Homelessness

November 29th, 2023 by James Goudie KC in Housing

The central issue before the Supreme Court is R (Imam) v London Borough of Croydon (2023) UKSC 45, in which Judgment was given on 28 November 2023, was whether, and, if so, in what way, a local authority’s lack of financial or other resources should be taken into consideration when a Court is deciding whether to grant a Mandatory Order against the authority in order to enforce its undoubted statutory duty (paragraph 37) towards a homeless individual under Section 193(2) of the Housing Act 1996.

Lord Sales explains that Croydon Council is subject to a public law duty which is immediate, non-deferrable, and not qualified by reference to available resources or otherwise (paragraphs 38 and 39). Read more »

 

Housing Benefit

November 29th, 2023 by James Goudie KC in Housing

In relation to entitlement to  Housing Benefit, and circumstances in which a person is or is not to be treated as occupying a dwelling as his or home, Regulation 7 of the Housing Benefit Regulations 2006 provides at Regulation 7(4) that when a Housing Benefit claimant has been “ required “ to move into temporary accommodation by reason of “ essential repairs “ being carried out at the dwelling normally occupied as his or her home , and is liable to make payment in respect of either, but not both, the dwelling which he or she normally occupies as his or home OR the temporary accommodation he or she shall be treated as occupying as his home the dwelling in respect of which he or she is liable to make payments. In SH v SOUTHWARK LBC ( 2023 ) 8 WLUK 397 the Upper Tribunal clarifies that the test under Regulation 7(4) is an objective one, both as regards what constitutes essential repairs and as regards whether there has been a requirement to move into temporary accommodation. It is not a question of what the individual might regard as essential repairs or what the individual might think was sufficient to require a tenant to move out whilst such works were to be carried out. The evaluation is one that should take account of the claimant’s individual characteristics, including factors such as impairment or vulnerability due to ill health.

 

Judicial Review Remedies

November 29th, 2023 by James Goudie KC in Judicial Control, Liability and Litigation

In general, Judicial Review remedies are forward looking. They are for where the public authority does not remedy the breach itself. Generally, the function of Judicial Review is not to conduct an inquest into whether or not the authority is culpable for an unsatisfactory situation. In R ( KENT COUNTY COUNCIL ) v SSHD ( 2023 ) EWHC 3030 ( Admin ) Chamberlain j adds, at para 31, that, in some situations, it may be difficult to form a view about the  lawfulness of an authority’s present conduct without at least some understanding of the lawfulness of past conduct.

 

FIOA Exemptions

November 24th, 2023 by James Goudie KC in General

In DEPARTMENT FOR BUSINESS AND TRADE v INFORMATION COMMISSIONER and MONTAGUE (2023) EWCA Civ 1378 the Court of Appeal has ruled that the public interest recognised in two or more different provisions in the Freedom of Information Act 2000 (FOIA) exempting information from disclosure should be assessed in combination when determining whether that public interest outweighed the public interest in disclosure. In other words, the Court approved of aggregation.  It rejected the contention that the public interest recognises in each exemption provision should be weighed separately against the public interest in disclosure. Read more »

 

Arbitration

November 23rd, 2023 by James Goudie KC in General

An Arbitration Bill was introduced ( in the House of Lords ) on 21 November 2023. The Bill when enacted aims to give effect to Recommendations by the Law Commission to amend the Arbitration Act 1996 ( the 1996 Act ). The main provisions of the Bill are : (1) a new rule on the governing law of an Arbitration Agreement : Clause 1; (2) codification of an Arbitrator’s Duty of Disclosure; Clause 2; (3) strengthening of Arbitrator immunity around resignation and applications for removal : Clauses 3 & 4; (4) introduction of a power for Arbitrators to dispose summarily of issues which have no real prospect of success : Clause 7; (5) clarification of Court powers in support of emergency Arbitrators : Clause 8; (6) clarification of Court powers in respect of arbitral proceedings : Clause 9; and (7) a revised framework for jurisdiction  challenges under Section 67 of the 1996 Act : Clauses 10 & 11;

 

ECHR ARTICLE 11

November 21st, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty

Article 11 of the European Convention of Human Rights protects the general right of freedom of peaceful assembly and freedom of association with others, and a specific right to form and join Trade Unions which applies in more limited circumstances. In INDEPENDENT WORKERS UNION OF GREAT BRITAIN v CENTRAL ARBITRATION COMMITTEE ( 2023 ) UKSC 43 the Supreme Court addresses whether there is an employment relationship for the purposes of Article 11 and whether the provision of Article 11 which protects Trade Union activity applies.

 

DUTY OF CANDOUR AND REDACTION

November 21st, 2023 by James Goudie KC in Judicial Control, Liability and Litigation

I R ( IAB ) v SSHD (2023) EWHC 2930 (Admin) Swift J gave guidance on the Duty of Candour and on the procedure to be adopted by a party who wishes documents in Judicial Review proceedings to be redacted so as not to disclose the names of employees and/or contractors. The Duty of Candour is an obligation of explanation, rather than simply an obligation to disclose. It exists to ensure that the reasoning process underlying a challenged decision is explained. Disclosure of relevant material is required when it is necessary for the fair and just determination of an issue in the case. A person disclosing a redacted document should fully and succinctly explain at the point of disclosure the reason for the redaction and do so in a witness statement.

 

INTENTIONAL HOMELESSNESS

November 21st, 2023 by James Goudie KC in Housing

In KYLE v COVENTRY CITY COUNCIL (2023) EWCA Civ 1360 the Court of Appeal says at para 42 that (1) there is no need for accommodation to be so bad that a person could not be expected to stay there for another night for there to be homelessness for the purposes of the Housing Act 1996, (2) on the other hand, a person does not have to be entitled to remain in accommodation indefinitely, or for any particular period of time for it to be “ reasonable for him to continue to occupy “ it; (3) neither need he have accommodation which it would be “ reasonable …to continue to occupy” for ever; (4) in general at least Section 175(3) will be satisfied and a person will not be “homeless” if there is accommodation which it would be “ reasonable for him to continue to occupy “over the period which would elapse before the local housing authority re-housed him; (5) the physical characteristics of accommodation will often be of central importance in determining whether it is “ reasonable … to continue to occupy “it; (6) Restrictions affecting the person’s life in , and use of, the accommodation may also be relevant.

 

Time Limits

November 16th, 2023 by James Goudie KC in Judicial Control, Liability and Litigation

Limitation periods for bringing claims are set out in the Limitation Act 1980. The commencement of the period is postponed when any fact relevant to the right of action has been “deliberately concealed” from the claimant by the defendant. “Deliberate concealment” includes when there is a “deliberate commission of a breach of duty” in circumstances in which it is unlikely to be discovered for some time. The meaning of “deliberately” and “concealed” in this context are clarified by the Supreme Court in CANADA SQUARE OPERATIONS LIMITED v POTTER (2023) UKSC 41.

The Supreme Court holds that a fact will have been “concealed” if the defendant has kept it secret from the claimant, either by taking active steps to hide it or by failing to disclose it. Contrary to previous Court of Appeal authority, the claimant does not need to establish that the defendant was under a legal, moral or social duty to disclose the fact, nor does she need to show that the defendant knew the fact was relevant to the claimant’s right of action. All that is required is that the defendant deliberately ensures that the claimant does not know about the fact in question and so cannot bring proceedings within the ordinary time limit. Read more »

 

Council Tax: HMOs

November 8th, 2023 by James Goudie KC in Council Tax and Rates

The Chargeable Dwellings and Liability for Owners, SI 2023/1175,amend 1992 council tax measures (1) so that a house in multiple occupation is always treated as a single dwelling for the purposes of council tax in England and (2) to expand the prescribed class of houses in multiple occupation for which the owner, as opposed to the resident, is responsible for paying the council tax.

 

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