Highways

May 1st, 2013 by James Goudie KC in Environment, Highways and Leisure

What is the status of a non-statutory Code of Practice?  This question has been considered by the Court of Appeal, in the context of the duty to maintain a highway pursuant to Section 41 of the Highways Act 1980 (“HA 1980”), in Devon County Council v TR [2013] EWCA Civ 418, in which Judgment was given on 30 April 2013.  The highway authority successfully appealed against a decision that it had been liable for a road traffic accident and that the driver had not been negligent at all.

TR was the driver of a Land Rover on a country road. Whilst he was in the act of overtaking a slower-moving vehicle, his Land Rover left the road to the nearside and his passengers were very seriously injured in the ensuing crash into trees alongside the road. They sued him. He made a third-party claim against the Council.  He alleged that the defective state of the offside of the road was what had caused him to lose control.

The road in question was part of what is mostly a winding and hilly country road. After a winding and steep section of road, and a right hand bend, the road ahead opened up into a straight section which gave ample visibility to overtake. The road was a single carriageway in each direction. At some points it had no line markings at all, but on the section where the accident occurred there was a long dash centre white line and solid white lines down each edge. On both sides there were soft grass verges. On TR’s nearside there was a ditch with trees beyond it, approximately level with the road surface. On his offside, there was a noticeable and quite steep short bank down into a ditch, and a hedge beyond it.

There was damage to the offside (east) edge of the tarmac, both outside and (in places) over and inside the continuous white edge line. This is common enough where the outer edge of the tarmac meets a soft grass verge. It is caused by heavy vehicles running along or over the tarmac’s edge with their tyres. It is known to highways engineers and maintenance people as “overriding” damage.

The area of overriding damage was 51 metres long. At its widest the damaged area extended just under 6 inches inside the edge of the continuous white edge line and, in places, obscured or obliterated that line. The deepest part of the damaged area was something more than 3 inches deep. TR must have put his offside tyres into the damaged area, at a point before the place at which it intruded most into the carriageway, and at a point where the continuous white edge line was either missing or difficult to see.

Hughes LJ, as he then was, observed that, as is well known, the duty of the highway authority evolved from the common law duty of the local inhabitants to maintain a highway. That duty was an absolute one but was enforceable only by what today would be called a public law action. The inhabitants were not liable for any private loss caused by the state of the road, unless there was misfeasance, as distinct from nonfeasance or simple failure to maintain. That origin is the explanation for the manner in which the law has been expressed since the Highways Acts 1959 and 1961, and in which it now appears in HA 1980. The duty to maintain contained in Section 41 (which includes repair) is now broken by mere nonfeasance. It remains an absolute duty, and it may be invoked not only in relation to civil claims against the authority arising out of an accident but also by action to enforce the maintenance of the road. It is a duty to put and keep the highway in such a state that it does not entail danger to those who use it in the manner ordinarily to be expected. However, so far as civil claims arising out of accidents arising from non-maintenance are concerned, the liability of the authority is limited by Section 58 to the case where it has not taken such care as was in all the circumstances reasonably required to render the highway not dangerous to traffic. The onus of proving that all reasonable care was taken lies on the authority.

The issues which called for decision were therefore whether there was a breach of Section 41, either whether the road was in a condition which exposed to danger those using it in the ordinary way; if so, whether the accident was caused by that breach; if so, whether the Council made out the statutory defence under Section 58, ie of taking all reasonable care; and, if not, whether there was any contributory negligence on the part of TR.

The road was dangerous, at least in places.  However, in order to succeed in a claim made on the basis of a breach of Section 41 it is not enough to show that the highway was dangerous somewhere other than where the accident happened; it must be shown that it was dangerous where the accident occurred, and that the accident occurred as a result of the danger.

In this case the point of entry into the rut was dangerous.  A causative breach of Section 41 was made out.

The principal issue on the statutory defence under Section 58 was whether Devon inspected the road sufficiently often.  Devon’s settled practice for this road and a great many others of the same kind in the County was to inspect at six monthly intervals. The trial judge found that this was not enough to discharge the onus laid upon Devon by Section 58 to show that it had taken such care as was in all the circumstances reasonably required to secure that the part of the highway to which the action relates was not dangerous to traffic.  This is where the Code of Practice fitted in.

There was and is a non-statutory Code of Practice: “Well maintained highways”.  One of a great many areas of practice which is traversed by the Code is frequency of inspection.  In addition, Devon had its own manual for road inspection and the treatment of defects.  The judge concluded that Devon had failed to make out the statutory defence because it had not justified its departure from the recommended inspection interval referred to in the Code. She held that six monthly inspection was insufficient, both generally and specifically in relation to this particular road. Her finding was not simply that six monthly inspection was insufficient, but that only monthly inspection, as per the Code, would discharge the duty to take reasonable care.

The Court of Appeal said that, in adopting this approach, the Judge fell into error.  Hughes LJ, with whom Lloyd LJ and Sir Stanley Burnton agreed, said, from paragraph 20:

“Despite the recognition in the opening words that the code was non-mandatory, this approach amounted to treating it as a mandatory standard which had to be adhered to unless there was a positive reason to depart from it. Whilst the code is clearly evidence of general good practice, its status must not be overstated. It has no statutory basis …”

“The code does not set out mandatory rules. It is evidence of good practice. Authorities must exercise their own judgment.”

“When it comes to the specific issue of inspection intervals, other considerations will clearly include traffic use, experience, the frequency of adverse incidents and the like.”

“It cannot amount to a rule that it will of itself be a want of reasonable care to adopt a different inspection interval unless some particular process of reasoning is passed through, and set out somewhere in writing; if it did, that also would be to make the code a mandatory instrument.”

“At the very least, the evidence of the practice of other authorities pointed towards a respectably held view, amongst professionals charged with highways maintenance, that six monthly inspections of local distributor roads were a reasonable response to the duty to maintain. On the well understood Bolam principle that evidence went towards showing that Devon had exercised reasonable care in its general policy for such roads.”

“There appears to have been no evidence of the exact age of Devon’s practice, but if, as appears, it had been applied to local distributor roads generally for a significant period without problems in the form of avoidable accidents or otherwise, that was in itself some evidence that reasonable care was taken.”

“For these reasons, the judge’s finding that Devon’s adoption of an inspection frequency of six months for local distributor roads generally was a want of reasonable care cannot stand. It was founded on an erroneous approach to the code.”

“However, the judge also held that this particular road called for greater frequency of inspection. Although that finding was in part predicated upon her flawed findings about the policy for local distributor roads generally, the evidence before her was by no means confined to the general. It extended to the detailed inspection reports for this road, over a period of the three and a half years before this accident. … Despite the flawed approach to the policy of Devon in relation to local distributor roads generally, it is clear that there was sufficient evidence to justify the judge’s conclusion that this particular road needed inspection at shorter intervals than six monthly, and I see no warrant for interfering with it. I would accordingly uphold her finding that the statutory defence had not been made out, whilst rejecting her wider basis that Devon’s policy in relation to local distributor roads generally betrayed a lack of reasonable care because it amounted to a departure, without sufficient reason explained, from the non-statutory recommendations contained in ‘Well maintained highways’.”

Finally, the Court of Appeal concluded that TR was 50% contributorily negligent.

 

Liability

April 17th, 2013 by James Goudie KC in Judicial Control, Liability and Litigation

Section 77 of the Building Act 1984 (“the 1984 Act”) relates to dangerous buildings.  If it appears to a local authority that a building or structure, or part of a building or structure, is in such a condition, or is used to carry such loads, as to be dangerous, the authority may apply to a magistrates’ court, and the court may, where danger arises from the condition of the building or structure, make an order requiring the owner thereof to execute such work as may be necessary to obviate the danger or, if he so elects, to demolish the building or structure, or any dangerous part of it, and remove any rubbish resulting from the demolition, or where danger arises from overloading of the building or structure, make an order restricting its use until a magistrates’ court, being satisfied that any necessary works have been executed, withdraws or modifies the restriction.

Section 78 of the 1984 Act relates to emergency measures in the case of dangerous buildings. Subsection (1) provides that, if it appears to a local authority that a building or structure, or part of a building or structure, is in such a state, or is used to carry such loads, as to be dangerous, and immediate action should be taken to remove the danger, they may take such steps as may be necessary for that purpose.

Subsection (7) of Section 78 provides that where in consequence of the exercise of the powers conferred by Section 78 the owner or occupier of any premises “sustains damage”, but Section 106(1) of the 1984 Act does not apply, because the owner or occupier “has been in default”, the owner or occupier may apply to a magistrates’ court to determine whether the local authority were justified in exercising their powers under this section so as to occasion the damage sustained, and if the court determines that the local authority were not so justified, the owner or occupier is entitled to compensation, and section 106(2) and (3) applies in relation to any dispute as regards compensation arising under the subsection.

Section 106 provides (emphasis added):-

            “(1) A local authority shall make full compensation to a person who has sustained damage by reason of the exercise by the authority, in relation to a matter as to which he has not himself been in default, of any of their powers under this Act.

(2) Subject to subsection (3) below, any dispute arising under this section as to the fact of damage, or as to the amount of compensation, shall be determined by arbitration.

(3) If the compensation claimed does not exceed £50, all questions as to the fact of damage, liability to pay compensation and the amount of compensation may on the application of either party be determined by, and any compensation awarded may be recovered before, a magistrates’ court.”

Manolete Partners PLC v Hastings Borough Council [2013] EWHC 842 (TCC), Judgment on 12 April 2013, concerned the entitlement of the Claimant to make a claim against the Council under Section 106 of the 1984 Act for compensation as a result of the Council exercising its powers to prevent access to Hastings Pier under Section 78.  The Council’s main defence was that the Claimant was “in default” and therefore Section 106 did not apply.  Ramsey J rejected this defence.  He held that “default” required breach of an obligation to do something imposed by the 1984 Act itself, and did not extend to breach of a provision of another statute. The Claimant tenant of a bingo hall and amusement arcade on the Pier was not in default of any of the provisions of the 1984 Act.  The party in default was the owner of the Pier structure, who was responsible for its dangerous condition or state.

 

 

Housing

April 2nd, 2013 by Christopher Knight in Housing

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.

 

Election “Purdah”

March 21st, 2013 by James Goudie KC in Elections and Bylaws

The period just before local authority Elections when there are restrictions on publicity is defined as beginning with the last date for publication of Notice of the Election.  In 2013 that date is Tuesday 26 March.  The restrictions apply from then.

Authorities must have regard to the “Code of Recommended Practice on Local Authority Publicity”, issued under Section 4 of the Local Government Act 1986, revised in 2011, and available on the CLG website. Paragraphs 33-35 inclusive (Care during periods of heightened sensitivity) are of particular relevance. They provide:-

“33.     Local authorities should pay particular regard to the legislation governing publicity during the period of heightened sensitivity before elections … It may be necessary to suspend the hosting of material produced by third parties, or to close public forums during this period to avoid breaching any legal restrictions.

34.       During the period between the notice of an election and the election itself, local authorities should not publish any publicity on controversial issues or report views or proposals in such a way that identifies them with any individual members or groups of members. Publicity relating to individuals involved directly in the election should not be published by local authorities during this period unless expressly authorised by or under statute. It is permissible for local authorities to publish factual information which identifies the names, wards and parties of candidates at elections.

35.       In general, local authorities should not issue any publicity which seeks to influence voters….”

 

 

Consultation

February 26th, 2013 by James Goudie KC in Council Tax and Rates

In R (Stirling) v Haringey LBC (2013) EWCA Civ 116 the Court of Appeal were concerned with a claim for Judicial Review of the Council’s Council Tax Reduction Scheme pursuant to Section 10 of the Local Government Finance Act 2012 and Regulations thereunder, replacing Council Tax Benefit.  The Council were required to, and did, publish a draft Scheme and consult upon it, against the background of a 10% reduction in the funding given by Central Government to local authorities for council tax support.  The challenge was as to the consultation process.

There were three grounds: (1) that consultees were not provided with sufficient information to enable them to appreciate that there were alternatives to the draft scheme;  (2) that the information provided in the Consultation Document, as to the shortfall that would have to be met by the Council, was not accurately and fairly presented; and (3) that the Council should have told consultees about the Transitional Grant Scheme (“TSG”), and asked them if they wished to make any, or any further, responses in the light of the availability of that Scheme.  The second ground was not pursued in the Court of Appeal.

Dismissing the first ground, Sullivan LJ said, at paragraph 15:

“It is one thing to say that when options for change are presented in a consultation paper … they must be fairly presented, it is quite another to submit … that in order to be fair a consultation paper must present information about other options that have been rejected. What fairness requires depends on the circumstances of the particular case. In some statutory contexts a decision maker may be required, or may choose to consult as to which of a number of options should be adopted.”

However, Sullivan LJ continued, in paragraph 16, alternatives to a preferred scheme do not in all cases have to be mentioned as having been rejected.  At paragraph 18, Sullivan LJ stated that, in the particular statutory context, fairness did not require the Council, in the consultation process, to mention other options which it had decided not to incorporate into its published draft Scheme.  Much less did fairness require that the Consultation Document contain an explanation as to why these options were not incorporated in the draft Scheme.  At paragraph 19, Sullivan LJ went on to say that, evenif the statutory scheme had been less prescriptive and more open-textured as to the subject matter of the consultation process, he would not have concluded that the Consultation Document’s failure to mention the other possible ways of meeting the shortfall in Central Government funding rendered the consultation process unfair. The existence of the three options relied upon by the Appellant – raising Council Tax, reducing other Council services or utilising some of the Council’s reserves – were all reasonably obvious ways of meeting a shortfall in Central Government funding, and the form of the Consultation Document did not prevent consultees from suggesting them as possibilities. This was not a case in which the failure to mention the three options in the Consultation Document might have had the consequence that the decision-maker would have failed to appreciate their existence. The full Council would have been well aware of these three ways of meeting a shortfall in Central Government funding.  

Dismissing the third ground, the Court of Appeal held that the change of circumstance constituted, in the public domain, by the TSG, though plainly relevant, was not a change of such significance that the Council was bound to draw attention to it, or to commence the consultation process afresh.

 

Land Disposal

February 25th, 2013 by James Goudie KC in Land, Goods and Services

In R (London Jewish Girls’ High Ltd) v Barnet LBC, Lawtel AC9301237, Mitting J, on 20 February 2013, dismissed the claim, which concerned the disposal of land by a local authority for “best consideration” under s.123 of the Local Government Act 1972.  The Court was entitled to have regard to the consideration offered as at the date of the hearing of the claim for judicial review, and not simply the competing offers as they stood before the decision maker.  On this basis, the proposed sale did not breach s.123 in circumstances where the developer’s proposal was clearly the better bid, having regard to the cash offered together with overage payments. Mitting J went on give guidance (obiter) as to what matters could be treated as consideration for the purposes of s.123. He held that the value of affordable housing units as part of a development scheme and contributions under a section 106 agreement could not amount to consideration within the meaning of s.123, however he held, tentatively, that nomination rights over affordable housing were capable of amounting to consideration on the basis that these were benefits accruing to the Council from the use of the land that are of commercial and monetary value to the Council.

 

Public Health

February 11th, 2013 by James Goudie KC in Local Authority Powers

The Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013, Statutory Instrument 2013 No. 218 (“the Regulations”) make provision in relation to Health and Wellbeing Boards established under Section 194 of the Health and Social Care Act 2012 (“the 2012 Act”) (Part 2), local authority public health functions (Part 3) and review and scrutiny of the local health service by local authorities (Part 4).

Part 2 modifies provisions in primary legislation relating to a Committee appointed under Section 102 of the Local Government Act 1972 (“the 1972 Act”) in so far as those provisions relate to Health and Wellbeing Boards and provides that certain  provisions do not apply to Health and Wellbeing Boards. The modification and disapplication provisions also apply to Sub-Committees of Health and Wellbeing Boards and Joint Sub-Committees of such Boards.

Part 3 makes provision for the weighing and measuring of children in attendance at schools under arrangements provided for by local authorities.

Part 4 makes provision in relation to the health scrutiny functions of local authorities. Section 244 of the National Health Service Act 2006 confers a power to make regulations on review and scrutiny of matters relating to the Health Service (“health scrutiny”) by local authorities. The 2012 Act made various changes to the system of health scrutiny. This included provision for health scrutiny functions to be conferred on local authorities directly with powers to enable those authorities to make various arrangements for the discharge of those functions, including discharge by Overview and Scrutiny Committees. Part 4 makes provision accordingly.

The Regulations also provide for exemptions from the Community Right to Challenge under the Localism Act 2011 for certain public health services to be provided by local authorities, two of which are time-limited exemptions.

 

 

Disabled Election Candidates

February 1st, 2013 by James Goudie KC in Elections and Bylaws

Schedule 4 to the Representation of the People Act 1983, as amended, provides for the definition of the term “election expenses”.  It sets out matters that are to be considered “election expenses”.  It sets out a list of matters excluded from being “election expenses”.  The classification of an expense as an “election expense” has a number of regulatory consequences.  These include that, under Section 76 of the Act, candidates are subject to a limit on the amount that can be spent on “election expenses”.

Pursuant to a power in the Act, there is being made the Representation of the People (Election Expenses Exclusion) Order 2013.  This will amend the Act to exclude grant awards made by the Access to Elected Office Fund (“the Fund”) from the definition of “election expenses”. The Fund has been established by the Government Equalities Office to award financial support to disabled persons who will (or wish to) stand for elected office. In order to give full effect to the Fund policy, the Order amends existing provisions on “electoral expenses” which would otherwise cause difficulties for the proper operation of the Fund. This is because disabled and non-disabled candidates would otherwise not be treated equally as regards the incurring of expenses, in that disabled candidates who received monies from the Fund to remove or mitigate disability barriers would, amongst other things, have to count such expenditure against their election expenses limit. This would have the effect of reducing the amount they could spend on other electoral expenses. Whereas in contrast the non-disabled candidates would incur no such disability related expenses and so would benefit from the advantage of having the entirety of their election expenses limit to spend on other election expenses.

The Order exempts certain expenditure by or on behalf of disabled candidates from being considered “election expenses”. However in order to benefit from the exemption from being an “election expense” the expenditure must be designed to remove or reduce the barriers to seeking elected office faced by disabled candidates; an expense that arises as a consequence of the candidate’s particular disability; defrayed or reimbursed by a grant awarded from the Fund (however, if the expense is greater than amount of the grant provided by the Fund then the exemption only applies in relation to the amount of the expense that is covered by the Fund); in accordance with the terms and conditions of the grant made from the Fund.

The Order therefore provides that only matters of expenditure that a disabled candidate would face, but a non-disabled candidate would not face, are to be exempted from the definition of “election” expenses. Matters of expenditure that would be common to both disabled and non-disabled candidates, such as the normal printing of campaign leaflets for distribution to the public, would not fall within the scope of this exemption or within the scope of the Fund. However where a disabled candidate requires specially adapted transportation in order to participate in door-to-door campaigning on a level basis with a non-disabled candidate, then such an additional expense is likely to fall within the scope of the Fund and providing it satisfies the conditions set out above is likely to fall within the scope of this exemption.

The Order applies to all of the UK. However the Fund only applies to UK Parliamentary elections, local elections in England (except parish council elections), Greater London Authority elections, Mayoral elections in England and Police and Crime Commissioner elections in England and Wales.

The Fund, will distribute £2.3 million in grants from July 2012 to June 2014. The Fund is designed to meet the additional costs that a disabled person may face, such as extra transport costs or sign language interpreters, when seeking to stand for selection by a political party or election.

The Order refers to removing or mitigating “barriers” to elected office associated with a candidate’s disability.  The Electoral Commission has taken issue with this.  They believe that “barriers” is uncertain and will be difficult to interpret.  They are concerned that there is scope for the Fund administrator to make grant allocations for a far wider range of matters than was intended.  However, the Government’s view is that “barriers” means things that merely impede progress or success, as well as things that prohibit progress or success altogether. The term “barriers” is therefore the most appropriate for the Order. The fundamental difference appears to be that the  Commission would prefer the exemption to be defined by an exhaustive list for reasons of certainty. However, the Fund has been set up on the basis that it must be able to fund any potential expense that arises from the mitigation of a barrier to elected office that occurs because of the candidate’s disability. Consequently it is impossible to define the exemption in the terms of an exhaustive list. A non-exhaustive list of expenses it will pay for would equally be unsatisfactory, because it will necessarily not mention everything covered. Therefore in order to provide certainty the Government have sought to define the exemption through descriptive principles that, as required, exactly match the scope of the Fund.

Further, the Order as drafted has the effect of imposing the test that expenses are only exempted provided they are aimed at removing or reducing the impediments disabled candidates face when seeking elected office. There is a further requirement that the impediments must directly result from a candidate’s disability.

Even if the “barriers” test is met, the Order also requires that for any spending to be exempt, it must be in line with the Fund’s terms and conditions. The Commission is not convinced that the terms and conditions are fit for purpose as currently drafted, believing they cannot be relied on to accurately define what is and is not exempt from spending limits. However, the Government does not agree that it is the terms and  conditions that define the exemption, as this is done by the text of the Order. The reference to terms and conditions in the exemption is so as to ensure an individual who fraudulently obtains funding does not benefit from the exemption. In practice the terms and conditions are likely to help provide practical guidance, but it remains the case that the definition of the exemption is the wording set out in the Order.

 

Housing

January 7th, 2013 by Christopher Knight in Housing

Possession Proceedings

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 Southend-on-Sea Borough Council v Armour (QBD, judgment of 18 October 2012), Cranston J dismissed an appeal by the Council against a finding that it would be disproportionate to grant a possession order. The Defendant was an introductory tenant, who had allegedly verbally abused neighbours. Possession proceedings took 11 months to come to trial, by which time the Defendant had been diagnosed with Asperger’s and depression, as well as there having been no further incidents. The Recorder upheld the proportionality of the Council’s original decision to seek possession, but had regard to the situation since the filing of the claim and held that it would no longer be proportionate to order eviction. Cranston J agreed, holding that since proportionality was to be determined at the date of the hearing the Recorder’s decision contained no error. There would have been a breach of Article 8 ECHR.

The seriously arguable breach of Article 8 threshold established by the Supreme Court was maintained by the Court of Appeal in Thurrock Borough Council v West [2012] EWCA Civ 1435, in which the Defendant had been living in a property with grandparents to whom a weekly tenancy had been granted. The Defendant argued that following the death of both grandparents it would be disproportionate to evict from the home he had been in for four years, when he would be unable to find comparable accommodation in the private sector. The County Court refused possession. The Court of Appeal overturned this on appeal, holding that there was nothing exceptional about the case in the least, and the seriously arguable threshold had not been met. A possession order would not be a breach of Article 8.

Thurrock was applied in Evans v Brent London Borough Council (QBD, judgment of 18 December 2012), in which the Defendant claimed that she had been living with her ill father until his death and that she should be entitled to succeed to his secure tenancy. The County Court ordered possession, holding that she had not resided with her father in the 12 months prior to his death, that there was therefore no right of succession under s.87 of the Housing Act 1985 and that it was not seriously arguable that the Council would breach Article 8 if it did not permit her to remain in the property. The Defendant’s appeal was allowed by Ramsey J in part, holding that the factual dispute about the Defendant’s residence within the last 12 months was the subject of conflicting evidence and was not suitable for summary judgment. However, Ramsey J dismissed the Article 8 appeal, agreeing that it was not seriously arguable that there was any breach, and also that it was not seriously arguable that there had been any fettering by the Council.

In ordinary cases, an order for possession may be suspended under s.85 of the Housing Act 1985. In Birmingham City Council v Ashton [2012] EWCA Civ 1557 the Defendant had a serious criminal record, including for threats to neighbours, which led to the Council seeking a possession order. The County Court suspended the possession order, in the light of the lack of recent incidents and the receipt of support services, on terms that an anti-social behaviour injunction was complied with. The Court of Appeal allowed the Council’s appeal on the basis that the judge had failed to consider the future risk of anti-social behaviour, as to which medical evidence showed that there was a 20-30% chance of future unacceptable conduct (even with support). Once a possession has been made the burden is on the party seeking suspension to show that the behaviour is unlikely to recur. The case was remitted for reconsideration. 

Strasbourg Cases

Article 8 continues to be a source of UK litigation both domestically (see above) and in Strasbourg. The most recent decision of the European Court of Human Rights came in Buckland v UK (App. No. 40060/08), which was about gypsies. The Applicant was a gypsy who lived on a caravan site in Neath and who was given notice to terminate her licence in 2004. She refused to go and in 2006 the County Court made an order for possession under the Caravan Sites Act 1968 and Mobile Homes Act 1983, suspending the order for 12 months. The judge did not consider the proportionality of the possession order as the case occurred prior to the judgment of the Supreme Court in Pinnock (above) that this was required by Article 8. The European Court held that to comply with Article 8, a court had to be satisfied that it was proportionate to make a possession order which had not been done. Although the Applicant could have applied for a further suspension, this would not remove the incompatibility: suspension merely delays but does not remove the threat of eviction.

Of significant potential importance was the qualification entered in the Separate Opinion of Judge de Gaetano, which is worth quoting in full:

“My only reservation in this case is with the principle as set out in the second sentence of paragraph 65. This sentence is a verbatim reproduction of what is found in § 50 of McCann and in § 68 of Kay (the sentence was slightly modified, but not in substance, in § 43 of Paulić). However, all the cases quoted in support of the principle as thus formulated (including, indirectly, Connors) are cases where the landlord was either the Government or a local authority. None were cases where the landlord was a private individual. In my view while it is perfectly reasonable to require that an eviction or repossession notice issued by the Government or by a local authority – both of which are normally under a public law obligation to provide accommodation for people within their jurisdiction – or possibly even by a private entity in receipt of public funds, should be capable of being challenged on the grounds of proportionality, when the landlord is a private individual the tenant’s right should in principle be limited to challenging whether the occupation – tenancy, lease, encroachment concession, et cetera – has in fact come to an end according to law. In this latter case the proportionality of the eviction or repossession in light of the relevant principles under Article 8 should not come into the equation. This is not to say, of course, that the Government may not, by legislation, impose restrictions on the use of the property by the landlord upon or after the termination of the occupancy, from which restrictions the last tenant or occupant might even benefit (see, by way of analogy, James and Others v the United Kingdom, no. 8793/79, 21 February 1986; Hutten-Czapska v. Poland, [GC] no. 35014/97, 19 June 2006); but this is a totally different issue from what is being proposed in the second sentence of paragraph 65.”

The Supreme Court had expressly refused in Pinnock to express a decided view on the horizontal effect of Article 8 to possession proceedings involving a private landlord. The pessimistic might read Judge de Gaetano’s feeling the need to enter a Separate Opinion as an indication that the majority had indeed intended their judgment to be read more broadly. It doubtful that this point will remain undecided for very much longer.

A breach of Article 1 of Protocol 1 was found in Bjelajic v Serbia (App. No. 6282/06), where the Applicant had obtained a domestic judgment ordering a State-run company to carry out repair work water damage to her flat, which was not complied with for five years. The Court found that the substantial delay in enforcing the order had not been justified and finding of a violation was made.

A breach of the same Article was also found in Tunyan v Armenia (App. No. 22912/05), in which the Applicant was the leasehold owner of a flat in which she resided. The Armenian Government expropriated the property (and the surrounding area) by decree in 2002 and the Applicant refused to accept the compensation. The eviction was upheld domestically. Relying on its previous decision in Minasyan v Armenia (App. No. 27651/05) that expropriation of land required primary legislation, a breach of Article 1 was found.

Homelessness

The Court of Appeal has now twice reiterated that the question of whether a citizen of the EU is temporarily unable to work as the result of illness or accident, such that they should continue to treated as a worker and therefore entitled to reside in a Member State, under Article 7 of Directive 2004/38, is a question of fact: Konodyba v Royal Borough of Kensington and Chelsea [2012] EWCA Civ 982; Samin v City of Westminster [2012] EWCA Civ 1468. In the latter case (the former having been dismissed because the main issue was res judicata) the Court noted that the Claimant had hardly worked in the UK at all and could not therefore be said to be only temporarily unable to work, given his range of physical and mental health problems.

Where an individual has been refused homelessness assistance under Part 7 of the Housing Act 1996 because the local authority does not accept that she falls into a category of priority need – such as being at risk of domestic violence – an appeal to the County Court lies only on a point of law against the review decision: s.204. The Court has no jurisdiction to make findings of fact: Bubb v London Borough of Wandsworth [2011] EWCA Civ 1285. This was reiterated in Richmond upon Thames London Borough Council v Kubick [2012] EWHC 3292 (QB) where the Claimant had sought to adduce a witness statement undermining the evidence relied on by the Council. Leggatt J allowed the appeal against the decision to allow the statement to be adduced.

Part 7 duties do not apply to those who are intentionally homeless within the meaning of s.191 of the Housing Act 1996. In Carthew v Exeter City Council (CA, 4 December 2012) the Claimant left the home she shared with her partner when their relationship broke down, after she had transferred the property to her former partner at an earlier stage in the relationship because she could not afford to pay the outgoings herself. The Court of Appeal remitted the case for reconsideration because although the Council was entitled to treat the transfer of the property as the cause of her homelessness, it (and the County Court) had failed to consider why the Claimant had had to carry out the transfer and whether it was in fact affordable for her to live in on her own.

Compulsory Purchase Orders

Compulsory purchase orders in respect of properties may be made under s.17 of the Housing Act 1985, and are subject to confirmation by the Secretary of State. Part 4 of the Housing Act 2004 entitles local authorities to take over the management of empty properties and bring them into occupation by making an Empty Dwelling Management Order. In Braithwaite v Secretary of State for Communities and Local Government [2012] EWHC 2835 (Admin) it was said that the Claimant had used the property in question only sporadically and intermittently over the previous ten years, allowing the condition of the property to deteriorate so that it was no longer of a reasonable standard.

Kenneth Parker J dismissed the claim. In particular, he held that there was no evidence that the EDMO regime under Part 4 of the 2004 Act was intended to limit or cut back the CPO powers under s.17. EDMO’s were an additional power. If a CPO could only be made where the property was empty within the meaning of the EDMO regime the local authority would be powerless to act where the owner had a permitted EDMO reason for leaving the property unoccupied. The judge accepted that the CPO regime engaged Article 8 ECHR in this type of case, but the factual findings were that the property had been left empty for a considerable period of time and had been left in a lamentable state of disrepair. There was an acute need for residential dwellings and a CPO was more likely to secure that result. The compelling social need outweighed any Article 8 right the Claimant might have and the CPO was proportionate.

Legislation

Sections 148-149 of the Localism Act 2011 came into force on 9 November 2012 by virtue of the Localism Act 2011 (Commencement No. 2 and Transitional Provisions) (England) Order 2012 (SI 2012/2599), which amend the provisions of s.193 of the Housing Act 1996 so that the duty to secure accommodation for homeless persons may be brought to an end by the acceptance or refusal of a private rented sector offer (i.e. an assured shorthold tenancy). The duty will still apply if an applicant who accepted an offer re-applies within two years.

Also coming into force on 9 November 2012 is the Homelessness (Suitability of Accommodation) (England) Order 2012 (SI 2012/2601), which sets out the circumstances in which private rented sector accommodation (above) is not to be regarded as suitable. The circumstances relate both to the physical condition of the property and the character of the landlord. It also sets out general suitability considerations which must be taken into account including: (a) if it is outside of their area, its distance from their area; (b) the significance of any disruption which would be caused to the employment, caring responsibilities or education of the applicant or any member of his household; (c) the proximity and accessibility of medical facilities and other support which are currently used or provided to the person or members of their household and are essential to their well-being; and, (d) the proximity and accessibility of local services, amenities and transport.

A series of instruments were made to come into force on 8 November 2012 to comply with the decisions of the CJEU in Case C-34/09 Gerardo Ruiz Zambrano v Office national de l’emploi [2012] 2 WLR 886 and Case C-256/11 Dereci and others v Bundesministerium fur Inneres (judgment of 15 November 2011) that where an EU national child is dependent on a non-EU national, that non-EU national must be given the right to reside and work in the Member State. The Immigration (European Economic Area) (Amendment) (No.2) Regulations 2012 (SI 2012/2560) amend the Immigration (European Economic Area) Regulations 2006 to confer a right to reside on such non-EU nationals. The non-EU national is, however, prohibited from receiving housing benefit or council tax benefit by virtue of the new Social Security (Habitual Residence) (Amendment) Regulations 2012 (SI 2012/2587) and is ineligible for an allocation under Pt.6, Housing Act 1996 by virtue of the new Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012 (SI 2012/2588).

Preference is to be given to certain categories of serving and former members of the armed forces by local authorities determining priorities in allocating housing accommodation from 30 November 2012: Housing Act 1996 (Additional Preference for Armed Forces) (England) Regulations 2012 (SI 2012/2989).

The Government’s root and branch of welfare benefits has significant implications for the existing systems of housing benefit. The Housing Benefit (Amendment) Regulations 2012 (SI 2012/3040) provides for the recalculation of the appropriate maximum housing benefit amount on 1 April of each year rather than on the anniversary of the previous determination (in accordance with the CPI uprating plans set out in the Rent Officer (Housing Benefit Functions) (Amendment) Order 2012). The Regulations also provide that payments to those renting in the social sector will be reduced by 14% if the claimant has one more bedroom than necessary, and 25% if two or more.

From 15 April 2013 a cap will be applied to the total amount of welfare benefits any individual can receive: £350 per week for a single person not responsible for a child, and £500 in all other cases. Housing benefit may be reduced so as to limit benefits to the amount of the cap (although it can be reduced below 50p per week): Benefit Cap (Housing Benefit) Regulations 2012 (SI 2012/2994).

It is intended that a new Property Chamber of the First-tier Tribunal will come into effect on 1 May 2013, which will encompass the jurisdictions of the Residential Property Tribunal, Leasehold Valuation Tribunal, Rent Assessment Committee, Agricultural Land Tribunal and the Adjudicator to the Land Registry.

 

Byelaws

December 14th, 2012 by James Goudie KC in Elections and Bylaws

The Local Government Byelaws (Wales) Act 2012 (anaw 2) reforms procedures for making byelaws in Wales, including removing a requirement for confirmation of byelaws by the Welsh Ministers; enables certain byelaws to be enforced by fixed penalty notices; requires authorities that make byelaws to have regard to any guidance given by the Welsh Ministers on procedure; and restates for Wales a general power to make byelaws.

 

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