Access to justice in decline

 Andrew Arden QC and Clare Cullen consider the depressing decline in access to the courts.

The costs of issuing a claim are increasing yet services provided by the courts continue to diminish: many courts are now running an appointment-only service and it is common to see litigants, seeking to issue a claim or application, being turned away because they don’t have a pre-booked appointment. The “unassigned list” in Central London County Court is said to have been a fiasco (Nearly Legal) and is a further example of decline: what it means is that no judge is assigned to the case in the hope that one will become free, e.g. because another case settles. The result is that parties are often left waiting most of the day, a judge may still not become available and the case is adjourned – an enormous waste of money for all concerned and another illustration of putting the burden of state cuts on individuals. Moreover, because lawyers know about this sort of thing, and how to manage it, those most affected are usually the unrepresented, which in turn means – to use the phrase du jour – that the burden falls on those with the least broad shoulders.

Access to the courts is not only restricted by increasing fees and declining service: the reductions in legal aid are of course playing a major part. The Public Accounts Committee in its report, Implementing Reforms to Civil Legal Aid, Thirty Sixth Report of Session 2014-2015, has been critical of the Ministry of Justice’s legal aid reforms citing a failure properly to research the impact of the reforms including whether those who are entitled to legal aid are actually able to access it and the potential costs arising elsewhere in the public sector – presumably they have in mind delays, adjournments and cases (when they are heard) taking longer. The President of the Family Division has been particularly robust in his criticisms.
Over the past few months, the Government has responded to two consultations relating to these issues: one on increased court fees; the other on legal aid for committal proceedings following a breach of the new injunctions under the Anti-Social Behaviour, Crime and Policing Act 2014.

Increased court fees

In Enhanced court fees: the government response to Part 2 of the consultation of reform on court fees, January 2015, it was announced that the fees for issuing a claim valued above £10,000 will rise to 5% of the value of the claim, subject to a maximum fee of £10,000. Where the claim is for an unspecified sum, the issue fee will be 5% of the estimated value of the claim with the same upper limit.

The plans have, unsurprisingly, been criticised by many in the legal profession, including senior Judges: the concern is that fees will be prohibitive and may result in more litigants acting in person because the money which would have been spent on legal fees will be taken up paying them. The Government has rejected this criticism on the basis of rather dubious research which found that “fees are a secondary consideration in the decision to litigate”: the research, in 2013, was based on 18 telephone interviews and, in 2014, on responses from 31 civil court users only 12 of whom would have been affected by the proposed changes.

In housing, this increase is particularly concerning for disrepair and unlawful eviction claims, often involving an unspecified sum for general damages which are hard to quantify at the beginning of the claim. The judiciary’s understanding of the proposals, having had sight of the draft Statutory Instrument, is that the maximum fee of £10,000 will be payable where the sum claimed is not limited in the claim form. The Government suggests in response that, where the claim is for an unspecified sum, any fee payable will be based upon the estimated value of the claim.

This is extraordinary, utterly ignorant, wholly unprofessional: the amount paid will be known to the other side; accordingly, a litigant is torn between stating a high sum which will generate a high issue fee and stating a lower sum which will – inevitably – set the parameters not only for any negotiations but even for the court itself on judgment. (To pre-empt the response that there are estimates even under current arrangements, the brackets are so wide that they do not have this effect).

Independently of this, the fees represent a significant increase from present levels: the issue fee would be £1,250 for a claim valued at a maximum of £25,000 and £750 for a claim at a maximum of £15,000. (Currently, a fee of £610 applies to a claim valued between £15,000- £50,000 and £455 to a claim valued between £5,000-£15,000).

Whilst a claim for damages for unlawful eviction remain – at least for now – within the scope of legal aid, a claim for disrepair damages does not. These claimants will often be vulnerable and have limited means; it is that vulnerability which is part of what exposes them to the practices of bad landlords; coupled with the lack of legal aid, the increased fees are likely to limit access to the courts for many with a claim.

To add to the concern, the response to the consultation also announced the Government’s intention to increase the issue fee for possession claims to £355, the second rise in two years. In arrears cases, these fees will increase a debt which the tenant is already unable to pay, prolonging their time in debt, while, for social housing providers, it will be an additional cost that will prevent money being spent elsewhere.

Legal Aid – committal proceedings

The second consultation response, Anti-Social Behaviour, Crime and Policing Act 2014: changes to remuneration for legal aid services, concerns legal aid for committal proceedings where there has been a breach of the new injunction introduced by s.1, Anti-Social Behaviour, Crime and Policing Act 2014 (replacing ASBIs and ASBOs) and is equally worrying. Whilst the new injunctions will fall within the scope of civil legal aid, committal proceedings for breach will be under criminal legal aid and will therefore be paid at criminal rates which have been subject to such much public comment and criticism that there is no point in repeating it here.

Despite responses to the consultation pointing out that the vast majority of breach proceedings will be in the county court, the Government has rejected the proposal that proceedings should fall within civil legal aid on the basis that “the focus of breach proceedings will…..be on proving beyond reasonable doubt whether breach has occurred” and, therefore, that the proceedings are “simpler in terms of process than those for applications, variations, discharges or appeals”.

This is just nonsense. It is common – close to usual – for ASBI breach proceedings to be joined to an application to vary the ASBI or a claim for possession based on the same facts (which will be the case in the context of the new injunctions). Accordingly, as many civil legal aid practitioners will not have a criminal legal aid franchise, prima facie a criminal practitioner will be needed for part of the case while a civil practitioner for the remainder.

That would, of course, generate an absurd additional cost, so what is suggested is that civil legal aid practitioners will be able to apply for an individual case contract where necessary (itself giving rise to a public sector cost handling applications) although it does not appear that such contracts will be routinely awarded even where solicitors were involved in the original injunction proceedings: it is anticipated that such a contract will be awarded “where the provider has had substantial involvement in the original proceedings, where continuing to act for the individual represents value for money, and where it is in the interests of justice” but the example given is in respect of “clients with incapacity issues or learning difficulties, who might suffer from loss of continuity of representation” as if other defendants won’t.

Even if the contracts are granted routinely, the administrative burden of having to apply (which is likely to take some time) and the criminal rates available will deter many civil legal aid providers from seeking them, with the result either that those facing committal proceedings will lose all representation, alternatively continuity of representation while the case is taken up by a criminal practitioner who may have no familiarity at all with the housing law issues involved.

Even where such a contract is awarded, there is no guidance as to how lawyers are to separate out their time on the breach claim as opposed to – say – a variation claim and/or a possession claim. We can make an educated guess: though said to be simple, we suspect that in practice public funding will find that much more time is spent at the lower, criminal rate than civil.

Conclusion

The two consultations have followed a depressingly familiar pattern: responses largely ignored and the Government pressing ahead with proposals regardless of well-founded, professional objections to them. The impact that the increased issue fees will have on litigation remains to be seen but the rise risks making the courts prohibitive to even more people than now; the proposals for committal proceedings for breach of the new injunctions will likewise have an impact on access to justice (in circumstances incidentally where a person’s liberty is at stake) significantly reducing the solicitors and the skills available in relation to this work.

We despair!

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Nations Apart

Andrew Arden QC and Clare Cullen consider a recent report from Crisis on the challenges faced by the single homeless

Introduction

Obtaining assistance as a single homeless applicant under Part VII, Housing Act 1996 is – to say the least – an uphill struggle. Ordinarily, and subject to meeting the other requirements, the full homeless duty will only be obtained if the single person is found to be vulnerable under s.189(1)(c) so as to confer priority need: in contrast with other categories of priority need (e.g. pregnancy or dependent children), this is not a straightforward finding of fact.

The prevalence of gatekeeping, preventing many single homeless applicants from obtaining support, was highlighted by the Crisis report Turned Away, The treatment of single homeless people by local authority homeless services in England, October 2014 (see post, No Surprises – Gatekeeping). A new report from Crisis, published in December 2014, Nations Apart? Experiences of Single Homeless People Across Great Britain, affords further insight into the challenges faced by single homeless people.

Priority need – Vulnerability

To establish priority need under s.189(1)(c), the applicant (or a person who might reasonably be expected to reside with the applicant) must be found to be vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason.

In considering whether an applicant is vulnerable, a local authority has to consider whether the applicant is less able to fend for himself than an ordinary homeless person so that injury or detriment to him will result when a less vulnerable man would be able to cope without harmful effects (R v Camden LBC Ex p. Pereira (1998) 31 H.L.R. 317).

 

Local authorities have a wide discretion when applying the Pereira test: they are said to be best placed to make such a judgment in the context of their own homeless population and resources (Osmani v Camden LBC [2004] EWCA Civ 1706; [2005] H.L.R. 22 at [38]).

 

For policy reasons, drug addiction by itself is unlikely to amount to a “special reason” under s.189(1)(c) although it could be if it puts a recovering addict at risk of relapse on the streets (Crossley v Westminster CC [2006] EWCA Civ 140; [2006] HLR 26 at [30]).

Ordinary Homeless Person?

The new report highlights the difficulties faced by many single homeless people:

  • 48% had experienced drug dependency;
  • 46% had experienced alcohol dependency;
  • 49% have faced mental ill health at some point during their lives;
  • 41 % have been subject to a prison sentence at some point during their lives;
  • Nearly 50% became homeless aged 20 or younger. The earlier that a person became homeless, the more likely they were to have five or more incidents of homelessness.

It is unsurprising that such a high proportion suffer from alcohol, drug or mental health problems: these issues clearly make it more difficult to find and keep accommodation. The proportion in which these issues arise is, of course, much higher than for the general population.

That leads to the question, what is an “ordinary homeless person”. This issue arose in Johnson v Solihull MBC [2013] EWCA Civ 752; [2013] HLR 39, currently on appeal to the Supreme Court (UKSC 2014/0230) (Judgment is awaited. See Kanu v Southwark LBC (UKSC 2014/0233) on vulnerability where Judgment is also awaited).

Mr Johnson was a recovering heroin addict and persistent offender. It was accepted that he was at risk of reverting to drug use should he become homeless but the local authority did not consider that he had a priority need under s.189(1)(c). Applying the Pereira test, the review officer relied on a survey which had found that 92 % of homelessness services worked with people experiencing problems with drugs and therefore concluded that the risk of relapse did not render Mr Johnson vulnerable on the basis that relapse was not unusual amongst the homeless population. On appeal, it was argued that the reviewing officer had used the wrong comparator and should have considered an ordinary homeless person who did not have drug issues but this was rejected by the Court of Appeal.

“18. it is clear that the concept of an ordinary homeless person is necessarily an imprecise one. It falls to the Housing Authority to consider what features such a person would have. It is also clear from that paragraph that the question of who is an ordinary homeless person and what characteristics they have is a question to be assessed in the real world. It is sadly not surprising that many homeless persons have drug issues, or that many homelessness services are involved with dealing with those issues. Accordingly, in my judgement, it was open to the review officer to refer to this report as providing some assistance in determining the characteristics of the ordinary homeless person,”

 

Conclusion

Applying the Court of Appeal’s analysis, issues which are prevalent amongst the homeless community but not the general population, such as mental ill health, could also be seen as a characteristic of the “ordinary homeless person” diluting the test even further and imposing further limitations on single homeless applicants’ ability to obtain assistance. It is a vicious, downward spiral: the worse the general conditions of the homeless, then the worse the condition of an individual homeless person has to be in order to be vulnerable on the Pereira text. This is of particular concern when one considers the young age at which many first become homeless: it exacerbates the likelihood of writing them off for life.

Secction 189(1)(c) is intended to protect those who are vulnerable rather than simply determining priorities between the vulnerable homeless. The comparator of the “ordinary homeless person” was an invention by the Court of Appeal in Pereira which has severed the approach to vulnerability from s.189(1)(c) itself. Unless the Supreme Court agrees, however, the next Crisis report on the subject will inevitably contain statistics even worse than the current ones.

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History repeating?

Andrew Arden QC and Clare Cullen consider the decision in Sims v Dacorum

 

Introduction

The Supreme Court in Sims v Dacorum [2014] UKSC 63 ended (for now) the belief of many housing practitioners that the common law rule in Hammersmith v Monk [1992] 1 A.C. 478 would have to be revisited in light of the Human Rights Act 1998.

 

Rule in Monk

Monk affirmed the rule that, unless a tenancy agreement provides to the contrary, a unilateral notice to quit (NTQ) served by one of a number of joint tenants will bring the tenancy to an end regardless of the wishes of the other, who becomes an instant trespasser with no rights of occupation, losing all security and any ancillary rights – in the case of a secure tenant, very valuable ancillary rights, including RTB, security, succession and so on, all without the benefit of any judicial process.

 

Extent of Art.8

A previous post, Buckland v UK, considered the extent of Art.8.

 

That case concerned a possession order made against an occupier of a mobile home on a local authority site in Wales. At that time, the mobile home agreement did not fall within Mobile Homes Act 1983 so as to confer full security (this changed from July 10, 2013). The protection afforded to Ms Buckland was, therefore, limited to the court’s power to suspend a possession order for up to 12 months at a time under Caravan Sites Act 1968.

 

The district judge granted possession but suspended the order for 12 months. As the law stood at that time (Kay v Lambeth LBC [2006] UKHL 10; [2006] 2 A.C. 46), the judge was unable to consider whether a possession order would breach Ms Buckland’s Art.8 rights and therefore no proportionality exercise was carried out.

 

Ms Buckland accordingly applied to European Court of Human Rights alleging a breach of Art.8, a claim that was upheld notwithstanding the right to apply (and re-apply) to suspend the order for possession:

“The possibility of suspension for up to twelve months of the possession order is inadequate, by itself, to provide the necessary procedural guarantees under Article 8. Although further suspensions may be granted, suspension merely delays, and does not remove, the threat of eviction. The Court cannot accept that the fact that an individual may effectively be able to remain in her home in the long-term by making repeated applications to extend suspension of a possession order removes any incompatibility of the procedure with Article 8.” ([68])

 

This was thought to have significant implications:

“The decision that suspension is insufficient is very important indeed: incompatibility was only remedied by removing even the threat of eviction. In many cases, this will be a difference without a distinction, because refusal of a possession order still leaves the tenancy in existence, eg introductory tenancies, demoted tenancies, flexible tenancies, ie the tenancy continues until the court decides that it is to end. That is not so, however, in the case of, eg Part 7 tenancies or family intervention tenancies or where a secure or assured (or other) tenancy is brought to an end by a joint tenant’s notice to quit. If a court finds that it would be disproportionate to make an order, then – at any rate on the face of it the former tenant will still have no domestic right of occupation and his position will be akin to that of the tolerated trespasser.

 

“Given that a finding on proportionality is temporal in quality (ie it turns on specific facts at a given time, which facts may change) – this plainly leaves the occupier in such cases as much at risk of eviction as in Buckland – if not more so, because in Buckland there was a period for which the occupier was not under threat of eviction (the period of the suspension) while in the cases we are talking about, there is the constant risk of repeat proceedings, not even confined to the occupier’s circumstances but, eg if other demands on the local authority landlord are said to have changed so that the balance is affected.

 

“In short, we do not see that the law can achieve what we might call Buckland compliance other than by ensuring that the right of occupation continues (as it will in some cases) or otherwise that it is either revived or replaced.”

 

Sims

The Monk device is most commonly used when a joint tenant leaves a property citing domestic violence and seeks assistance from a local authority under Part 7, Housing Act 1996. As it is not reasonable to occupy accommodation if it is probable that it will lead to domestic violence (1996 Act, s.177), she (as it will usually be) must be found homeless and unintentionally so. Subject to eligibility and priority need, that person will, therefore, be owed a full homelessness duty.

 

In these circumstances, most local authorities will not offer permanent accommodation in discharge of the homelessness duty unless the joint tenancy has been brought to an end. It is common practice for local authorities to provide a pro forma NTQ so that this can be done.

 

The case of Sims was in this category. Mr Sims and his wife were joint secure tenants of Dacorum BC. Mrs Sims left and moved into a women’s refuge claiming that she had been a victim of domestic violence. Mrs Sims applied to Wycombe DC for accommodation and was told that she could not be granted a tenancy whilst she remained a joint tenant of a property elsewhere. Dacorum BC, therefore, suggested that she serve a notice to quit which she did and the tenancy ended.

 

It was contended by Mr Sims that the rule in Monk was incompatible with Art.8 and Article 1 of the First Protocol (A1P1). In the Court of Appeal, he accepted that the court was bound by Monk so he sought permission to appeal to the Supreme Court (this was refused by the Court of Appeal but granted by the Supreme Court).

 

In light of Buckland, it was argued that the ability to raise an Art.8 defence during possession proceedings brought against the former joint tenant was insufficient to comply with Art.8 as the court would not have the ability to resurrect the tenancy or grant a further tenancy: even if an Art.8 defence were successful, this would still leave the former joint tenant in limbo as a trespasser.

 

Reliance was also placed on the statutory protections provided under Family Law Act 1996 and the specific grounds for possession concerning domestic violence in respect of secure and assured tenancies (Ground 2A and 14A respectively).

 

Family Law Act 1996

The Family Law Act 1996, s.53 and Sch.7, allows spouses, partners and cohabitants to apply to court for the transfer of, amongst other things, a joint tenancy of property which has been the couple’s home to that person alone (including a secure or assured tenancy, Sch.7, para 1). (There is also the possibility of a transfer of the tenancy under s.24, Matrimonial Causes Act 1973). The right is not, however, available once the tenancy has come to an end.

 

The vast majority of joint tenants will be in a relationship which would fall within these provisions. The rule in Monk is at odds with the statutory purpose to protect a joint tenant’s interest in the event of a relationship breakdown and to allow a court to decide who should get the family home. This affords the degree of judicial oversight that is at the core of what Strasbourg decisions suggest is fundamental in eviction cases.

 

Ground 2A and 14A

The rule in Monk, as it operates where there has been domestic violence, also bypasses the statutory grounds for possession specifically designed to address domestic violence (Ground 2A for secure tenancies and Ground 14A for assured tenancies). These grounds likewise afford procedural safeguards for the remaining joint tenant: the ground has to be made out and the court must also consider whether it is reasonable for a possession order to be made. Those safeguards will not be in place where an NTQ has been served by the other joint tenant at the request of the local authority.

 

Decision of Supreme Court

The Supreme Court dismissed the appeal. In relation to A1P1, it was held that:

 

“…..If the result is not as decided in Monk [1992] 1 AC 478 , either the tenant who served the notice is forced to remain a tenant against her will, or the landlord is landed with one tenant instead of two, which means less security—and, in a case such as the present, a family property occupied by a single person. Just as a joint tenant in Mr Sims’s position can claim that the outcome determined as correct in Monk is harsh, so could a joint tenant in Mrs Sims’s position or a landlord in Dacorum’s position contend that either of the alternative outcomes is harsh.” (at [17])

 

The Supreme Court did not address the power under the Family Law Act 1996 to transfer the joint tenancy to a sole tenancy or the statutory grounds for possession which would remedy the potential harm identified to a joint tenant in Mrs Sims’ position and the landlord.

 

In relation to Art.8, it was held that:

 

“[It is] suggested that this conclusion was inconsistent with the judgment of the Strasbourg court in Buckland v United Kingdom (2012) 56 EHRR 557, but I agree with…Dacorum that the judgment simply supports the proposition that, where the court is considering making an order for possession against a public sector residential tenant, she must have the opportunity of raising the argument that, in the light of article 8, no order for possession should be made. I do not therefore think that it assists Mr Sims in this case.” (at [24])

The decision in Sims is at odds with Buckland for the reasons identified in the post referred to above (Buckland v UK), in particular the reference to being able to stay “in the long term”.

 

Conclusion

Whilst the domestic remedies are now exhausted in Sims, there remains the option of application to Strasbourg. Whether or not this is taken up by Mr Sims or, as it inevitably will be, by someone else, the outcome does leave us wondering whether we are heading towards a repeat of the ping-pong that took place between the courts here and in Strasbourg, in Harrow LBC v Qazi, Kay v Lambeth LBC, Doherty v Birmingham CC, Pinnock v. Manchester CC and Hounslow LBC v Powell before – finally, reluctantly – the courts here recognised that Strasbourg really is serious about ensuring that evictions from a home do take place with an element of judicial scrutiny, something one would have thought was a basic right even if, in the sister case of CN (see Dwelling on the benefits of bad law), that too was rejected by the Supreme Court.

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Dwelling on the benefits of bad law

Andrew Arden QC comments on the recent Supreme Court decision in R (ZH & CN) v Newham LBC and Lewisham LBC

 

Introduction

Homeless persons advisers are rightly aghast at the Supreme Court decision in R (o/a ZH & CN) v. Newham LBC & Lewisham LBC [2014] UKSC 62, upholding the Court of Appeal in that case and the earlier cases of Mohamed v Manek and Kensington and Chelsea LBC (1995) 27 H.L.R. 439, CA, Desnousse v Newham London Borough Council [2006] EWCA Civ 547; [2006] QB 831; [2006] H.L.R. 38: I appeared for the appellants and I certainly am! The delay in commenting on it reflects the need for my blood temperature to reduce from boiling point to a mere simmer!

 

Contradictions

The decision is on any take a considerable stretch: in order to uphold the proposition that landlords (their agents and employees) can evict people housed under the temporary duties in Part 7, Housing Act 1996, without the court order otherwise required by s.3, Protection From Eviction Act 1977 (something that in practice authorities and other social landlords never actually do themselves – mostly because officers will not be willing to run the risk of committing a criminal offence, whether under s.1, 1977 Act or otherwise but also because of the risk of adverse publicity), the majority held that the purpose of an arrangement (the agreed test under s.3, 1977 Act) was not for the property to be used as a dwelling, even if it was intended to be used as a residence, although

(a) cases such as Uratemp Ventures Ltd. v. Collins [2001] UKHL 43; [2002] 1 AC 301; (2001) 33 H.L.R. 35 mandated that a broad approach be taken to the meaning of dwelling,

(b) it had been held in Mohamed v. Hammersmith and Fulham LBC [2001] UKHL 57; [2002] 1 AC 547; [2002] H.L.R. 7, that a person in temporary accommodation resides in the area where it is located,

(c) Housing Acts 1980 and 1985 had specifically excluded such accommodation arrangements from secure status for a year from the decision (see 1985, Sch.1, para.4, as enacted), as had s.1, Housing Act 1988 from assured status, as s.209, Housing Act 1996, continues to do, which meant that Parliament must assumed that they would otherwise be “let as a separate dwelling” (the key definitional criterion under all these Acts) which has to include let as a dwelling,

(d) s.3A, 1977 Act specifies what tenancies and licences are excluded from s.3, including analogous accommodation such as holiday lettings, accommodation for immigrants and asylum seekers, displaced persons and hostels run by local authorities or other social landlords, but not including Part 7 accommodation, and

(e) use of the accommodation was nonetheless as a dwelling for the purposes of the housing benefit legislation (s.130, Social Security Contributions and Benefits Act 1992).

 

If any one point emphasises to what extent the majority was prepared to go it is this last: it was essential to uphold qualification for housing benefit, absent which these schemes would not have been viable at all. Accordingly, it concluded that the accommodation was not for the purpose of use as a dwelling (under the 1977 Act), but was actually used as a dwelling (under the 1992 Act), even though, as Lady Hale (in the minority) pointed out:

“it is difficult to see a distinction between the two: [they] used these premises for the purpose for which they were licensed to occupy them” (at [156]).

“Many (indeed one suspects the great majority) of those provided with temporary accommodation under Part 7 of the 1996 Act are in receipt of housing benefit. The whole system of funding local authorities’ duties under the 1996 Act would fall apart if housing benefit were not available to those who cannot afford to pay for the (often expensive) temporary accommodation arranged for them. Section 130 of the Social Security Contributions and Benefits Act 1992 provides that a person is entitled to housing benefit if he is ‘liable to make payments in respect of a dwelling…which he occupies as his home’. If the temporary and transient nature of his occupation is not sufficient to prevent the dwelling being his home for this purpose, I find it very difficult indeed to see how that same temporary and transient nature is sufficient to prevent the licence under which he is permitted to occupy the dwelling also being for the purpose of his occupying it as his home, that is, dwelling or residing or living rather than merely staying there” (at [162]).

 

 

Policy-led

The decision was hugely policy led. As well as Lady Hale, the Deputy President, the minority comprised Lord Neuberger, the President, who observed that the provisions:

“do not represent a substantial incursion into the property rights of the owners of premises, and they reflect a policy that people who have been lawfully living in premises should not be summarily evicted or locked out. Because of the nature of the rights accorded by these provisions and their aim of protecting people against the inconvenience and humiliation of being deprived of their homes summarily, one would expect the two sections to have a wide, rather than a narrow, meaning, a conclusion supported by the passages which I have referred to in the opinions in Uratemp” (at [135]).

 

He concluded,

“I accept that, when considering the proper interpretation of a statute, a court can, and where appropriate should, take into account policy considerations, and I sympathise with the view that policy considerations favour dismissing these appeals… However, judges have to be very careful before adopting an interpretation of a statute based on policy considerations, and should only to do so where those considerations point clearly in one direction. In this case, it seems to me to be particularly difficult to justify dismissing the appeal on policy grounds, given that (i) it involves departing from the natural meaning of the relevant statutory words, (ii) the policy argument is not overwhelming, (iii) there are policy considerations pointing the other way, and (iv) Parliament has apparently considered the policy – in section 3A” (at [153]).

 

Lady Hale rejected the authorities’ argument based on earlier case-law.

“Counsel… have put in considerable work in order to persuade us that the words must be read in the light of the construction given to similar (but not identical) wording in other provisions in the Rent Acts. For the reasons given by Lord Neuberger, which I need not repeat, I do not find any of that work persuasive, let alone convincing. I share his view that ‘dwelling’ is at least as wide as ‘residing’.” ([158]).

“The answer to the practical problems is a properly tailored legislative exception, as has already been provided for some other situations in section 3A of the 1977 Act” (at [165]).

 

Silver Linings

The irony is that the decision will probably cost authorities more – possibly much more – than they will save. As well as contending that the arrangements fell within s.3, 1977 Act, there was a subordinate argument, that – under Art.8 – any eviction from a home by a public authority must be by way of court order, relying not so much on the recent case-law (though that too) as on the origins of the Convention itself: would Strasbourg really uphold the notion that public authorities could simply come along with no judicial oversight and throw people into the street?

 

While rejecting this argument, the majority nonetheless concluded:

“…the decisions of this court in 2011, in Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 A.C. 104; [2011] H.L.R. 7 and Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2 A.C. 186; [2011] H.L.R. 23 extended the powers of the county court when hearing applications by a local authority to recover possession of a property in order to comply with article 8 of ECHR. It appears to me that it is necessary for the same reason to interpret section 204 of the 1996 Act as empowering that court to assess the issue of proportionality of a proposed eviction following an adverse section 184 decision (if the issue is raised) and resolve any relevant dispute of fact in a section 204 appeal. As there is no other domestic provision involving the court in the repossession of the accommodation after an adverse decision, the section 204 appeal, which reviews the authority’s decision on eligibility for assistance, is the obvious place for the occupier of the temporary accommodation to raise the issue of the proportionality of the withdrawal of the accommodation. …” (at [71]).

 

This was not what the authorities (or Secretary of State) – let alone the appellants – has submitted, so there was no argument about it, nor citation of previous cases such as Ali v. Birmingham CC [2010] UKSC 8; [2010] 2 A.C. 39; [2010] H.L.R. 22 and Bubb v. Wandsworth LBC [2011] EWCA Civ 1285; [2012] H.L.R. 13 as to the limits of a s.204 appeal.

 

The implications of this are considerable. While the s.204 appeal is limited in its scope, if the occupier wants to challenge the proportionality of the eviction (even on the basis, e.g. that the conduct which led to an intentionality decision did not happen, or that the facts germane to a finding that s/he is not vulnerable, or that an offer was unreasonably refused), the court will have to conduct a fact-finding exercise which means longer hearings, adjournments for public funding and much greater cost.

 

Conclusion

The decision means that private landlords, their agents and employees, can peremptorily evict some of the most vulnerable members of society from their homes, even if only temporary homes (but temporary here may well have meant months); the practice has not hitherto been widespread, but is bound to become so; it is arrived at by an analysis of case-law, wholly undermined by the dissenting judgment of Lord Neuberger (who is, after all, the most authoritative spokesperson on landlord-tenant, having been one of its leading practitioners throughout his career); the absurdity of holding that the accommodation was not intended to be occupied as a dwelling for one purpose while actually being occupied (as intended) for another is the sort of distinction that brings the law into disrepute; and, its root in a free-standing approach to policy rather than the legislation itself is a dangerous precedent.

 

It is also, and perhaps above all, a mean decision: let’s save a few more pounds at who knows (or cares) what cost of indignity and suffering to what may be the most vulnerable members of society of all – those whom the authorities refuse to assist into the basic amenity of a place to live.

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No Surprises – Gatekeeping

Andrew Arden QC and Clare Cullen consider gatekeeping and the recent Crisis “mystery shopper” report.

 

Gatekeeping remains prevalent amongst many local authorities finds the Crisis report, Turned Away, The treatment of single homeless people by local authority homeless services in England, October 2014. It is unsurprising; anecdotally, reports of local authorities sending homeless applicants away without taking an application or providing interim accommodation are commonplace. Nevertheless, the report is still depressing to read.

 

Threshold

Local authorities are under a duty to make inquiries where they have “reason to believe” that a person “may be” homeless or threatened with homelessness (ss.183(1) and 184(1), Housing Act 1996) and to provide interim accommodation where they have “reason to believe” that a person “may be” homeless, eligible for assistance and in priority need (s.188(1), 1996 Act). For both these duties, it is universally accepted that the threshold is designedly low.

The report

The report sets out the experiences of “mystery shoppers” who presented as homeless to sixteen local authorities across the country. The participants presented as single applicants, i.e. without any dependent children conferring an automatic priority need, and were given characteristics intended to give rise to a potential priority need so as to meet the threshold for further inquiries to be made and interim accommodation. The characteristic included:

  • A person with learning difficulties and mental health issues who claimed to have been unlawfully evicted;
  • A person who claimed to have suffered domestic violence from their ex-partner or step-father, approaching a local authority outside of the area where they had previously resided and were attacked;
  • A person claiming to be a rough sleeper in his or her 30s;
  • A 19-year old who claimed to have been forced to leave the parental home because of overcrowding.

 

In all, there were 87 visits spread across the different authorities. In each case, the process was found to be confusing and participants often left without knowing whether or not a homeless application had in fact been made! The report says that one participant described the process as “Kafkaesque”. Only on eight out of 87 visits was there any mention of the opportunity to make a homeless application.
Gatekeeping was a particular problem in London: in 29 visits, participants were not assessed at all, and the process taken no further, either on the ground that they were not in priority need or that they had provided insufficient proof of identity or other paperwork. The first of these is entirely unsound: by s.183, Part 7 applies whenever an applicant applies whom the authority have reason to believe is homeless – priority need is not a pre-condition; not only is the applicant who is not in priority need entitled to appropriate advice and assistance – preceded by an assessment (see 1.192(4)) with information about the likelihood of accommodation being available in the area appropriate to the applicant’s assessed needs (with details about location and sources of accommodation) – see s.192(5)) but there is also a power to house notwithstanding the absence of priority need (se.192(3)) which, as a matter of law, the authority must consider exercising (even if most will rarely decide to do so)..

 

In only 37 out of the 87 national visits was assistance actually provided: in 27 visits, temporary accommodation was offered pending inquiries; in 20 visits, a priority need was accepted; and in 10 visits, assistance was afforded to help the participant to return to a previous address until temporary accommodation could be offered. In the majority of visits, however, participants received limited or no support.

 

It follows that in a majority of cases there was an unlawful failure properly to apply the1996 Act.

 

Approach of the courts

Gatekeeping is not new (see, for example, Audit Commission, Homelessness: Responding to the new agenda, 2003) and it has occasionally come to the attention of the courts.

 

In R (on the application of Colin Raw) v London Borough of Lambeth [2010] EWHC 507 (Admin), Mr Raw presented as homeless and the local authority offered him an opportunity to participate in a private rented deposit scheme rather than make or continue with his homeless application. Although permission for judicial review was refused on the basis that the claim was academic as the authority had accepted an application and subsequently a s.193(2) duty, Stadlen J at [77], pointed out that the benefits of the deposit scheme were:

“not equivalent to and may not be an adequate substitute for….the benefits to a Part VII applicant of the duty to provide interim accommodation under section 188.”

 

In R (Kelly, Mehari & JI) v Birmingham City Council [2009] EWHC 3240 (Admin), Hickinbottom J, at [40]-[41], found that the local authority’s practice and procedures meant that officers were failing to apply s.188 when considering whether to provide interim accommodation:

“The approach of the Council to their obligations under Section 188 at the very least lacks legal coherence and a proper consideration of the relevant Section 188 criteria. So far as the Council are concerned that failure had and, insofar as that practice continues, continues to have, the effect of avoiding their obligations under Section 188 of the 1996 Act.”

 

More recently, in R (on the application of IA) v City of Westminster Council [2013] EWHC 1273 (Admin Court), a case concerning a homeless applicant who had been subjected to mental and physical torture in Iran who presented to the authority with a letter from his GP detailing, amongst other matters, that he suffered from depression, panic attacks and insomnia but who was issued with a negative s.184 decision on the same day, avoiding the duty to provide interim accommodation, HHJ Anthony Thornton QC stated at [25] that:

“Where, as in this case, it appears that the applicant is depressed, alone, unable readily to cope with day-to-day living tasks, unemployed and possibly unemployable, has no settled links with England or the English way of life and has minimal support mechanisms at his disposal, the inquiries would be expected to extend to a detailed inquiry into the applicant’s way of life prior to his homelessness……it would have been impossible for any of these inquiries to be undertaken in this case during the initial screening interview.”

 

As these cases demonstrate, when the issue of gatekeeping comes before the courts, judges are not supportive of local authorities. There will, however, be many cases of gatekeeping which never reach the courts: more often than not, it can be assumed that applicants won’t have access to legal advice or know their rights, and gatekeeping practices can take place without any repercussions for the local authority. If a challenge is issued or threatened in respect of gatekeeping, an application is usually then accepted or interim accommodation provided by the local authority so that the claim becomes academic and is no longer pursued.

 

What is the solution?

As highlighted in Crisis’ report, in England, there is no compulsory and audited quality framework or inspection of housing options and homelessness services. This is in contrast to Scotland where the Scottish Regulator has responsibility for undertaking inspections of homelessness services. Whilst in April 2013, the Government introduced a new Gold Standard for homelessness support initiatives and, in 2011, the Local Government Ombudsman was critical of local authority gatekeeping practices, offering guidance in Homelessness: How councils can ensure justice for homeless people, Focus Report: learning lessons from complaint, these measures appear to have done little to address gatekeeping practices.

 

At present, therefore, it is left to organisations such as Crisis to highlight gatekeeping. Not only is this type of report likely to be costly and time-consuming, there are also potential risks: under s.214, 1996 Act, it is an offence knowingly or recklessly to make a statement which is false in a material particular with intent to induce an authority, in connection with the exercise of their functions under Pt 7, to believe that he is entitled to accommodation or assistance under Part 7. To avoid this, all local authorities were contacted prior to the visits and informed that they would take place and notified after the visits so as to remove the details of the “mystery shopper.”

 

It is perhaps only fair to acknowledge that the prevalence of gatekeeping is likely to be part of the much wider problem of lack of resources both in terms of staffing and available properties. If properties are not available or front line officers are inadequately trained or understaffed, gatekeeping will inevitably continue to take place. Whilst these underlying issues need to be addressed (see May 15 – the Home Stretch<http://laghousinglaw.com/2014/10/14/may-2015-the-home-stretch/>), there can be no excuse for these practices: however they want to dress it up, they comprise the refusal by authorities to do the job that Parliament has imposed on them – put like that, it is not merely a question of illegality but one of failing to recognise their own raison d’être: they are there to provide the services Parliament deems to be needed, for the people Parliament identifies, not for those they choose.

There may be an argument for greater regulation – as in Scotland and as recommended in the report – but it is, for those who admire local government – a very great shame if regulation is needed for authorities to be compelled to perform their functions (as opposed to how they perform them): no more than authorities themselves should homelessness officers have any part of it.

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May 2015, the Home Stretch

Andrew Arden QC and Clare Cullen consider the proposals for housing from the three main political parties

Homes for Britain Campaign

The Homes for Britain campaign has a simple message – the next Government must commit to ending the housing crisis within a generation and to publishing a long-term plan to achieve that aim within a year of taking office.

That there is a housing crisis can no longer be ignored. The frustration it causes, which has been bubbling beneath the surface for a long time, was in the public spotlight during the Focus E15 mothers’ campaign a few weeks ago: empty flats in east London were occupied, in part, in protest at the lack of social housing in the area. The media interest in that case may be a cause for optimism – is the housing crisis finally filtering through to the political and media agenda?

 

The scale of the problem

A joint report from KPMG and Shelter, Building the homes we need, A programme for the 2015 government, estimates that 250,000 new homes a year are needed in England alone: in 2013, just under 110,000 were built. Not since 1987 has the number of new homes in England exceeded 200,000 per year; you have to go back to 1977 to exceed 250,000 (see DCLG, Live Table 244). Radical, comprehensive and long-term plans are required if anything like that level is to be achieved again.

The drop in new homes has been largely due to the steady decline in local authority building. In 1978, local authorities were responsible for completing 93,310 new homes; 39% of the total that year. This number declined to 840 by 2013. This wouldn’t necessarily be a problem if housing associations or the private sector had filled the gap but that simply hasn’t happened. Whilst the number of new homes built by housing association has increased, 21,610 in 2013, it is nowhere near the level that local authorities used to provide.

As for the private sector, it has rarely exceeded 150,000 since 1978 (only exceeding between 1987-1989 and in 2007) and has remained below 100,000 since 2009. This is unsurprising. As this blog has previously noted, the private sector will never supply enough “for the very simple reason that the return on investment takes so long – decades – that it is inherently uncertain, vulnerable both to financial market forces and to political shifts in residential landlord-tenant law” (Rent Control to Major Debt).

Any plan for increasing the number of new homes must include new homes within the social housing sector. Despite the changes to Part 6, Housing Act 1996 (introduced by Localism Act 2011), allowing local authorities once more to maintain closed waiting lists, waiting lists remain high (in 2013, just below 1.7 million). It is simply not possible, or economically sound, to rely more and more on private sector housing, which seems to be current policy, to fill the gap. Not only is the private sector not building more homes, but housing those who would traditionally have been accommodated in the social rented sector in private rented accommodation simply results in the benefit bill shooting up, money which could be spent investing in new homes. As set out in Shelter’s report, Bricks or benefits? Rebalancing housing investment, May 2012, reliance on the private sector has increased the cost of housing benefit significantly: it is estimated that if just 8 per cent of housing benefit claimants in private rented housing moved to affordable social homes, the Government would save £200 million.
Public support

It is often suggested that there is insufficient public support for new-build housing, particularly social housing, both because of NIMBY-ism and for public spending reasons. A recent study by the Fabian society, Silent Majority: How the public will support a new wave of social housing, September 2014, suggests otherwise: albeit using a relatively small data set through focus groups, the study found 57% in support and only 15% opposed to new social housing being built; it also found that concerns about NIMBY-ism may be misplaced, although opposition rose to 27% when participants were asked about building social housing in their area but the percentage of those in support remained higher, at 44%, with 23% undecided either way.

There is another reason, not touched on in the Fabian report. The number of adults who are still living in their parents homes – whether having moved back in or never having moved out – is at an all-time high (at any rate in recent times), as a current television programme calls it, The Hotel of Mum and Dad: “since 1996 the UK has seen the number of 20-34 year olds living with their parents grow by 25%, to reach 3.35 million in 2013 – 72% of whom are in work” (Building the homes we need, p.25). Of course, enjoying the company of one’s children for a much longer period of time than used to be the case (when, say, they either did not return from university, or only briefly) is a joy – but not necessarily an unqualified one): there are also frequent reports about how much of their savings parents are spending to help their children into owner-occupation!

This surely provides an incentive for all parties to start putting new homes, including those within the social housing sector, at the top of the political agenda.

 

Policies

The first stage in the Homes for Britain Campaign was the autumn party conferences. So, what are the current proposals of the three main parties to address this issue? We have picked a couple from each.

Conservative

Unsurprisingly, it is the Conservative Party who offer the least by way commitment to building new social housing; if this had been a priority, it would surely have already been addressed: to the contrary, the capital investment funding for social housing was reduced by 60% in the Spending Review in 2010 while the Right to Buy – responsible for a substantial part of the decline in the social housing stock – has been stimulated by increased discounts.

  • Expansion of Help to Buy One policy in which the Government continues to invest is the Help-to-Buy scheme; this applies to first-time buyers under 40 who purchase a new home and operate by way of an equity loan of 20% of the price. It is intended to build 100,000 new homes on brown field sites for this purpose. To encourage developments, they would be exempt from restrictions under s.106, Town and Country Planning Act 1990, agreements. This, however, is not going to do much for those in need of social housing as it is the s.106 agreements which have introduced the requirement for a proportion of social housing in all new developments. In other words, in place of that proportion – which guaranteed that the housing would go to those who qualified for social housing (through social landlord allocation) – the housing will go to those who can find the remaining equity, e. the better off amongst those in need.
  • Further Benefit Cap Benefits will be capped at £23,000 (down from £26,000). Whilst this is not a policy directed at new homes, it is a further attack on those who are potentially the most in need (large families) and some housing associations have already warned of potential knock on effects; if tenants are unable to pay rent due to the application of the benefit cap, housing associations will not have the funds, or will have difficulty accessing funds, to invest in new social housing.

Labour

Labour are seeking to develop a long-term plan to address the housing crisis, broadly in line with the campaign, albeit that there are as yet no real details about how they propose to do so.

  • Target to build 200,000 new homes a year by 2020 This is still short of what is required but at least looks like an attempt to formulate a long-term, sustainable plan. Sir Michael Lyons has been commissioned to lead a review for the party but this has not yet been published.
  • Cap on rent increases This policy was announced earlier this year and was the subject of comment in the post Rent Control to Major Debt. Such a measure could help prevent the housing benefit bill from increasing because of the high costs of rent in the private sector, savings which could then be used to invest in building more homes.

Liberal Democrats

The Liberal Democrats appear to be the most radical in their proposals.

General Election

The proposals are still a long way off what is required. Will the remaining six months before the General Election see the parties fully develop their plans (or be persuaded to formulate a plan) to tackle the housing crisis, or will housing – as it always seems to do – be submerged by other, putatively more pressing issues? What do you think?

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Retaliatory Eviction – a solution?

Andrew Arden QC and Clare Cullen consider the new proposals to deal with retaliatory eviction.

Introduction

This blog has previously commented on retaliatory evictions of assured shorthold tenants (see Retaliatory Eviction”, August 13, 2012, and We shall not be moved, March 18, 2014). The Citizens Advice Bureau’s report, The tenant’s dilemma”, June 2007, proposed giving a judge discretion to “overrule” a section 21 notice where the tenant raised and proved a case of retaliatory eviction. In “Review of Property Conditions in the Private Rented Sector”, February 2014, DCLG suggested that any restriction on a section 21 notice should be reserved for “serious cases of disrepair” only (e.g. category 1 hazards).

Sarah Teather’s Private Members’ Bill (The Tenancies (Reform) Bill 2014-15) is the first active step in this area and, on September 11, 2014, the Government announced that it was supporting the Bill “in principle” albeit that its support is on condition that it “only targets bad landlords and cannot be used by tenants to frustrate legitimate evictions.”

Draft Bill

Notice following action by local authority

The Bill is exclusively concerned with assured shorthold tenants rather than any others who have no – or no real – security. Under its cl.1, if relevant condition is met, a s.21, Housing Act 1988, notice qualifies as retaliatory eviction and, as such, is intended to be wholly ineffective. The condition is that the s.21 notice is given within six months of service by the local authority of one of a number of specified disrepair notices (improvement notice under ss.11 or 12, hazard awareness notice under ss.28 or 29, notice of emergency remedial action under s.40(7), all of Housing Act 2004).

As drafted, the proposal would not be restricted to retaliatory eviction in the context of disrepair; of course, a landlord could always serve a s.8 notice for, e.g., arrears, but if the retaliation is because the tenant has dome something which the landlord does not like, there is no apparent room for manoeuvre. This is probably a good thing but, on the other hand, might incline the courts to come up with their own limits which, in turn, may be risky.

Whether or not for that reason, another problem is that the way the proposal is drafted does not entirely rule out the possibility that the courts will treat the s.21 notice as valid from after the six month period; while this is unlikely, so were some of the decisions on the deposit laws – which effectively gutted the provisions – before their amendment by statute, and it would be preferable to spell out the consequences than to leave them to be explored by the courts.

Disrepair complaint

A second category of retaliatory eviction arises when a s.21 notice is served within six months of a written complaint to the landlord about disrepair in the premises, meaning disrepair within s.11, Landlord and Tenant Act 1985, or premises in such a state as to be prejudicial to the health of the occupants (statutory nuisance). For this provision to take effect there must be either a category 1 or “relevant” category 2 hazard in the premises (to be prescribed). The complaint must have been in writing. The disrepair must not be the tenant’s responsibility (which excludes an act or omission consisting of normal domestic usage of the premises).

The provision is not well drafted: it is left unclear whether the condition has to have existed at the date of the written complaint or as at the date when the notice is issued or even as at the date of hearing.

To prove that a hazard (of either kind) existed, a certificate from the local housing authority will be conclusive evidence but it is also unclear whether a tenant could choose to prove the condition in some other way, e.g. independent, expert evidence. Either way, this is something of a hurdle, but it is exacerbated by a somewhat surprising – not to say unprecedented – provision that the s.21 notice is not prohibited if the landlord does not consider that the relevant condition is met, in which case (lending credibility but probably not certainty to the proposition that independent evidence is admissible) a certificate of the authority confirming the condition appears to be necessary, i.e. the only way to prove the condition. This may be difficult to obtain although ancillary provisions include regulations which (among other matters) must address local authority responses, prescribed form of certificate and what matters are to be treated as the tenant’s responsibility.

Gas Safety and Energy Performance Certificates

Landlords have obligations in relation to gas safety and energy performance, including the supply of certificates to the tenant: no s.21 notice may be served so long as a landlord is in breach of the duty to provide those certificates.

Section 21 notices

It is proposed both that these should be in prescribed form, and that they should have a limited life (six months), the latter presumably so as to end the practice of serving notice immediately after the grant (also see “We shall not be moved”).

Fitness for Human Habitation

Finally, it is proposed to amend s.8, Landlord and Tenant Act 1985, to require shorthold premises to be fit for human habitation at the commencement of the tenancy, and for the landlord to maintain them as such throughout the tenancy – although, oddly, this is not in itself a ground for barring a notice (nor is unfitness under the 1985 Act synonymous either with s.11 or a hazard under the 2004 Act: to the contrary, the 1985 Act adheres to the unsatisfactory unfitness laws which the Housing Health and Safety Rating System replaced).

Comment

The Bill is good news but it badly needs re-drafting and – now that the government has said it will support it – that is something that will be undertaken: how much of the substance of the Bill survives that exercise may, however, be a different question.

Nor does the Bill go far enough: the involvement of the local authority in both the principal provisions means that – as observed in the post We shall not be moved” – it will be something of a postcode lottery; proving the condition for the “complaint” proposal otherwise than through the authority will be costly and public funding will probably not be available and, in any event, buys no more than an additional six months, although the reality may well be less because the six month time limit dates from the notice or complaint, so that notice can be re-served as soon as it is up, which may be only three or four months from when the “bad” (prohibited, retaliatory) notice itself was given.

These criticisms may seem churlish but the danger is that if the proposals are ineffective – because they have not been thought fully through or drafted carefully enough to make them worth operating – it sets back the cause of a much sounder, more protective approach, just because they do not work. The Bill needs much, much more attention – and from supportive hands – before it goes further.

The reality is probably that the Bill will not become law before the next election: its best use may yet be to force the issue of retaliatory eviction onto the agendas of all parties so that, whoever wins, at least some protection against this activity does finally arrive.

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