Issue 65 - 2nd July 2007

Monday 2 July 2007

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Government & Legislation: The Last Week

On 25 June 2007 the Minister for Immigration and Asylum (Liam Byrne MP) gave a written ministerial statement on section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. That section enables the termination of support for failed asylum seekers in cases where the family is not co-operating with removal or placing themselves in a position where they can leave. The provision was piloted between December 2004 and December 2005 in three areas (for a copy of a report on that pilot click here. The government has decided that it will remain on the statute book but to be used on a case by case basis rather than in a blanket approach. For a copy of the statement click here

On 26 June 2007 the Government laid a parliamentary order increasing the minimum amount of a Home Loss Payment from £4000 to £4400 for those displaced from their homes on or after 1 September 2007. For a copy click here

On 27 June 2007 the Commission of Inquiry into homelessness and poor housing conditions in Wales launched its final report - An Unnatural Disaster - containing details from the evidence given and key proposals for the future of housing in Wales. Recommendations include putting people's homes as a new priority for the Welsh Assembly Government, investment secured to build and improve the housing resource and a new approach to tackle the housing crisis. For a copy of the report click here

On 28 June 2007 the Prime Minister announced that the Minister for Housing (Yvette Cooper MP) would have a place in Cabinet. The new Secretary of State for Communities & Local Government (which includes Housing) is Hazel Blears MP. For a full list of the new departmental ministers and their responsibilities click here

Also on 28 June 2007 the Parliamentary Joint Committee on Human Rights published Monitoring the Government's Response to Court Judgments Finding Breaches of Human Rights. The report keeps up the pressure on Government to bring forward amending legislation (or make remedial orders) to address those aspects of housing law (homelessness, security of tenure on gypsy sites, and decision-making on factual disputes) which the courts have found incompatible with human rights. For a copy of the report click here

On the same day, Shelter Wales published their report Clear Intentions. It recounts that intentional homelessness decisions do nothing to resolve the accommodation or support needs of vulnerable people in Wales and very often restrict the accommodation options available to households. For a copy click here

On 29 June 2007 the Law Commission published a new consultation paper Housing: proportionate dispute resolution - the role of Tribunals. For a copy click here . The consultation ends on 28 September 2007. For a summary of the proposals click here

Also on 29 June 2007, the parenting order and parenting contracts provisions of the Police and Justice Act 2006 (sections 23-25) were brought into force enabling applications to be made by all social landlords - local authorities and housing associations. For a copy of the sections click here. For the Commencement Order click here

On the same day, the Office of Fair Trading announced that Anchor Trust, the largest not-for-profit provider of housing, support and care for the elderly in England, had agreed to change terms and conditions in its long lease agreements that the OFT considered were unfair terms. For the details click here.

Last Week's Cases

R(Abdi) v Lambeth LBC [2007] All ER (D) 325 (Jun), 25 June. The claimant sought a review of an adverse homelessness decision and asked to be accommodated by the council pending the outcome of that review. The decision to refuse that request was taken by the same officer who had made the original adverse decision. The claimant began judicial review proceedings asserting that fairness required that a different officer (the more senior, reviewing officer) should take the decision on accommodation pending review. The High Court dismissed the claim. Neither the statutory scheme nor any general principle of fairness required that the two decisions should be taken by different officers. For the transcript click here.

R(A) v Liverpool CC [2007] EWHC 1477 (Admin), 26 June. The claimant sought assistance from the council on the basis that he was a 14 year old unaccompanied asylum seeker. The claimant obtained a report from a consultant paediatrician concluding that, more likely than not, he was 14. The council obtained two reports from a dental specialist who advised that the claimant was at least 18. Those reports were not immediately provided to the claimant. The council decided that he was over 18 and the responsibility of NASS. In judicial review proceedings, the decision was quashed. In reaching its decision without disclosing the first dental report the council had acted unfairly.

R(Gilboy) v Liverpool CC [2007] 26 June CO/10584/2006. The claimant had been a secure tenant but the council had obtained an order demoting his tenancy. It then decided to seek his eviction. He unsuccessfully sought a review of that decision in which he disputed the facts relied on by the council. The review was conducted by the council itself. The claimant sought judicial review on the basis that the decision-making structure was non-compliant with Art 6 ECHR. It did not allow for an independent adjudication of the facts as required by Tsfayo v UK. A High Court judge granted permission to apply for judicial review. The full case will be heard on 27 September 2007. For more details click here.

Countour Homes Ltd v Rowen [2007] All ER (D) 310 (Jun), 26 June. A periodic assured tenancy agreement, granted by a registered social landlord, allowed for the rent to be increased by service of a landlord's notice on the tenant. The tenant's handbook said that if the tenant disagreed with the increase, the rent could be referred to a rent assessment committee. The landlord gave notice and the tenant referred it to a rent assessment committee. A judge decided that the committee had jurisdiction to set the new rent or that the landlord was estopped from denying it had. The Court of Appeal allowed the landlord's appeal. The existence of a provision for rent increases in the agreement ousted the jurisdiction of the committee. Jurisdiction to exercise a statutory function could not be sustained by an estoppel.

Ahmed v Leicester CC [2007] All ER (D) 327 (Jun), 27 June. A single mother of Somali origin was made a final offer of a four bedroomed house in performance of the main homelessness duty. On her first visit she signified an interest in taking the tenancy. On her second visit she found that the windows had been broken and rubbish thrown in the garden. She was told by another Somali woman that there were problems with anti-social behaviour and racial harassment. She was chased away from the house by three teenagers who shouted that if she moved in they would "burn her out". She refused the offer. The council decided that the offer had discharged its duty. That decision was upheld by the reviewing officer and the county court judge. The Court of Appeal dismissed a further appeal. The reviewing officer had accepted what the applicant had said but had applied (correctly) an objective test in determining both whether the property was "suitable" and whether it would have been reasonable for the applicant to have accepted it.

Murphy v Gooch [2007] EWCA Civ 603, 27 June. This case considers the complex question of the respective interests of former partners (of an unmarried relationship) in a property bought as their home. The matter was reviewed generally in Stack v Dowden [2007] UKHL 17. But in this case there was the additional complication that the home had been bought on a 99 year lease under a shared ownership scheme with a housing association. The couple had bought 25% on an endowment mortgage , the association had bought the other 75%. The relationship broke down only two years after purchase. The Court of Appeal allowed an appeal in a dispute over proportionate shares in the value on resale but observed that because both parties had been publicly-funded, if the statutory charge applied, it was doubtful whether "anyone outside the legal profession will benefit". For the transcript click here.

Shala v Birmingham CC [2007] EWCA Civ 624, 27 June. The claimant was a Kosovan refugee. She and her husband had lost contact with three of their daughters in the upheaval in that country but had reached the UK with their adult children. The issue for the council was whether she had a "priority need". On the question of "vulnerability" the medical evidence was of depression. A consultant psychiatrist had diagnosed post-traumatic stress disorder. Her GP reported that she was on high dose anti-depressants, was mentally unstable, had nightmares, flashbacks and was self-neglecting. The council commissioned medical advice from the organisation "Now Medical" which was provided by Dr John Keen who did not examine the claimant or speak with her doctor or specialists. It decided that she was not vulnerable and that decision was upheld by a reviewing officer and on appeal to the county court. The Court of Appeal allowed a further appeal. The reviewing officer had wrongly failed to take account of one medical report and been wrong to consider that another "added nothing". The Court went on to give extended guidance on the commissioning and use of medical advice by local housing authorities. For the transcript click here.

Gilby v Westminster CC [2007] EWCA Civ 604, 27 June. The claimants gave up their long term privately rented home and went to live in their sister's council flat. When the council repossessed that flat they applied as homeless. The council decided that they had become homeless intentionally because they had been only unlawful subtenants of their sister. On review, the decision was upheld but on the basis that they had been bare licensees staying only temporarily with their sister. On appeal, the claimants argued that this shift in reasoning had required the reviewing officer to comply with reg 8(2) of the review regulations and allow them to be heard. The Court of Appeal held that there was no inconsistency in the reasoning. On either view, the council was deciding that they had not had settled accommodation since giving up their last secure home. For the transcript click here.

Hillingdon LBC v Vijayatunga [2007] All ER B(D) 357(June), 28 June. Following complaints of nuisance from neighbours, the council obtained an injunction to prevent the defendant, one of its tenants, from going onto the communal roof of a block of flats to leave food out for birds and cats. Neighbours complained of breach of the injunction and the council applied to commit. The judge found the tenant guilty of contempt and imposed a fine. The tenant appealed on the basis of technical defects in the committal proceedings e.g. that the evidence which should have been contained in affidavits was given in witness statements. The Court of Appeal dismissed the appeal. The procedural defects had been minor and had caused no injustice.

Watchman v Ipswich BC [2007] 28 June, House of Lords. An appeal committee has refused the appellant permission to appeal to the House of Lords in this intentional homelessness (mortgage default) case. For the judgment of the Court of Appeal :click here

R(M) v Secretary of State for Work & Pensions [2007] EWCA Civ 614, 28 June 2007. The claimant had been in receipt of income support including a disability premium. That premium was stopped when he became homeless and slept rough. Benefit regulations prevented payment of the premium to claimants "without accommodation". The claimant sought judicial review on the grounds that he had been wrongly deprived of a possession (the premium) contrary to Art 1 Protocol 1 ECHR on grounds that amounted to discrimination (contrary to article 14) between those with and without accommodation. The Court of Appeal upheld the dismissal of his claim. Discrimination on the grounds of lack of accommodation was not discrimination by reason of any personal characteristic and was therefore not covered by Article 14. For the transcript click here.

Coming Events

05 July 2007: Housing Law - The Legal Update 2007. A training conference to be held in Leeds. For details click here

18 July 2007: Anti Social Behaviour. An HLPA meeting in London. For details click here

19 July 2007: Migrants' Access to Housing. An HLPA seminar in London. For details click here

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