Attaching weight to Mr Pickles
We noted round 1 of Cala Homes (South) Ltd v Secretary of State back in November (see our note here) in which the High Court found that Mr Pickles could not abolish Regional Strategies (e.g. “the south-west plan” governing the approach to, say, new-build housing developments) without primary legislation. He’s currently trying to get that legislation through Parliament in the Localism Bill.
After his defeat in round 1, he issued a statement which “while respecting the court’s decision” told authorities that the decision “changes very little” and that the government would press ahead with abolition via primary legislation. He, and the Chief Planner, informed authorities that this was a “material consideration” that they should have regard to when making any planning decisions. Cala Homes apparently felt (and with some justification) rather cheated by this response, and so sought judicial review for a second time, contending that Mr Pickels was attempting to subvert the statutory scheme and thwart the first judgment. That second claim is now been decided: Cala Homes (South) Ltd v (1) Secretary of State (2) Winchester City Council [2011] EWHC 97 (Admin).
The case was dismissed. Prospective changes to the planning system and policy framework were relevant to individual planning decisions and were, in principle, a relevant consideration to which authorities should have regard. The weight to be attributed to the changes were, however, a matter for individual planning authorities, subject to judicial review.
In addition, the decision of the Secretary of State could not be characterised as irrational; it was desirable for the government to explain how it intended to respond to judgments. Additional arguments on the Strategic Environmental Assessment Regulations are, frankly, too planning-specific to be covered here.
Not quite a right to buy
Fineland Investments Ltd v Janice Vivien Pritchard [2011] EWHC 113 (Ch)
From Lawtel. Not on BAILII yet.
This is a slightly sad tale involving the exercise of right to buy by a council tenant.
Ms Pritchard had entered into an agreement with Fineland whereby she would buy her council house at a discount using money provided by F and then sell it on to them. However, they were both seeking to avoid the effects of s155 Housing Act 1985 which would have required her to pay the discount back to the Council.
To do this an arrangement was made whereby P signed an undated transfer of land which they would use in three years time and granted a 20 year lease to F and further agreed to move out of the property within a few weeks. For their part F agreed to pay P the sum of £20,000.
P then got cold feet. She began to show signs of anxiety and depression and refused to move out of the property.
F asserted that P had given up her right to occupy the property and was a trespasser, they sought possession through the Courts. P argued that she had been pressured into signing the agreement with F, that it was an unconscionable bargain against which she was entitled to equitable relief, and alternatively that she lacked capacity at the time she signed the documents.
The Court clearly lacked sympathy with P and found against her on all counts. There was no medical evidence that P lacked capacity as her correspondence at the time showed. For the deal to be set aside as an unconscionable bargain it would have to be more than merely hard or unwise it would need to be made with a party who was in a position of weakness and the party in the stronger position would need to take advantage of that strength to the extent that there was a constructive fraud. That was not the case here.
Judgement for possession and damages for use and possession were awarded to F with those sums to be set off against the monies due to P under the agreement.
As J informed me, this case would probably not occur now as s163A has been inserted into the Housing Act 1985 precisely to stop this kind of bargain. Any such arrangement which relates to the right to buy and is entered into during the discount repayment period which envisages transfer of the property after the end of that period is captured by s163A and the requirement to repay the discount in s155 is brought into effect. Hopefully, these new provisions will put an end to this sort of arrangement.
Who knew?
Two cases on a similar issue to report, one in the High Court and one in the Court of Appeal. Both concerned Section 202 Housing Act 1996 reviews and both dealt with issues of the notification of the review decision. The cases are not available on bailii yet, or apparently elsewhere, but are reported in Sweet & Maxwell’s Housing View and I’ve seen transcripts. The cases are:
Dragic v LB Wandsworth High Court (QB) 21 January 2011 QB/2010/0485
Dharmaraj v LB Hounslow Court of Appeal, January 24, 2011 B5/2010/0201
Dragic v Wandsworth
This was a second appeal from a County Court s.24 Housing Act 1996 appeal. Mr Dragic was owed the full housing duty by Wandsworth. He had been in temporary accommodation and refused an offer of permanent accommodation that Wandsworth considered was suitable. Mr D requested a s.202 review, which was carried out. In a letter dated 23 March 2010, Wandsworth concluded that the accommodation was suitable and it was reasonable for Mr D to accept and live in the accommodation in discharge of s.193 duty.
This was the point that things went wrong and that gave rise to the issue on appeal. The issue was, quite simply, whether notification to Mr D’s solicitor of the review decision was notification to Mr D, for the purposes of the 21 day deadline for filing a s.204 appeal. Wandsworth had sent the review decision letter to Mr D’s then solicitors, Morgans. It was found, by the first instance appeal court, that notification would therefore have taken place on 25 March 2010, giving a deadline for the filing of appellant’s notice of 14 April 2010.
The Appellant’s Notice was actually sent to the Court by Mr D’s new solicitors, Blacklaws on 16 April and issued on 19 April. In directions, the Circuit Judge noted that an application to extend time to appeal had not been made until 5 July 2010. At the hearing of the s.204 appeal, the Circuit Judge held that the appeal was made out of time. The CJ rejected the argument that time began to run when the applicant received the notice, not his solicitors, based on the word ‘his’ in s.204(2), on which more below. The CJ held that the usual rule that where a solicitor is acting for an applicant, all that was necessary was to serve the solicitor applied.
The appellant’s solicitors argued that permission to appeal out of time should be granted because Morgans had told the appellant they could not act in the appeal for funding reasons and Blacklaws did not receive the review decision until 31 March 2010.
The CJ held that this was not a good reason, based upon an attendance note from Morgans which apparently showed that the appellant had been informed of the procedure and time limits for appeal on 25 March. Further the appellant had contacted Blacklaws on 25 March and “all the new solicitor had to do was contact Morgans to clarify the position”.
On second appeal, Mr Justice Supperstone QC heard the appellant’s argument that:
The CJ was wrong in law to hold that the 21 days ran from the date of notification to the appellant’s then solicitor. This ignored the word ‘his’ is s.204(2) and was inconsistent with Barrett v Southwark LBC [2008] EWHC 1568 (QB) [our report here], where time was taken to run from the date the letter was received by the applicant, which was the day after the notification was received by her advisers. Time should run from the date the decision letter could have come to the applicant’s attention, not his solicitors. This was supported by s.203(8)
S.204(2) reads: “An appeal must be brought within 21 days of his being notified of the decision or, as the case may be, of the date on which he should have been notified of a decision on review.” ['he' being the applicant]
S.203(8) reads: “Notice required to be given to a person under this section shall be given in writing and, if not received by him, shall be treated as having been given if it is made available at the authority’s office for a reasonable period for collection by him or on his behalf.”
Mr Justice Supperstone QC dismissed the appeal. Barrett did not argue the agency matter fully, so was not relevant. The issue in Barrett was rather whether the relevant date was the date of letter or date of receipt. In any case, the appeal was well out of time.
The general rule of notification to an agent is in R v Chief Immigration Officer Manchester Airport ex p Insah Begum [1973] 1 WLR 141 and followed in Tkachuk v SoS for work and Pensions [2007] EWCA Civ 515. “Notice is sufficient to comply with the Act if given to the applicant himself or his agent, provided the agent is authorised to receive it on his behalf or may be presumed to have such authority.”
Dharmaraj v LB Hounslow
And in case one was wondering if the issue might yet go further, the Court of Appeal got to have a go shortly afterwards.
Mr D had applied as homeless following a possession claim by his private landlord. The LL claimed for rent arrears. Mr D was found intentionally homeless by decision letter dated 13 August 2009. On 19 August 2009 Mr D’s solicitors requested a review and on 21 September 2009 submitted documents and a statement in support – Mr D’s argument being that the landlord had got rid of him as he complained a lot about failure to repair defects.
On 28 September 2009, the Review officer faxed a 7 page decision to Mr D’s solicitors. The review upheld the s.184 decision. At the end of the letter, it stated that the applicant had “21 days from the date of this letter” to appeal on a point of law.
On 13 October 2009, notice of appeal under s.204 was issued. The basis of the appeal was that:
there was the procedural deficiencies in the notification, the consequence being that there was no effective review decision made and therefore it was the original decision that the Appellant had made himself intentionally homeless which was the decision being appealed. If that prong were unsuccessful and the review decision is on appeal, the reviewing officer had failed to take into account relevant considerations.
The appeal was dismissed on both grounds by HHJ Mitchell at Central London County Court. The applicant appealed on the first issue, that there was no effective review decision.
At the Court of Appeal, the applicant argued that:
S.204(1)(b) provided that an appeal may be brought on the original decision if the applicant is not notified of the review decision with the (56 days) period set out in s.203.
1) The review letter is defective because the final paragraph does not comply with s.203(5) because it should have said that the Appellant had 21 days from his being notified of the decision to appeal;
2) By reason of s.203(6) notice of the review is not to be treated as given;
The argument was therefore that
sending the Appellant’s notice by fax [to the solicitors] did not comply with the statute. The notification was still defective in form despite being sent on the same day. The language of the Act allowed no scope for the interpretation that the local authority were arguing. Further, there had been no waiver by the Appellant of the right to argue that there was no review decision capable of an appeal.
Hounslow argued that:
1) The review letter complied with the statute because it correctly informed the Appellant of the date by which to appeal. The Appellant was notified by virtue of it being faxed;
2) If s.203(5) was not complied with the time limit did not start to run against the Appellant but the review decision should not be treated as a nullity;
3) The notice of appeal was issued as an appeal against a s.202 decision and the Appellant had the opportunity to consider it. The Respondent asked the court to consider the parliamentary intention of the legislation when making its decision.
The Court of Appeal found that notification to the applicant’s solicitors was good notification, despite the arguments raised on the meaning of s.203(8) and s.204(2), as in Dragic. There was no requirement for personal service and the Council was entitled to take the solicitor as being the appropriate person to serve. “The appointment of Solicitors to request a review carries with it a holding out of those Solicitors to be authorised as able to receive”. The decision in Dragic – properly mentioned by the applicant’s barrister who also acted in that case – upheld.
The review decision letter therefore correctly set out the time for appealing, given that it was faxed within working hours. Further,
It is not right to construe s.203(6) as imposing a linguistic requirement that the review decision letter must use precisely the language of s.203(5). What matters is the substance of the information to be supplied rather than the precise form.
Appeal dismissed.
Comment
If I’m being honest, I’m not particularly surprised by the outcomes here. Certainly my presumption was that if a solicitor had made review submissions, service of the decision on the solicitor would be service on the client, for the purposes of the deadline to appeal. While statute does specify ‘his being notified’, a solicitor formally acting would surely stand in as that person. That the Council would be entitled to rely upon it as service upon the applicant is really to say nothing more than the Council are entitled to presume that the applicant’s solicitor will inform their client promptly and not faff about. It is worth noting that Barrett did involve an ‘extension’ of a day from the date a review decision was received by the applicant’s advisers, but that the advisers were an Advice Centre, not solicitors.
The finding on the language of the ’21 day warning’ in Dharmaraj is perhaps a little less than helpful, though. While the phrasing used -21 days from the date of this letter’ – was good in this this instance as the letter was faxed in working hours, it is a phrasing that crops up all too commonly on letters that are posted and are received two, three or more days after the date on the letter.
The Court of Appeal make no particular finding on that possibility, but do state that it is not a matter of including the precise statutory wording:
The wider approach is to consider whether there is a breach of the underlying purpose of the statute, not to automatically make it a nullity.
I simply can’t see why the notification in the review decision should not be required to set out the correct position, without ambiguity or indeed error.
In a situation where someone may be trying, with considerable difficulty these days, to find an advisor, an apparent shortening of time could cause them to give up while still within the time limit. My view is that it would hardly be a hardship to Councils for the stock phrase pasted into the end of each s.202 review decision to properly and accurately read ‘ within 21 days of the date you received this letter’. There is no valid reason for them to say anything else.
I Want My Fucking Rent
[[ Please click on the title to read the full article ]]
Distinguishing Tiensia
Gemma Shepley v Majid Yassen, Tameside County Court, Thursday 13th January 2011 (Unreported)
The above case on the, increasingly litigated, tenancy deposit protection provisions was brought to our attention and is of particular interest as it specifically distinguishes itself from the Court of Appeal decision in Tiensia (reported on here).
In this case the tenant was granted a 12 month assured shorthold tenancy in late November 2007. This was renewed for a further 12 months on expiry and then continued on a periodic basis until February 2010 when the tenant vacated the premises and the tenancy came to an end. The tenant was informed that most of their deposit would be retained and after taking advice sent a letter before action in early April 2010 for a failure to protect the deposit and seeking the usual remedies. No response was received and part 8 proceedings were commenced in the Court at the beginning of May. The deposit was finally protected on 3 August 2010 with the DPS but none of the prescribed information was ever served on the tenant.
The case then came before DJ Stockton and was heard on two occasions concluding on 13 January 2011.
The Court found as a fact that the deposit had not been protected at the time the tenancy ended. DJ Stockton could probably have then found for the tenant on the basis that the prescribed information had not been served. However, he actually elected to follow the same line of reasoning as DJ Goodwins in Woods v Harrington (reported by us here) and held that protection after the end of the tenancy was not acceptable. He specifically distinguished Draycott and Tiensia on the basis that these two cases were concerned with deposits that had been protected late but were still placed into schemes before the tenancy ended.
This seems to be absolutely correct. If a landlord can put the deposit into protection after the tenancy has ended then it makes a total nonsense of the legislation and almost encourages a “wait and see” attitude. The senior courts have been reluctant to make any findings as to the implied or actual ‘initial requirements’ of a scheme, which must be complied with to avoid the penalties, but it would seem to be an absolute requirement of those schemes that there is at least a tenancy in place to which the deposit they are being asked to deal with relates. Leaving aside the legal arguments, to allow monies to be placed with schemes for non-existent tenancies would risk making them unviable as business entities, especially the two insured schemes which have to obtain insurance for the deposits they protect on a commercial market.
This case also acts as a small curtain raiser for the senior courts. An appeal with similar facts (Potts v Densley) is on the warned list in the High Court in the week commencing 7 February and Hashemi v Gladehurst which also has this point as an issue is listed for a hearing before the Court of Appeal on 22 or 23 March.
With thanks to Andrew Mills at Shelter.
What to review?
Should you not accept, the Council will construe that it has DISCHARGED ITS STATUTORY DUTY to you. This will include terminating the licence for any temporary accommodation you may occupy and no longer offering any further assistance with rehousing.
Under section 202 of the Housing Act 1996 you have a right to request a review of this decision if you do not agree with it.
The Nzamys wrote a 4 page letter asking for a review, setting out why they didn’t consider the offered property suitable, as it was worse than were they were. It set out the steps the family had taken to improve their current property and steps taken by others, including the Council and the police. It ended:
Now, I ask you kindly to look at our case…..and make a right decision… Finally, I ask you please to offer us permanent accommodation ..but until that time we can wait in our current flat…
Brent took this as a request for a review of the suitability decision and found against the Nazmys. There was an appeal to the County Court, then this second appeal to the Court of Appeal.
The review officer upheld the alternative accommodation as suitable and it appears also he inferred there was a discharge of duty. The judge in the county court upheld the review officer’s decision and, whilst his judgment is not entirely clear, he inferred that there was a discharge of the duty and dismissed the appeal
At the Court of Appeal, the appellants argued that their letter should be taken as a request for a review of both the suitability decision AND the decision to discharge duty.
The parties were agreed that the review decision did not properly consider the decision to discharge duty, but Brent maintained that the Nzamy’s handwritten letter was a request for a review of suitability only, which the review officer had properly considered. In any event, there had been no decision to discharge duty until a later stage.
The Court of Appeal, in Black LJ’s extempore judgment found that:
13. Against that background, it must be asked what was on the agenda of the review officer in conducting the review? One has to look at the letter seeking a review in order to decide that. Plainly it is necessary to look at the handwritten letter by an individual applicant with common sense and to take a broad view as to what is being sought. If the family were to be allowed to “wait in their current flat” until permanent accommodation became available, they had to disrupt the local authority’s intended conclusion that their duty under s.193(2) would be discharged.
14. Against that background and bearing in mind that the authority’s letter of 23 December 2008 had made plain that they would discharge their duty, it is difficult to construe the final passage of the appellant’s letter of 4 January 2009 as anything other than a request that the review officer should view the letter as a request for a review of suitability and as a request for a review of the decision to discharge the duty.
The prospective decision by the Council to discharge duty set out in its letter of December 2008 was itself reviewable. (As per Ravichandran v Lewisham LBC [2010] EWCA Civ 755 – the link is to our note – which is not cited but clearly is followed.) The Council had made it clear that it would discharge duty and this was reviewable.
The appeal was allowed and remitted to the Council for a s.202 review of the decision to discharge duty.
So, Local Authorities should take a common sense view of review requests by un-represented applicants and take a broad view of what is being sought. A strict or legalistic view should not be used to exclude a review of decision to discharge.
Dispensing with consultation
We covered Daejan Investments Ltd v Benson and others [2011] EWCA Civ 38 when it was in the Upper Tribunal (Lands Chamber) (our note, here). For a summary of the relevant law and facts, please see that earlier post (slightly lazy, I know, but I am very tired).
Daejan, as I suspected, pursued the case to the Court of Appeal and their appeal has now been dismissed. It’s a not uninteresting judgment.
The Court of Appeal notes that the primary focus of an appeal is likely to be the decision of the LVT and not the UT(LC), although it would be appropriate to give some weight to the approach taken by that specialist appellate tribunal. Although they don’t say so, this must only be so where (as here) the UT(LC) conducted the appeal by way of review and not re-hearing.
On the power to dispense with the consultation, the Court of Appeal held that financial consequences of failing to grant dispensation were irrelevant:
(a) if that were not so, then it would mean that, the more expensive the works in question, the more likely it was that dispensation would be granted;
(b) it was impractical to look at the financial consequences for the parties, since this would require the LVT (or UT(LC)) to have to examine how financially secure each landlord and tenant was;
(c) the power to dispense was with the consultation requirements, not the consequences of non-compliance with those requirements.
The nature of the landlord might be a relevant factor in deciding whether to grant dispensation (i.e. a lessee-owned/controlled company might enjoy greater flexibility than a private party) but that did not arise in the present case
The key feature was likely to be the degree of prejudice caused to the tenants. A proper consultation process was the essence of the statutory scheme and curtailing consultation was a serious failing that could cause significant prejudice.
So, what sort of cases might be suitable for dispensation? In the view of the CA, there were three: (a) emergency works; (b) where there was only one possible contractor; (c) where there had been a minor breach which had caused no prejudice.
Who you gonna call?
* allegedly.
** wrongly.
*** Although, of course, s.222 permitted authorities to seek injunctions both to aid the criminal law and to restrain a public nuisance; Shafi appears to have left the latter untouched.
Grant cuts overturned?
We know nothing more about this case than is reported by Local Government Lawyer here, but it appears that a judicial review of London Councils decision to cut £10 million from its £24.6 million grant scheme to voluntary sector organisations in the capital was successful on Friday 26 January.
The Judicial Review was brought by two service users of affected voluntary organisations, apparently on the grounds that a proper assessment of gender, disability and race equality impacts was not carried out. The cuts would have affected more than 200 voluntary and community sector organisations in London, with tens of thousands of clients.
No transcript is available yet, hopefully it will be soon and we’ll update when we have it. Pierce Glynn acted for the service user claimants, any more details welcome…
On the naughty step – a bag of wind
As Dave has explained, the Supreme Court decision in Yemshaw v LB Hounslow brought the definition of violence in Housing Act 1996 into line with other statute and Government guidance, in particular with the accepted family law definition of ‘domestic violence’.
But not for the Daily Mail. For the Mail, the real issue was set out in their headline “Shout at your spouse and risk losing your home: It’s just the same as domestic violence, warns woman judge“. It was a five judge Supreme Court, so that should be “warn 4 men and 1 woman judges”, but it is of course the woman judge that is undermining the very fabric of decent society, so we’ll let that small error pass.
Here are the Mail’s opening salvos:
Men and women who shout at their partners risk being thrown out of their homes under a sweeping ruling by judges yesterday.
Raising your voice at a husband or wife, or a boyfriend or girlfriend, now counts as domestic violence under the landmark Supreme Court judgment.
The decision also means that denying money to a partner or criticising them can count as violence and bring down draconian domestic violence penalties from the courts.
These three sentences, in which the sole accurate bit is that this was a Supreme Court judgment, demonstrate why the Mail is not a paper of record for case reports. One might, perhaps, be tempted put it down to sheer incompetence on the part of the unnamed reporter, but given the general thrust of the article, mere incompetence rather pales into insignificance. The Mail appears to consider that a definition of violence that doesn’t require physical assault means a falling away from the standards of the good old days. Britain is going down the drain. It is politicial correctness gone mad. Etc. etc..
I am tempted to believe that the presence of ‘a woman judge’, ‘a homeless woman’ and ‘a council house’ caused the Mail’s automatic story generator to overload and it mixed the case report up with the ritual ‘A levels aren’t what they used to be and people now go to Oxbridge without being able to spell their name’ story. Hence a story along the lines of ‘standards of domestic abuse used to be so much higher – in the old days I wouldn’t have left my husband unless he gave me a broken cheek bone and a damaged liver’. Either that or the Daily Mail has proudly started the Campaign for Real Domestic Violence -and asks its readers to stand up for being knocked down (or intends to reassure them that they are not committing domestic violence if they merely engage in psychological, sexual, financial or emotional abuse).
Despite all of this, you may be surprised to learn that it is not the Mail on the naughty step (or perhaps the Mail should be considered to always have been on the step). The Mail is of course a cynical, amoral panderer to a certain petit bourgeois weltanshauung, but it is frankly a bit gauche to be surprised by the depths to which Paul Dacre’s organ will stoop.
No, for the person to be put on the step, we must look to the surprising fact that in its article on Yemshaw the Mail managed to find a supportive quote from a ‘Family Law Expert’, who said:
The judiciary are taking the Humpty Dumpty view, and it risks undermining confidence in the legal system
The Mail, ever solicitious of its readers, helpfully explained this meant a “comparison between the ruling and the Humpty Dumpty character in Lewis Carroll’s Through The Looking-Glass, who said words meant whatever he wanted them to mean.”
I suspect that you are wondering what ‘family law expert’ could actually say such a thing, given the functioning definition of domestic violence in family law, via the President of the Family Division’s Practice Direction (Residence and Contact Orders: Domestic Violence) (No 2) [2009] 1 WLR 251, para 2 and not forgetting the definitions in:
[The] Association of Chief Police Officers: Guidance on Investigating Domestic Abuse (2008); the Crown Prosecution Service Policy for Prosecuting Cases of Domestic Violence (2010); the Ministry of Justice, in Domestic Violence: A Guide to Civil Remedies and Criminal Sanctions (February 2003, updated March 2007); and the UK Border Agency, in Victims of Domestic Violence: Requirements for Settlement Applications
Oh and Hounslow’s own leaflet, Domestic Violence: What it is and how you can get help from 2009.
Who, you will be asking yourselves, whilst being someone who holds themselves out as a family law expert, would offer up such a quote? It is almost as if they hadn’t actually read the judgment, but had just been called up by the Mail before the first coffee of the day and given a quote based on nothing but their own prejudices.
The Daily Mail says the quote is by a ‘Jill Kirby’. After some intensive searching for any ‘Jill Kirby’ connected with family law, I am reasonably confident that it is this Jill Kirby, (just former)Director of the Centre for Policy Studies (a Tory think tank). I can’t find any other ‘Jill Kirby’ who has anything to do with pronouncements on family law, let alone one with this Jill Kirby’s record on giving voice to her passing thoughts through the newspapers (Telegraph, Sunday Times, Express and so on). If I am wrong, then my profound apologies to this Jill Kirby and will the real ‘Jill Kirby, Family Law Expert’ please step forward…
Jill Kirby, (just former) director of the Centre for Policy Studies, is, or was, a lawyer.
she qualified as a solicitor in 1981 and practised in a leading City law firm as a specialist in commercial litigation and employment law. [source]
So not actually a family lawyer, then. I don’t think either employment or commercial law practice equips one to comment on family law, let alone housing law (as it doesn’t appear to have registered with Ms Kirby that this was a housing law case). If any commercial lawyers beg to differ, then it is statute at 20 paces at dawn.
Does Jill Kirby have any academic qualifications or particular research expertise in family law?
Jill Kirby chairs the Family Policy Group at the Centre for Policy Studies where she writes on family and welfare issues. Her most recent CPS report, The Nationalisation of Childhood, argues that the Government’s agenda for children is creating a direct relationship between children and the state, undermining the responsibility of families.
Jill’s other CPS publications include Broken Hearts – Family decline and the consequences for society (2002), Choosing to be Different (2003) and The Price of Parenthood (2005). [source]
That would appear to be a ‘no’. As far as I can gather, this means that she writes about her opinions on the family and the state for a tory think tank. No discernable ‘family law’ expertise at all, unless there is some kind of qualification that has been omitted from the public CVs, as one does.
There is a reliable general rule that anyone quoted in the Daily Mail may be intelligent, honourable or espouse family values, but at the best only two of the three at any given time. However, the nature and billing of this particular comment has already ruled out two of the three options.
While the comment may have been sincerely meant, it would then have to be profoundly uninformed – from a ‘family law expert’. If it is not sincerely meant, then it is mere wind-baggery, such as would make most ‘experts’ blush with shame. If you are reading this, Ms Kirby, do let us know which was the case.
In the meantime, good luck with your new career. Unless that is, your new career consists of continuing to offer rubbish quotes to the Daily Mail as an ‘expert’. You are on the naughty step for adding a veneer of respectability to the Mail’s bile without respect for anyone who may read it or indeed for yourself. Think of this as an an intervention. I want you to be able to be proud of yourself. I want you to be able to say ‘I think X’ and actually mean it - both that this is the conclusion you have come to and that you have engaged in some thought along the way. It will feel good, really.
[Update: The excellent UK Human Rights blog has picked up on this post and drawn it together with its own criticisms of reporting of human rights cases - a thoughtful and interesting post. They include a link to the Press Complaints Commission form. What a good idea, and here it is.]
[Update 2: The real problem with this sort of nonsense is that it all too easily becomes the accepted myth. Exhibit A, Christina Odone in the Telegraph produces a witless column based upon the Mail's story. She obviously wasn't going to bother to actually check its accuracy. Interestingly, Odone describes herself as " a journalist, novelist and broadcaster specialising in the relationship between society, families and faith", so another 'family law expert'. She is also "a Research Fellow at the Centre for Policy Studies". Is this a conspiracy or does the Centre for Policy Studies have a superfluity of such wind bags?]
[Edit: We are getting a lot of new visitors to this post - welcome - but for the benefit of those who haven't read the Yemshaw case, I should make clear that the Supreme Court did not decide on Ms Yemshaw's homeless application. It quashed the Council's decision that she was not homeless because she had not suffered physical violence or threats of physical violence. Ms Yemshaw's application now goes back to the Council to decide whether on the specific facts of her situation she was homeless by reason of domestic violence in the sense set out by the Supreme Court, or not. So there is no specific finding that the treatment Ms Yemshaw described constituted domestic violence. This is, of course, a point that wholly escaped the Daily Mail.]
The Supreme Court on iplayer
For those who can’t get enough of “the brilliant Baroness“, there is (on the BBC iplayer) a quite excellent programme about the operation of the Supreme Court. Baroness Hale is interviewed at length and, once again, demonstrates her enormous (but thoroughly charming) intellect. There is a housing-law aspect to it; the BBC were clearly filming during Pinnock (or, perhaps, Frisby). How do I know this? See if you too can spot Andrew Arden QC and Jan Luba QC…
Fire, Fire!
A brief note to point out the Fire Safety (Protection of Tenants) Bill 2010-11, which is currently working through the House of Commons.
This is Private Members Bill which had its first reading on 30 June 2010 (we were a bit slow picking it up, sorry) and is due a second reading on 1 April 2011. This bill will require all landlords to fit at least one mains-powered battery backed smoke alarm in rented residential property which will comply with grade D of British Standard 5839: Part 6 (2004). This must be in place prior to a tenancy agreement being entered into. Failure to do so will be a criminal offence and it will be triable each way. On summary conviction the maximum fine will be 12 month imprisonment or a fine not exceeding level 5 on the standard scale (£5,000). On indictment the maximum penalty is a fine and/or 2 years in prison.
The bill also requires that all tenancy agreements contain provisions requiring the tenant to test the fitted smoke alarms at least once a month and to notify the landlord of any problems and a further provision requiring the landlord to remedy any problems reported by the tenant.
As with gas safety certificates there will be an exception for leases of 7 years or more.
As this is a Private Members bill it is unlikely to become law. It has been proposed by Adrian Sanders, Liberal Democrat MP for Torbay. He is not in any significant position in the coalition government and therefore the prospects for the bill being adopted seem weak unless there was some sudden public interest in improved fire standards in tenanted property.
The brilliant Baroness
Yemshaw v Hounslow LBC [2011] UKSC 3
While my NL colleagues are off partying at a secret location for lunch, I’ve managed to steal a few precious minutes from an appallingly tight deadline (Sinead: if you’re reading this, it’ll be there, honest) to write a paean of praise in honour of Baroness Hale’s judgment in this case. It is quite simply, as NL has put it, Baroness Hale at the top of her game; a brilliant, tightly argued, academic but practical, rich and deep appreciation of homelessness law and its underlying philosophy (cf the “provocative” approach taken by the Daily Mail in their, ahem, “interesting” comment on the case – more of which, possibly, later). Her judgment in Yemshaw provides the principal justification for the reams of academic literature that now exists about her (rather than written by her).
Background
The background to Yemshaw has been covered by NL (here), which was concerned with the Court of Appeal judgment. The issue for the Supreme Court was the definition of “violence” in s 177(1), Housing Act 1996, for the purposes of the definition of homelessness. The Court of Appeal considered themselves bound by Danesh v Kensington and Chelsea RLBC [2006] EWCA Civ 1404, despite the fact that the Code of Guidance had defined “violence” more broadly, but, in any event, they rather agreed with the narrow take on “violence” in Danesh.
Outcome
In the Supreme Court, the actual outcome was that violence is to take the same meaning as in the family law context: “‘Domestic violence’ includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm” (Practice Direction (Residence and Contact Orders: Domestic Violence) (No 2) [2009] 1 WLR 251, at [2], emphasis added; Yemshaw, at [28]). Baroness Hale (with whom Lords Hope and Walker agreed) gave the leading judgment; Lord Rodger gave a concurring judgment, out of deference to the CA; and Lord Brown doubted the result but, in the oddest final paragraph, basically said that he didn’t care enough to dissent (“At the end of the day, however, I do not feel sufficiently strongly as to the proper outcome of the appeal to carry these doubts to the point of dissent. I am content that the views of the majority should prevail and that the appeal should be allowed”: [60]).
Baroness Hale made clear that the question for the local authority (following on from Birmingham CC v Ali – our note here) is essentially about the future, ie the probability of the acts continuing in the future (“This is the limiting factor. Sections 177 and 198 are concerned with future risk, not with the past”: [34]). Further:
I accept that these are not easy decisions and will involve officers in some difficult judgments. But these are no more intrinsically difficult than many of the other judgments that they have to make: …. Was this, in reality, simply a case of marriage breakdown in which the appellant was not genuinely in fear of her husband; or was it a classic case of domestic abuse, in which one spouse puts the other in fear through the constant denial of freedom and of money for essentials, through the denigration of her personality, such that she genuinely fears that he may take her children away from her however unrealistic this may appear to an objective outsider? This is not to apply a subjective test (pace the fifth reason given in Danesh). The test is always the view of the objective outsider but applied to the particular facts, circumstances and personalities of the people involved. (at [36])
My suggestion is that, just as the Holmes-Moorhouse paragraphs pop up in practically all local authority skeleton arguments, this paragraph is likely to be in most appellants. Homelessness decision-making is a difficult job, but it has to be done.
Reasoning
Although Baroness Hale made it look relatively easy, this result was rather more difficult to achieve (as is clear from Lords Rodger and Brown’s judgments). It required deft footwork, using the history of the homelessness legislation, method of statutory interpretation adopted in Fitzpatrick v Sterling HA [2001] 1 AC 27, combined with “modern” understandings of domestic violence. The interpretation meant that the phrase “domestic violence” in section 177(1) is left virtually redundant (a historical vestige, in essence – see the quizzical discussion at [9]-[11]) and, it is to be noted the ambit of the phrase “other violence” in section 177(1) (as amended) was unclear and left open (Baroness Hale could see both sides of the argument: [35]; note to self – one for the future). Anyway, starting from the top …
As Baroness Hale pointed out (at [7]-[8]), the definition of “violence” is an important question because of its “deeming” or “passporting” effect – that is, a person falling within this definition will not only be found homeless but will also be found not intentionally homeless (and will affect the ambit of the local connection provision). Its parameters, then, are crucially important. Baroness Hale traces the rather tawdry history of section 177(1) back to the inane distinction that used to be drawn between violence inside and outside the home; and the proviso that local authorities are entitled, in exercising their decision-making on homelessness and intentionality, in relation to reasonableness, to have regard regard “to the general circumstances prevailing in relation to housing in the district of the local housing authority to whom he has applied for accommodation or for assistance in obtaining accommodation” (now s 177(2)). As regards the latter, Baroness Hale suggests that “this strongly suggests that regard may be had, not only to the quality of housing available locally, but also to the quantity” (at [5]; on which Ian Loveland’s academic work from the early 1990s is interesting by the way).
The history of the “deeming” provision enabled Baroness Hale to make a number of points about section 177, as original drafted. She notes, first, that it expressly includes violence against other members of the household; and second, that it was not limited to violence from someone living in the same accommodation but covered violence from an “associated person” (see s 178). Those changes, though, did not alter the underlying, fundamental purpose.
The development of policy and family law understandings about “domestic violence” were also relevant to the discussion, and Baroness Hale brilliantly interweaves that development with homelessness law. So, after tracing the development of the family law approach, she notes that “it cannot be a coincidence” that the definition of an associated person in section 178 closely resembles that in the Family Law Act 1996 (at [22]); and
All of this indicates a consciousness in 1996 of the need to align housing, homelessness and family law remedies for victims of domestic violence, so that they could have a genuine choice between whether to stay and whether to go and the local authority or social landlord would not be obliged to continue to provide family sized accommodation to the perpetrator. There was also an explicit acknowledgement in the report which led to the Family Law Act 1996 and by the Home Affairs Committee that “violence” could have a wider meaning than physical contact. (at [23])
This tracing process led Baroness Hale to the Fitzpatrick approach to statutory interpretation. In essence, some statutes are to be read as “living law”, ie interpreted by reference to their current meaning as opposed to the meaning which they might have had at the date on which they came into force: “The essential question … is whether an updated meaning is consistent with the statutory purpose” (at [27]). What were the statutory purposes:
In this case the purpose is to ensure that a person is not obliged to remain living in a home where she, her children or other members of her household are at risk of harm. A further purpose is that the victim of domestic violence has a real choice between remaining in her home and seeking protection from the criminal or civil law and leaving to begin a new life elsewhere. (at [27])
Those purposes would be achieved if the court adopted the family law definition of violence. Further, that interpretation was not inconsistent with the statutory provisions in Part 7. Yes the Secretary of State has a power to include other forms of ill-treatment falling short of actual violence within s 177(1), but that had not been done because the SoS already believed that the word bore that wider meaning. If there was concern that the threshold was being set too low, Baroness Hale observed (and, in doing so, drew on her family law knowledge as well as brilliantly undercut any potential dissent):
The advantage of the definition adopted by the President of the Family Division is that it deals separately with actual physical violence, putting a person in fear of such violence, and other types of harmful behaviour. It has been recognised for a long time now that it is dangerous to ignore what may appear to some to be relatively trivial forms of physical violence. In the domestic context it is common for assaults to escalate from what seems trivial at first. Once over the hurdle of striking the first blow, apologising and making up, some people find it much easier to strike the second, and the third, and go on and on. But of course, that is not every case. Isolated or minor acts of physical violence in the past will not necessarily give rise to a probability of their happening again in the future. (at [34])
It’s just brilliant stuff. Lord Rodger’s concurring judgment looks like it could have been written 30 years ago by contrast. Lord Brown – well, read it and see what you think. it’s not uninteresting in terms of the value judgments he is making (see especially [57] where he draws a distinction between the urgency in actual violence cases as opposed to those “subject to psychological abuse”).
Right, back to that deadline … (oh, and hope the rest of you NLers enjoyed the long, luscious lunch – not that I’m jealous or anything)
Apres moi le deluge
This may not be the first such announcement, but it is certainly the biggest to date. Birmingham Citizens Advice has had £600,00 per year of Local Authority funding cut. Unless alternative funding of £50,000 per month is found, it will close its generalist advice centres from 11 February 2011.
The CAB claims that they assisted 56,000 people last year and it is the largest CAB in the country. They estimate that they assisted clients in applying for or appeallng decision on income of about £16 million and to manage about £85 million of debt.
Transition funds will not be accessible in time and Birmingham City Council ‘replacement’ funds – a much smaller pot open to bids from 14 charities, to be allocated in £50,000 blocks over 1 to 3 years – will not be available in any event until August 2011.
The CAB are urgently asking for donations to fund them in the short term while they attempt to secure longer term funds.
My understanding is that the Social Welfare law contract (joint with Shelter) and the ‘preventing homelessness’ advice at the County Court (not the duty scheme as first suggested – that is run by CLP) are not directly affected. However, there are surely intertwined economics of provision even if just in terms of office space, admin support and facilities.
Birmingham Council, a ConDem coalition, appear to be blithely ignoring the DCLG recommendations that Councils should not take the easy option and cut funding to the voluntary sector. One takes it that Grant Shapps and Eric Pickles will be very disappointed in Brum (but take no action at all).
[Update: Birmingham City Council respond that
"We’ve always made it clear to agencies that funding was not guaranteed beyond any single year, up to a maximum of three years. It was never our intention for agencies to become dependent upon this source of funding, or that it form their sole source of income. However, we did pay CAB £150,000 notice payment".
That first sentence has the dubious distinction of making no sense whatsoever. On 'dependency', the CAB point out that the £600,000 was 20% of their funding, but that they can't afford to lose 20% when funding from other sources is also dropping by £1.2 million for 2011. The income was £3 milion in 2009/10.]
Champerty Returns
Sibthorpe & Morris v LB Southwark [2011] EWCA Civ 25
Champerty and maintenance are two common law doctrines relating to the funding of civil claims. They were, at one time criminal offences, but now survive only as a matter of public policy. Briefly, maintenance is where a third party agrees to fund the suit of another in which he has no legitimate cause or interest whereas champerty is where the third party maintains the suit while also seeking a share of the damages to be awarded. Both of these were commonly used by the wealthy and powerful in the past in order to advance political causes as well as to simply make mischief and were banned as a result.
In this case S and M were both tenants of Southwark. They both complained of disrepair in their properties. Their solicitors, Belshaw and Curtin, had entered into a slightly unusual form of CFA with both of them although it is one that may well become more common in future. Essentially, neither party was able to obtain insurance against Southwark’s costs if they lost (ATE insurance) and so B & C had undertaken to indemnify them against those costs.
Southwark lost both cases and sought to contest the costs (some might say in a fit of pique although I am not, of course, saying that) on the basis that the CFA fell foul of the common law rule against champerty. The Deputy Master who initially dealt with costs agreed with Southwark, HHJ Macduff reversed this decision on appeal and so the case came before the Court of Appeal with the Law Society joining in as an intervenor on behalf of S and M (although they were doing so more on the basis of support for B & C). Lord Neuberger gave the leading judgement, with LJs LLoyd and Gross concurring.
Before the Court of Appeal it was argued for M (and by extension S although his appeal was taken by the Court to simply follow from M’s and so it was not considered in detail) as well as by the Law Society that:
1. the indemnity arrangement was not champertous under any reading of the rule against champerty;
2. even if it was champertous under the original rule, the law had developed since that point and in any event each case should be considered on its merits without over-strict observance of previous cases; and
3. if the indemnity arrangement was champertous it should be deleted from the rest of the CFA which should stand without it and costs should therefore be paid under that agreement.
Southwark basically took the contrary view on each of those points.
The Court considered carefully the comments of the Court of Appeal in R (Factortame Ltd) v Secretary of State for Transport, Local Government and the Regions (No 8) [2002] EWCA Civ 932, [2003] QB 381. It took note of the statement of Lord Phillips that the rule against champerty was a matter of public policy and therefore should remain under review by the Courts as policy is subject to change on the basis of the public interest.
In Factortame it was alleged that a fee sought in Court for the work done by the accountants, Grant Thornton, was champertous because it was expressed as a percentage of the total amount of damages recovered. A distinction was drawn in that case between contingency agreements entered into by a litigator and those entered into by other parties whose work supported the litigation and on that basis Grant Thornton’s fee was recoverable as costs. In this case it was argued that the principle laid down in Factortame was actually that potentially champertous agreements had to be looked at “in the round” and consideration had to be given as to whether the agreement would undermine the “purity of justice”. The Court did not accept that argument and held that Factortame had continued the principle that agreements concluded between parties and those conducting litigation for them would be looked at more closely and were subject to stricter rules. Accordingly there has been no loosening of the rules of champerty in regard to litigators although there may well have been in regard to experts and other third parties.
In fact the Court went further here and made a comment (at para 41) that looks rather like an attack on the current views of the Ministry of Justice on litgation funding:
There is … much to be said for a properly funded legal profession, which has no need to have recourse to conditional fees or contingency fees or the like. It is a matter for the legislature if such arrangements are thought to be necessary for economic or other reasons, and, if they are so necessary, then it is for the legislature to decide on their ambit.
In other words the Courts are not prepared to support a change in funding arrangements toward contingency fees without primary legislation. Given that this comment was made by the Master of the Rolls, who is effectively charged with taking the Jackson review forward it is revealing that he appears to be of a firm view that contingency fees are, at least on the current law, a step to far.
Notwithstanding its refusal to loosen the rules on champerty the Court actually held that the indemnity was not itself champertous and to make it so would constitute an unwarranted extension in the law of champerty. The Court accepted that it was drawing a slightly artificial distinction between a litigator acccepting a contingency fee and thereby having an interest in the success of the litigation (forbidden) and a litigator giving an indemnity and thereby having an interest in the failure of the litigation (allowed). However, it drew comfort from judicial views that the rule against champerty should be curtailed rather than extended and the public policy advantage, in terms of access to justice, that this form of indemnity provided.
There was then a slightly (more) academic discussion which came to the view that champerty was no longer a subspecies of maintenance as previously held and that the two were now separate. This is because maintenance occurs where the party supporting the case has no “justification or excuse” for doing so and this could not be held to apply to a solicitor who had an interest in the success or failure of a case.
Given that the indemnity was not held to be champertous, this was all that needed to be said. However, in brief the Court held that champerty was not to be decided on a case by case basis and refused to rule on whether a champertous clause could be severed from the remainder of a CFA agreement. Finally, the Court refused permission to appeal on the separate ground that, by including the indemnity, the CFA was an insurance contract and therefore void by virtue of s.26 FSMA 2000, as the solicitors were not authorised or exempt for the purposes of s.19 of the FSMA.
This case has huge potential importance, especially when placed in the context of cuts in public funding and the Jackson review of civil litigation costs. It should be remembered that contingency fee arrangements by lawyers have been banned on the basis that they too are champertous and therefore that the rule on champerty is all that stands in the way of their removal. There has been extensive discussion as to whether solicitors should be able to enter into some form of contingency fee with clients, as is common in the USA, and this has been put forward as a possible solution for certain types of case (see BBC Radio 4′s Law in Action, 28 October 2010). Clearly such an idea cannot get off the ground unless the Courts demonstrate a preparedness to relax the rules on champerty or legislation is enacted.
Additionally, B & C’s funding model, while it will not appeal to everyone, is a potential solution for CFAs which insurance companies do not want to take on because they are too small or which will become uneconomic if the Jackson reports recommendations regarding litigants having to pay their own insurance premiums from damages is taken forward.
The summary then is: indemnity against costs=OK, contingency fee=No way!
A comedy of errors
Following on from David’s sort of disrepair related post below, here is another one – not directly a disrepair matter but bearing on terms of settlement. It is either quite significant or something of a farce of bad drafting, bad decisions and windfall chasing. As will become clear, I lean towards the second option…
RH v North Tyneside Council v Secretary of State for Work and Pensions (HB) [2010] UKUT 462 (AAC)
This was a housing benefit appeal, indeed the second HB appeal related to this matter. The tale is best told chronologically.
RH was a tenant of a landlord (LL) between 24 November 2006 to 18 January 2008 under what appears to have been a sale and rent back agreement (although the arrangement was with a business partner – LL). RH had owned the property before. RH made 3 rent payments then claimed HB in November 2006, when he was already 8 weeks in arrears. He was initially refused HB under regulation 9(1)(h) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 [which I'm not going into]. This decision was eventually overturned by the first tier tribunal.
However, in the meantime LL made a claim for possession based on rent arrears. RH apparently counterclaimed over some matters in the terms in which he had sold the property including an accusation that LL had reneged on a buy-back agreement. No further detail is in the judgment.
This litigation was settled by way of a Tomlin Order. Crucially, the details of the Tomlin aren’t given in the judgment – this is all there is:
The formal part of the order records the parties’ agreement (i) that the landlord be given possession of the property, (ii) that the defence and counterclaim by the appellant be dismissed (iii) that on the appellant’s vacating the property, all of the landlord’s claims against the appellant under the tenancy of 8/8/05 be dismissed, and that (iv) the proceedings were stayed on the terms set out except for the purpose of carrying out those terms. The Schedule set out more detailed terms agreed by the party, including an undertaking by the appellant to pay the landlord £1.00 on vacating the premises, in full and final settlement of all claims against the tenant under the tenancy including all arrears of rent.
There is a frustrating lack of detail here, to which I’ll return.
RH left the property on 18/01/2008 (but maintained he didn’t pay the £1 !).
Following the first tier tribunal decision, the local authority came to assess housing benefit for the period since RH’s claim. They took the view that the Tomlin meant that the rent liability was £1 and made that award to RH.
RH appealed to the first tier tribunal. The tribunal held that:
despite the terms of the settlement, someone (be it the appellant or his landlord) was entitled to periodical payments representing the rent which had been determined by the rent officer. The tribunal judge remitted the appeal to the Authority to calculate the HB to be paid and to decide to whom the arrears would be paid.
There was no appeal of this decision.
So, the HB based on the original rent amount was calculated by the authority. Someone was getting a windfall…
The authority then took the view that, as there had been more than 8 weeks of rent arrears, the HB should be paid to the LL under regulation 76(1)(b) Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006, which stated that payment shall be made directly to the landlord where “the person is in arrears of an amount equivalent to 8 weeks or more of the amount he is liable to pay his landlord as rent, except where it is in the overriding interest of the claimant not to make direct payments to the landlord.”
RH appealed. The first tier tribunal dismissed the appeal. RH went to the upper tribunal, which is this decision. The Secretary of State was joined as a party due to ‘complex procedural questions’.
RH appealed on the basis that:
i) he hadn’t paid the £1 so the Tomlin Order was invalid – this was simply dismissed. He could not rely on his own wrongdoing under ordinary contractual principles.
ii) The LL still owed him money from the house purchase – dismissed as an attempt to reopen matters dealt with in the Tomlin Order
iii) The parties had some agreement that the HB was to be paid to RH – held there was no evidence as to this and in any event, did not affect the application of the regulations.
The key decision of the first tier tribunal on the regulation contained no error in law. Appeal dismissed. LL got the windfall.
Along the way, the Judge S M Lane made a number of observations and findings. Most significantly for our purposes, he disagreed, strongly, with the previous first tribunal decision that ‘someone’ was entitled to the periodic rent:
I consider that the previous tribunal’s decision was wrong in law. The correct question for the tribunal to ask was whether, at the date of decision, the tenant had any obligation to pay rent under the definition of reg. 12. He did not. The liability to pay rent throughout the entire period had been replaced by an undertaking to pay £1.00 in respect of all claims under the tenancy.
He could however do nothing to change that previous decision as it was not part of the present appeal.
This is the upper tribunal, so a court of record.
The reader who pointed me to this case was concerned about the potential wider effects. They took the view that the judgment meant that a Tomlin Order settling, for instance, a disrepair counterclaim to a rent arrears possession claim, or indeed a disrepair claim where a rent arrears counterclaim was made, would mean that the tenant’s rent liability for the relevant period was extinguished.
So where there was an outstanding claim for backdated HB, or an HB appeal, for the relevant period, the tenant would lose that HB payment. If so, that would indeed be an issue in a number of cases and would make any set-off against arrears potentially problematic for the tenant. On first view, I could see that concern about this decision.
But, after an exchange of emails, and a bit of thought, I don’t agree – or at least not on the basis of the limited detail contained in the judgment. The distinction is between liability for rent and rent paid. I strongly suspect that the terms of the Tomlin as drafted were the cause of the problem.
For instance, the typical phrasing I’d use in a rent arrears set off situation in the Schedule to a Tomlin (shorn of irrrelevant bits) would be:
L to pay T £X by:
i) paying £(amount of current arrears) to T’s rent account
ii) paying £(balance) to T’s solicitors
What this makes clear is that T’s rent liability remains, but that a payment has been made to the rent account as part of the settlement. Just as T’s payments to the rent account wouldn’t extinguish T’s liability for rent for that period (and hence HB entitlement) neither would a payment to the rent account by anyone else, including L.
In RH’s case, the open order dismissed the claim for possession and rent arrears, as well as RH’s counterclaim (rather raising the question of what proceedings were then in existence to be stayed). But the key bit is that the Schedule apparently stated as a standalone term:
‘RH to pay LL £1.00 on vacating the premises, in full and final settlement of all claims against the tenant under the tenancy including all arrears of rent.’
Unless there were any interlinked terms in the Schedule, and from the judgment it does not appear that this was the case, it seems that the contractual valuation of the arrears in the Tomlin was therefore £1 (or possibly less, depending on the other ‘claims under the tenancy’). Thus, given that RH had paid no rent during the relevant period, the rent liability for that time was indeed £1, as Judge Lane would have decided, given the chance.
If that term in the Schedule had instead stated something like ’In full and final settlement of rent arrears of £(rent under tenancy agreement not paid), RH to vacate property and pay £1′, then, in my view at least, the rent liability would not have been extinguished in the way Judge Lane considered. The rent liability would remain but some other form of consideration would have been accepted in payment of it.
So the lesson, if there is one, is to be careful with drafting a Tomlin order and schedule, and most certainly if your client may potentially get an HB backpayment. Make sure you aren’t accidentally wiping out rent liability, but rather expressly setting off a payment – or at least some form of consideration – against the full amount of rent arrears (or as much of it as the claim/counterclaim covers).
Of course, in this particular example of drawing room farce, the HB was paid anyway, by an order Judge Lane clearly made through gritted teeth, and LL did rather better out of the settlement than s/he may have expected. On a properly drafted Tomlin, in my view, LL would have accepted consideration in satisfaction of the actual arrears, the rent liability would have persisted and RH would have got the HB.
But I could well be wrong. The judgment doesn’t give enough detail of the Tomlin to be sure. Suffice it to say that if a client is refused an HB backpayment on the basis that one of my Tomlins has extinguished their rent liability, that looks like an appeal as far up the line as it takes.
Fake ID and ‘Just for Men’: High Ct Judges play ‘guess my age’
I suspect that – at some stage – many readers of this blog will have pretended to be older than they actually are, usually to obtain alcohol or to get into night-clubs for the purposes of obtaining more alcohol/meeting the opposite (or same) sex with the hope (often unfulfilled) of nookie. Oh the joys of youth. At a certain point though, we tend to start going the other way and suggesting that we are in fact younger than we actually are. With the ever increasing amounts of gray appearing in my hair, this is a feeling with which I can sympathise.
But, on a more serious note, ascertaining the age of persons applying for assistance to a local social services authority is an important issue. As Chief has previously explained, being under 18 (and, hence, a child) opens the door to the grotto of goodies that is the Children Act 1989. Being over 18 leads to the doom and despair of adult social services. In many, if not most cases, it shouldn’t be difficult to find out the age of a person. The difficult cases tend to be those involving unaccompanied asylum seeking “children.”
In R (A) v Croydon the Supreme Court held that whether someone was over or under 18 was a fact capable of objective determination by the court; so, if the authority determined you were 21 and you disagreed, you were entitled to issue proceedings in the Admin Ct to have this point resolved by a Judge, after hearing any relevant evidence. What A left open was who would bear the burden of proof?
In R (CJ) v Cardiff County Council [2011] EWHC 23 (Admin), Mr Justice Ouseley had to resolve this question. The facts aren’t that important – basically, the issue is whether CJ was 15, 21, or some other age at the relevant time – what matters is how the Judge approached the question of burden of proof.
The evidence was finely balanced and neither side had established their primary cases (CJ couldn’t prove he was 15 and Cardiff couldn’t prove he was 21). Given that it was CJ who was seeking to establish that the authority were acting unlawfully by not supporting him under the 1989 Act, the burden fell on him to establish this. That, in turn, meant that the burden of proof as to the age of CJ rested with him.
As Ousley J recognised, this is unlikely to be a major issue in many cases; since in many cases it will be enough to establish that the claimant is in a particular age band (say, 17-19), at which stage he is likely to be given the benefit of the doubt. But, for those borderline cases, it comes back to “he who asserts must prove”.
Get Set (Off)
This case was mentioned in the most recent edition of Legal Action’s Housing law update but it is not a housing case. Bear with Legal Action and us however as the case is useful. What is in there is a full discussion and explanation of the right of set-off and how it works.
The facts of the case are not particularly important but in summary there was a dispute between the two sides which left the Claimant being owed a sum of money in Pounds Sterling by the Defendant’s while the Claimant owed one of the Defendants a significant sum in Euros. However, over the period of the dispute the respective value of the Euro as against Sterling has changed a lot due to a few financial issues. I will not comment on the financial part as I may go off on a rant against the stupid arrogant bas…..(sorry).
Anyway, all of this meant that the date on which set-off could be claimed had a significant impact on how much money went to which party so it was a key argument.
The Law of Set-Off
Set-Off actually refers to two distinct things.
The first of these is where a sum owing by one party to another is offset due to monies owed in the opposite direction so that both parties essentially get what they are due but unnecessary funds transfer is minimised. In this case it is merely a matter of transferring monies which result from liquidated debts and in the transfer the liabilities themselves are extinguished.
However, set-off can also refer to a situation where a party has a claim against another party but is prevented from enforcing it because that other party has a claim against him. In this case the two liabilities remain intact (at least for the time being) and they operate almost as an estoppel against one another.
The first of these types of set-off is known as Legal Set-Off, the second as Equitable Set-Off.
Legal Set-Off
Legal set-off is a procedural device. It allows the Court to try two claims, even if on separate matters, together and produce a judgement which nets the monies owed on the two claims together producing an efficient judgement. Although the two rights exist separately and are independent liabilities they are brought together in one judgement and are extinguished at that stage. It is because of this fact and the fact that such a set off can only be exercised as a component of legal proceedings that this form of set off is described as procedural. This form of set off requires that sums are due and are either liquidated or can be ascertained precisely (without any valuation or estimation) at the time of pleading.
Equitable Set-Off
Equitable set off is totally different. This allows for cross-claims which are so closely connected with the claim that it would be unjust to enforce the one without taking into account the other. What is important about equitable set off is that it does not require the amounts to be ascertainable when it is claimed and it can operate independently of proceedings and can arise as an immediate answer to monies that are due.
It has been suggested that the right of set off applies immediately form the time the set off is available and acts to extinguish liabilities from this date. This is potentially very powerful in a housing context as it would mean that if a tenant was in arrears but was also claiming set off for disrepair any interest calculated on final judgement could only be calculated on the part of the rent arrears which exceeded the quantum of disrepair.
Sadly for tenants this is not the case. In Fearns the High Court has held that absent an agreement between the parties setting a date of set off it is for the Court to set such a date. Further, while it can elect to set the offset of the liability to some earlier (or later) point (under CPR 40.13(2)) the starting point for the date of offset must be the date of the order itself, as that is the point at which the liabilities were finally determined.
Therefore the correct approach in the rent arrears/disrepair scenario described above is for the Court to establish the arrears of rent, to establish the amounts due as compensation for disrepair, calculate the interest due on both sums, AND THEN offset the two sums against one another. If the tenant wishes to argue that the offset should happen at some other date then it is for them to do so and the Court has a discretion to allow it.
Therefore, where a rent arrears/disrepair matter is proceeding the practitioners should consider the value of the arrears claim as against the value of the disrepair claim and then consider whether they wish to disturb the standard position or whether it would be advantageous to try to get the date of set off adjusted to benefit their respective client.
Forcelux bound (a little bit)
London Borough of Hackney v Findlay [2011] EWCA Civ 8
This was the Court of Appeal hearing of an appeal on the issues raised in Forcelux v Binnie [2009] EWCA Civ 854 [Our report here], specifically the Court’s ability to set aside a possession order under CPR 3.1(2)(m) as opposed to the more restrictive provisions in CPR 39.3.
Briefly, Mr Findlay was the secure tenant of Hackney. There were rent arrears, amounting to some £1,500 all in, primarily because housing benefit was not in payment for some periods. There are disputed accounts of how Hackney approached this. Hackney brought possession proceedings. Mr Findlay asserts that the only notification of the hearing date he received was a letter from Hackney saying that there would be a hearing, but he did not receive the Court’s notification that he should attend. Mr F did not attend the possession hearing.
At the hearing – the first hearing – the DJ took it that Mr F could apply under s.85(2) Housing Act 1985 to vary any order made. On the asserted rent arrears, the DJ made an outright possession order. He noted housing benefit was now in payment and stated that ‘the order has been made on discretionary grounds’, presumably meaning the court considered it reasonable to make an order.
Hackney applied for a warrant, after the date of possession. Mr Findlay had, in the interim been sent a coupe of letters but their significance and whether they constituted a referral to an officer responsible for assisting with HB was disputed. There was also an interview, also of disputed meaning. Hackney’s evidence was that a letter informing Mr F of the date of eviction had been hand delivered.
Mr F was evicted on 6 July 2009, ending his ability to apply to vary the possession order under s.85(2).
On 13 July 2009, Mr F applied for re-entry, amended on 21 July to include an application to set aside or vary the possession order. DJ Armon-Jones heard the application. He considered the application to set aside first, on the basis that if it succeeded, re-entry followed. He held that the application to set aside succeeded on the basis that the DJ at the possession hearing had not been told that HB had been re-instated and had proceeded wrongly on the basis that the court’s powers were restricted to making a possession order or dismissing the claim. The matter had not been dealt with justly, and CPR 3.1(7) was invoked, enabling him to set aside the order under CPR 3.1. DJ Armon-Jones also ordered that Mr F should be at liberty to re-enter and the hearing of the possession claim was adjourned to a later date.
On the basis of the transcript of the possession hearing, now available, it was clear that DJ Armon-Jones was wrong to say that the first instance DJ had not been told HB was re-instated and was well aware of Mr F’s ability to apply under s.85(2). For these reasons, the Court of Appeal found that DJ Armon-Jones’ decision couldn’t stand. We’ll come back to this.
Hackney appealed to the Circuit Judge, by which time the decision in Forcelux had been handed down. HHJ Birtles QC accepted that Hackney had not mis-stated the amount of rent at the first hearing, but rejected Hackney’s grounds of appeal.
He held that Forcelux did not mean that the Court had to apply the requirements of CPR 39.3 to the exercise of discretion under CPR 3.9 (relief from sanctions). It was a matter of the Court’s discretion. He also held that there was no principle that “the power to set aside orders should be exercised far more cautiously in cases where the warrant has been executed, rather than before that state of affairs has been reached”. Accordingly, the DJ was not required to take into account whether Mr F had shown that he acted promptly, or had a good explanation for not attending the first hearing, or that that he [Mr F] had a reasonable prospect of success at trial. The matter was remitted for a further hearing on the possession. In the interim, Hackney agreed to Mr F re-entering on the basis that he would not rely on the subsequent period of occupation to make a fresh application to stay a warrant under s.85 Housing Act 1985
Hackney appealed to the Court of Appeal on the issues of whether the CJ was correct to hold that the CPR 39.3 factors could be left out of account and whether it was relevant that the warrant had been executed.
At the hearing, or indeed subsequently, Hackney were unable to confirm the position on the arrears ‘due to the complexity of the housing benefit history’, but there had been a back payment of £1,252.32 in January 2010. Hackney maintained Mr F’s previous application for a backdate had been refused and not appealed.
The first issue was a) whether Forcelux had been decided per incuriam and b) how should discretion under CPR 3.1 to set aside a possession order in the absence of a party be exercised.
Hackney submitted that Forcelux was decided per incuriam because it had not considered Roult v Strategic Health Authority [2010] 1 WLR 487, which – briefly – held that the power under CPR 3.1(7) might not be justifiably exercised where the order was a final one and there were no grounds for a proper appeal, as there was no power for a judge to effectively hear an appeal from themselves even on the basis of erroneous information or subsequent events.
The Court of Appeal – in Lady Arden’s sole judgment – held that there was a compelling factor in Forcelux for setting aside the possession order (the ‘windfall argument’) but that that line of cases up to and including Roult relied upon by Hackney did not go to the key question of whether a first hearing of a possession claim was a trial for the purposes of CPR 39.3. Forcelux was not per incuriam.
On the issue of how strongly the factors in CPR 39(3) should weigh in a set aside under CPR 3.1, Hackney argued that, as a matter of policy, the test for setting aside a possession order should be tougher than that in Forcelux, as otherwise local authorities would face substantial difficulties and a loss of certainty if tenants could choose not to come to court but still easily obtain the setting aside of a possession order, even after eviction.
The Court held that there was a clear difference between the facts of Forcelux and those of the present case. In Forcelux the discretion had been framed as wide and unfettered, but on the facts of that case the Court had had to go no further. The presence of CPR 39.3 indicates that in situations where the Defendant does not attend the hearing at which the order is made, a different approach applies to the situation.
In a normal case where a party fails to attend a hearing at which a possession order is made, the discretion vested in the court is not ‘wide and unstructured’. In s.85(2) HA 1985 there is an indication that “Parliament contemplated that save in unusual circumstances the execution of a possession order should bring to an end the tenant’s rights, including the right to apply for an order under that subsection’. Further, the finality of litigation has long been a principle of public policy. A possession order forms ‘” proper basis for execution unless that is the tenant makes an application under s.85(2) in the period allowed by that provision”. As a corollary, challenges to orders should be by way of appeals. Lastly, CPR 39.3 makes clear that:
where a final order is made the defendant should have to produce a good explanation for not attending the hearing, that he acted promptly on learning of the order which he seeks to set aside, and that he should show that he has a real prospect of success in his defence. These requirements support the policy considerations to which I have referred.
So, in the absence of compelling factors such as those in Forcelux, (forfeiture on the the basis of non-payment of small amount of ground rent on a lease in that case), a Court that is asked to set aside a possession order should:
in general apply the requirements of CPR 39.3(5) by analogy. This is in addition to, and not in derogation of, applying CPR 3.9 by analogy, as this court did in Forcelux, as that provision requires the court to have regard to all the circumstances in any event. However, in my judgment, for the reasons given above, in the absence of the unusual and compelling circumstances of a case such as Forcelux, this court should give precedence to the provisions of CPR 39.3(5) above those enumerated in CPR 3.9.
However, for a secure tenancy, s.85(2) shows Parliament’s intention that a tenant should have the right to persuade the court to modify an outright possession order. It follows that:
the requirements of CPR 39.3(5) need not be applied in such a case with the same rigour as in the case of a final order that does not have this characteristic. (It is only fair to Mr Findlay to make the point that DJ Manners expressly had the possibility of a subsequent application by him in mind when she made her order). Accordingly, the court should not decline to exercise its power to set aside a possession order if in consequence the statutory purpose in s 85(2) would be defeated. Moreover, in my judgment the court can have regard to the wider social context in which these cases come before the courts. Accordingly, in deciding whether the tenant has a good reason for non-attendance the court can in my judgment have regard to the provisions of the Rent Arrears Pre-Action Protocol and to best practice among social landlords. It may conclude that, while in the ordinary case a defendant might have had no proper excuse for not attending a court hearing at which the possession order was made, given best practice of social landlords and the provisions of that protocol, a tenant is in fact able to provide an appropriate explanation. [para 24]
Where a possession order has been executed, this is also a relevant circumstance for the court to consider on a set aside application. The weight will depend on the circumstances of the case, but will likely be ‘highly relevant’ if the property has been allocated to another tenant or refurbishment works undertaken.
The second issue was whether the order of HHJ Birtles QC should be set aside.
On the transcript of the first possession hearing, DJ Armon-Jones order on the set aside must itself be set aside. HHJ Birtles QC erred in not ordering that and in not re-exercising the discretion under CPR 3.1 in accordance with the guidance given above. So his order on first appeal must be set aside.
Hackney then submitted, among other points, that it would be possible for the Court of Appeal to make a suspended possession order under s.85(2) to vary the original possession order, despite the execution of the warrant. Mr F submitted that the s.85 powers only applied before execution of a warrant, so once the set aside order had been quashed there was no power for the Court of Appeal to make an order fir suspended possession under s.85. Although the Court did not make any such order, Lady Arden considered that Mr F was wrong on this, but, [in a frankly bewildering fashion], bases this on her earlier statement that a set aside of a possession order also sets aside execution and revives s.85 powers.
[NL - With all respect, this has to be an error. The set aside of the possession order had itself been set aside. The outright PO stood and with it the warrant. Mr F had an undetermined application to set aside. He might be in occupation but this was on the basis of an agreement not to use that occupation for further s.85 applications. In short, he might be in the property, but the position, given the Court of Appeal’s findings was as if the warrant had been executed. Unless I’m really missing something? Kerry Bretherton – for Hackney – if you read this, illuminate me…]
In any event, the Court of Appeal declined to re-exercise the discretion to decide the set aside application, although this was indeed open to it. There were matters at issue to be decided before Mr F’s application to set aside could be determined – the various factual disputes referred to above amongst them and also Mr F’s application to set aside on the ground of oppression. The matter was to be remitted to a district judge for hearing.
No issues were raised in the appeal on Article 8 and any such issues if relevant would be for the district judge to hear. [That has to be right – I can’t see Article 8 issues involved in the substantive issues in this appeal].
Appeal allowed.
Comment
To be entirely honest, I was tempted to describe this as ‘small storm in teacup, no serious injury’. Forcelux itself described the CPR 39.3 factors as factors ‘to be taken into account’ in the exercise of the CPR 3.1 discretion in such cases. At the time of Forcelux, my assumption was that the effect was only to remove the CPR 39.3 factors from being absolute requirements for a set aside, not to remove them from consideration. (I actually said so in the comments to our post, thank heavens).
However, the terms in which HHJ Birtles QC apparently dealt with the relevance of the CPR 39.3(5) factors suggest that it was wrong to presume that this would be the general view, so taking this case out of teacup territory.
The Court of Appeal here has stated that the 39.3(5) factors will ‘in general’ be applied ‘by analogy’ and then gone on to say this will be in the course of a consideration of all the circumstances and ‘wider social context’ and less rigorously in pre warrant secure tenancy cases. In short – the 39.3 factors are relevant to the 3.1 discretion, even highly so, but not absolute requirements.
Hackney’s full frontal assault on Forcelux – via the per incuriam argument and the ‘it’s not fair on local authorities’ argument – failed. Forcelux remains good law.
We might also note that Mr F did advance arguments for the reason for his non-attendance and for prospects of success at trial. Delay – on the reported arguments here – is less clear. Whether his arguments are any good is now up to the DJ who hears the remitted case, but I mention this solely to make the point that his application was not devoid of address to the 39.3(5) factors.
So, size of tempest and tableware debates aside, this is a significant decision for anyone looking to set aside a possession order following non-attendance of the Defendant at first hearing, particularly so for secure tenants. It is also useful in clarifying the position on pursuing such an order post eviction. One can and one can seek an order under CPR 3.1 powers. But it may be tricky…
Request for information
The Landlord and Tenant Act 1985 contains various protections for leaseholders and assured tenants against unreasonable service charges (see, e.g. s.19, 1985 Act). By s.26, 1985 Act, tenancies granted by local authorities, National Park authorities or a new town corporation are excluded from protection unless they are long leases (i.e. granted for a term in excess of 21 years).
At the HLPA meeting yesterday (19.1.11) evening, it was mentioned that Pierce Glynn are involved in judicial review proceedings surrounding this exclusion. It appears that they have a client (a secure tenant? someone in Pt 7 temporary accommodation?) who contends that this exclusion is somehow unlawful. Does anyone know anything more about this? I presume that the tenant is arguing that he has no effective method of challenging his service charges and/or that the exclusion of protection under s.26, 1985 Act violates Art. 14, ECHR?
I won’t speculate any further, but I’d love to know more about this. Comments gratefully received!
