Update: housing

Since the last update, there have been major cases on human rights in both the Supreme Court and in Strasbourg, a major European Court decision on homeless eligibility and a confirmation that registered social landlords are subject to the Human Rights Act; but otherwise it has been issues of procedure and definition that have preoccupied the courts.

Public function

The Court of Appeal decision in R (Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587 was recorded in the last housing update (Solicitors Journal 153/26, 7 July 2009). Since then, London & Quadrant have been refused permission to appeal to the Supreme Court ('House of Surprises', Solicitors Journal 153/45, 1 December 2009) and a subsequent judicial review case, R (McIntyre) v Gentoo Group Ltd [2010] EWHC 5 (Admin), followed Weaver in finding that Gentoo was subject to the Human Rights Act and to public law principles, even though the particular claim was unsuccessful ('Who holds the keys?', Solicitors Journal 154/6, 16 February 2010).

Unless the Weaver decision is overturned in a future case by the Supreme Court, registered social landlords are very likely to face public law challenges and their tenants, or occupiers, may raise public law defences to decisions to bring possession proceedings. In addition, any changes in the landscape on human rights based challenges will also affect RSLs.

Human rights and possession cases

The great stand-off between the European Court of Human Rights and the House of Lords and now the Supreme Court on the adequacy of summary and probably mandatory possession proceedings under article 8 continues. At issue is the distinction between an assessment of proportionality and assessment under public law principles.

The Supreme Court declined to revisit the issue by refusing permission to appeal in Central Bedfordshire Council v Taylor & Ors [2009] EWCA Civ 613, but looks to be preparing to take a view with a nine-judge panel listed for July 2010 for the appeal in Manchester CC v Pinnock [2009] EWCA Civ 852, which concerned the article 8 and article 6 compliance of possession proceedings under the demoted tenancy scheme.

A further five or six cases are shortly to be heard by the Court of Appeal on article 8 and proportionality in decisions to seek possession, as the court refused a stay application by the local authorities concerned. In addition, the ECtHR decision in Kay v LB Lambeth is imminent and in a series of judgments (Cosic, Zehetner) the ECtHR has affirmed its view in McCann v UK on the necessity of the availability of a review of the proportionality of eviction.

In the interim, there has been another successful 'gateway b' public law defence in Barber v Croydon LBC [2010] EWCA Civ 51. The Court of Appeal held that the decision subject to challenge was the decision to seek possession by the local authority, but this was a continuing decision from notice to quit to possession hearing, as the local authority was bound to keep the position under review. In this case, the council had rigidly applied an ASB policy after one incident, regardless of evidence of Mr Barber's mental health disabilities and the effect of eviction from his non-secure tenancy upon him. Steps to explore alternatives to possession should have been taken before trial, and the council's decision was Wednesbury unreasonable.

Perhaps of more direct relevance to standard possession proceedings was the Court of Appeal's decision in Forcelux Ltd v Binnie [2009] EWCA Civ 854 that the first hearing in a possession claim, if the defendant does not attend, is not a trial for the purposes of CPR 39.3. CPR 39.3 sets requirements for someone applying to set aside a possession order, including that they acted promptly on finding out about the order (CPR 39.3(5)(a)). As the first hearing is not a trial, the court may make an order to set aside the possession order under its discretionary powers under CPR 3.1, specifically 3.1(2)(m). The court thus has a broad discretion as to whether to make a set aside order and is not bound by whether the applicant has met the strict requirements of CPR 39.3.

Homeless and eligibility for assistance

In February 2010, the European Court of Justice changed the shape of housing eligibility for the parent with care of children of a former EU worker in its judgment in the joined cases of LB Harrow v Ibrahim (C'‘310/08) and Texeira v LB Lambeth (C'‘480/08). Both cases concerned questions referred by the Court of Appeal about the rights of children in education under article 12 of regulation no 1612/68. The upshot is that if the children of an EU national came to stay in the UK while that person was a worker in the UK, then they have a right to complete any course of education commenced in the UK. This is so whether the course of education was begun after the EU national ceased to be a qualifying worker or before. While the child is in the course of education, the parent with care is eligible for housing assistance, whether that parent is an EU national or not. However, this is wholly the child's right and does not give the parent with care any independent housing right. The cases are now back with the Court of Appeal for determination, but will be of clear importance for both housing advisers and local authorities, who will have to revise homelessness eligibility assessment procedures.

In the Supreme Court, Tomlinson & Ors v Birmingham City Council [2010] UKSC 8 (Solicitors Journal 154/7 23, February 2010) concerned a challenge to the article 6 human rights compliance of the Housing Act 1996 section 202 review and section 204 appeal process, on the issue of the court's inability to address issues of fact on appeal, leaving the local authority as the sole arbiter of fact. Although Tsfayo v UK [2006] ECHR 981 had found that a broadly similar procedure in housing benefit tribunals was not article 6 compliant, the Supreme Court found that the 'right to accommodation' was not a civil right for the purposes of article 6(1), or at least not yet, as the court declined to put itself in advance of Strasbourg on this issue. On the article 6 compliance of the process, the court was broadly of the view that Runa Begum v Tower Hamlets LBC [2003] UKHL 5 remained rightly decided and that these cases fell under it. Unless Tomlinson goes to the ECtHR, that ends human rights challenges to the part VII Housing Act 1996 process.

Birmingham City Council was less successful in Kelly & Mehari v Birmingham CC [2009] EWHC 3240 (Admin), where it were held to be systematically refusing to provide interim accommodation under section 188 of the Housing Act 1996, despite homeless applications being made and section 184 enquiries beginning. At the hearing Birmingham blamed the failures of individual officers, but the court held that the duty to accommodate under section 188 was being systematically ignored and applicants sent back to stay where they could unless the council considered that there was a risk of violence. Gatekeeping is just not lawful.

The meaning of 'violence' in section 177(1) of the Housing Act 1996 was revisited in Yemshaw v Hounslow LBC [2009] EWCA Civ 1543. Section 177(1) provides that it is not reasonable to remain in accommodation where the person has been subject to violence or the threat of violence. The appellant, supported by the secretary of state intervening, argued that 'violence' could and should include non-physical forms of abuse. The Court of Appeal disagreed and upheld Danesh v Kensington and Chelsea RLBC [2006] EWCA Civ 1404, despite revised guidelines having been issued by the DCLG. This is a difficult decision for those assisting victims of abuse.

Allocation

The expectation was that challenges to local authority allocation policies would go quiet after R (Ahmad) v LB Newham [2009] UKHL 14, and certainly after the DCLG issued guidance in December 2009 ('Fair and flexible: statutory guidance on social housing allocations for local authorities in England') which supported the view taken in Ahmad that local authorities had an extensive discretion in allocation schemes as long as the reasonable preference categories were respected. And it is true that challenges on the basis of cumulative need and prioritisation of need in the scheme as a whole have more or less gone by the wayside.

However, there have been allocation challenges, primarily to the way applications have been treated. An exception was R (Joseph) v LB Newham [2009] EWHC 2983 (Admin), which held, utterly unsurprisingly, that it was unlawful for LB Newham to refuse a transfer to Mr Joseph on the basis of a disputed, but in any event statute-barred, housing benefit overpayment debt dating from 1999, which Newham had never attempted to recover before. A blanket policy was not acceptable. On the other hand, in R (Osei) v Newham LBC Lettings Agency QBD (Admin), January 2010, Newham's decision to reduce Ms Osei's emergency priority for a transfer due to domestic violence on the basis of rent arrears was upheld as being neither irrational nor a fettering of discretion.

R (Bauer-Czarmonski) v Ealing LBC [2010] EWHC 130 (Admin) concerned the weight given to medical evidence. Locata, which was Ealing's choice based letting operator, had obtained a medical report from Now Medical in which Dr Keen went beyond advising on the applicant's GP's report to advising on priority and the adequacy of current conditions. Locata had relied on that advice and also the advice of a psychiatric adviser, who also managed to advise that there were others in more unpleasant conditions. The court found that Locata's medical advisers had gone well beyond their remit in advising on priority under the scheme, which was the local authority's decision, and Locata had been wrong to simply accept that advice.

Not quite an allocation issue per se, but one of some importance was addressed in Birmingham City Council v Qasim and others [2009] EWCA Civ 1080. An employee of Birmingham had amended computer records so as to create tenancies for people of his choosing, unlawfully and outside the allocation scheme. This is not that unusual, particularly in larger local authorities. Birmingham had sought possession against the 'tenants'.

The Court of Appeal held that illegality in allocation did not go to the validity of the grant of tenancy under part 2 of the Housing Act 1985. Allocation was under part 6 of the Housing Act 1996 and was merely about managing the queue of applicants. The tenancies were valid secure tenancies despite being granted outside the allocation process. There was no evidence of wrong-doing by the tenants concerned in obtaining the tenancy and so no ground for possession under the Housing Act 1985. This will be a blow for councils or ALMOs seeking to recover possession of properties occupied as a result of the unlawful actions of one of their officers.