In R (Plant) v Lambeth LBC (2016) EWHC 3324 (Admin), Holgate J said, with respect to Section 21(1) of the Housing Act 1985 (general powers of management):-

“61.    I accept the submission of Mr Goudie QC that this provision confers a very broad discretion upon a local housing authority to manage its houses, without providing any lexicon of the matters which it is to treat as relevant.

62. Thus, although, it is for the Court to determine whether a consideration is legally capable of being relevant, the general principle is that it is for the decision-maker, in this case LLBC, to decide (a) whether to take a relevant consideration into account and, if it does so decide, (b) how far to go in obtaining information relating to that matter. Such decisions may only be challenged on the grounds that it was irrational for the authority not to take a legally relevant consideration into account or, having done so, not to obtain particular information …

63. The test is whether, in the circumstances of the case, no reasonable authority would have failed to take into account the specific consideration relied upon by the Claimant, or to obtain further information. Lord Scarman held in Findlay that this test is satisfied where, in the circumstances, a matter is so “obviously material” to a particular decision that a failure to take it into account would not be in accordance with the intention of the legislation, ‘notwithstanding the silence of the statute’ …”

Holgate J then referred, at paragraph 64, to Lord Brightman’s observations in Pulhofer, and continued:-

“65.    It is also important to keep in mind the point that Parliament has entrusted the general function of managing the housing stock within the Borough to a democratically elected body, which can be expected to well understand the potentially competing interests of the residents of one estate in comparison to others.”

With respect to Article 1 of the First Protocol to the ECHR, and the loss of a secure tenancy and the Right to Buy, Holgate J said:-

“183 … I agree with the submission of Mr Goudie QC that it is an intrinsic feature of a secure tenancy that it is granted subject to statutory termination on a number of grounds (and not merely redevelopment) which, by definition, will cause the secure tenant to lose the potentiality of choosing to rely upon a right to buy his home at some point in the future. Indeed if that should happen, the suitable accommodation which must be available to him may, or may not, carry with it a statutory right to buy.

184. It follows that the “possession” which is held by a secure tenant does not include an absolute right to exercise a right to buy, irrespective of whether he continues to have a secure tenancy of that dwelling. Instead, the potential exercise of that statutory right to buy is conditional upon the tenant continuing to hold the secure tenancy of his property. That tenancy may be brought to an end by the operation of the 1985 Act, which includes the redevelopment ground. This limitation which is placed upon the continued existence, and exercise, of the right to buy is imposed upon the tenancy with its bundle of rights and obligations (the “possession”) by the legislation which created the legal notions of a secure tenancy and a right to buy. This analysis applies irrespective of whichever of the statutory grounds in Schedule 2 is relied upon in order to bring the tenancy to an end. The limitation placed by the 1985 Act upon the exercise of the right to buy, namely that the secure tenancy continues to subsist, is important because the argument raised … relates to persons who have not yet exercised the right to buy but may do so in the future. …”

“186.  … Here the secure tenants have not yet exercised the statutory provisions which enable them to own their properties. Those statutory provisions, which insist upon the continuing subsistence of the secure tenancy if they are to be relied upon, subjected the tenant’s rights from the outset of the secure tenancy to restrictions or qualifications which might subsequently be enforced against him. Accordingly, A1P1 is not engaged …”

Housing benefit is “a means tested benefit provided under section 130 of the Social Security Contributions and Benefits Act 1992 and subordinate regulations”. Its “purpose is to help claimants with their rental costs”. There is “a prescribed mechanism for determining in each case the appropriate maximum housing benefit”.

The two conjoined appeals in Birmingham City Council v SoS for Work and Pensions and Birmingham City Council v SA (2016) EWCA Civ 1211 about entitlement to housing benefit were concerned with the power of a housing authority such as the City Council to determine that the net eligible rent payable in respect of accommodation, and thus the amount of housing benefit payable in respect of that accommodation, be restricted. The City Council contended that the Upper Tribunal (Administrative Appeals Chamber) adopted an incorrect approach under Regulation 13(3) of the Housing Benefit Regulations 2006 (S.I. 2006/213) (“the 2006 regulations”), in the form substituted by paragraph 5 of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 (S.I. 2006/217) (“the consequential provisions regulations 2006”), when considering, in the case of claimants in “exempt” accommodation, whether their rent was “unreasonably high by comparison with the rent payable in respect of suitable alternative accommodation elsewhere”. In particular, the City Council submitted that the Upper Tribunal erred in effectively applying, as criteria of comparability, the availability and amount of public funding which would have enabled the landlords in question to reduce the rents they charged.

When granting permission to appeal, Sales L.J. observed that the appeal raises this issue: whether, under Regulation 13(3)(b) it was “appropriate to take into account the degree of public subsidy received by the owner of the accommodation occupied and by the owner of any other accommodation said to be a suitable alternative; and in particular, how the [2006 Regulations] should be applied for the purposes of comparison in relation to accommodation owned by a charity, by a registered social landlord and by a private landlord”. A “registered social landlord” would include, for example, a housing association.

The Court of Appeal allowed the City Council’s appeals in both cases. There was, said Lindblom LJ, with whom Black and Beatson LJ agreed, a danger of overcomplication.  He said (para 30):-

“The concept whose meaning is in dispute in this appeal – the concept, in regulation 13(3)(b), of the rent payable for the claimant’s dwelling being “unreasonably high by comparison with the rent payable in respect of suitable alternative accommodation elsewhere” – envisages, I think, a relatively straightforward procedure which is neither unduly burdensome nor unduly complex. On its face, it requires a simple comparison between rents.”

Lindblom LJ continued:-

“40.    It seems to me therefore that the concept of a rent being “unreasonably” high in regulation 13(3) is that the rent is unreasonably high for the claimant to have to pay, rather than unreasonably high for a particular landlord to charge. An “unreasonably high” rent under regulation 13(3) will be a rent higher than the rent one could reasonably be expected to pay in what Evans L.J. in ex parte Gibson described as the “relevant active market in property of the relevant description, type or class” – the “ascertainable market rent”. I see no justification for reading into this concept artificial constraints on the relevant market in which that other accommodation exists, or on the market rent for such accommodation. If there is a “relevant active market” and an “ascertainable market rent” for suitable, alternative accommodation – supported by evidence of the range of rents being paid for accommodation of the appropriate type, occupied with the appropriate security of tenure, in the appropriate general location – the comparison between rents must be objective, realistic and complete.

41. To manipulate the comparison of rents by excluding, for example, all but the levels of rent payable for suitable alternative accommodation which happens to be provided by a landlord in the private sector without the benefit of subsidy, or some other external source of funding, will render the exercise subjective, unrealistic and partial. It shifts the comparison from one between rental levels for accommodation of sufficiently similar type and tenure in the relevant area to one between rents only in one part of the market, and then, within that part of the market, to rents charged by landlords who happen to be funded in a particular way. This is to distort the market, and to produce a false and unreliable comparison. The same may be said of an approach that modifies the comparison of rents by making hypothetical adjustments for the individual circumstances of a particular landlord. Again, this is liable to produce a flawed comparison by reducing or eliminating real disparities between rents for relevant accommodation in the relevant market. Discovering the reasons why a particular landlord came to lose or to forego public funding, exploring the possibility of its being able to charge a lower rent if it were to operate in a different way, or speculating about its circumstances changing in the future, may not always be an impossible or even a difficult task. Such questions may not, in every case, require detailed scrutiny of a landlord’s accounts, or close investigation of the way it runs its business. Here, in the Upper Tribunal’s view, they did not. But they bring to the exercise of comparing rents under regulation 13(3)(b) a degree of artificiality which, in my view, is not merely unnecessary but also inappropriate.
42. I think this understanding of regulation 13(3) sits well with the legislative intent. It recognizes the aim of protecting the public purse from excessive payments of housing benefit in cases where rents are, comparatively, “unreasonably high”. And it does not offend the purpose of protecting claimants from homelessness.
43. In a case where a claimant was paying a rent that was, comparatively, “unreasonably high” – except where paragraph (4) applied and suitable alternative accommodation was not available to him – the authority would be able to reduce his eligible rent by an “appropriate” amount. Claimants within one of the special categories in paragraph (4), as SA and SS were, would be protected against any deduction in their eligible rent, in two ways: first, by the requirement that suitable “cheaper” alternative accommodation is, in fact, “available”; second, that it is reasonable to expect him to move from the accommodation he is in. In exercising the discretion in paragraph (3), the authority is not obliged to reduce the eligible rent by the full amount of the difference between the rent the claimant was paying for the accommodation he was in and the rent he would pay for suitable alternative accommodation elsewhere. The requirement is simply that, in judging what an “appropriate” reduction would be, it must have regard, in particular, to the cost of the suitable alternative accommodation. In Mehanne the House of Lords emphasized the breadth of the authority’s discretion (see paragraphs 8 to 13 in the speech of Lord Bingham, at p.544C to p.546C; and paragraphs 19 to 27 in the speech of Lord Hope of Craighead, at p.547B to p.549F). Relevant considerations could include any personal or financial circumstances of the claimant bearing on his “housing situation” (paragraph 13 in Lord Bingham’s speech).
44. It follows, in my view, that the Upper Tribunal fell into error in the approach it took in the appeals of SA and SS. Its comparison of rental levels under regulation 13(3)(b) was not a true and full comparison between the rent payable by SA and SS for their accommodation in Roshni’s refuge and the rent payable for other accommodation of comparable type and tenure in the “relevant active market”. It effectively applied as criteria of comparability the availability and amount of public funding, or subsidy, which would enable the landlords in question to reduce the rents they charged. In undertaking the comparison, it adjusted upwards the real rent being charged by the only landlord whose accommodation it ultimately relied upon as comparable – “comparator 3” – to arrive at a range of hypothetical rents, on different assumptions of its own as to the percentage proportion of the landlord’s “accommodation costs” recouped from, respectively, subsidy and rent. This was not, in my view, an exercise consistent with the requirements of regulation 13(3).
45. The Upper Tribunal was clearly anxious to reflect in its decision the fact that Roshni was a charity, providing – without the benefit of public funding – accommodation for women who had suffered domestic violence, and that, without subsidy, charities of this kind could not afford to operate refuges, leaving “victims of violence either homeless or at risk at the homes they wished to leave” (paragraph 33 of the interim decision and paragraph 3 of the final decision). It was aware of the very high demand for Roshni’s accommodation. It found that Roshni was meeting a need which “funded charities” were not able to meet or meet in full. And it was satisfied that Roshni had lost public funding as “the result of cutbacks and not of any failings on its part” (paragraph 35 of the interim decision and paragraph 13 of the final decision). All of these considerations it saw as relevant to the comparison of rents under regulation 13(3)(b). I do not think it was right to do so. Where concerns such as these go to the risk of vulnerable claimants finding themselves without accommodation suitable for them, the legislative scheme allows for them – in the discretion given to the authority under regulation 13(3), and in the provisions in regulation 13(4) and (9)(b). Where they go to the difficulties of private sector landlords – charities among them – providing accommodation in refuges without the advantage of public subsidy, the legislature has not identified them as relevant to the comparison of rents under regulation 13(3)(b). And in my view they do not bear on that exercise.”

The Housing Act 1985 does not permit a second succession to a secure tenancy to members of a deceased secure tenant’s family. In Holley v Hillingdon LBC (2016) EWCA Civ 1052 the Court of Appeal considered when a proportionality defence can be raised to a possession claim.  Length of residence might form part of an overall ECHR Art 8 proportionality assessment.  However, it was unlikely to be a weighty factor.  Briggs LJ (with whom Arden and Underhill LJJ agreed) said:-

9. “… The general principles which govern the application of Article 8 to a claim for possession by a local authority of property forming part of its social housing stock from a person with no other right to be there are well settled, by the twin decisions of the Supreme Court in Manchester City Council v Pinnock [2011] 2AC 104 and Hounslow London Borough Council v Powell [2011] 2AC 186.

10. The application of those principles to a claim for possession against a surviving member of the family of a deceased secure tenant by succession occupying the property (after notice to quit) as a trespasser are fully set out and explained by this court in Thurrock Borough Council v West [2012] EWCA Civ 1435; [2013] HLR 5, in the judgment of Etherton LJ, at paragraphs 22 to 31. The general principles set out at paragraphs 22 to 26 need no repetition. In outline, the local authority will usually be seeking eviction as a proportionate means of achieving a legitimate aim because it will thereby vindicate its own unencumbered property rights, and enable it to comply with its duties in relation to the distribution and management of scarce social housing stock.”

“15. … I consider that the true analysis is as follows. First, a person seeking to rely on Article 8 will need to demonstrate a minimum length of residence in order to show that the property in question is their home, so that Article 8 is engaged. Secondly, the period of residence, however long, will not on its own be sufficient to found an Article 8 proportionality defence in the second succession context because, if it would, then it is hard to see how the English statutory prohibition of second succession could be compatible with the Convention.

16. Thirdly, length of residence may form part of an overall proportionality assessment, in the sense that all the circumstances of the case may need to be reviewed, and their effect considered in the aggregate. But fourthly, and precisely because Parliament has lawfully excluded second succession to members of a deceased secure tenant’s family, length of residence is unlikely to be a weighty factor in striking the necessary proportionality balance. A long period of residence may therefore form part of the circumstances, viewed as a whole, but is, in itself, of little consequence.”

“23. …  the concept of a discretionary succession policy is a misnomer. The provisions in Part IV of the Housing Act 1985 which deal with succession to secure tenancies do not require, or for that matter permit, local authorities to formulate and apply discretionary policies for conferring rights of second succession on persons living in the house of a secure tenant who is already a successor, upon that tenant’s death. There is, quite simply, no such entitlement. By contrast, Part VI of the Housing Act 1996 confers a wide discretion upon local authorities as to the allocation of social housing among persons applying for it, and requires that discretion to be exercised in accordance with an allocation scheme which it is required to formulate and publish.

24. A housing authority allocation scheme may make particular provision in relation to priority for members of the family of deceased secure tenants who do not have succession rights, but they are not required to do so. …”

A local housing authority may refuse to accept an application for assistance under Section 183 of the Housing Act 1996 only where it is a further application based upon exactly the same facts as a previous application: so held by the House of Lords in R v Harrow LBC, ex p Fahia [1998] 1 WLR 1396.  This test has been considered in R (Abdulrahman) v Hillingdon LBC (2016) EWHC 2647 (Admin), where the Judge said:-

“39.    In my judgment it is not appropriate to subject a local authority’s decision not to accept an application under Part VII of the 1996 Act to the same sort of analysis as may be applied to a contract drafted by solicitors, to an Act of Parliament, or to a court’s judgment. It is also important that the letter or letters by which such decisions are communicated should be considered as a whole.”

Nonetheless, the Judge held that the authority had acted irrationally in deciding that the test was satisfied. There were new facts relevant to an application for assistance. The changes relied upon were not fanciful or trivial. The new application was not based upon “exactly the same facts” as the earlier application. They were indeed clearly different.

The Housing Act 1996 places no limit on the number of times an applicant may make a Part VII homelessness application. In R (Hoyte) v Southwark LBC [2016] EWHC 1665 (Admin) the Court applied the House of Lords decision in R v Harrow LBC, ex p Fahia: an applicant cannot make a further application based on “exactly the same facts” as an earlier application.  If an application is “not identical” to an earlier one, there is no short cut of “non-statutory” inquiries. The statutory process must be followed.

However, the decision as to whether there are any new facts is one for the local housing authority. It is challengeable only on judicial review grounds.

A person can rid of himself or herself of the status of being intentionally homeless. The question often is whether this is what has happened.  The main circumstances in which the status will cease is if “settled” accommodation is found which is subsequently lost.  The question whether accommodation is “settled” is one of fact and degree to be determined objectively and without reference to the subjective motives or beliefs of either the homeless person or the local authority.

In Huda v Redbridge LBC [2016] EWCA Civ 709 the person contended that “settled” accommodation was constituted by the fact that he had been occupying, with his family, a property under licence from a third party (L), which was procured by Redbridge Council (R) for his benefit in performance of its limited housing duty under Sections 190 of the Housing Act 1996 to persons who are in priority need but are also found to be intentionally homeless.

The Court of Appeal held that all relevant facts had to be considered. In particular, no distinction could be drawn between those factors evident from the licence agreement and factors that arose from outside the agreement, including that he had been told that no greater housing duty was owed to him. Given that his right to occupy was precarious, and that he could not have any reasonable expectation of continuing in occupation for a significant period of time, R’s reviewing officer had been entitled to find that the accommodation was not settled.

By a change to its housing allocations policy, Ealing Council introduced a Scheme whereby 20% of all available lettings would be removed from the general pool and would be reserved for (a) “Working Households” and (b) “Model Tenants”. In brief, a working household was one where the applicant or another member of the household worked for at least 24 hours per week.  A model tenant was an applicant for transfer who already had a Council secure tenancy but who was seeking more appropriate accommodation and who had complied with the terms of the tenancy.  The broad aims behind the Scheme are to incentivise tenants to work or return to work and to encourage good tenant behaviour.

In R (H) v Ealing LBC [2016] EWHC 841 (Admin) the High Court has ruled the Scheme unlawful.  The four grounds of successful challenge included that the Scheme unlawfully indirectly and without justification discriminated against women, the disabled and elderly persons.  The High Court also found unjustified ECHR discrimination against those who do not hold council tenancies, breach of the PSED, and breach of the Section 11 Children Act 2004 duty to safeguard and promote the welfare of children.

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).