2015 01 Housing

Sunday 1 February 2015

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R (Hillsden) v Epping Forest DC [2015] EWHC 98 (Admin) (McCloskey J): existence of statutory discretion outside of allocation scheme. The Claimant, Ms Hillsden, sought accommodation under the Defendant, Epping’s, allocation scheme. The scheme contained a requirement that applicants registered on the scheme should have resided continuously in the area for two and a half years to three years (depending on circumstances) in order to be eligible for an allocation. Ms Hillsden did not meet this qualifying requirement and was deemed to be ineligible for an allocation. She sought to challenge the legality of the scheme, arguing that Epping should have considered whether her circumstances were exceptional and whether, on that basis, to exercise their discretion to treat her as eligible. The High Court rejected Ms Hillsden’s challenge. Epping’s allocations scheme contained no such residual discretion. And in omitting any such residual discretion from the scheme Epping had not unlawfully fettered the exercise of the statutory powers under Part VI, Housing Act 1996. Jan Luba QC and Bethan Harris appeared for the Claimant. Stephen Knafler QC appeared for the Defendant. Click here for the judgment.

R (Sayeeda) v Brent London Borough Council [2014] EWHC 3742 (Admin) (HHJ Anthony Thornton QC sitting as a Deputy High Court Judge): accommodation pending review. The Claimant, Ms Sayeeda, suffered from major depression and post-traumatic stress disorder stemming from a background of domestic violence and sexual abuse. She had a limited grasp of English and was said to be very nearly illiterate. She applied to the Defendant as homeless. A s184 decision was issued finding that she did not have a priority need. She sought a review of this decision and requested accommodation pending the outcome of the review under s188(3) Housing Act 1996. A ‘Mohammed letter’ was issued refusing accommodation pending review. Judicial review proceedings were issued, interim relief granted on the papers and the matter listed for an oral hearing to consider whether interim relief should be extended. Following a contested hearing HHJ Anthony Thornton QC ordered that the accommodation should continue until the outcome of the review. Though the decision had referred to the Mohammed criteria, the factors had not been considered in sufficient detail. In particular, when addressing the merits of the Claimant’s case on review, the decision maker not considered the unusual factors of the Claimant’s case which set her apart from the “typical” homeless person. Judgment not yet available online.

Hussain v Waltham Forest LBC [2015] EWCA Civ 14 (Moore-Bick, Underhill and Briggs LJJ): meaning of ‘other violence’ in s177(1) Housing Act 1996. Ms Hussain, the Respondent, lived with her daughter in a housing association property in Bounds Green. From 2012 onward, she was subject to a campaign of racial harassment and anti-social behaviour at the hands of a neighbour’s son, including the smearing of faeces on her door and spitting at her. The police accepted the veracity of her complaints but felt unable to help. Accordingly, Ms Hussain applied to Waltham Forest LBC, the Respondent, as homeless on the footing that it was not reasonable for her to continue to occupy the accommodation at it was probable that this would lead to ‘other violence’ within the meaning of s177(1) Housing Act 1996. Waltham Forest made a decision that Ms Hussain’s treatment did not satisfy the criteria in s177(1) and that she was therefore not homeless within the meaning of s175 Housing Act 1996. Though the treatment which Ms Hussain had suffered was accepted to have caused her emotional upset, it fell short, it was said, of actual violence or threats of violence which were likely to be carried out. This decision was upheld on review but quashed on appeal. The Court of Appeal dismissed Waltham Forest’s appeal. The phrase ‘other violence’ in s177(1) should be construed as covering not only physical violence but other threatening or intimidating behaviour or abuse of sufficient gravity to give rise to psychological harm. Stephen Knafler QC appeared for the Respondent. Click here for the judgment.

Edwards v Kumarasamy [2015] EWCA Civ 20 (Chancellor of the High Court, Lewison and Christopher Clarke LJJ): ambit of repairing covenant under s11(1A) Landlord and Tenant Act 1985. Mr Edwards was the assured shorthold tenant of Mr Kumarasamy. He resided in a second floor flat of which Mr Kumarasamy was the leaseholder. Under the terms of the lease the flat shared a number of communal parts with the rest of the block in which the flat was located, including a communal bin area and a pathway leading from the bin area to the frontdoor. One night Mr Edwards tripped over an uneven paving slab on the pathway injuring his knee. He issued proceedings against Mr Kumarasamy seeking compensation for his injury, arising from Mr Kumarasamy’s failure to repair the defective pathway. It was common ground that Mr Edwards had not notified Mr Kumarasamy of the defect at any point prior to his injury. At first instance the Deputy District Judge found for Mr Edwards, holding that the pathway was part of the structure and exterior of the flat within the meaning of s11(1) Landlord and Tenant Act 1985. This decision was overturned by a Circuit Judge on appeal. On the appeal, a further argument was raised by Mr Edwards to the effect that liability could alternatively arise under s11(1A) Landlord Tenant Act 1985. The Circuit Judge rejected this argument on the footing that notice had not been given. The Court of Appeal allowed Mr Edwards’ appeal. The pathway fell within the ambit of s11(1A) since it was the exterior of the entrance hall within the block: an area in which Mr Kumarasamy had an estate or interest in the form of a legal easement. And since the defect was not within the demised premises (i.e. it was not within the flat itself) the obligation to repair it arose as soon as the defect occurred. Notice was not required. Click here for the judgment.

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