Mohammed v Barnet LBC (2019) EWHC1012 (QB) was an appeal against a decision by HHJ Luba QC at the Central London County Court, following the trial of a preliminary issue in relation to proceedings for possession of residential premises sought by the London Borough of Barnet (“the Council”). By his decision the Judge concluded that the agreement for occupation between the Appellant, Ms Mohamed, and the Council is not an agreement that attracts the security of tenure provisions of the Housing Act 1985 (“the Act”). The appeal raised the issue of whether the occupation of accommodation by Ms Mohamed has secure status for the purposes of Part IV of the Act or whether, as the Council contends, it is a simple non-protected arrangement. This turns on the construction of paragraph 6(b) of Schedule 1 to the Act. In particular; does paragraph 6(b) require a single provision providing for vacant possession on expiry of a specified period or when required? Or, is it sufficient, in the present case, to simply provide for possession “when required”? Thornton J dismissed the appeal.
Applications for Planning Permission
April 25th, 2019 by James Goudie KC in Planning and EnvironmentalIn Gladman Developments Ltd v Canterbury City Council (2019) EWCA Civ 669, in dismissing an appeal from Dove J, Lindblom LJ, at paragraphs 21/23, restated the correct approach to determining an application for planning permission. Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires the determination to be made “in accordance with the [development] plan unless material considerations indicate otherwise”. The development plan thus has statutory primacy, and a statutory presumption in its favour – which government policy in the NPPF does not.
Statutory Interpretation
April 25th, 2019 by James Goudie KC in Judicial Control, Liability and LitigationIn R (VIP Communications Ltd) v SSHD (2019) EWHC 994 (Admin) Morris J allowed an application for judicial review and held that a Direction made by the SoS, under a regulatory framework put in place following the implementation of EU Directives, was ultra vires his statutory powers, and therefore unlawful. Morris J, at paragraph 50, stated the principles of statutory interpretation, as follows:-
Allocation Policy
April 23rd, 2019 by James Goudie KC in HousingIn conjoined appeals, (2019) EWCA Civ 692, R (Gullu) v Hillingdon LBC and R (Ward) v Hillingdon LBC, the Court of Appeal considered the lawfulness of Hillingdon’s housing allocation policy. The policy prioritised people who had been resident in the local area for 10 years. That was found to discriminate indirectly against protected groups.
Lewison LJ, with whom Underhill and King LJJ agreed, identified the issue as follows:-
“Hillingdon LBC’s housing allocation policy provides that, subject to exceptions, a person who has not been continuously living in the borough for at least 10 years will not qualify to join the housing register. One of the exceptions is that an unintentionally homeless person who does not satisfy the residence requirement is entitled to join the register; but is placed in band D. Two challenges were brought against the lawfulness of that policy, on the ground that it is indirectly discriminatory on the ground of race; and cannot be justified. One, by Irish Travellers, succeeded before Supperstone J (R (TW) v London Borough of Hillingdon [2018] EWHC 1791 (Admin), [2018] PTSR 1678). The other, by a Kurdish refugee of Turkish nationality, failed before Mostyn J (R (Gullu) v London Borough of Hillingdon [2018] EWHC 1937 (Admin), [2019] HLR 4). Since the courts below reached different answers on substantially the same challenge, I granted permission to appeal.” Read more »
Procedural Fairness/Tameside Duty
April 18th, 2019 by James Goudie KC in Decision making and ContractsWhen a decision-maker is minded to make a decision adverse to someone on the basis of their dishonesty or other reprehensible conduct he is required as a matter of procedural fairness to indicate that suspicion clearly and give the applicant an opportunity to respond. This principle has been reaffirmed in Balajigari v SSHD (2019) EWCA Civ 673, from paragraph 46, where the Court of Appeal said:-
“46. … the question of whether there has been procedural fairness or not is an objective question for the court to decide for itself. The question is not whether the decision-maker has acted reasonably, still less whether there was some fault on the part of the public authority concerned.”
“59. … although sometimes the duty to act fairly may not require a fair process to be followed before a decision is reached … fairness will usually require that to be done where that is feasible for practical and other reasons. … Read more »
Human rights
April 17th, 2019 by James Goudie KC in Human Rights and Public Sector Equality DutyIn R (SC) v SoS for Work and Pensions (2019) EWCA Civ 615 Leggatt LJ said as regards the European Convention on Human Rights (“the Convention”):-
“29. … the Convention is not aimed at securing social and economic rights. The rights defined in the Convention are predominantly civil and political in nature. This reflects the original purpose of the Convention, conceived and developed as it was in the aftermath of the Second World War as a bulwark for protecting the peoples of Europe against tyranny and oppression. As stated in its Preamble, the Convention is a collective enterprise of European countries which are “like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law”, and is designed to maintain “those fundamental freedoms which are the foundation of justice and peace in the world.” Within the legal framework established by the Council of Europe, social and economic rights are protected by a separate treaty, the European Social Charter, adopted by the Council in 1961. Read more »
Local authority budgets
April 16th, 2019 by James Goudie KC in Decision making and ContractsFollowing the Divisional Court decision in Hollow v Surrey County Council (2019) EWHC 618 (Admin) on local authority budgets and decisions to reduce expenditure, Supperstone J has decided R (AD) v Hackney LBC (2019) EWHC 943 (Admin), in which, again, the challenge was dismissed, and all the various grounds of challenge rejected. As regards alleged “systemic unlawfulness”, it was not the case that Hackney’s approach inherently would produce failures to comply with the relevant absolute, statutory duty (Section 42 of the Children and Families Act 2014). The impact of the reduction upon SEN children and Education and Health Care Plans could be mitigated in individual cases. Nor was a banded system an intrinsically unlawful way to discharge that duty. Further, there was no breach of Section 27 of the 2014 Act, of the PSED, of Section 175 of the Education Act 2002, or of Section 11 of the Children Act 2004. Moreover, no public law consultation was required under Section 27, or the PSED or at common law. There was no legitimate expectation of consultation. It was not required in order to avoid “conspicuous unfairness”. There was compliance with the Tameside duty to equip oneself with adequate information.
Consultation
April 16th, 2019 by James Goudie KC in Decision making and ContractsKeep the Horton General v Oxfordshire CCG and Cherwell District Council (2019) EWCA Civ 646 concerns one aspect of the first part of a two-phase consultation exercise upon five proposals. McCombe LJ said:-