2013 05 Housing

Saturday 1 June 2013

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Lambeth LBC v Harry Loveridge [2013] EWCA Civ 494 (Arden LJ, Briggs LJ, Sir Stanley Burnton): an unlawful eviction case. On the true construction of s28 Housing Act 1988, where a Local Authority unlawfully evicts a secure tenant from residential accommodation, in assessing the damages payable under s27, the fact that the secure tenancy would become an assured tenancy if the property were sold to a private landlord should be factored into the hypothetical valuation of the landlord’s interest subject to the tenant’s right to occupy. Click here for the judgment.

Sifatullah Hotak v Southwark LBC [2013] EWCA Civ 515 (Moore-Bick LJ, Richards LJ and Pitchford LJ): a priority need homelessness appeal. In assessing whether an individual is vulnerable within the meaning of s189(1)(c) Housing Act 1996, a Local Authority is entitled to take into account the support which that individual has been and will continue to be provided with if street homeless, by a family member with whom they are currently living. The Appellant, Sifatullah was a 23 year old Afghan refugee suffering from learning disabilities, depression and PTSD. He was heavily reliant for personal support from his 24 year old brother Ezatullah. Sifatullah made a homelessness application to Southwark LBC, the Respondent, on behalf of both brothers. By a review decision upholding the earlier s184 decision, Southwark determined that Sifatullah’s medical conditions were sufficiently serious for him to be deemed vulnerable if he were a single applicant but that as long as he were with his brother he would not be vulnerable since Ezatullah “would not allow circumstances to arise whereby his brother is placed at risk”. The decision was upheld on appeal to the County Court. A second appeal to the Court of Appeal was dismissed. The Court held that vulnerability cannot be assessed in isolation from known personal circumstances and that Southwark were entitled to take into account the support provided by Ezatullah. However the Court was at pains to stress that the existence of a support network does not automatically mean that an applicant will not be vulnerable observing at [42] that even “if the support network would remain in place it may not, in a situation of homelessness, be sufficient to enable the applicant to fend for himself as would the average homeless person”. Click here for the judgment.

Jehann Mohammed v Islington LBC (Unreported) 21 May 2013 (Sullivan LJ, Davis LJ and Ryder LJ): a priority need homelessness appeal. Judgment not yet available online. This summary is based on the Lawtel note. The Appellant, Islington LBC appealed against an order of a County Court judge, quashing a review decision that the Respondent, Ms Mohammed, was not in priority need. Ms Mohammed was 23. She made a homelessness application asserting a priority need on the basis of a medical condition whereby she fainted several times a day. Islington determined that she did not have a priority need. The decision was upheld on review then quashed on appeal. The Court of Appeal upheld the judge’s decision. However benevolently the review decision was viewed, it had failed to take into account first, whether Ms Mohammed being street homeless would affect the factors giving rise to her fainting and second, the effect the attacks would have on her if she were street homeless.

R (IA) v City of Westminster Council [2013] EWHC 1273 (Admin) (HHJ Anthony Thornton QC sitting as a deputy judge of the High Court): a permission decision in a homelessness judicial review. The judge certified that the decision may be cited and referred to owing to its importance and topicality. IA was an Iranian refugee. As a result of torture in Iran he suffered from ongoing mental health problems. He presented as homeless to Westminster. A cursory interview took place at the end of which a negative s184 decision was immediately printed off, finding that IA was not in priority need. IA applied for a review and accommodation pending review pursuant to s188(3). The latter was refused. IA sought judicial review of the refusal to provide accommodation pending review and of the s184 decision itself, contending that it was not a s184 decision. An ex parte interim injunction was granted requiring Westminster to accommodate IA. Westminster applied to discharge the injunction and the matter was listed for an urgent hearing in front of HHJ Anthony Thornton QC. The judge granted permission observing that IA had a “highly arguable” case for demonstrating that no s184 inquiries had ever taken place and so the decision was not a s184 decision (meaning that Westminster had erred in failing to provide interim accommodation under s188(1)). Permission was also granted on the alternative ground that Westminster had erred in failing to provide accommodation pending review under s188(3) on the footing that the criteria in R v Camden LBC ex p Mohammed (1997) 30 HLR 315 had not been meaningfully applied, since there had been no adequate assessment of the merits of IA’s case. The judge ordered that the interim injunction should continue. Click here for the judgment.

R (JL) v Secretary of State for Defence [2013] EWCA Civ 449 (Arden LJ, Sullivan LJ and Briggs LJ): an Art.8 case. The Appellant, JL, together with her family lived in “married-quarters” owned and managed by the Respondent. The family had been allowed to stay in the property on compassionate grounds following the resignation of JL’s husband from the army. JL was confined to a wheelchair and the family as a whole suffered from “a battalion of troubles” including numerous very serious physical and mental health problems. A possession order was made in 2009. The decision was made in 2011 to enforce this order. By this juncture the Local Authority had accepted a responsibility to house JL though no suitable, adapted, property had been found. JL sought judicial review of the decision to enforce the order on the basis that: (i) their had been a failure to have regard to factors of mandatory relevance and (ii) the decision constituted a disproportionate interference with JL’s Art.8 rights. Ingrid Simler QC sitting as a deputy judge of the High Court, considered the Art.8 defence in full but dismissed the application for judicial review (see R (JL) v Secretary of State for Defence [2012] EWHC 2216), finding that the interference was proportionate. On appeal, the Court of Appeal upheld the decision. The judge had not erred in her Art.8 analysis. The Court also upheld the judge’s decision that it is open to an occupier to raise an Art.8 defence at the enforcement stage, where there has been a fundamental change in circumstances or some other exceptional reason for not raising the defence at an earlier stage. Arden LJ observed additionally that in possession cases, conventional judicial review grounds will not automatically be displaced by a proportionality challenge: the grounds may exist independently, [59]-[64]. Click here for the judgment.

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