2014 03 Housing

Tuesday 1 April 2014

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Farah v Hillingdon LBC [2014] EWCA Civ 359 (Longmore, Patten and Christopher Clarke LJJ): intentional homelessness and affordability. Ms Farah was an assured shorthold tenant and mother to three children. She was physically disabled and much of her expenditure related to her children and her disability, for example clothing and taxi fares arising from her limited mobility. Her income consisted of various welfare benefits. She was evicted from her home having been unable to keep up with the rent and applied to Hillingdon as homeless. Hillingdon analysed her income and expenditure and held that her property had been affordable for her, meaning that it would have been reasonable for her to continue to occupy and that she made herself intentionally homeless. The decision maker accepted that on the figures provided the rent was unaffordable at times even if non-essential expenditure was disregarded, but took the view that “some items in your weekly expenditure are exaggerated for a family of 4 with 3 children being under the age of 11”. These items were not particularised. The decision was upheld on review. The review decision stated that “the rent shortfall would have been affordable to [Ms Farah] had she prioritised those payments over non-essential and secondary financial liabilities.” The review decision did not articulate which items of expenditure were regarded as non-essential. Ms Farah’s appeal to the County Court was dismissed. The Court of Appeal allowed a second appeal. Under s203(4) housing authorities are required to give reasons for their decisions and those reasons should sufficiently detailed, specific and intelligible to enable the applicant to know why the review has been unsuccessful and why any particular points of criticism in respect of the initial s.184 decision have been rejected. In this instance, the review decision had failed to specify what expenditure Ms Farah should have postponed and it was not a case where the sums spent on food, clothing and taxis were so large or obviously excessive as to require no explanation for being treated as excessive. As such the reviewing officer had failed to give adequate reasons and the decision was quashed accordingly. Click here for the judgment.

Bhatia Best Limited v Lord Chancellor [2014] EWHC 746 (QB) (Silber J): whether s204 appeals can be conducted under public law legal aid contract. The Claimant firm, Bhatia Best, sought judicial review of a decision of the Legal Aid Agency (LAA) that it was not entitled to carry out homelessness appeals under s204 Housing Act 1996 under its public law contract with the LAA. The LAA contended that such appeals could only be funded under a housing contract. For a case to fall within the auspices of the public law contract, according to the amended Category Definitions 2010, “it must be determined according to judicial review principles (limited to paragraph 19 Part 1 of Schedule 1” of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO). Paragraph 19 Part 1 of Schedule 1 defines judicial review as any procedure in which a court, tribunal or other person is required by an enactment to make a decision applying the principles that are applied by the court on an application for judicial review. The question for the Court to determine was whether the County Court, when considering a homelessness appeal, was required by s204 to apply judicial review procedures. Dismissing the claim for judicial review, Silber J held that s204 did not require this: “it was not intended that judicial review principles would be applied in s.204... if the legislature had intended that the county court should apply judicial review principles in section 204 challenges, they could have so provided as they did in s.204A” [33]. In a curiously reasoned decision, the judge accepted that the powers of the County Court considering a s204 appeal are “akin to” or “similar to” those of the High Court on judicial review (as per Nipa Begum[2000] 1 WLR 306) and that the jurisdiction is “in substance the same as that of the High Court in judicial review” (as per Runa Begum[2003] 2 AC 430) but did not accept that the County Court was required to apply such principles under an enactment or that the case law mandated the application of such principles. Click here for the judgment.

Manchester Ship Canal v Persons Unknown [2014] EWHC 645 (Ch) (HHJ Pelling QC): possession proceedings against fracking protesters raising Art.8, 10 and 11 issues. The Claimants sought possession of a single track road in the vicinity of a proposed fracking site at Barton Moss where the Defendants had set up a protest camp. HHJ Pelling QC granted the possession order. The Claimants had proved their title to the land and the Defendants did not have a realistically arguable defence based on their rights under Art.8, 10 or 11 ECHR. In relation to Art.10 and 11 the judge gave considerable weight to the fact that the protest was taking place on, and interfering with the use of, privately owned land, and concluded that the interference with the protestors’ rights was proportionate since they could carry on the protest elsewhere. In relation to Art.8 the judge found that the protest camp was not the “home” of the Defendants but in any event the circumstances were not sufficiently exceptional for the Claimants’ right to peaceful enjoyment of their land to yield to the Defendants’ Art.8 rights. In reaching his conclusion, the judge accepted that Art.8 was capable of being engaged in claims brought by private landowners: “I do not see how it is open to the Court to opt out simply because the Claimant is a private landowner given the terms of s.6 of the Human Rights Act 1998. There is nothing artificial in this – the private landowner is seeking to use a public authority (the court) in order to assist him to vindicate his ownership of his land. The court as the public authority concerned can only do so on terms that respect the convention rights of all relevant parties”. Click here for the judgment.

Islington LBC v Mayor of London [2014] EWHC 751 (Admin) (Lang J): challenge to London Mayor’s decision on affordable rents. The Defendant, the Mayor of London, published various amendments to the London spatial development strategy, prohibiting councils from placing caps on affordable rents. The effect of this was that affordable rents would be set at the maximum level of 80% of market rents. The Claimants, consisting of nine London Borough Councils, sought to challenge this decision arguing that it would prevent them from meeting targets to provide a supply of housing to meet present and future needs. The Claimants relied on an Inspector’s report providing evidence that this level of rent would be unaffordable for many of the poorest residents, possibly resulting in a shift of affordable housing away from Inner London. Lang J dismissed the claim stating that the real issue in the claim was a disagreement between the Claimants and the Defendant about economics, planning and housing policy. The Defendant had given proper consideration to the Inspector’s recommendations and while the strategy might be open to legitimate criticism it was within the band of reasonableness. Accordingly the Defendant had not erred in law. Click here for the judgment.

Southend-on-Sea Borough Council v Armour [2014] EWCA Civ 231 (Sullivan, McFarlane and Lewison LJJ): successful Art.8 defence to possession proceedings. Mr Armour was the introductory tenant of Southend. Following the commission of several acts of anti-social behaviour, Southend sought possession against him. By the time of trial there had been no incidents of anti-social behaviour for nearly 12 months. The Recorder at first instance held that while the decision to institute possession proceedings had been lawful, justified and proportionate, by the time of the hearing the record of good behaviour meant that it would be disproportionate to evict. The decision was upheld by the High Court ([2012] EWHC 3361 (QB)). The Court of Appeal dismissed a second appeal by Southend. Consideration of an Art.8 defence requires a value judgment on the part of the trial judge which an appellate court should be slow to interfere with. The improvement in Mr Armour’s behaviour was a factor relevant to proportionality and accordingly the Recorder’s decision was one that was open to her on the facts. Note: the judgment also contains an analysis on the circumstances where fresh evidence will be admitted on a second appeal. At the time of writing this is the only Court of Appeal case where an Art.8 defence has been successfully raised. Jan Luba QCappeared for Mr Armour. Click here for the judgment.

Mohamoud v Birmingham City Council [2014] EWCA Civ 227 (Moore-Bick, McFarlane and Proudman LJJ): whether a “minded-to letter” required as part of s202 review. Ms Mohamoud applied to Birmingham as homeless. In due course she was found to be owed the main housing duty. She was made an offer of accommodation in discharge of this duty which she refused. She was then notified that the duty had come to an end and sought a review arguing that her command of English was poor and that she had not understood the operation of the bidding process or the consequences of refusal. The decision that the duty had come to an end was upheld on review and on appeal. The Court of Appeal allowed a second appeal. Applying the principle in Banks v Kingston upon Thames [2008] EWCA Civ 144 that a change in facts subsequent to a s184 decision may render that decision deficient, the Court held that a purposive approach to reg.8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 meant that new information communicated by an applicant after the s184 decision had been made could, in the right case, render the decision deficient and engage the reg.8(2) procedure. In the instant case, the disclosure of Ms Mohamoud’s purported communication difficulties was sufficient to render the original decision deficient and the review decision was therefore flawed since Birmingham had failed to issue a “minded-to” letter. Click here for the judgment.

Homelessness Statistics: on 6 March 2014 the Department of Communities and Local Government released its latest homelessness statistics showing that as of 31 December 2013, 56,930 homeless households had been placed in temporary accommodation, a 7% increase on the same date in 2012. Of these, precisely 500 were households with children who had been placed in B&B accommodation for more than the statutory limit of six weeks. For a copy of the statistics click here.

Anselm v Buckle [2014] EWCA Civ 311 (Rimer, Pitchford and Briggs LJJ): mitigation of loss and remoteness of damage in disrepair cases. A commercial case containing principles of general application. Mr Anselm was the lessee of Mr and Mrs Buckle. In proceedings brought by the Buckles for breach of the lease he sought to counterclaim for failure to carry our certain works of repair required under the lease. His case was that the failure to carry out the repairs properly and that the consequential exposure of the property to leaks and damp had caused him financial loss, not limited to the cost of carrying out the repairs himself, but extending to the loss of opportunity to establish a profitable kitchen design business in part of the property, and to derive rents from sub-letting other parts to residential occupiers. The judge at first instance gave judgment in Mr Anselm’s favour and awarded damages in principle until March 2007, on the basis that beyond this point it was reasonable to have expected Mr Anselm to carry out the works himself using his own money. The claim for loss of chance relating to the kitchen design business failed on both causation and remoteness. Mr Anselm appealed. Allowing his appeal in part the Court of Appeal held that damages were recoverable beyond 2007. There was no evidence to support the finding that Mr Anselm had the resources to carry out the works. It was for the Buckles to plead and prove a failure to mitigate and they had not done so. Mr Anselm’s appeal in relation to the remoteness of damage was dismissed: the decision was predicated on a factual finding that Mr Anselm did not have the requisite intention to establish a kitchen design business at the time of contracting which could not be interfered with. Click here for the judgment.

Erimus Housing Ltd v Barclays Wealth Trustees (Jersey) [2014] EWCA Civ 303 (Longmore, Patten and Christopher Clark LJJ): holding over following the end of a lease. Another business case containing some principles of general application. EHL were the holders of a five year lease which expired in October 2009. Subsequently there were negotiations between EHL and BWT in relation to the terms of a prospective new lease. These were agreed upon in June 2011 though the lease was never formally executed. Further negotiations ensued. In August 2011 EHL indicated that it did not wish to enter into the lease and would vacate the following March. In May and then June 2012 two consecutive notices to vacate were served by EHL giving approximately three months notice. An issue arose as to whether either notice was sufficient to determine whatever tenancy had arisen since the original lease ended: if a periodic yearly tenancy had arisen then six-months notice would have been required, whereas if EHL held over as a tenant at will under the same terms as the original lease then the notices were effective. A declaration was sought. The judge at first instance found that the parties had created a yearly tenancy. The Court of Appeal allowed the EHL’s appeal. The conduct of the parties in continuing to negotiate was inconsistent with the grant of a new lease. EHL had simply held over under a tenancy at will. This had been ended by service of the notice. Click here for the judgment.

Gustovarac v Croatia, ECtHR Application 60223/09: Art.8 defence to possession proceedings. In 1972 the applicants moved into a flat owned by the Yugoslav People’s Army. The property was let to them illicitly through an army officer, in abuse of his position within the army. The officer was later court-martialled and found guilty of disposing of the flat unlawfully. The applicants gave evidence against him as part of the court proceedings. Subsequently the applicants remained in the flat paying rent. In 1991, following Croatia’s independence, the flat became state property. In 2000 the state brought possession proceedings against the applicants. The Municipal Court granted a possession order. This was upheld on appeal and the applicants’ complaint to the Constitutional Court was dismissed. In 2011 the applicants vacated the flat. They applied to the European Court of Human Rights, arguing that their rights under Article 8 had been violated. The Court dismissed the application. The applicants had never had any legal right to occupy the property and had been aware of this since the outset. In those circumstances, the interference with their Art.8 rights was proportionate. Click here for the judgment.

Crompton v Woodford Scrap Metal [2014] EWHC (QB), Unreported 17 March 2014 (HHJ Seymour QC): whether permissible to start possession proceedings in the High Court. The Claimant, Crompton, sought possession of a scrap yard occupied by the Defendant firm, Woodford Scrap Metal. The claim was started in the High Court. The normal rule under CPR 55.3 is that possession claims should be started in the County Court and that a claim issued in the High Court must be accompanied by a certificate stating the reasons for doing so, verified by a statement of truth. The Claimant did not file any such certificate. HHJ Seymour transferred the case to the County Court. By CPR PD 55A paragraph 1.1 exceptional circumstances were required to justify starting a claim in the High Court. None had been demonstrated. Transcript not yet available. Based on Lawtel note.

The Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2014 SI 2014/235: regulations amending the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294. The effect of the Regulations is that: (a) certain Afghan citizens who were locally employed by the UK government in Afghanistan and have since been granted limited leave to remain in the UK will now be eligible for an allocation of housing or homelessness assistance; (b) certain Romanian and Bulgarian nationals will no longer be subject to the habitual residence test in determining whether they are eligible; and (c) to remove an exemption from the habitual residence test for certain individuals from Montserrat, Lebanon and Zimbabwe. Came into force on 31 March 2014. Click here for the Regulations.

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