2013 11 Housing

Sunday 1 December 2013

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Wandsworth LBC v NJ [2013] EWCA Civ 1373 (Lewison, Kitchin and Gloster LJJ): whether accommodation in a women’s refuge can constitute accommodation of a person’s own choice. NJ became homeless having fled from serious domestic violence in Leicester. She sought assistance from a charity and was placed in a women’s refuge in Lambeth. After six months the staff considered that she was ready for life in mainstream accommodation and helped her in making a homeless application to Wandsworth LBC. Wandsworth accepted that NJ was owed the main housing duty but referred her case to Lambeth on the footing that she had a local connection with that area and no such connection to Wandsworth. The decision was upheld on review. NJ appealed. HHJ Welchman allowed her appeal. The reviewing officer had asked herself the wrong question, namely did NJ choose to live in the refuge. She should have asked whether NJ had chosen to live in Lambeth. NJ had not chosen to live in Lambeth; she was placed there. Further the original decision was deficient and Wandsworth had failed to send NJ a “minded-to” letter pursuant to regulation 8(2) Allocation of Housing and Homelessness (Reviews Procedures) Regulations 1999. The Court of Appeal allowed Wandsworth’s appeal in part. It was open to the reviewing officer to conclude that NJ had chosen to live in the refuge in Lambeth. She had chosen to come to London. And she had chosen to seek help from the particular charity who operated the refuge. The Court upheld the judge’s finding on regulation 8(2). The original decision had been rendered deficient by virtue of subsequent events exposing NJ to a further risk of domestic violence. A purposive interpretation should be adopted under regulation 8(2) and events subsequent to a s184 decision may invoke the procedure. A minded-to letter should have been sent to NJ to allow her to comment on the change in circumstances. Click here for the judgment.

Kings Lynn and West Norfolk Council v Bunning [2013] EWHC 3390 (Blake J): proceedings for contempt of court for breach of a court order imposed in civil proceedings were criminal proceedings for the purposes of obtaining legal aid under the Legal Aid Sentencing and Punishment of Offenders Act 2012. Click here for the judgment.

Ahmed v Mahmood [2013] EWHC 3176 (Lang J): the Claimants obtained and executed a warrant of possession in respect of property occupied by the Defendants. In applying for the warrant the Claimants certified that there was no application or other procedure pending. This was incorrect: the Defendants had an extant application for permission to appeal to the Court of Appeal. The possession order was executed and the property re-let. On the Defendant’s application Lang J set aside the warrant of possession. The failure to disclose the extant appeal amounted to an abuse of process. Judgment available on Lawtel.

Leicester City Council v Shearer [2013] EWCA Civ 1467 (Jackson and Floyd LJJ and Sir David Keene): a successful public law defence in a “second successor” case. Mr Shearer was the secure tenant of a property owned by Leicester City Council. He had succeeded to the tenancy upon the death of his mother. His wife, Mrs Shearer – the Defendant – occupied the property with him. She was not a party to the tenancy agreement. Upon the death of Mr Shearer, Mrs Shearer asked Leicester to allow her to continue to live in the property. Leicester refused and, following service of a Notice to Quit, instituted possession proceedings. Mr Recorder Maxwell QC dismissed the possession claim. Under Leicester’s allocation scheme, Mrs Shearer was eligible to apply for a direct let. Leicester had never given proper consideration to this course of action. The decision to institute possession proceedings was unlawful on public law grounds. The Court of Appeal dismissed Leicester’s appeal. Click here for the judgment.

Poorsalehy v Wandsworth LBC (QBD) Unreported, 7 November 2013 (Jay J): principles governing out of time appeals under s204 Housing Act 1996. Mr Poorsalehy instructed solicitors to bring an appeal against an adverse homelessness decision. The appeal was filed shortly after the expiration of the 21-day time limit but an application to extend time was not made for another four months. No explanation was provided for the latter delay. At first instance the judge dismissed the application on the basis that no “good reason” had been provided for the delay. Mr Poorsalehy appealed, arguing that he should not be held responsible for his solicitor’s failings. Jay J dismissed his appeal. A party should not automatically be fixed with the failings of his or her legal advisors. But an explanation was required for the delay and to discharge this it was necessary for Mr Poorsalehy to establish that he had relied on incompetent legal advisors. In the instant case there was a paucity of evidence to explain the delay. And without this evidence Mr Poorsalehy could not discharge the burden. Judgment not yet available online. Based on Lawtel note.

Purewal v Ealing LBC (CA) Unreported, 5 November 2013 (Arden, Sullivan and Davis LJJ): question of the appropriate remedy following a successful s204 appeal. Ms Purewal was an assured shorthold tenant. She complained to the police that she had been raped and assaulted by a neighbour. She made a written statement but the CPS took the decision not to prosecute. Ms Purewal subsequently applied as homeless to Ealing LBC on the footing that it was not reasonable to continue to occupy her accommodation. Ealing decided that she was not homeless. The decision was upheld on review. Ms Purewal appealed. On appeal the judge held that Ealing had failed to take into account the statement that Ms Purewal had provided to the police and varied the review decision to one that Ms Purewal was homeless unintentionally. Ealing accepted the judge’s finding on the error of law but appealed contending that the correct remedy was for the decision to have been quashed. The Court of Appeal allowed Ealing’s appeal. There was a real prospect that the local authority might conclude on consideration of the witness statement that the rape had not taken place and that it was reasonable for Ms Purewal to occupy the property. The matter was remitted. Judgment not yet available online. Based on Lawtel note.

Unichi v Southwark LBC (QBD) Unreported, 16 October 2013 (Andrews J): where a homelessness appeal is compromised and withdrawn prior to the hearing the court should apply the principles applicable to settled judicial review claims set out in M v Croydon LBC [2012] EWCA Civ 595 in making any order as to costs. Judgment not yet available online. Based on Lawtel note.

Huzrat v Hounslow LBC (CA) Unreported, 21 November 2013 (Moses, Beatson and Briggs LJJ): application of best interests of child principles to homelessness appeals. Ms Huzrat was married with three young children. She was evicted from her accommodation on the basis of rent arrears. She applied to Hounslow LBC as homeless. Hounslow found that she had chosen to spend her money on non-essentials such as pocket money for her children and determined that she had made herself homeless intentionally. The decision was upheld on review ans on appeal. On a second appeal to the Court of Appeal Ms Huzrat sought to argue that in considering whether she could pay the rent Hounslow had failed to comply with its duty under s11 Children Act 2004 to safeguard and promote the welfare of her children. The Court of Appeal dismissed her appeal. The duty under s11 Children Act 2004 applies to local housing authorities but does not affect decisions made under s191 Housing Act 1996. Judgment not yet available online. Based on Lawtel note.

Noel v Hillingdon LBC (CA) Unreported, 21 November 2011 (Richards and Lewison LJJ, Coleridge J): causation in intentional homelessness cases. Mr Noel lived at the home of his partner’s mother prior to obtaining an assured shorthold tenancy with a monthly rent several hundred pound in excess of his income. His partner and child moved in but he failed to apply for an increase in housing benefit. Rent arrears accrued and he was evicted together with his partner and child. He applied to Hounslow LBC as homeless. Hounslow determined that Mr Noel had made himself homeless intentionally. The decision was upheld on review and appeal. On a second appeal to the Court of Appeal Mr Noel sought to argue that Hillingdon should have considered whether it was reasonable for him to occupy the original accommodation with his partner’s mother, and that in light of this the rented property was not accommodation since it had never been reasonable for him to occupy as it was beyond his means. The Court of Appeal dismissed his appeal. The property was to be regarded as accommodation. Where there is a number of potential causes of the homelessness, it is a question of fact whether homelessness was a likely consequence of a deliberate act on the applicant’s part. In this instance Mr Noel was homeless as a result of his own acts and omissions. There was no error of law. Judgment not yet available online. Based on Lawtel note.

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