Housing

June 3rd, 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.

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.

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