Homelessness

Where a local authority accepts that it owes a duty to a homeless person to find them temporary accommodation under section 193 of the Housing Act 1996, section 208 applies: “So far as reasonably practicable a local housing authority shall in discharging their housing functions under this Part secure that accommodation is available for the occupation of the applicant in their district”. In Nzolameso v City of Westminster [2014] EWCA Civ 1383 the Court of Appeal that section 208 meant that the authority was entitled to have regard to all factors that had a bearing on its ability to provide accommodation to that person, including the demands made upon it and the pressures on its resources, whether of a financial or administrative nature. Parliament had recognised in section 208 that the temporary accommodation may have to be outside the authority’s district. So long as the housing officer describes the circumstances in general terms which led her to conclude that those demands and pressures meant that accommodation could not be provided within the district, based upon the needs of the individual applicant, that would be sufficient.

The classic test in R v Camden LBC ex p Pereira (1999) 31 HLR 317 that a person is vulnerable – and therefore in priority need of housing – if he is less able to fend for himself than an ordinary homeless person so that injury or detriment will result is currently under challenge in the Supreme Court in the appeal from Johnson v Solihull MBC [2013] EWCA Civ 752. But it continues to apply, and in Ajilore v Hackney LBC [2014] EWCA Civ 1273 the Court of Appeal accepted that a reviewing officer was entitled to conclude that although the applicant was at risk of relapse into drugs use and of suicide, this did not make him vulnerable in the sense that the risk of self-harm and relapse was not anything different from what would be found in ordinary homeless people. The misinterpretation of statistics which the officer had committed did not vitiate the decision.

Possession and Article 8

The courts continue to clarify the position following the decisions of the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2 AC 18 on the application of Article 8 ECHR to defend possession proceedings.

The European Court of Human Rights has again applied the Article 8 right to a home in the context of proceedings between private parties. In Lemo v Croatia (App. No. 3925/10) the applicants moved into flats as employees of a publicly owned hotel, which was later privatised. The domestic courts had evicted the applicants without consideration of whether that was a proportionate interference with their Article 8 rights. The Court held that allocation of socially-owned flats in the former Yugoslavia happened at a time when the flats were under State control, and Article 8’s required procedural safeguards and the consideration of proportionality applied.

Although there was the contrary suggestion by Sir Alan Ward in Malik v Fassenfelt [2013] EWCA Civ 798, the present position in English law is that Article 8 does not apply to possession claims brought by private landlords, and the Strasbourg case law is not sufficiently clear and constant to require otherwise: McDonald v McDonald [2014] EWCA Civ 1049.

Article 8 was applied by analogy, even where the landlord was a housing association rather than the local authority (although the council had placed the claimant with the association), where section 15 of the Equality Act 2010 (discrimination arising from a disability) was raised as a defence to possession because both tests required consideration of proportionality: Akerman-Livingstone v Aster Communities Ltd [2014] EWCA Civ 1081. However, it was proportionate to make the possession order on the facts. The Supreme Court has granted permission to appeal.

Possession and Conspiracy

A highly unusual case occurred in AA v Southwark LBC [2014] EWHC 500 (QB) in which HHJ Thornton QC, sitting as a Deputy, delivered an extraordinarily long judgment finding that Southwark’s housing officers had actively conspired to evict a secure tenant by unlawful means, namely in reliance on a warrant of possession more than six years after the possession order without having obtained the permission of the court (as required under CPR Pt 83). An internal report setting out the council’s unlawful actions and making findings of gross misconduct was not disclosed until the second day of the trial. The claimant had been made homeless and had his possessions destroyed. The torts of unlawful means conspiracy and misfeasance in public office were made out, and had the parties not settled substantial damages would have been awarded.

Possession and Anti-Social Behaviour

A new “absolute ground for possession” was enacted in section 94 of the Anti-Social Behaviour, Crime and Policing Act 2014 to apply in cases where a secure tenant in anti-social behaviour under the new regime introduced by the 2014 Act. This was brought into force on 20 October 2014 by the Anti-Social Behaviour, Crime and Policing Act 2014 (Commencement No.7, Saving and Transitional Provisions) Order 2014 (SI 2014/2590).

Alongside this, the Absolute Ground for Possession for Anti-Social Behaviour (Review Procedure) (England) Regulations 2014 (SI 2014/2554) came into force on the same day, in accordance with the provisions in section 95-96 of the 2014 Act which prescribe that a notice seeking possession must be made to the tenant, and that a review may be requested within seven days of the notice. Where no oral hearing is sought under the Regulations five clear days must be given for written representations. Where an oral hearing is sought, the landlord must give five clear days’ notice of the hearing which is conducted by a more senior person than the original decision-maker.

Review Process

Where a non-English speaker declines an offer of a flat, causing the local authority to conclude it has discharged its section 193 Housing Act 1996 duty, but seeks a review on the basis that she was confused by the process and had not properly understood, it was for the court to decide whether the assertion of confusion was sufficiently important, objectively speaking, to the fairness of the procedure to justify requiring the safeguard of a ‘minded to’ letter under regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999. That letter offered an opportunity to make representations, and the Regulations must be construed purposively in that light. It was artificial to distinguish between new matters and matters always known to the applicant. So long as the assertion of confusion was at all plausible, a regulation 8(2) letter must be sent (and if it was not, there must be full reasons as to why not): Mohamoud v Birmingham City Council [2014] EWCA Civ 227.

Where a review is carried out under the 1999 Regulations, nothing in the Regulations (which distinguished between the original decision and the review decision) or in sections 202-203 (which were framed in the present tense) of the Housing Act 1996 obliged the reviewing officer to come to more favourable decision. It was perfectly possible that a less favourable decision might be the outcome. As a result, a review of a decision which the applicant to be homeless but not in priority need could lawfully conclude that the applicant was not even homeless: Temur v Hackney London Borough Council [2014] EWCA Civ 877. There was no prohibition on taking into account events subsequent to the review application (Mohammed v Hammersmith & Fulham London Borough Council [2001] UKHL 57; [2002] 1 AC 547), and the fact that the applicant had acquired accommodation in the meantime was an appropriate consideration. The scarcity of social housing meant that as a matter of policy it would be extraordinary if homelessness duties continued to apply to a person who was no longer homeless.

The obligation on a reviewing officer to give full and proper reasons encompasses consideration of the Homelessness Code of Guidance for Local Authorities, the applicant’s explanation for her expenditure (where the decision was one of intentional homelessness because of failure to pay rent), the housing officer’s judgment about non-essential items of expenditure and whether other items of expenditure were excessive. The more detailed the justification produced by the applicant, the more detailed the reasons for rejecting that justification were required: Farah v Hillingdon London Borough Council [2014] EWCA Civ 359.

Priority Need

K was a married man with a 21 year old son, living in private rented accommodation, having been assessed by the local authority as at greater risk because of a medical condition. When given notice to quit his private accommodation, the authority declined to classify him as being in priority need because he could control his condition with medication and had a stable family support network to help him cope. A challenge to the reliance on a stable support network failed. The reviewing officer, who would have considerable practical experience, had not failed to evaluate the risk, and was not obliged to refer the point to the medical assessment service. K had access to treatment though his GP and hospital. Moreover, the public sector equality duty could not extend to requiring a housing authority to secure accommodation for a disabled person where their disability did not render them vulnerable: Kanu v Southwark London Borough Council [2014] EWCA Civ 1085.

Homelessness and Legal Aid

An appeal under section 204 of the Housing Act 1996 had to fall within the public law category of legal aid within the meaning of paragraph 19(1) of Part I of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which applies only to judicial review. A section 204(1) appeal was “an appeal on any point of law”, not a judicial review (in contrast to a matter under section 204A). Although there was substantial overlap between an appeal on a point of law and judicial review a body with jurisdiction over appeals on a point of law was not required to apply judicial review principles in every case. Section 204 appeals fell outside paragraph 19(1) and there was no entitlement to legal aid: Bhatia Best Ltd v Lord Chancellor [2014] EWHC 746 (QB).

Article 8 ECHR Cases

The courts continue to clarify the position following the decisions of the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2 AC 18 on the application of Article 8 ECHR to defend possession proceedings.

For a recent, standard, application of the cases see: Secretary of State for Transport v Blake (unrep., ChD, 31 July 2013).

In R (CN) v Lewisham London Borough Council [2013] EWCA Civ 804 the Court had to reconsider the line of authority which held that section 3 of the Protection from Eviction Act 1977 did not apply to temporary accommodation provided by a local authority to avoid homelessness and that Article 8 required no different approach: Mohammed v Manek (1995) 27 HLR 439; Desnousse v Newham London Borough Council [2006] EWCA Civ 547; [2006] QB 831. The Court held that they remained good law and binding authority. Neither case was inconsistent with Patel v Pirabakaran [2006] EWCA Civ 685; [2006] 1 WLR 3112 (about the application of the 1977 Act to mixed residential and business lettings), nor was Pinnock authority for requiring proceedings in all cases before evictions, or Powell an extension to temporary accommodation. The courts could assess proportionality on judicial review; that was sufficient protection for Article 8 and Parliament had a wide margin of appreciation in the area. Possession proceedings were not required before a person could be evicted from temporary accommodation held under licence by sections 188 or 190(2) of the 1996 Act.

The European Court of Human Rights has again applied the Article 8 right to a home in the context of proceedings between private parties. In Brezic v Croatia (App. No. 7177/10) the applicant had been the possessor of a flat in a building owned by a privatised enterprise. The company brought possession proceedings, successfully, and the national courts did not consider the issue of proportionality of granting possession. The Court found a breach of Article 8 as the flat was her home and the grant of possession was an interference with it. Because there had been no consideration of proportionality the interference could not be held to be necessary and there was a breach of Article 8.

In Malik v Fassenfelt [2013] EWCA Civ 798 the claimant sought a possession order against persons said to be squatting on his land. The County Court accepted the argument of the defendants that Article 8 applied, even though the case was an entirely private one, but held that the order was proportionate. On appeal, the claimant did not pursue the Article 8 issue, and so a majority of the Court of Appeal (Toulson and Lloyd LJJ) assumed that Article 8 was engaged but upheld the order for possession as proportionate and that only in exceptional circumstances would eviction of squatters be disproportionate. By contrast, Ward LJ expressly considered the Article 8 issue, and held that it did apply to cases involving private landlords, so that the rule in McPhail v Persons Unknown [1973] Ch 447 that there was no jurisdiction to extend time to a trespasser, could no longer apply.

Homelessness

A reviewing officer was lawfully entitled to conclude that a heroin addict with depression who had previously been imprisoned was not vulnerable within the meaning of section 189(1)(c) of the 1996 Act, article 5(3) of the Homelessness (Priority Need for Accommodation) England Order 2002 or R v Camden London Borough Council ex p Pereira (1999) 31 HLR 317, such as to require priority need for housing: Johnson v Solihull Metropolitan Borough Council (unrep., CA, 6 June 2013).

Section 204(2A) of the 1996 Act requires there to be good reasons for delay in bringing an appeal against a refusal of housing outside of the 21 day time limit. Lewis J confirmed that good reasons is an issue of fact, and that the power to extend time was linked to the reasons for the delay, not the merits per se, was not a breach of Article 6 ECHR: Peake v Hackney London Borough Council (unrep., QBD, 11 July 2013).

However, the court should not strike out a section 204 appeal as being out of time at a directions hearing when the claimant had not had any notice that such an application would be need and was not prepared to answer it: Dawkins v Central Bedfordshire Council (unrep., QBD, 4 July 2013). In addition, the factual basis of the refusal to extend time was mistaken. The case was remitted for reconsideration.

A more procedural point was raised in Johnson v Lord Mayor & Citizens of Westminster [2013] EWCA Civ 773, in which the Court of Appeal held that it did not have jurisdiction to entertain an application for an order that a local authority provide temporary accommodation pending an application for permission to appeal to the Court of Appeal against a County Court decision that he was intentionally homeless. Judicial review was the appropriate route.

Possession

Where a possession order is sought against a secure tenant, there must be suitable alternative accommodation available for the tenant when the order takes effect: section 84(2)(c) of the Housing Act 1985. When granting an order for possession the court is not required to specify an exact property; it was permissible to set out the essential characteristics of what would be suitable and to make the order conditional upon such a property being found: Holt v Reading Borough Council [2013] EWCA Civ 641. The Court indicated that a conditional order should include liberty to apply, a time limit and provision for if no suitable accommodation is found. In cases where a tenant is particularly vulnerable or unrepresented, a conditional order may not be appropriate.

For an example of an agreement which created a secure tenancy which prevented the successful bringing of possession proceedings, see: Francis v Brent Housing Partnership Ltd [2013] EWCA Civ 912.

Housing Benefit

In R (MA) v Secretary of State for Work and Pensions [2013] EWHC 2213 (Admin) the Divisional Court declined to quash the elements of the Housing Benefit (Amendment) Regulations 2012 which imposed a reduction in eligible rent of 14% where there is one excess bedroom and 25% where there are two or more, in order to save £500m from the housing benefit budget. The Court accepted that disabled recipients of housing benefit engaged Article 14 ECHR, an instance of Thlimmenos discrimination. The relevant test at the proportionality stage was whether the measure was manifestly without reasonable foundation. There was an absence of a precise class of persons (those who need extra bedroom space by reason of disability), which could be identified in practical and objective terms and sufficiently differentiated from other groups equally in need of extra space but for other reasons. The provision of extra funding for discretionary housing payments and advice and guidance on its use could not be said to be a disproportionate approach to the difficulties which those persons faced. The measure was not manifestly without reasonable foundation. Unusually, the Court also considered that the substance of the public sector equality duty challenge was wrapped up with the justification argument, and both grounds failed as a consequence. The Court indicated that it was unacceptable that Regulations had not been brought in to remedy the illegality found in Burnip v Birmingham City Council [2012] EWCA Civ 629; [2013] PTSR 11, but on assurance that Regulations were being considered no further order was made.

The Court of Appeal has dismissed the appeal in R (Zacchaeus 2000 Trust) v Secretary of State for Work and Pensions (unrep., CA, 31 July 2013). The case concerned a challenge to the Rent Officers (Housing Benefit Functions) (Amendment) Order 2012 on the grounds that it was ultra vires the legislative housing and benefits regime, and was in breach of section 149 of the Equality Act 2010 (the public sector equality duty). The 2012 Order froze housing benefit rates since 2 April 2012 for a year, and imposed uprating by CPI from April 2013. Sullivan LJ dismissed the appeal on both grounds and upheld the judgment of Underhill J below. Elisabeth Laing QC and Christopher Knight acted pro bono for the Trust, instructed Leigh Day & Co.

Schedule 5, paragraph 14(1)(e) of the Housing Benefit Regulations 2006 excludes from account sums paid under agreements made after the occurrence of an injury. The Court of Appeal held in Lloyd v Lewisham London Borough Council [2013] EWCA Civ 923 that this did not include payments made under agreements concluded prior to the occurrence of the injury, such as payment to compensate for loss of income. Such an approach was the only rational interpretation and avoided double recovery.

Legislation

The new First-tier Tribunal (Property Chamber) has come into existence as of 1 July 2013, when it took over the jurisdictions of the Residential Property Tribunal, the Leasehold Valuation Tribunal, the Rent Tribunal, the Rent Assessment Committee, the Agricultural Land Tribunal and the Adjudicator to the Land Registry. To support the new Chamber, a new set of Rules have been issued: the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (SI 2013/1169). They are broadly similar to the Rules of the other First-tier Chambers.

Fee levels have also been set for both the Property Chamber, and the Lands Chamber in the Upper Tribunal: First-tier Tribunal (Property Chamber) Fees Order 2013 (SI 2013/1179) and the Upper Tribunal (Lands Chamber) Fees (Amendment) Order 2013 (SI 2013/1199).

From 2014 the Local Housing Allowance will be recalculated in January of each year, uprated at the lower of the rent at the 30^th percentile of listed rents or the previous year’s LHA increased by 1%: Rent Officers (Housing Benefit and Universal Credit Functions) (Amendment) Order 20123 (SI 2013/1544).

Following the accession of Croatia to the EU on 1 July 2013 – and the five year period within which Member States may restrict access to state support – a Croatian is only eligible for housing allocation or homelessness assistance if he is a worker and registered as such under a worker registration scheme: Allocation of Housing and Homelessness (Elgibility) (England) (Amendment) Regulations 2013 (SI 2013/1467).

Article 8 ECHR Cases

The courts continue to clarify the position following the decisions of the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2 AC 18 on the application of Article 8 ECHR to defend possession proceedings.

The Court of Appeal has clarified in R (JL) v Secretary of State for Defence [2013] EWCA Civ 449 that the defence of a disproportionate interference in an occupier’s right to respect for his Article 8 rights applied as a defence to the enforcement of a possession once obtained, as well as the initial claim for possession. However, if Article 8 had been considered at the initial claim stage there would need to be special circumstances for the issue to be revisited (and the Court was not obliged to do so of its own motion). Moreover, it may be an abuse of process not to have the defence at the possession stage. In JL’s case, no evaluation had occurred at the initial stage (in 2007, pre-Pinnock) and since that time no suitable alternative accommodation had been identified by the relevant local authority. It was therefore appropriate for the Court at the enforcement stage to review the possession, which it had carefully done finding that it was not disproportionate to permit enforcement. Ben Hooper of 11KBW appeared for the Secretary of State.

There was no breach of Article 8 in refusing to grant retrospective planning permission for a caravan site in the green belt, where the best interests of gypsy children were not determinative of the planning issues, but there were no less important than any other consideration and should be kept at the forefront of the planning inspector’s mind: Stevens v Secretary of State for Communities and Local Government [2013] EWHC 792 (Admin).

Nor was there a breach of Article 8 in the provision of s.15(3) of the Land Registration Act 2002 precluding a gypsy squatter in adverse possession lodging a caution against first registration of a piece of unregistered land: Turner v Chief Land Registrar [2013] EWHC 1382 (Ch).

Homelessness

The claimant in R (IA) v Westminster City Council [2013] EWHC 1273 (QB) was an Iranian who had been tortured in Iran and granted asylum in the UK. He had been living in private rented accommodation paid for by housing benefit. His landlord served him notice following the welfare reforms. After a discussion of an hour with an authority caseworker, during which he referred to his chronic leg and back pain, depression, insomnia and panic attacks, the authority determined that was homeless but was not in priority need within the meaning of s.184 of the Housing Act 1996 and as a result he would not be temporarily housed under s.193. The authority also refused to provide temporary accommodation whilst the case was under review, and the claimant was given an interim injunction ordering the provision of accommodation pending determination of the review. Sitting as a Deputy, HHJ Thornton QC, continued the injunction and granted permission to judicially review the decisions not to find him in priority need. The initial assessment seemed irrational, if not perverse. The Court gave guidance that where mental health issues arose from the historic mistreatment of a former asylum seeker, the local authority should usually consult with the individual’s medical advisors, the relevant mental health services and seek a psychiatric report. It would usually need a detailed inquiry into his pre-homelessness way of life. None of those would have been done in a one hour interview. The judgment was made the subject of a direction in order that it could be cited as an authoritative precedent.

In an ex-tempore judgment of the Court of Appeal on 21 May 2013 in Mohammed v Islington London Borough Council a claimant who had a medical condition which meant that she fainted several times a day overturned a review decision which had failed to consider whether being street homeless would affect the likelihood of her fainting and how the fainting itself would affect her if she was homeless. Although fainting was not serious, it did not mean that she was not vulnerable within the meaning of s.189 of the 1996 Act; most homeless people did not suffer from regular fainting.

Ms Obiorah had received temporary accommodation, and offers of permanent accommodation had been withdrawn after being made. Five years later an offer of temporary accommodation was made, to which Ms Obiorah replied that she had a legitimate expectation of an offer of permanent accommodation when suitable accommodation became available under the Allocation Policy of the authority. The Court of Appeal in Obiorah v Lewisham London Borough Council [2013] EWCA Civ 325 rejected this: there was no guarantee or legitimate expectation that a second offer would also be an offer of permanent accommodation. Any misunderstanding on the part of the claimant was not the fault of the authority and there was no unfairness.

When assessing whether an applicant had a priority need for accommodation under s.189(1)(c) of the Housing Act 1996 the local authority was entitled to take into account the support the applicant had been in receipt of from his brother, with whom he was living and from whom he would continue to receive support even if homeless. The weight to be accorded to such evidence was dependent on a fair evaluation of all the evidence, but there was no suggestion that the evidence had not been available to the authority: Hotak v Southwark London Borough Council [2013] EWCA Civ 515. Heather Emmerson of 11KBW (led by Paul Brown QC) appeared for Mr Hotak.

Unlawful Eviction

The statutory tort, contained in s.27 of the Housing Act 1988, of unlawful deprivation of a residential occupier of premises of occupation entitles the innocent party to damages assessed as the difference between the value of the landlord’s interest with occupation continuing and the value of that interest without the occupation right: see s.28. The Court of Appeal has clarified that that calculation had to take account of the inherent vulnerability of a secure tenancy to becoming downgraded to an assured tenancy on sale of the local authority’s interest to a private landlord: Lambeth London Borough Council v Loveridge [2013] EWCA Civ 494.

Housing Benefit

The appeal against the decision of Underhill J in R (Zacchaeus 2000 Trust) v Secretary of State for Work and Pensions [2013] EWHC 233 (Admin) not to quash to the Rent Officers (Housing Benefit Functions) (Amendment) Order 2012 will be heard at the end of July 2013 by the Court of Appeal. Elisabeth Laing QC and Christopher Knight of 11KBW appear for the Trust, instructed by Leigh Day & Co.

Children Act

No support may be provided to a person (other than an asylum seeker) under s.17 of the Children Act 1989 who is in breach of immigration laws, except to the extent necessary to avoid violation of Convention rights: Schedule 1 to the Nationality, Immigration and Asylum Act 2002. In MN & KN v Hackney London Borough Council [2013] EWHC 1205 (Admin) the local authority had refused to accept that two children of Jamaican nationals illegally present in the UK were relevantly in need because their parents had declined to provide information despite contenting there were about to become homeless, particularly in respect of how the family had survived in the UK since 2001 and what assistance was available to them. Leggatt J held that the investigations had been proper and the decision rational in the circumstances of non-cooperation. Until the authority had assessed the children as being in need, no s.17 duty arose and no accommodation could be provided.

Where an individual has obtained an assessment under s.17 which has found that the child is not in need because the family is staying with friends, and the family subsequently is accommodated on a day-to-day basis by a charity, a local authority is obliged to carry out a fresh assessment. This obligation does not cease when the Secretary of State provides accommodation under the Immigration and Asylum Act 1999 where it is arguable that that accommodation did not meet the needs of the child: R (ES) v Barking and Dagenham London Borough Council [2013] EWHC 691 (Admin).

In R (Ezeh) v Barking and Dagenham London Borough Council (QBD, Admin, unreported, 12 April 2013) Elisabeth Laing QC, sitting as a Deputy, granted an interim injunction prohibiting the withdrawal of accommodation by the local authority from a Nigerian mother and son. The authority argued that the claimant was an asylum seeker and that responsibility consequently fell on the Secretary of State. The UKBA had indicated both that it had no record of an asylum application and that one had been made. The Court held that the dispute could not be resolved prior to disclosure and that the existing position should be maintained. If it turned out that the authority had not been obligation to accommodate the claimant, the Secretary of State was expected to reimburse the authority.

Legislation

The provisions of the Localism Act 2011 (in Part VII, Chapter 6) enabling tenants to raise complaints with the Housing Ombudsman were brought into force on 1 April 2013 by the Localism Act 2011 (Commencement No.2 and Transitional Provisions) Order 2013 (SI 2013/722).

The provisions of the Localism Act 2011 (Part VII, Chapter 3) abolishing the Housing Revenue Account subsidy system will be brought into force on 1 October 2013 by the Localism Act 2011 (Commencement No.9) Order 2013 (SI 2013/797).

The new First-tier Tribunal (Property Chamber) is moving closer to existence. On 1 July 2013 it will take over the jurisdictions of the Residential Property Tribunal, the Leasehold Valuation Tribunal, the Rent Tribunal, the Rent Assessment Committee, the Agricultural Land Tribunal and the Adjudicator to the Land Registry. These changes were supported by the Transfer of Tribunal Functions Order 2013 (SI 2013/1036) and the Amendments to Schedule 6 of the Tribunals, Courts and Enforcement Act 2007 Order 2013 (SI 2013/1034). See also: the Qualifications for Appointment of Members to the First-tier Tribunal and Upper Tribunal (Amendment) Order 2013 (SI 2013/1185); the First-tier Tribunal and Upper Tribunal (Chambers) (Amendment) Order 2013 (SI 2013/1187); and the Tribunal Procedure (Amendment No.3) Rules 2013 (SI 2013/1188). All come into force on 1 July 2013.

Article 8 ECHR Cases

The courts continue to clarify the position following the decisions of the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2 AC 18 on the application of Article 8 ECHR to defend possession proceedings.

In Fareham Borough Council v Miller [2013] EWCA Civ 159 Mr Miller was a non-secure tenant and a drug addict with a long criminal record who had been the subject of anti-social behaviour complaints. A notice to quit had not been actively pursued when the Council agreed to give Mr Miller another chance following his release from jail, but it was pursued after a further jail sentence was imposed. The Court of Appeal held that as a matter of law it was impossible to revoke a notice to quit. Accepting rent after the notice to quit clearly evidenced nothing more than a conditional chance, and not a new tenancy, so that Mr Miller was a tolerated trespasser. There was no Article 8 defence to possession because of the need to protect neighbours and not purely administrative concerns. His personal circumstances as a former offender did not raise a sufficiently compelling case for a proportionality review and the conventional balancing exercise was sufficient.

In Sims v Dacorum Borough Council [2013] EWCA Civ 12 the Court of Appeal was asked to consider the compatibility with Article 8 of the long-standing rule in London Borough of Hammersmith & Fulham v Monk [1992] 1 AC 478, that a notice to quit given by one joint tenant without the concurrence of the other is effective to determine a periodic tenancy so that the landlord obtains an unqualified right to possession. The Court was bound by Monk and the only real issue was whether permission should be granted to appeal to the Supreme Court. The Court of Appeal refused, ruling that Article 8 was not engaged. Monk was a proprietary and contractual right; the Council landlord was simply the recipient of the notice. If Mr Sims were right he would have elevated his status to that of a sole secure tenant, which would interfere with the Council’s enjoyment of its possessions.

In a more optimistic attempt to rely on Article 8, it was suggested in Birmingham City Council v Howell [2013] EWHC 513 (QB) that the Convention assisted an argument that a local authority’s claim for possession could be defeated on the basis that it had failed to tell a tenant to take independent legal advice and had therefore exercised undue influence. Keith J had little difficulty in rejecting all of those propositions and the relevance of proportionality to the case.

Article 8 was relied upon by AZ v Secretary of State for Communities and Local Government [2012] EWHC 3660 (Admin) in which Z had been denied planning permission for a mobile home in the green belt. Z was disabled, and could not bear to live in a house or enclosed environment, and wished to site his mobile home near to the house in which his fourth wife was caring for her sister. Judge Anthony Thornton QC, sitting as Deputy, granted judicial review. The planning inspector had failed to consider the full breadth of the medical evidence and all the factors which meant Z had to live in a secluded and open-air environment near his wife. The inspector had been required to undertake an Article 8 proportionality exercise (which was not the same as whether very special circumstances applied), and her exercise had not been structured, nor had she considered Z’s family life. The inspector could have, but did not, consider a range of possible alternatives. The decision was quashed.

There was no breach of Article 8 in granting an injunction to remove travellers from a site they had unlawfully occupied without planning permission for over three years, because there was a real risk that the planning system and the criminal law would be brought into disrepute if such a remedy was not available: Doncaster Metropolitan Borough Council v AC [2013] EWHC 45 (QB).

In R (Knowles) v Secretary of State for Work and Pensions [2013] EWHC 19 (Admin) it was alleged that the level of housing benefit provided to gypsies in privately owned caravan sites was too low, treating those gypsies differently from those living on local authority sites contrary to Article 14 taken with Article 8. Hickinbottom J accepted that gypsies had a protected characteristic and that a discrimination claim could be made on the basis that a positive obligation was owed to cater for the differences between the cases. However, he rejected the claim, finding that any discrimination was justified because private landlords did not have the constraints that a public landlord did and abuse of the benefit system should be avoided.

Under s.17 of the Children Act 1989 a local authority should not refuse assistance if that would have the effect of requiring a person to leave the UK: R (Clue) v Birmingham City Council [2010] EWCA Civ 460; [2011] 1 WLR 99. In R (KA) v Essex County Council [2013] EWHC 43 (Admin) there was an outstanding request for reconsideration of a decision to refuse an application for leave. The Council nonetheless refused a s.17 application because the family’s Article 8 rights could be enjoyed in Nigeria. Following Clue, the appeal was allowed. The refusal to provide support would have the effect of the family having to return to Nigeria and removing the right to challenge the immigration decision. The case was not obviously hopeless or abusive.

Possession Proceedings

The unwillingness of the courts to take too generous a line on possession cases was reinforced in Friendship Care and Housing Association v Begum [2012] EWCA Civ 1807, in which Mr Begum and two of his children had been convicted of drugs offences. The Court of Appeal upheld the judge’s refusal to suspend the possession order under s.85(2) of the Housing Act 1985; the judge had been fully aware of the impact of a possession order on the children and if there had been particular special circumstances it was for the defendant to put those forward.

However, in Brent London Borough Council v Tudor [2013] EWCA Civ 157 the Council had claimed possession of a six bedroom house after the death of the original tenant under Ground 16 in Schedule 2 to the 1985 Act that, following the death of the tenant, the accommodation is more extensive than reasonably required. Ms Tudor argued that all six bedrooms were occupied; the Council pointed to considerable evidence suggesting that two were not. The Court of Appeal refused to interfere with the judge’s conclusion that, on balance, Ms Tudor was correct.

Homelessness

The Supreme Court has held that a family could be accommodated within the meaning of s.176 of the 1996 Act in two adjoining flats. The test of whether a person could live together, as the statutory test requires, with family in separate properties could be satisfied if they were located so as to enable the family to live together in practical terms: London Borough of Camden v Sharif [2013] UKSC 10. The majority considered that as Parliament had not laid down a strict interpretation of accommodation, and although separate units is not ideal, the test should be one which focuses on the practical outcome rather than a single solution which imposed too high a burden on the local authority. Lord Kerr dissented, on the basis that if living together was to mean anything it had to mean living as a distinct entity in a single unit of accommodation, and any other approach would encourage local authorities to exploit the opportunity and undermine the purpose of the legislation.

In a judgment which obtained a certain amount of media coverage, the Court of Appeal held in El-Dinnaoui v Westminster City Council [2013] EWCA Civ 231 that it had been irrational of the Council to conclude that a flat on the 16^th floor flat with a view of the street below (as opposed to a 9^th floor flat with no view to the street) was an offer of suitable accommodation which discharged its s.193 duty to accommodate. The Council had irrationally maintained its decision on review despite the unchallenged medical evidence that Mrs El-Dinnaoui had a fear of heights which led to severe panic attacks, brought on by the fact that she could see down to the street.

The Court of Appeal was asked to deliver a judgment in Pryce v London Borough of Southwark [2012] EWCA Civ 1572 despite Southwark conceding the appeal shortly before the hearing. Ms Pryce was a Jamaican national with children who had British citizenship, who Southwark refused assistance under Part VII of the Housing Act 1996. Ms Pryce argued that under the decision of the CJEU in Case C-34/09 Zambrano v Office national de l’emploi [2012] QB 265 she was eligible for assistance because she was caring for her children who were EU citizens. The Court of Appeal agreed. However, from 8 November 2012 it is worth noting that the Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012 expressly excludes Zambrano individuals from Part VII assistance.

In Ibrahim v Wandsworth London Borough Council [2013] EWCA Civ 20 Ms Ibrahim had been granted, under s.184, only advice and assistance of the 1996 Act because the Council considered she was intentionally homeless, having fallen into rent arrears. The Council failed to state their obligation to provide temporary accommodation to enable her to find her own. This error was not raised by Ms Ibrahim in her review, and the decision on review did correctly identify the scope of the Council’s obligations. The Court of Appeal held that reg 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 was not engaged because there had been no review of the flawed part of the decision. Alternatively, the error was not sufficiently important to justify quashing the decision on review.

In an ex tempore judgment, the Court of Appeal held in Chisimba v Royal Borough of Kensington and Chelsea (25 March 2013) that an applicant whose tenancy had been terminated when it emerged she had used a counterfeit passport was not intentionally homeless because she had never been entitled to housing assistance in the first place and it would not have been reasonable for her to occupy the tenancy.

Housing Benefit

In R (Zacchaeus 2000 Trust) v Secretary of State for Work and Pensions [2013] EWHC 233 (Admin) a housing charity sought to quash to the Rent Officers (Housing Benefit Functions) (Amendment) Order 2012, which imposed a year-long freeze in housing benefit rates before changing the basis of calculation to uprating by CPI rather than on the basis of local rent assessments carried out by Rent Officers. Underhill J rejected the argument that this was ultra vires the implementing legislation because the power was sufficiently broad to encompass such a function on behalf of Rent Officers. In addition, a PSED challenge under s.149 of the Equality Act 2010 was rejected because the Secretary of State had indicated his awareness that children and disabled people may have to move because of the changes, although the assessment was criticised by the judge. Permission to appeal was granted.

Children Act

Where an individual has obtained an assessment under s.17 of the Children Act 1989 that children are in need, and this is partly because of the condition of their existing accommodation, but that the family is able to bid for suitable alternative accommodation under the local authority’s housing allocation scheme, it is unreasonable to judicially review the s.17 assessment in a manner which attempts to oversee the day-to-day implementation: R (AT) v Islington London Borough Council [2013] EWHC 107 (Admin).

Legislation

The Prevention of Social Housing Fraud Act 2013 obtained Royal Assent on 31 January 2013. When brought into force it creates criminal offences relating to the subletting of secure tenancies contrary to the terms of the tenancy. An unlawful profit order, payable to the landlord, may be made.

The instigation of Universal Credit under the Welfare Reform Act 2012 has led to the enactment of various pieces of secondary legislation implementing aspects of the new structure which come into force on 29 April 2013: Universal Credit Regulations 2013 (SI 2013/376); Universal Credit (Transitional Provisions) Regulations 2013 (SI 2013/386); Rent Officers (Universal Credit Functions) Order 2013 (SI 2013/382); Social Security (Payments on Account of Benefit) Regulations 2013 (SI 2013/383); Social Security (Overpayments and Recovery) Regulations 2013 (SI 2013/384).

Also under the 2012 Act a new benefit cap of £350 per week for a single individual and £500 per week for those responsible for a child or young person has been introduced: Benefit Cap (Housing Benefit) Regulations 2012. The Benefit Cap (Housing Benefit) (Amendment) Regulations 2013 (SI 2013/546) amend that instrument to provide that any housing benefit paid in respect of specified kinds of supported accommodation must be ignored when calculating the maximum entitlement (in force from 15 April 2013).

The Housing Benefit (Amendment) Regulations 2013 (SI 2013/665) reflects the concessions made by the Secretary of State during the course of the debates on the ‘bedroom tax’. In essence, the changes permit an occupant not to be penalised for having an extra bedroom where that room is for a member of the armed forces currently serving abroad, or where it is (or will be) used for a foster child by persons acting as foster parents or carers. They come into force on 1 April 2013.

The Rent Officers (Housing Benefit Functions) Amendment Order 2013 (SI 2013/666) is, in effect, to deal with Burnip v Birmingham City Council [2012] EWCA Civ 629 (currently under appeal to the Supreme Court), allowing an extra bedroom without a deduction in the housing benefit paid where it is needed for overnight care. It comes into force on 1 April 2013.

Possession Proceedings

The courts continue to clarify the position following the decisions of the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2 AC 18 on the application of Article 8 ECHR to defend possession proceedings.

In Southend-on-Sea Borough Council v Armour (QBD, judgment of 18 October 2012), Cranston J dismissed an appeal by the Council against a finding that it would be disproportionate to grant a possession order. The Defendant was an introductory tenant, who had allegedly verbally abused neighbours. Possession proceedings took 11 months to come to trial, by which time the Defendant had been diagnosed with Asperger’s and depression, as well as there having been no further incidents. The Recorder upheld the proportionality of the Council’s original decision to seek possession, but had regard to the situation since the filing of the claim and held that it would no longer be proportionate to order eviction. Cranston J agreed, holding that since proportionality was to be determined at the date of the hearing the Recorder’s decision contained no error. There would have been a breach of Article 8 ECHR.

The seriously arguable breach of Article 8 threshold established by the Supreme Court was maintained by the Court of Appeal in Thurrock Borough Council v West [2012] EWCA Civ 1435, in which the Defendant had been living in a property with grandparents to whom a weekly tenancy had been granted. The Defendant argued that following the death of both grandparents it would be disproportionate to evict from the home he had been in for four years, when he would be unable to find comparable accommodation in the private sector. The County Court refused possession. The Court of Appeal overturned this on appeal, holding that there was nothing exceptional about the case in the least, and the seriously arguable threshold had not been met. A possession order would not be a breach of Article 8.

Thurrock was applied in Evans v Brent London Borough Council (QBD, judgment of 18 December 2012), in which the Defendant claimed that she had been living with her ill father until his death and that she should be entitled to succeed to his secure tenancy. The County Court ordered possession, holding that she had not resided with her father in the 12 months prior to his death, that there was therefore no right of succession under s.87 of the Housing Act 1985 and that it was not seriously arguable that the Council would breach Article 8 if it did not permit her to remain in the property. The Defendant’s appeal was allowed by Ramsey J in part, holding that the factual dispute about the Defendant’s residence within the last 12 months was the subject of conflicting evidence and was not suitable for summary judgment. However, Ramsey J dismissed the Article 8 appeal, agreeing that it was not seriously arguable that there was any breach, and also that it was not seriously arguable that there had been any fettering by the Council.

In ordinary cases, an order for possession may be suspended under s.85 of the Housing Act 1985. In Birmingham City Council v Ashton [2012] EWCA Civ 1557 the Defendant had a serious criminal record, including for threats to neighbours, which led to the Council seeking a possession order. The County Court suspended the possession order, in the light of the lack of recent incidents and the receipt of support services, on terms that an anti-social behaviour injunction was complied with. The Court of Appeal allowed the Council’s appeal on the basis that the judge had failed to consider the future risk of anti-social behaviour, as to which medical evidence showed that there was a 20-30% chance of future unacceptable conduct (even with support). Once a possession has been made the burden is on the party seeking suspension to show that the behaviour is unlikely to recur. The case was remitted for reconsideration. 

Strasbourg Cases

Article 8 continues to be a source of UK litigation both domestically (see above) and in Strasbourg. The most recent decision of the European Court of Human Rights came in Buckland v UK (App. No. 40060/08), which was about gypsies. The Applicant was a gypsy who lived on a caravan site in Neath and who was given notice to terminate her licence in 2004. She refused to go and in 2006 the County Court made an order for possession under the Caravan Sites Act 1968 and Mobile Homes Act 1983, suspending the order for 12 months. The judge did not consider the proportionality of the possession order as the case occurred prior to the judgment of the Supreme Court in Pinnock (above) that this was required by Article 8. The European Court held that to comply with Article 8, a court had to be satisfied that it was proportionate to make a possession order which had not been done. Although the Applicant could have applied for a further suspension, this would not remove the incompatibility: suspension merely delays but does not remove the threat of eviction.

Of significant potential importance was the qualification entered in the Separate Opinion of Judge de Gaetano, which is worth quoting in full:

“My only reservation in this case is with the principle as set out in the second sentence of paragraph 65. This sentence is a verbatim reproduction of what is found in § 50 of McCann and in § 68 of Kay (the sentence was slightly modified, but not in substance, in § 43 of Paulić). However, all the cases quoted in support of the principle as thus formulated (including, indirectly, Connors) are cases where the landlord was either the Government or a local authority. None were cases where the landlord was a private individual. In my view while it is perfectly reasonable to require that an eviction or repossession notice issued by the Government or by a local authority – both of which are normally under a public law obligation to provide accommodation for people within their jurisdiction – or possibly even by a private entity in receipt of public funds, should be capable of being challenged on the grounds of proportionality, when the landlord is a private individual the tenant’s right should in principle be limited to challenging whether the occupation – tenancy, lease, encroachment concession, et cetera – has in fact come to an end according to law. In this latter case the proportionality of the eviction or repossession in light of the relevant principles under Article 8 should not come into the equation. This is not to say, of course, that the Government may not, by legislation, impose restrictions on the use of the property by the landlord upon or after the termination of the occupancy, from which restrictions the last tenant or occupant might even benefit (see, by way of analogy, James and Others v the United Kingdom, no. 8793/79, 21 February 1986; Hutten-Czapska v. Poland, [GC] no. 35014/97, 19 June 2006); but this is a totally different issue from what is being proposed in the second sentence of paragraph 65.”

The Supreme Court had expressly refused in Pinnock to express a decided view on the horizontal effect of Article 8 to possession proceedings involving a private landlord. The pessimistic might read Judge de Gaetano’s feeling the need to enter a Separate Opinion as an indication that the majority had indeed intended their judgment to be read more broadly. It doubtful that this point will remain undecided for very much longer.

A breach of Article 1 of Protocol 1 was found in Bjelajic v Serbia (App. No. 6282/06), where the Applicant had obtained a domestic judgment ordering a State-run company to carry out repair work water damage to her flat, which was not complied with for five years. The Court found that the substantial delay in enforcing the order had not been justified and finding of a violation was made.

A breach of the same Article was also found in Tunyan v Armenia (App. No. 22912/05), in which the Applicant was the leasehold owner of a flat in which she resided. The Armenian Government expropriated the property (and the surrounding area) by decree in 2002 and the Applicant refused to accept the compensation. The eviction was upheld domestically. Relying on its previous decision in Minasyan v Armenia (App. No. 27651/05) that expropriation of land required primary legislation, a breach of Article 1 was found.

Homelessness

The Court of Appeal has now twice reiterated that the question of whether a citizen of the EU is temporarily unable to work as the result of illness or accident, such that they should continue to treated as a worker and therefore entitled to reside in a Member State, under Article 7 of Directive 2004/38, is a question of fact: Konodyba v Royal Borough of Kensington and Chelsea [2012] EWCA Civ 982; Samin v City of Westminster [2012] EWCA Civ 1468. In the latter case (the former having been dismissed because the main issue was res judicata) the Court noted that the Claimant had hardly worked in the UK at all and could not therefore be said to be only temporarily unable to work, given his range of physical and mental health problems.

Where an individual has been refused homelessness assistance under Part 7 of the Housing Act 1996 because the local authority does not accept that she falls into a category of priority need – such as being at risk of domestic violence – an appeal to the County Court lies only on a point of law against the review decision: s.204. The Court has no jurisdiction to make findings of fact: Bubb v London Borough of Wandsworth [2011] EWCA Civ 1285. This was reiterated in Richmond upon Thames London Borough Council v Kubick [2012] EWHC 3292 (QB) where the Claimant had sought to adduce a witness statement undermining the evidence relied on by the Council. Leggatt J allowed the appeal against the decision to allow the statement to be adduced.

Part 7 duties do not apply to those who are intentionally homeless within the meaning of s.191 of the Housing Act 1996. In Carthew v Exeter City Council (CA, 4 December 2012) the Claimant left the home she shared with her partner when their relationship broke down, after she had transferred the property to her former partner at an earlier stage in the relationship because she could not afford to pay the outgoings herself. The Court of Appeal remitted the case for reconsideration because although the Council was entitled to treat the transfer of the property as the cause of her homelessness, it (and the County Court) had failed to consider why the Claimant had had to carry out the transfer and whether it was in fact affordable for her to live in on her own.

Compulsory Purchase Orders

Compulsory purchase orders in respect of properties may be made under s.17 of the Housing Act 1985, and are subject to confirmation by the Secretary of State. Part 4 of the Housing Act 2004 entitles local authorities to take over the management of empty properties and bring them into occupation by making an Empty Dwelling Management Order. In Braithwaite v Secretary of State for Communities and Local Government [2012] EWHC 2835 (Admin) it was said that the Claimant had used the property in question only sporadically and intermittently over the previous ten years, allowing the condition of the property to deteriorate so that it was no longer of a reasonable standard.

Kenneth Parker J dismissed the claim. In particular, he held that there was no evidence that the EDMO regime under Part 4 of the 2004 Act was intended to limit or cut back the CPO powers under s.17. EDMO’s were an additional power. If a CPO could only be made where the property was empty within the meaning of the EDMO regime the local authority would be powerless to act where the owner had a permitted EDMO reason for leaving the property unoccupied. The judge accepted that the CPO regime engaged Article 8 ECHR in this type of case, but the factual findings were that the property had been left empty for a considerable period of time and had been left in a lamentable state of disrepair. There was an acute need for residential dwellings and a CPO was more likely to secure that result. The compelling social need outweighed any Article 8 right the Claimant might have and the CPO was proportionate.

Legislation

Sections 148-149 of the Localism Act 2011 came into force on 9 November 2012 by virtue of the Localism Act 2011 (Commencement No. 2 and Transitional Provisions) (England) Order 2012 (SI 2012/2599), which amend the provisions of s.193 of the Housing Act 1996 so that the duty to secure accommodation for homeless persons may be brought to an end by the acceptance or refusal of a private rented sector offer (i.e. an assured shorthold tenancy). The duty will still apply if an applicant who accepted an offer re-applies within two years.

Also coming into force on 9 November 2012 is the Homelessness (Suitability of Accommodation) (England) Order 2012 (SI 2012/2601), which sets out the circumstances in which private rented sector accommodation (above) is not to be regarded as suitable. The circumstances relate both to the physical condition of the property and the character of the landlord. It also sets out general suitability considerations which must be taken into account including: (a) if it is outside of their area, its distance from their area; (b) the significance of any disruption which would be caused to the employment, caring responsibilities or education of the applicant or any member of his household; (c) the proximity and accessibility of medical facilities and other support which are currently used or provided to the person or members of their household and are essential to their well-being; and, (d) the proximity and accessibility of local services, amenities and transport.

A series of instruments were made to come into force on 8 November 2012 to comply with the decisions of the CJEU in Case C-34/09 Gerardo Ruiz Zambrano v Office national de l’emploi [2012] 2 WLR 886 and Case C-256/11 Dereci and others v Bundesministerium fur Inneres (judgment of 15 November 2011) that where an EU national child is dependent on a non-EU national, that non-EU national must be given the right to reside and work in the Member State. The Immigration (European Economic Area) (Amendment) (No.2) Regulations 2012 (SI 2012/2560) amend the Immigration (European Economic Area) Regulations 2006 to confer a right to reside on such non-EU nationals. The non-EU national is, however, prohibited from receiving housing benefit or council tax benefit by virtue of the new Social Security (Habitual Residence) (Amendment) Regulations 2012 (SI 2012/2587) and is ineligible for an allocation under Pt.6, Housing Act 1996 by virtue of the new Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012 (SI 2012/2588).

Preference is to be given to certain categories of serving and former members of the armed forces by local authorities determining priorities in allocating housing accommodation from 30 November 2012: Housing Act 1996 (Additional Preference for Armed Forces) (England) Regulations 2012 (SI 2012/2989).

The Government’s root and branch of welfare benefits has significant implications for the existing systems of housing benefit. The Housing Benefit (Amendment) Regulations 2012 (SI 2012/3040) provides for the recalculation of the appropriate maximum housing benefit amount on 1 April of each year rather than on the anniversary of the previous determination (in accordance with the CPI uprating plans set out in the Rent Officer (Housing Benefit Functions) (Amendment) Order 2012). The Regulations also provide that payments to those renting in the social sector will be reduced by 14% if the claimant has one more bedroom than necessary, and 25% if two or more.

From 15 April 2013 a cap will be applied to the total amount of welfare benefits any individual can receive: £350 per week for a single person not responsible for a child, and £500 in all other cases. Housing benefit may be reduced so as to limit benefits to the amount of the cap (although it can be reduced below 50p per week): Benefit Cap (Housing Benefit) Regulations 2012 (SI 2012/2994).

It is intended that a new Property Chamber of the First-tier Tribunal will come into effect on 1 May 2013, which will encompass the jurisdictions of the Residential Property Tribunal, Leasehold Valuation Tribunal, Rent Assessment Committee, Agricultural Land Tribunal and the Adjudicator to the Land Registry.

The Court of Appeal has today handed down an important judgment on the ability of local authorities to avoid bargains by relying on their own unlawful acts. The context of Charles Terence Estates Ltd v Cornwall Council [2012] EWCA Civ 1439 is one of housing; the Council had entered into agreements with CTE whereby CTE purchased properties and leased thm to the Council to provide accomodation for people to whom the Council owed homelessness duties. The Council argued, successfully at first instance in front of Cranston J ([2011] EWHC 2542 (QB) ; [2011] LGR 813), that in entering into the agreements – which calculated rents based upon set rates – the Council had failed to comply with its fiduciary duty to the council tax payer because it had not considered the market rents in the locality, with the result that the leases were ultra vires and void. The Court of Appeal has overturned that conclusion.

There are two points of particular importance in the context of housing law, and a more important point about virus and public authorities generally. As to housing law, the Court of Appeal held first (in arguably the only point which formed the ratio) that the section 17 of the Housing Act 1985 power to acquire land could not be read as restricting the power to acquire land at a reasonable price. Maurice Kay LJ held that to do so would invite judicialisation of the limits of legal capacity so that only upon determination of a reasonable price could capacity be ascertained, which was a surprising outcome for a local authority to argue for: at [21]. In any event, the total abscence of expert evidence before the Court as to what the market or reasonable rent was meant that it was not possible to undertake any sort of meaningful comparison and so the case failed on an evidential basis too: at [19]-[20], [22], [24]-[25] per Maurice Kay LJ and [41] per Etherton LJ.

The second housing law point is a firm rejection by their Lordships of the argument that the leases were void because the Council had been obliged by section 74 of the Local Government and Housing Act 1989 to set up a Housing Revenue Account before it could exercise the section 17 power, and that it had been failed to do so. The Court held that the Account was a matter of book-keeping, and need only be established when money was actually recieved: at [26] per Maurice Kay LJ and [43] per Etherton LJ.

Of wider significance was their Lordships’ discussion of the circumstances in which a public authority can successfull invoke its own public law error as a defence to a private law claim, and in particular, the comments on the well-known decision of Credit Suisse v Allerdale BC  [1997] QB 306, CA. There has long been a tension between the approaches of the judgements of Neill LJ and Hobhouse LJ, the former taking a broad interpretation which permitted any public law illegality to be relied upon as a defence, and the latter narrowed the application to cases involving a ‘want of capacity’ (as there was on the facts). The Court of Appeal in CTE unanimously preferred the approach of Hobhouse LJ. Maurice Kay LJ disputed that the Ansminic aggregation of all errors of law had any impact in this area, stressing the undesirablitity of a historic breach of fiduciary duty defeating an otherwise good claim by a party who had acted in good faith: at [37]. Any breaches of the Council had not gone to legal capacity. Etherton LJ drew the same distinction between ‘narrow’ ultra vires acts (in the sense of legal incapacity) and ‘wider’ ultra vires (in the sense of breach of powers or duties), preferring the approach of Hobhouse LJ because he could see no reason why the position should be any different where the transaction whose validity is questioned is that of a public body or that of a commercial party under the lack of capacity jurisprudence most famously set out in Rolled Steel Products (Holdings) Ltd v British Steel Corp [1986] Ch 246: at [48]-[52]. Moore-Bick LJ agreed with both judgments: at [39]. As a result, even if the Council’s decision to enter into the leases was ultra virus for any reason, it was a matter of ultra vires not going to capacity, and as such the leases could not be a nullity.

While the housing law findings of the Court may be some interest in future cases, the very clear alignment of the Court of Appeal with the judgment of Hobhouse LJ is of considerable wider significance for public authorities across all areas of public law.

Possession Proceedings

The lower courts continue to clarify the position following the decisions of the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2 AC 18 on the application of Article 8 ECHR to defend possession proceedings. In JL v Secretary of State for Defence [2012] EWHC 2216 (Admin) Ingrid Simler QC, sitting as a Deputy, dismissed a claim made by a disabled woman living in MoD accommodation through her husband having been a former Army officer. Not only was the Claimant disabled, but her daughter and grandson with whom she lived were also disabled. In 2009, pre Pinnock, a possession order had been made on the basis that consideration of proportionality was not required. The MoD decided to enforce the possession order some two years later, the Claimant having unable to identify suitable alternative accommodation. The Court upheld the proportionality of the MoD’s decision to enforce the order – which was the only decision under challenge in the judicial review – because the proportionality of the eviction could be assessed at the enforcement hearing, the MoD had limited resources to provide accommodation for a number of people, and temporary alternative accommodation was being offered. There was no breach of Article 8 ECHR.

Children

Section 17 of the Children Act 1989 places local authorities under a general duty to safeguard and promote the welfare of children within the area who are in need and, so far as is consistent with that duty, to promote the upbringing of such children by their families. The House of Lords held in R (G) Barnet LBC [2003] UKHL 54; [2004] AC 208 that s.17 was a target duty only. In R (Bates) v Barking & Dagenham LBC, unreported, QBD, 17 August 2012 Timothy Straker QC, sitting as a Deputy, discharged an injunction granted on the papers requiring the local authority to accommodate the Claimant with her children, the local authority having accepted the need to accommodate the children but because of the Claimant’s actions declined to accommodate them together. Mr Straker QC held that because s.17 was only a target duty there was no enforceable duty, and the local authority was entitled to try and prompt the Claimant into better organising her life and asking for help.

Immigration

The Secretary of State has a power to provide facilities for the accommodation of a person released on bail under any provision of the Immigration Acts by virtue of s.4 of the Immigration and Asylum Act 1999, except that this power may not be exercised in the case of a citizen of a state in the European Economic Area: Nationality, Immigration and Asylum Act 2002, Sch.3, para.5. The Claimant in R (Gally) v Secretary of State for the Home Department, unreported, QBD, 9 August 2012 claimed to be French, but the French Government confirmed that he was not in fact a French national. As a result, the Court found that the Secretary of State was not entitled to conclude that he was French and therefore refuse support simply because of his own assertion. The Secretary of State had to make her own decision, and therefore retake the decision on the provision of support.

Homelessness

The Welsh Government published the new ‘Code of Guidance for Local Authorities: Allocation of Accommodation and Homelessness 2012’ with effect from 13 August 2012.

Legislation

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 created a new offence of squatting in a residential building, which will come into force on 1 September 2012. The Ministry of Justice has published consequential guidance: ‘Offence of Squatting in a Residential Building, Circular 2012/04’.

The lower courts continue to clarify the position following the decisions of the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2 AC 18 on the application of Article 8 ECHR to defend possession proceedings. In Birmingham City Council v Lloyd [2012] EWCA Civ 969 Lord Neuberger MR took the opportunity to confirm that the proportionality defence was indeed only rarely likely to be successful. Mr Lloyd was a secure tenant who had moved into the flat of his deceased brother, also a secure tenant, but was told to return to his own property. The Court of Appeal overturned the Recorder’s decision, holding that a finding of depression and some difficulty in obtaining alternative accommodation did not approach the proportionality threshold, and the Recorder had impermissibly taken on the decision-making role of the Council.

The Court of Appeal held in Camden London Borough Council v Stafford [2012] EWCA Civ 839 that a review decision in respect of an introductory tenancy under s.129 founded the jurisdiction of the County Court under s.128 and consequently must be clear and unequivocal. It could not be expressed in conditional terms; it must confirm the decision to seek possession or withdraw that decision. Anything which did not unequivocally confirm the decision, as the letter had failed to do in this case, could not be relied upon to seek possession.

Homelessness

In Konodyba v Kensington & Chelsea Royal London Borough Council [2012] EWCA Civ 982 the claimant was the subject of a decision that she was not eligible for housing assistance because she was subject to immigration control pursuant to s.185(2) of the Housing Act 1996. She had previously appealed to the Court of Appeal but abandoned the immigration issue and the Court held that it was a clear abuse of process for her to attempt to re-litigate the same point in fresh proceedings. The housing review officer had to, and did, consider any new points made but did not have to consider ones already abandoned in proceedings. On the facts the Court held that the officer had been correct to ask whether the claimant was unlikely to work in the foreseeable future – a question of fact – in determining whether she was temporarily unable to work as the result of an illness or accident. It was not appropriate to comb officer decisions when the same legal concept could be expressed in various ways.

Human Rights

In Dukic v Bosnia and Herzegovina (App. No. 4543/09) the applicant requested that the State provide him with a replacement flat following the destruction of his during the civil war. The State never responded to the request or the subsequent proceedings, and failed to comply with the domestic court order to provide him a flat. The Court found a breach of Article 6 in the suggestion that the applicant should have to domestically re-litigate the proceedings six years after winning his domestic case. There was also a breach of Article 1 of Protocol 1 because the domestic judgment was sufficiently certain to constitute a possession, but there was no breach of Article 8 because he had no existing home and Article 8 did not provide the right to a home. No damages were awarded.
Huseynov v Azerbaijan (App. No. 56547/10) was a case in which the applicant had been given a voucher for a flat and obtained an order for possession of the flat in 1998. The State took no steps to enforce the order and remove the existing occupant. The Court found a breach of both Articles 6 and 1 of Protocol 1 in the excessive delay in State action, and the consequential excessive burden on the enjoyment of possessions.

In Lindheim v Norway (App. No.s 13221/08 & 2139/10) the Strasbourg Court held that the indefinite extension of a lease on a very low rent did amount to an interference with the Article 1 of Protocol 1 right to enjoyment of possessions. Norwegian legislation which reduced the value of rents under the extended leases to around 0.25% of market value did not strike a fair balance and imposed a disproportionate burden on the leaseholders.

Joint Tenancy and Succession

In Solihull MBC v Hickin [2012] UKSC 39 the Supreme Court held by a bare majority (Lords Mance and Clarke dissenting) that the common law position that where a tenancy is granted to two persons as joint tenants and one of them dies, the tenancy vests in the survivor as the sole tenant was unaltered by ss.87-89 of the Housing Act 1985. Where the surviving joint tenant left the property prior to the succession his right of succession was not altered, but he lost his statutory security and the contractual tenancy had been validly terminated by the notice to quit.

Implementation of the Localism Act 2011

The Allocation of Housing (Qualification Criteria for Armed Forces) (England) Regulations 2012 (SI 2012/1869) (in force from 24 August 2012) provides that an authority may not use the want of local connection so as to exclude specified categories of person from being allocated housing. Those categories are: (a) current or former members of the armed forces who left the service within five years of their application for an allocation; (b) persons who are serving or who have served in the armed forces and who suffer from a serious injury or disability which is attributable in whole or part to that service; and, (c) a spouse or civil partner who is or was living in accommodation provided by the Ministry of Defence and whose former spouse or civil partner was a serviceman whose death was attributable in whole or part to their service.

The Department for Communities and Local Government has published guidance on the ‘Allocation of Accommodation: Guidance for Local Housing Authorities in England’ (June 2012) issued under s.169 of the Housing Act 1996. The Guidance deals with the changes made to allocation schemes by the Localism Act 2011.

In an extempore judgment R (on the application of Cranfield-Adams) v Richmond upon Thames London Borough Council (QBD, judgment of 19 June 2012) which has not yet been properly reported, Jeremy Stuart-Smith QC, sitting as a Deputy, held that it was lawful for a local housing authority and in accordance with its duty under s.193 of the Housing Act 1996 to defer a homeless man’s application for housing for two years where he had previously refused a suitable offer of accommodation.

The Claimant had originally applied under Part VI of the Act and was allocated housing, which he refused. He subsequently became homeless as a result and re-applied under Part VII. The local authority applied the policy it had warned the Claimant of, and deferred his application for two years as a result of his previous rejection of suitable accommodation. The judge held that the authority was applying a unitary policy which synchronised Parts VI and VII. The refusal of accommodation was a reasonable factor for the authority to take into account under its policy, which was compatible with s.193.

Localism Act 2011

The Localism Act 2011 (Commencement No.6 and Transitional, Savings and Transitory Provisions) Order 2012 (SI 2012/1463) brought into force, on 18 June 2012, certain provisions of the Localism Act 2011 relevant to housing. In particular, it brought into force:

·         s.145 (reversing the amendments to s.159 of the Housing Act 1996 made by the Homelessness Act 2002, so that the majority of housing transfers are once again outside Part VI);

·         s.146 (inserting a new s.160ZA into the 1996 Act which reintroduces the concept of the qualifying person);

·         s.147 (inserting a new s.166A into the 1996 Act, re-enacting much of the current s.167, save that there is no provision that reasonable preference need not be accorded to persons who have been guilty of unacceptable behaviour, as authorities will be able to decide that such applicants are not qualifying persons under the allocation schemes permitted by s.146).