October 28th, 2014 by Christopher Knight


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.

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