Is a local housing authority, in deciding whether a person is a “ fit and proper person” for the purposes of an application to be a licence holder or manager of a house regulated under the Housing Act 2004, is the authority entitled to take into account a person’s spent conviction and the conduct underlining it? This was the question before the. Our team of Appeal in Hussain v Waltham Forest LBC (2020);EWCA Civ 1539. The Court holds that a LHA’s consideration and determination of a grant, or revocation, of a licence under Part 2, or Part 3, of the Housing Act involves proceedings that under the Rehabilitation of Offenders Act 1974 give the LHA power to consider a spent conviction under that Act, provided that it is satisfied that justice cannot otherwise be done.
Anonymity
November 12th, 2020 by James Goudie KC in HousingSection 166(4) of the Housing Act 1996 provides that the fact that a person has applied for an allocation of social housing is not to be divulged without their consent to any other member of the public. However, in XXX v Camden LBC (2020) EWCA Civ 1468 the Court of Appeal holds that does not extend to entitlement to anonymity when seeking judicial review of a local authority decision about such an allocation, even when medical information is involved. A balancing exercise of the relevant interests, including open justice, has to be carried out.
Fiduciary Duty
November 9th, 2020 by James Goudie KC in HousingIn R ( Clark ) v Birmingham City Council (2020);EWCA Civ 1468 the Court of Appeal held that the Council had not acted unlawfully in deciding to incur spending on retrofitting sprinklers in its tower blocks, held under Part 2 of the Housing Act 1985. It did not owe a fiduciary duty to the tenant claimant.
Water and Sewerage Charges
October 27th, 2020 by James Goudie KC in HousingThe first instance Judgments in Jones v Southwark and Kingston v Moss, noted in this Bulletin on 3 December 2019, have been upheld by the Court of Appeal: (2020) EWCA Civ 1381. The Councils are resellers within the meaning of the Water Resale Order 2006, Thames Water Utilities having contractually supplied water and sewerage services to the authority, not to its tenants.
Costs
October 12th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationWhere the overall winner has failed on a number of issues, Judges should consider the extra costs associated with the failed issues, be explicit about the proportions of time spent on the successful and failed points respectively, and attempt to quantify that, as a starting point. However, the Judge still had to stand back, look at the matter globally, and consider the extent to which it was just to deprive the successful party of costs. That involves a discretionary judgment. It is not a mechanical exercise. See Terracorp v Mistry (2020) EWHC 2623 (Ch).
Judicial Review: Refusal of Relief
September 10th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationIn Gathercole v Suffolk County Council (2020) EWCA Civ 1179 relief was refused where planning permission, for a new village primary school near an airfield, had been granted without compliance with the public sector equality duty, in respect of the effect of aircraft noise on children with protected characteristics, but it was highly likely that the planning decision would have been the same if there had been compliance. The environmental statement in respect of alternative sites, was adequate, but even if it had not been that would not have had any substantive effect on the planning decision.
Litigation
September 8th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationIn TBD v Simons (2020) EWCA Civ 1182 the appeals raised important issues as to (1) the interpretation of search orders, (2) the granting of permission to bring committal proceedings, and (3) litigation privilege. On search orders, see paras 127-175, imaging orders, paras 176-193, applications for permission to bring committal proceedings, paras 230-234, and litigation privilege, including waiver and the iniquity exception, from para 254.
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