Friday, 27 June 2008
I thought rather than faffing around with disability discrimination (which I must admit isn't a favourite past time of mine) I would link across (or more likely "up") to Nearly Legal.
Follow the link, http://nearlylegal.co.uk/blog/2008/06/malcolm-in-brief/, to NL's post and a very handy little article series..
Many thanks NL.
24 June 2008
Lord Hoffman has attacked lawyers who rely excessively on human rights arguments.
Giving judgment in R v G  UKHL 37, Lord Hoffman said: “This case is another example of the regrettable tendency to try to convert the whole system of justice into questions of human rights.”
Despite his words, the losing side has promised to appeal to the ECHR.
The case concerned a 15-year-old boy, known as G, who had sex with a girl he genuinely believed was 15, but turned out to be 12.
The boy’s lawyers argued that s 5 of the Sexual Offences Act 2003, which makes rape of a child under 13 a strict liability offence whether or not the accused thought the child was under age, infringed the boy’s right to a fair trial (Article 6 of ECHR).
They also argued that the decision to prosecute him under s 5 rather than s 13 of the Act, which deals with sexual offences committed by young people, was incompatible with the boy’s rights to privacy and family life (Article 8).
Lord Hoffman said that Article 6 did not, following Lord Justice Dyson in R v Gemmel  EWCA Crim 1992, apply to the content and interpretation of substantive domestic law.
“Prosecutorial policy and sentencing do not fall under Article 8. If the offence in question is a justifiable interference with private life, that is an end of the matter. If the prosecution has been unduly heavy handed, that may be unfair and unjust, but not an infringement of human rights.”
Baroness Hale and Lord Mance agreed with Lord Hoffman and dismissed G’s appeal, with Lords Hope and Carswell dissenting.
Lord Hope said that Article 8 of the Convention guaranteed everyone the right to respect for his private life, and a teenager had as much right to respect for his private life as any other individual.
“It is unlawful for a prosecutor to act in a way which is inconsistent with a Convention right. So I cannot accept Lord Hoffmann’s proposition that the Convention rights have nothing to do with prosecutorial policy.”
Michael Boyd, solicitor at criminal specialists EBR Attridge in Harlesden, London, represented the boy. He said he was likely to appeal to European Court of Human Rights on both the Article 6 and the Article 8 points.
He criticised Lord Hoffman for dismissing the decision of the ECHR in Salabiaku v France  13 EHRR 379.
“The House of Lords is much more intellectually powerful than the European Court and it must be galling for them to have to follow precedents laid down by Europe.”
He said the defence team was surprised by Baroness Hale’s hostility to its case.
Boyd added that some of her comments had raised eyebrows. Baroness Hale said there was nothing unjust or irrational about s 5 of the Sexual Offences Act.
“Every male has a choice about where he puts his penis. It may be difficult for him to restrain himself when aroused but he has a choice . . . The object is to make him take responsibility for what he chooses to do, not only an instrument of great pleasure, but also a weapon of great danger,” said Hale.
Wednesday, 25 June 2008
Yesterday, in this purple patch of decisions (at least in quantity) for housing related law, the Administrative Court has held the following:
"...that a registered social landlord was a public authority for the purposes of the Human Rights Act 1998 in respect of the management and allocation of its housing stock (including the termination of a tenancy) and accordingly also amenable to judicial review on conventional public law grounds; but that there had been no legitimate expectation or any breach thereof in respect of the landlord's decision to serve on the Claimant tenant a notice of seeking possession in respect of rent arrears relying on Ground 8, Sched. 2, HA 1988." [Arden Chambers Eflash]
Right, I think I shall deal with this in two chunks. Firstly, the general facts and substantive grounds of challenge. Secondly, moving on to the more ‘meaty’ issues of public authority.
- Mrs Weaver, was an assured tenant at LQHT from 1993. She had been granted the tenancy via a nomination from the London Borough of Richmond-upon-Thames, and was the first tenant of the property in question following one of LQHT's purchasing schemes.
- W has 3 children, received welfare benefits are differing stages of the last decade, and since 2004 has had rent arrears. This led to the trust issuing possession proceedings, and the challenge that W undertook as to LQHT seeking an order for possession on the mandatory ground 8.
I do not want to go through all the facts, but pulled out some that set the seen, and may pull out some more as they become apparent.
1. The Substantive grounds of challenge:
C’s complaint relates to how LQHT proceeded when they issued proceedings in regards her rent arrears. Of the three grounds available to LQHT, i.e. ground 8 – the mandatory one, and grounds 10 & 11 – the discretionary ones, they opted to utilised ground 8 and that this was a breach of her legitimate expectation and in breach of her rights under the Convention.
We all know that the Housing Corporation (in its somewhat sparse and non-specific, sometimes) guidance wants associations to “pursue alternative interventions, retaining evictions as a last resort” [paragraph 1.2, Circular 02/07]. There is also a more relevant passage at paragraph 3.1.4 which states:-
“Before using Ground 8, associations should first pursue all other reasonable alternatives to recover the debt”.
The Claimant has attempted to argue that instead of going straight for a ground 8 mandatory possession, the RSL should seek to utilise reasonable alternatives – as per the Housing Corporation guidance. Obviously this would mean that the RSL must show that they have made previous agreements with the tenant to pay the arrears, a court claim for a money judgment has been sought, and that possession was sought on the discretionary grounds 10 and 11.
That argument would therefore mean that any RSL would have to engage with the tenant at the initial stage where rent arrears arise – this should be done anyway with at least holistic debt advice being offered, identifying any disability issues, and attempting to deal with the onset of arrears at an early stage. That should be built into all RSLs policy and procedures, the problem lies in the expense and waste of funds when pursuing the possession claims on grounds 10 and 11.
Ground 8 is draconian, in terms of its mandatory nature, but (unfortunately) tenants do push their luck to the extreme because the Courts on the whole will give them a number of second chances. However, it seems that if the Court of Appeal ruled in the Claimant’s favour, the whole system set up by the Housing Act may actually be displaced, requiring more new legislation once again in the housing sector.
Even with the evidence pointing to LQHT relying on ground 8 more so than grounds 10 and 11 in cases of high arrears, LQHT had already tried (unsuccessfully) to clear the debt, LJ Richards rejected the Claimant’s argument as to a disguised form of drafting in the witness statements.
The actual claim on the basis of breach of legitimate expectation was, thankfully, not upheld. It was “far too tenuous and general in character to be enforceable in public law”. The argument, however, has been raised and will probably be raised again in the future where the facts are stronger and more utilitarian towards the tenant, and a different result maybe seen.
2. Is LQHT a "public authority"?
A while back, relatively, when McCann v. The UK popped up I think I defined the “public authority” aspects of the Human Rights Act 1998 and how it corresponds with RSLs. A few weeks later I now find myself in the same position once again, how very strange.
For the purposes of “public authority”, the HRA 1998 makes it unlawful for the public authority to act in a way which is incompatible with the Convention rights (section 6(1)).
Section 6(3)(b) also provides that the public authority can include “any person certain of whose functions are functions of a public nature”.
Now, the dilemma arises where there are no schedules appended to the back of this piece of legislation – if there were life would be slightly less worrisome. Unlike the Race Relations Act or the Freedom of Information Act, the Government in all it’s wisdom has not given a list of “public authorities”.
None of us can have any doubt as to the public functions that many RSLs carry out, in a socio-economic model. But whether this actually qualifies in the legal arena has always been unclear, to say the least. What the Administrative Court have decided, and what C argued, is that although not a “core” public authority, LQHT (and many other RSLs I assume) are of the lesser “hybrid” or “functional” public authorities category. The Court held that for the purposes of management and allocation of housing stock LQHT was a public authority.
I am sure that sent quite a lot of the RSLs in the country in collective apoplexy. Significantly, the identified stock which originated from the public sector was only 10% - the Court deemed this a “significant” proportion of the total LQHT stock. It might not be as substantial as that evidenced in the Poplar Housing Association case, but it was “significant”.
The Court also point to the substantial grants that the Housing Corporation provided to LQHT – totalling some £268.7 million in the last two years. However, at paragraph 20 they state:
“LQHT is funded by the income it receives from rents, by grants and by private borrowing. Its turnover in the two financial years 2004 to 2006 was £331.5 million, which consisted largely of rent receipts. During the same period it received from the Housing Corporation capital grants totalling “268.7 million. The evidence is that such grants are for particular development programmes, as opposed to generalised subsidy or block grants; and that private sources of finance (most commonly, commercial loans from banks, as well as proceeds from the sale of existing housing stock) have become the dominant component of its capital funding and are set to become even more so…”
Those two facts do not align themselves with the reliance on public funding or former public housing stock. If nothing else the trust seems to be minimising it’s reliance, and will probably continue to do so.
Moving back on track, YL v. Birmingham City Council formed the crucial building block on which the public authority argument was raised. Although the three cases of Peabody Housing Association Ltd v. Green, R v. Servite, ex p. Goldsmith, and Poplar Housing & Regeneration Community Association Ltd v. Donoghue were talked about in the judgment, it was YL that received the substantial consideration.
I wont dwell too long here (mainly because this post will get out of hand) but where BCC arranged for YL to be housed in a care home by a third party company, effectively outsourcing the work, the care home as a private company was deemed not be exercising a public function when it terminated the contract to house her. C, in the current case, argued that the facts of YL should be utilised to reach a contrary conclusion in the case of LQHT.
Unfortunately, even the submissions of Andrew Arden found little impact on the Court. He pointed out everything which he probably should of, but the court still made what will always be seen as a very sweeping judgment.
3. Is LQHT amenable to JR on a conventional basis?
Given that the Court held in favour of the hybrid public authority argument earlier on, it therefore follows that LQHT should be susceptible to judicial review on the basis of the management and allocation of housing stock functions.
That’s that then.
Helpfully Richards LJ assessed the likely impact outside of this case on his ruling that LQHT is a public authority in a limited scope:-
“…and I think it unlikely to be of great practical significance in many other cases...”
Unfortunately, everyone else thinks the opposite. Permission to appeal by LQHT (on the grounds of the public authority and JR statements) has been granted, so more fireworks shall be expected soon. But until then it seems that the RSLs, in a limited aspect are susceptible to being classed as public authorities under the HRA 1998.
Since quite a few RSLs will meet the “significant” value of 10%, that the Court has set, in regards of the former public housing ratio, god help them at present. Lets not get to overwhelmed, because this judgment here has yet to be tested in everyday case law (if that makes sense) and the appeal is yet to come. Given the impact that it will have on LQHT, it is undoubtedly going to be the case that they will push this as far as they can until they get the result that is suitable.
Given that we were waiting for Doherty to appear soon and deal with the questions that McCann raised a few weeks back, it now seems highly likely that it might answer some of the questions that this case has raised (indirectly I’ll grant you).
[sorry but I have had to cut this sort since I am at trial next week….busy busy busy…but I will come back and edit in some more little thoughts soon I hope]
Tuesday, 24 June 2008
On the 11th February 2005 the Defendant became a tolerated trespassers, and the rent arrears continued to rise. [I wasn't prepared for this next bit!] A few months later, in June, the Defendant was unfortunately shot in the face by masked intruders, he therefore decided to leave the flat and not return.
Although he informed the authority of what had happened and his subsequent actions, he did not remove his belongings or formally surrender his flat.
In October 2005 he requested a transfer to another borough, but given his rent arrears the authority wouldn't allow it. The Defendant's father paid the arrears the next day [don't ask me how, but I too am curious at the suddeness] - the transfer was acknowledged the next day, as what they termed a "management transfer".
On that same day the authority formally acknowledged that the D was no longer in occupation, but (and much more importantly) remained liable to pay rent and not to terminate the tenancy.
Obviously he did not pay the rent. But he did have his belongings removed in November and in June D was granted a new secure tenancy at another london borough. He notified Merton that he was not in possession of the previous flat on the 6th June 2006.
In May 2006 the authority had begun possession proceedings against D.
- Since D was a tolerated trespasser already (as of 11th Feb 05) fresh proceedings were not needed. All that the authority needed to do was request a warrant, and obviously enforce the order of 2005.
- As to the mesne profits and the liability of D during the period of 11th February 2005 to 6th June 2006, where he was a tolerated trespasser, this remained the outstanding issue to be decided.
- D argued that he only had to pay the mesne profits up unti l the date on which he gave up possession (November by my reckoning).
- C, on the otherhand, successfully argued the opposite, that mesne profits should extend until D gave up possession and had notified the authority of this i.e. 6th June 2006.
Court of Appeal:
Afterall that build up, the court of appeal did allow the appeal.
Given Southport Tramways v. Gandy (a slightly old 1897) the CA held that a former tenant still in possession of property following the end of the tenancy does not remain liable for the continuing rent.
On the date possession is given up (i.e. November 2005), when the D removed his belongings from the Property, that was the final date on which the authority could continue to take mesne profits.
The authority could not add provisos as to the status of the tolerated trespasser in regards rent.
I, personally, am curious to find out who represented the authority in question, or whether it was 'in house'. The status of the suspended possession proceedings should have been flagged up early on, and the legal advisors should have identified a clear path to be followed. It certainly isn't the most cost effective route to take. They did plead in the newer possession proceedings that D had remained a secure tenant - thus the new possession proceeedings. But he was already pronounced a tolerated trespasser early in that year.
I am surprised at some other points, but shall keep them to myself for now.
Saturday, 21 June 2008
Good or bad?
Friday, 20 June 2008
The case itself is a curious one, and one that I am sure many an academic will actually be foaming at the mouth to take apart.
But my real interest this time is what Southwark did. They failed to respond to the initial application for a right to buy by Mr H back in 1997. They quite simply should have acknowledged or denied his claim within 4 weeks of receipt of the RTB application. End of story.
Instead we are here a decade later, and for Southwark probably £50,000 - 100,000 (I'm guessing towards the latter figure NLegal) more poor, with this decision.
I wont say it was maladministration by the council, for a variety of reasons. But whatever the reason, the wrong decision was taken then. Maybe they were protecting their stock? You never now with council's. That is probably a side issue I suppose. But the moral from all this is...know your time limits, and adhere to them. It makes it all soo much easier.
[I did originally give a summary of this case, but it makes me grouchy so the links below will take you to:-
The full text version - http://www.bailii.org/ew/cases/EWCA/Civ/2008/624.html
Doughty Chambers' review - http://www.doughtystreet.co.uk/news/news_detail.cfm?iNewsID=262
For those who don't know, these two delightful individuals were Bear Stearns fund managers and "responsible" for the credit crunch.
The FBI then went on a little crazy session, arresting another 50 individuals, bringing the count to some 400 in three months.
Now they probably deserve what comes to them (...however I would think that, since I am having a trying time to attempt to sell my own house...) but if the US federal government decide to level "you brought the world to it's knees" charges, those lovely individuals will be ....for want of a better word - "screwed".
For those who would like to read it from the horse's mouth go to the The Times here.
On the 18th May 2008 the European Court of Human Rights handed down a decision which many commentators in the social housing sector have earmarked as “far reaching”, “landmark” and “decade altering”.
In July 1998 the Applicant and his wife became joint secure tenants of a 3-bedroomed property owned by Birmingham City Council.
By the beginning of 2001 the wife left the property with her two children because of domestic violence. She obtained a molestation order and an ouster order against the Applicant allowing her to return to the property.
However, on the 14th April 2001 the Applicant used a crowbar to force entry into the property and allegedly assaulted his wife and her friend. Once again the wife was forced to leave the property. Criminal proceedings against the Applicant saw him acquitted of the allegations when no evidence was put forward.
On 18th April 2001, Mrs McCann made an application to be re-housed on grounds of domestic violence. On 8th August 2001 she returned the keys with an attached note giving up the tenancy. From that point on the Local Authority identified the property as uninhabited.
The Applicant returned to the Property in November 2001.
The relationship between the Applicant and his wife had improved by this time, and she agreed to support him in his application for a mutual exchange of accommodation with another local authority tenant.
The application was dated 4th January 2002 and completed at the Local Authority’s housing office. At the same time, a housing officer realised that the property was not empty, visited Mrs McCann and asked her to ‘close’ her tenancy by signing a notice to quit, which she did.
A week later Mrs McCann wrote to the Local Authority seeking to withdraw her Notice to Quit. Subsequently the County Court judge who heard the original claim for possession found that Mrs McCann had not been advised of the effects of her signing the notice to quit – particularly that it would remove the Applicant’s right to live in the property or exchange it for another.
The Applicant was also informed on 11th June 2002, by the Allocations Officer Review Panel, that in accordance with their domestic violence policy the Applicant would not be granted the right to accede to the former tenancy, nor would he be eligible for a dwelling allocated to a family, given his lack of dependants.
When possession proceedings finally begun in October 2002, the Applicant’s defence was based on the his right to respect for his home under Article 8 of the Convention, and therefore it was contrary to Article 8 to be evicted on the basis of a notice to quit. In the circumstances the judge held that the Local Authority had not acted within the requirements of Article 8(2), and dismissed the claim for possession. Birmingham City Council appealed to the Court of Appeal.
The Court of Appeal delayed their judgment pending the House of Lords decision in Qazi v. London Borough of Harrow, but finally decided that the notice to quit was effective, and therefore the tenancy had been ended.
The Applicant also applied for the judicial review of the Local Authority’s decision of 4th January 2002 to visit his wife and gain a notice to quit from her, and the decision to issue possession proceedings subsequently. The application was refused on 23rd September 2004.
On 22nd March 2005 the Applicant was evicted from the property.
The Applicant then lodged his case with the European Court of Human Rights.
In summary the ECHR decided:
The property continued to be the Applicant’s home within the meaning of Article 8(1) of the Convention, despite his wife’s common law notice to quit. Even though under UK domestic law a notice to quit extinguishes the joint tenancy, the Court agreed that it was “his home” as a question of fact.
The effect of the notice to quit and the issuing of the possession proceedings was to interfere with the Applicant’s right to respect for his home.
Although the interference was in accordance with the law, pursuing the legitimate aim of protecting the rights and freedoms of others to regain possession and apply the statutory scheme for housing provision properly, the question was whether this interference was proportionate to the aim pursued, and thus “necessary in a democratic society”.
In so finding this the Court said, “The loss of one’s home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right of occupation has come to an end” [paragraph 50].
If the Local Authority followed the statutory scheme to evict the Applicant, for instance Ground 2A – domestic violence, then it could well be reasonable to grant the possession order. However, the Local Authority chose to bypass the statutory scheme via their request to Mrs McCann to sign a notice to quit. The authority had, seemingly, not given any consideration to the Applicant’s right to respect for his home.
The Court also found that the procedural fairness requirements in Article 8 meant that the judicial review proceedings did not give a suitable opportunity to examine the proportionality of the interference. Therefore the decisions of Kay and Qazi are not consistent with Article 8 of the Convention.
The initial starting point of any analysis of the impact of McCann is to whom does it apply? In Kay v. Lambeth Borough Council the House of Lords constituted itself as a seven judge committee rather than the standard five, and subsequently they were unanimous in their decision to limit their consideration to cases where the landlord was a public authority.
Under the Human Rights Act 1998 section 6(3(b)) a “public authority includes any person certain of whose functions are functions of a public nature”, and, section 6(5) “in relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private”. Overall this is particularly non-specific and, unlike legislation including the Freedom of Information Act and the Race Relations Act, there is no list of “public authorities” attached. Given recent case law it must be said that Housing Associations and Registered Social Landlords are not public authorities, within the context of the Human Rights Act (although for some LSVT organisations this is still arguable). Although the Housing Corporation classes RSLs as public authorities for the purpose of VAT and EU/public procurement law, just to muddy the issue.
On this basis it is arguable whether there is a ‘landmark’ impact on the processes that RSLs and HAs follow to evict tenants. For example, if the McCann scenario replicated at an RSL, proportionality would not be required. The Human Rights Act does not place a duty on private landlords to behave proportionally.
Had the ECHR wanted their decision to go beyond the scope of Local Authorities with housing functions, to RSLs and HAs, they would have made it explicit in their judgment. After all, the fact that judicial review is not applicable to the decisions of private landlords or RSLs could have been mentioned by the ECHR had they been applying the principles of the judgment generally across the whole sector.
The only way that McCann could be extended beyond public authorities would be where the courts (as public bodies in their own right) take it upon themselves to consider proportionality as part of their deliberation on whether to grant a possession order. However, McCann focused on the proportionality of the Local Authority, not the courts. It will be interesting to see how the courts respond to this issue.
The ‘procedural defect’ in McCann, where the Local Authority by securing the signed notice to quit managed to sidestep the provisions of the Housing Act 1985, relates to the Local Authority’s proportionality. Once again it is arguable that this can not be transposed on to an RSL or a private landlord.
Public authorities now have a positive obligation to consider Article 8(2) of the Convention before issuing possession proceedings. There also exists the problem that where an arguable Article 8(2) defence is raised, the County Court is now obliged to consider it on its merits. But it is arguable (and hoped) that this is limited to possession cases issued by local authorities only.
The worst case scenario for private landlords or RSLs will be if at some later stage the UK legal system sees fit to include them in the “public body” bracket in direct opposition to the decision in YL v. Birmingham. The case of Susan Weaver v London & Quadrant Housing Trust will push this issue forward soon, as L&Q are fighting an application for judicial review – with the applicant questioning the lawfulness of the Ground 8 possession and seeking to have the housing association classed as a public body.
Doherty v. Birmingham City Council will be decided by the House of Lords soon, and that may well give the Lords the opportunity to clear any problems that the ECHR has created via McCann.
Honestly I don't really see the earth shaking impact that McCann is said to have made. There is quite a bit of case law in the pipe line and some of it will give some reassurance...wont it?