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 16th floor flat with a view of the street below (as opposed to a 9th 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.