission for JR by a deputy High Court Judge.

Permission to appeal to the Court of Appeal was granted, partly to give it an opportunity to consider some problematic aspects of age assessment cases following the Supreme Court’s decision. The Court of Appeal (Sir Anthony May (President of the Queen’s Bench Division), Smith & Aikens LJJ )was therefore asked to address three issues:

1. Whether a local authority is obliged to give the person whose age they are assessing an opportunity to respond to provisional adverse findings which they are inclined to make;
2. Whether the local authority should in fairness offer the young person the opportunity to have an appropriate adult present at any age assessment interview;
3. How the court should address the question whether the factual issue of the young person’s age is arguable. Should it start by assessing the person’s positive claim, or should it first examine the apparent integrity of the local authority’s assessment?

Sir Anthony May (President of the Queen’s Bench Division) gave the judgment of the Court.

On the first issue, the CA held that an applicant should be given a fair and proper opportunity, at a stage when an adverse decision against him is no more than provisional, to deal with important points that may weigh against him [21]. The Court of Appeal was not prepared to be prescriptive of the way in which this might be done and expressly did not require a formal “minded to” letter to be sent in every case.

In FZ’s case fairness could have been achieved by the interviewing social workers withdrawing from the interview room at the end of the initial interview to discuss their provisional conclusions. These could be recorded, with brief reasons, in writing, which could then be put to the applicant to allow him the opportunity to deal with them. The Court of Appeal emphasised that this was not the only way in which fairness might be achieved [21].

On the second issue, the CA considered a variety of situations where a child is to be interviewed where they should be given the opportunity of having an appropriate adult present [23]. For example, in R (NA (Afghanistan)) v LB Croydon [2009] EWHC 2357 (Admin), Blake J held that the applicant should have been given such an opportunity. In the instant case, FZ had claimed to be a child and at the time it was agreed that he was. He was also known to have mental health problems. The Court of Appeal considered that he should have had the opportunity to have an appropriate adult present [23]-[25].

On the third issue, the test for permission, the CA said that at the permission stage in an age assessment case, the Administrative Court should ask whether the material before it raises a factual case which, taken at its highest, could not properly succeed in a contested factual hearing. If so, permission should be refused. If not, permission should normally be granted, subject to other discretionary factors, such as delay [9]. In FZ’s case, the court did “not consider that the appellant’s factual case taken at its highest could not properly succeed in a contested factual hearing” [29].

Permission to bring judicial review proceedings was granted and, significantly, the claim was transferred to the Upper Tribunal [30]-[32].

Why is that last part significant? Well, in our note of the earlier Croydon case it was suggested that the Admin Court was going to be left with some difficult decisions. In the comments to the Cardiff case, S pointed out that it took up three days of the court’s time and that the Admin Court was not the place for these kinds of hearings. In a somewhat different context, Collins J referred to the “problem” of the Supreme Court’s decision (see [46]-[48] of the post-judgment argument). Now the Court of Appeal has weighed in with what may be perceived to be rather thinly veiled criticism of the Supreme Court’s approach.

[4]. … [T]he court hearing the judicial review claim will often have to determine the fact of a claimant’s age by hearing and adjudicating upon oral evidence. This may be an extensive and time consuming process. The Supreme Court does not seem to have been concerned with the administrative consequences for the court of this. The judgments of Baroness Hale of Richmond JSC and Lord Hope of Craighead DPSC are expressed in terms which appear sanguine about this – see for example Baroness Hale at paragraph 33 and Lord Hope at paragraph 54. The Administrative Court does not habitually decide in orthodox judicial review proceedings questions of fact upon oral evidence, although it has power to do so in appropriate individual cases. It stretches the court’s resources to have to do so more than occasionally. Yet there were, on 12th January 2011, 64 age assessment cases in the Administrative Court’s list at various stages of progress.

Accordingly, the Court of Appeal has given further guidance on the procedure to be followed in age assessment judicial review claims. If an age assessment judicial review claim is started in the Administrative Court, that court will normally decide whether permission should be granted before considering whether to transfer the claim to the Upper Tribunal [31]. The expectation appears to be that these claims will now normally be dealt with in the Upper Tribunal, unless some jurisdictional reason prevents such a transfer [32].

Strydom v Fowler. Brentford County Court 24 November 2010

A County Court case involving possession, unlawful eviction, trespass and Housing Act 1988 s27 and s28. Our thanks (as ever) to the Legal Action ‘Recent Developments in Housing Law’ for this one.

Mr F was the assured shorthold tenant, on  what had become a statutory periodic tenancy. The landlord was Mr S. Mr F built up rent arrears, eventually agreed at £2189, after the deduction of the deposit. On 16 May 2008, Mr S began possession proceedings, alleging rent arrears and damage to the property. At about this time, Mr F texted Mr S saying  that he would be ‘out in two weeks, maybe sooner’.

Mr F went on holiday. On his return on 27 May he found the locks changed. He forced entry and found Mr S inside holding an iron bar. Mr F ran, breaking his heel climbing over a gate.

Mr F counterclaimed in the possession claim for damages under s.27 and s.28 Housing Act 1988, breach of covenant for quiet enjoyment and trespass.

At trial HHJ Oppenheimer awarded £2,600 to Mr S for rent arrears and damage to the property.

On Mr F’s counterclaim, he found that there was a threat of physical violence. Mr F’s text was only an expression of an intention to leave, not a determination of the tenancy. Mr S had entered unlawfully and did not have reasonable cause to believe Mr F had left, as the beds were made and toiletries present.

The agreed difference in the value of the property with vacant possession and with Mr F in occupation was £12,500. Taking Mr F’s conduct into account under s.27(7), given that it was unreasonable of Mr F not to have been in touch for 5 weeks or responded to text messages, the statutory damages were reduced to £2,500.

Damages for breach of covenant were assessed at £3,000

Aggravated damages for trespass assessed at £1,250

Total damages on the counterclaim £6,750, to be set against the award to Mr S.

Comment

We’d be interested to hear from Francis Ratcliffe, who acted in the case. A £10,000 reduction in statutory damages for ‘not being in touch or responding to texts for 5 weeks’ seems harsh on the face of it. There may be more to the context, of course, but it doesn’t appear that there was anything near enough for Mr S to assume Mr F had vacated or effectively surrendered the tenancy. And then that failure to be in touch set against a finding that there was a threat of violence? Hmm

In More Effective Respopnses to Anti-Social Behaviour the Government sets out its plans for reforms of the ASBO and other associated remedies. In brief, the government thinks that:

(a) there are too many tools for dealing with ASB and practitioners tend to stick with the ones they know best;

(b) some tools (especially the ASBO) are slow, bureaucratic and expensive;

(c) ASBOs are not deterring ASB;

(d) tools designed to deal with underlying causes of ASB are rarely used.

Therefore, the government proposes to abolish some 17 remedies (ASBO, CRASBO, Interim ASBO, ASB injunction, individual support order, intervention order, crack house closure order, premises closure order, brothel closure order, designated public place order, special interim management order, gating order, dog control order, litter clearing notice, noise abatement notice, graffiti/defacement removal notice, direction to leave, dispersal order. phew) and to replace them with five new remedies:

(a) The Criminal Behaviour Order (“Crimbo”?), available on conviction for criminal offences;

(b) The Crime Prevention Injunction (“Crip”?), available in civil proceedings, with the corresponding burden of proof;

(c) Community Protection Order, level 2 (this is getting silly now – it sounds like something my cousin would have on his Xbox), a power for the court to order that a building or place be closed/have access limited;

(d) Community Protection Order, level 1 (get a Mario-mushroom to power up to level 2!), an order that attracts a financial sanction if breached;

(e) Police ‘direction’ power (the bling-removal order), giving police the power to require people to leave a particular area and to confiscate items from them.

Despite my mockery, there are some important points in the consultation: should other remedies be abolished? (A: yes, the Drink Banning Order, or Dribo); how should this regime apply to the under 18s? Those who want to reply to the consultation should do to so ASB-consultation@homeoffice.gsi.gov.uk by May 3, 2011.

* If you’ve never watched Bo Selecta, this joke means nothing to you.