2011 01 Housing

Tuesday 1 February 2011

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Manchester City Council v Pinnock and EHRC [2010] UKSC 45: The court held that the ECtHR jurisprudence established that: any person at risk of being dispossessed of his home at a local authority's suit should in principle have the right to question the measure's proportionality under article 8 ECHR, even if his right of occupation under domestic law had ended. A procedure limited to considering proportionality through traditional judicial review without the court making its own factual assessment in an appropriate case was inadequate. Where the measure included proceedings involving more than one stage, the proceedings as a whole had to be considered to see if article 8 had been complied with. If the court concluded that it would be disproportionate to evict a person, it would be unlawful so long as that conclusion obtained. The ECtHR seemed also to have franked the view that it would only be in exceptional cases that article 8 proportionality would even arguably give a right to continued possession where the applicant had no right under domestic law to remain. The Court was able to make certain general points [61]-[64] in particular at paragraph [64]:

“Sixthly, the suggestions put forward on behalf of the Equality and Human Rights Commission, that proportionality is more likely to be a relevant issue “in respect of occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty”, and that “the issue may also require the local authority to explain why they are not securing alternative accommodation in such cases” seem to us well made.”

(click here for transcript). It is noteworthy that the appeal in the Supreme Court in the cases of Frisby. Mullen et al were heard in December 2010 which will add flesh to the bones of Pinnock. The EHRC was represented by Jan Luba QC (click here for profile).

Yemshaw (Appellant) v London Borough of Hounslow (Respondent) [2011] UKSC 3: (Lord Hope (Deputy President), Lord Rodger, Lord Walker, Lady Hale, Lord Brown). The issue in this case was what is meant by the word “violence” in section 177(1) of the Housing Act 1996. Is it limited to physical contact or does it include other forms of violent conduct? Under section 193 of the 1996 Act, where a local housing authority are satisfied that an applicant is homeless and did not become homeless intentionally, they must make accommodation available for the applicant, unless they refer the application to another local housing authority. Section 198 provides that one of the conditions for referral to another local housing authority is that neither the applicant nor other members of his household will run the risk of domestic violence in the other district. In the case of Danesh v Kensington and Chelsea Royal London Borough Council [2006] EWCA Civ 1404, [2007] 1 WLR 69, the Court of Appeal held that “violence” in the context of section 198 involved some sort of physical contact, and the word “violence” on its own did not include threats of violence or acts or gestures, which lead someone to fear physical violence.

The Supreme Court unanimously allowed the appeal and remitted the case to the local housing authority. Lady Hale gives the leading judgment. The Court holds that “domestic violence” in s. 177(1) of the 1996 Act includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm. The Supreme Court reasoned that “Physical violence” is not the only natural meaning of the word “violence”. Another natural meaning is “strength or intensity of emotion; fervour, passion” [19]. By the time of the 1996 Act, both international and national governmental understanding of the term “domestic violence” had developed beyond physical contact. There is certainly no doubt that the understanding of “domestic violence” has moved on now, as demonstrated by the definitions used in a 2005 Home Office publication ‘Domestic Violence: A National Report’ and in the 2006 Homelessness Code of Guidance for Local Authorities [20] – [24]. “Violence” is not a term of art. It is capable of bearing several meanings and applying to many different types of behaviour. These can change and develop over time. The essential question is whether an updated meaning is consistent with the statutory purpose. The purpose is to ensure that a person is not obliged to remain living in a home where she, her children or other members of her household are at risk of harm. A further purpose is that the victim of domestic violence has a real choice between remaining in her home and seeking protection from the criminal or civil law and leaving to begin a new life elsewhere [27]. The purpose of the legislation would be achieved if the term “domestic violence” were interpreted in the same sense in which it is used by the President of the Family Division, in his Practice Direction (Residence and Contact Orders: Domestic Violence) (No 2) [2009] 1 WLR 251, para 2, suitably adapted to the forward-looking context of sections 177(1) and 198(2) of the Housing Act 1996: “‘Domestic violence’ includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm.” [28]. Lord Rodger could see no reason why Parliament would have intended the position to be any different where someone will be subjected to deliberate conduct, or threats of deliberate conduct, that may cause her psychological, as opposed to physical, harm. To conclude otherwise would be to play down the serious nature of psychological harm. [46]. Lord Brown indicated his very real doubts that Parliament intended “domestic violence” to extend beyond the limits of physical violence but did not feel sufficiently strongly as to the proper outcome of the appeal to carry these doubts to the point of dissent [48] (click here for transcript). Stephen Knafler QC (click here for profile) appeared for the Intervener Women’s Aid Federation.

Carmarthenshire County Council v Peter Lewis [2010] EWCA Civ 1567 (Rimer LJ): Carmarthenshire County Council had obtained an order for possession against Mr Lewis who occupied premises under a secure tenancy made in his absence. Mr Lewis suffered from Asperger’s syndrome and appeared to be a “protected party” under CPR Part 21. Mr Lewis issues an appeal raising the question of whether he had the mental capacity to defend the proceedings without the appointment of a litigation friend. In a renewed oral hearing the Court of Appeal granted permission to appeal and ordered an expedited hearing of the appeal to address the question as to how, once a court is possessed of information raising a question as to the capacity of a litigant to conduct the litigation, it should satisfy itself as to whether the litigant does in fact have sufficient capacity to conduct said litigation. (no transcript available).

R (on the application of WG) v Local Authority ‘A’ [2010] EWHC 2608 (Admin). (Cranston J): The Claimant applied to the Local Authority for assistance with accommodation. The Claimant demonstrated clear medical needs but declined to engage with any assessment offered by the Local Authority. She also failed to engage with assessment of her homelessness application which led to a hearing in the Court of Appeal (Click AB v Leicester City Council [2009] EWCA Civ 192). In this case the Claimant claimed an application for judicial review to compel the Local Authority to assess her community care needs. Mr Justice Cranston extended an interim injunction requiring the Local Authority to supply accommodation for a further three months so that a community care assessment could be completed. The judge held the fact that an applicant was unco-operative or unwilling to engage was itself no reason for non-provision of community care services (R (J) v Caerphilly CBC [2005] EWHC 586 (Admin)). (no transcript yet available. See reportin Legal Action magazine).

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