Update: housing

Possession claims

The Supreme Court has revisited the issue of an article 8-based proportionality defence to possession claims by public bodies. First established in Pinnock v Manchester City Council [2010] UKSC 45, the court has fleshed out this defence a little in Hounslow v Powell; Leeds v Hall; Birmingham v Frisby [2011] UKSC 8. Some limited guidance on proportionality defences was given, along with an important qualification.

Powell confirms that possession claims against introductory tenancies and temporary accommodation provided to homeless applicants under part 7 of the Housing Act 1996 are subject to proportionality defences (although, for the part 7 accommodation, this is presuming that the route of a section 202 review is not available or is not sufficient). Powell further confirms the statement of principle in Pinnock that all tenants or occupants facing possession proceedings of their home by a public body have the right to have a court determine whether possession is proportionate. It is presumed by the Supreme Court that the discretionary grounds for possession, in which the judge considers reasonableness, satisfy the proportionality requirement automatically.

As suggested in Pinnock, the route for such a defence is for it to be raised in county court possession proceedings, and for the county court judge to make an initial summary assessment of whether the defence is seriously arguable. If not, it should be dismissed straightaway. For defendants, the difficulty is that they will not get disclosure before this summary assessment.

The court is to assume that seeking possession by a public body is a legitimate interference with the occupier's article 8 rights in the management of its housing stock. There is no need for public bodies to plead specific reasons for seeking possession, although they may choose to do so in response to a defence.

The onus is therefore wholly on the occupier to make out a defence. The defence will be based on the occupier's personal circumstances or factual objections. Proportionality is more likely to be a relevant consideration where there are issues relating to vulnerability due to mental illness, physical or learning disabilities, poor health or frailty, and the local authority may have to explain why they are not securing alternative accommodation.

The court's concern is not with the public body's processes or procedures but wholly with the outcome and whether that is proportionate. But a proportionality defence may be run alongside a public law defence ('gateway b') which would address the lawfulness of the decision to seek eviction, the test being whether it was a decision a reasonable person would consider justified, as well as other public law grounds such as failure to follow policy or procedures.

The Supreme Court takes the view that the 'seriously arguable' threshold for any proportionality defence is likely to be high. Some commentators have taken the view that this amounts to an 'exceptionality' test. However, the judgment in Pinnock makes clear that exceptionality is not a relevant test and is not to be applied. The judgment in Powell does not change this.

The judgment in Pinnock held out the prospect of the court being able to suspend or delay a possession order until such a time as the court considered it would be proportionate to grant possession (e.g. after children had taken exams, or alternative accommodation secured).

However, in Powell, the Supreme Court held that a proportionality defence makes no difference to section 89 of the Housing Act 1980, which provides that the court cannot stay or suspend the date of an order for possession (for non-secure or assured tenants) for a period longer than six weeks, and that is only in cases of exceptional hardship.

So, this is in effect an all or nothing defence. Either the claim for possession is dismissed, or, at best, a possession order is made to take effect within up to six weeks. This judgment does not extend the proportionality defence to the private sector, just to 'public body' landlords. Whether the court as a public body is required to consider proportionality in private sector possession cases has yet to be determined.

Domestic violence

In Yemshaw v Hounslow LBC [2011] UKSC 3, Ms Yemshaw had applied as homeless to Hounslow and told them that she had fled her home because of her husband's abusive behaviour. She stated that, although her husband had not physically assaulted her, she had been subjected to emotional, psychological and financial abuse. Hounslow decided that this was not domestic violence for the purposes of section 177(1) of the Housing Act 1996, that the accommodation with her husband was still open to her and that she was therefore not homeless.

They upheld this decision on review. An appeal to the county court also upheld the decision, following Danesh v Kensington and Chelsea RLBC [2006] EWCA Civ 1404, which effectively stated that violence meant actual or threatened physical violence.

At the Court of Appeal, Ms Yemshaw argued that Danesh was out of date, as the revised code of guidance to local authorities on homelessness, in 2006, widened the scope of violence to include other non-physical forms of abuse. The Court of Appeal disagreed, finding that widening the scope of 'violence' would lead to practical difficulties for local authorities, which would have to make subjective judgments on applicant's circumstances, which would be inconsistent with the straightforward requirement under section 177(1).

Ms Yemshaw appealed to the Supreme Court. The Supreme Court overturned Danesh and the Court of Appeal. The Supreme Court held that 'domestic violence' includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm. This was in line with the definition of violence adopted in family law and a wide range of government guidance.

The test for the local authority was to make an objective assessment. Baroness Hale gave the following example: 'Was this, in reality, simply a case of marriage breakdown in which the appellant was not genuinely in fear of her husband, or was it a classic case of domestic abuse, in which one spouse puts the other in fear through the constant denial of freedom and of money for essentials, through the denigration of her personality, such that she genuinely fears that he may take her children away from her however unrealistic this may appear to an objective outsider?'

What this means for homeless applications by those fleeing domestic violence is that the local authority must consider the applicant's situation beyond the existence of violence or the threat of violence and, when it is raised, must address whether the applicant was subject to abuse which, directly or indirectly, gave rise to the risk of harm.

Oral submissions

Does the right to make oral submissions to a review officer on a section 202 Housing Act 1996 review, following a 'minded to' letter under regulation 8(2) of the 1999 Review Procedures Regulations, mean that the applicant has the right to insist on a meeting? That was the topic of three joined appeals in Makisi & Ors v Birmingham City Council [2011] EWCA Civ 355.

In each instance, Birmingham responded to the applicants' requests for a face-to-face meeting to make submissions by insisting on submissions by telephone, then phoning the applicants. This approach was upheld in the section 204 county court appeals.

The Court of Appeal disagreed. Regulation 8(2) gave the applicant the right to require a face-to-face meeting for oral submissions. Submissions under the regulation could be made orally or in writing or both. While a telephone call may suffice for oral submissions, it was not in the local authority's discretion to decide the way in which oral submissions were to be made. Face-to-face advocacy was a potentially invaluable right. However, the meeting was not to be quasi judicial. There was no power to introduce witnesses, let alone cross-examination. The review officer is able to determine where and when the hearing takes place and the procedure to be followed, including finding out in advance who will attend.

Accommodating the household

In providing temporary accommodation under section 193 of the Housing Act 1996, what is the effect of section 176 that 'accommodation shall be regarded as available for a person's occupation if it is available for occupation by him together with (a) any other person who normally resides with him as a member of his family'?

In Aliya Sharif v Camden LBC [2011] EWCA Civ 463, the Court of Appeal held that 'occupation together with' meant that the accommodation together must be available for all those who normally resided with the homeless person as a member of their family. Camden had provided temporary accommodation consisting of two flats on the same floor of a hostel block, separated by some yards. The homeless person and children were in one flat and her father, who needed care and assistance, in another.

Camden had previously provided them all temporary accommodation together in a three-bed house for several years. In this case, Camden argued that the test was whether the accommodation provided was suitable under section 193. However, the Court of Appeal found that the policy of part 7 of the Housing At 1996 was to keep families together where possible and that the section 176 requirement was freestanding and came before any assessment of suitability under section 193. The two flats provided by Camden meant the family could not be considered as living together.

There is a two-stage test: whether the offered accommodation first satisfies a requirement of section 176 to accommodate in one property all the members of the applicant's family normally residing with the applicant, and, second, whether the accommodation is suitable for everyone who will live in it. This was accommo-dation provided under the full housing duty. It is not clear to what extent the same argument would apply to temporary accommodation provided pending initial decision on an application.

However, as the section 176 requirement addresses accommodation 'available for occupation', it is likely to equally apply. The courts may take a practical view on emergency or very short-term accommo-dation in view of the acknowledged shortage of available housing stock.

There is also a suggestion that hotel rooms, where there were shared areas (a kitchen or living space), would satisfy the section 176 test, while only being suitable for the short term.