August 28th, 2012 by Christopher Knight

Possession Proceedings

The lower 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 JL v Secretary of State for Defence [2012] EWHC 2216 (Admin) Ingrid Simler QC, sitting as a Deputy, dismissed a claim made by a disabled woman living in MoD accommodation through her husband having been a former Army officer. Not only was the Claimant disabled, but her daughter and grandson with whom she lived were also disabled. In 2009, pre Pinnock, a possession order had been made on the basis that consideration of proportionality was not required. The MoD decided to enforce the possession order some two years later, the Claimant having unable to identify suitable alternative accommodation. The Court upheld the proportionality of the MoD’s decision to enforce the order – which was the only decision under challenge in the judicial review – because the proportionality of the eviction could be assessed at the enforcement hearing, the MoD had limited resources to provide accommodation for a number of people, and temporary alternative accommodation was being offered. There was no breach of Article 8 ECHR.


Section 17 of the Children Act 1989 places local authorities under a general duty to safeguard and promote the welfare of children within the area who are in need and, so far as is consistent with that duty, to promote the upbringing of such children by their families. The House of Lords held in R (G) Barnet LBC [2003] UKHL 54; [2004] AC 208 that s.17 was a target duty only. In R (Bates) v Barking & Dagenham LBC, unreported, QBD, 17 August 2012 Timothy Straker QC, sitting as a Deputy, discharged an injunction granted on the papers requiring the local authority to accommodate the Claimant with her children, the local authority having accepted the need to accommodate the children but because of the Claimant’s actions declined to accommodate them together. Mr Straker QC held that because s.17 was only a target duty there was no enforceable duty, and the local authority was entitled to try and prompt the Claimant into better organising her life and asking for help.


The Secretary of State has a power to provide facilities for the accommodation of a person released on bail under any provision of the Immigration Acts by virtue of s.4 of the Immigration and Asylum Act 1999, except that this power may not be exercised in the case of a citizen of a state in the European Economic Area: Nationality, Immigration and Asylum Act 2002, Sch.3, para.5. The Claimant in R (Gally) v Secretary of State for the Home Department, unreported, QBD, 9 August 2012 claimed to be French, but the French Government confirmed that he was not in fact a French national. As a result, the Court found that the Secretary of State was not entitled to conclude that he was French and therefore refuse support simply because of his own assertion. The Secretary of State had to make her own decision, and therefore retake the decision on the provision of support.


The Welsh Government published the new ‘Code of Guidance for Local Authorities: Allocation of Accommodation and Homelessness 2012’ with effect from 13 August 2012.


The Legal Aid, Sentencing and Punishment of Offenders Act 2012 created a new offence of squatting in a residential building, which will come into force on 1 September 2012. The Ministry of Justice has published consequential guidance: ‘Offence of Squatting in a Residential Building, Circular 2012/04’.

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