Protecting the Vulnerable by 8XTo754

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									 Social Law Housing Association - Housing Law Update


District Judge Chris Lethem – Tunbridge Wells County Court
            Social Law Housing Association – Housing Law Update.



                                     Protecting the Vulnerable


Mayor and Burgesses of the London Borough of Lewisham v Malcolm [2008] UKHL 43

The Law

      What is disability?

      Section 1 of the Act defines what is meant by "disability" and "discrimination":

             (1) Subject to the provisions of Schedule 1, a person has a disability for the purposes
             of this Act if he has a physical or mental impairment which has a substantial and
             long-term adverse effect on his ability to carry out normal day to day activities

             (2) In this Act 'disabled person' means a person who has a disability"



       Unlawfulness and the Social Landlord

       Section 22(3) provides that -

             "It is unlawful for a person managing any premises to discriminate against a disabled
             person occupying those premises –
             …………..

             (c) by evicting the disabled person, or subjecting him to any other detriment."



       Discrimination

       Section 24(1) defines "discrimination" -

             "For the purposes of section 22, a person ('A') discriminates against a disabled
             person if -

             (a) for a reason which relates to the disabled person's disability, he treats him less
             favourably than he treats or would treat others to whom that reason does not or
             would not apply; and

             (b) he cannot show that the treatment is justified."


       Justification


       Section 24(2) says that, for the purposes of the section, treatment is justified if, and only if -




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              "(a) in A's opinion one or more of the conditions mentioned in subsection (3) are
              satisfied; and

              (b) it is reasonable, in all the circumstances of the case, for him to hold that opinion"

              24(3)states

                     (a) in any case, the treatment is necessary in order not to endanger the
                     health or safety of any person (which may include that of the disabled
                     person) ...

       At the time of these cases the relevant codes stated:
              'The general approach to justification

              7.8 The test of justification is twofold; what did the service provider believe? (a
              subjective test) and was that belief reasonably held? (an objective test). A
              service provider does not have to be an expert on disability, but it should take
              into account all the circumstances, including any information which is
              available, any advice which it would be reasonable to seek, and the opinion of
              the disabled person ... The lawfulness of what a service provider does or fails
              to do will be judged by what it knew (or could reasonably have known), what it
              did and why it did it at the time of the alleged discriminatory act.

              7.9 In some instances, it will not be clear whether any of the justifications
              apply. It may be shown subsequently that a service provider was mistaken in its
              opinion in a particular case. Coming to an incorrect conclusion does not
              necessarily mean that the service provider has discriminated unlawfully
              against a disabled person. In such cases, a service provider may be able to
              justify less favourable treatment or failure to make reasonable adjustments if it
              can show that it was reasonable, in all the circumstances of the case, for it to
              hold that opinion at the time.'


NOTE – I have set out the law as it was at the time of the cases – there has now been a 2003
revision to the Code of Practice: Rights of Access: Goods, Facilities, Services and Premises.

It is also worth noting that the Disability Discrimination Act 2005, s 13. has inserted s.24A
to 24M concerned with let premises and effective from 4th December 2006

This has not altered the law as set out above other than to expand it significantly.




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Some History

      North Devon Homes Ltd v Brazier [2003] EWHC 574 (QB) (2003) H.L.R. 905 –

      D experienced paranoid psychosis and was a nuisance to her neighbours in breach of the
      tenancy agreement. The Social Landlord moved her to new accommodation but her
      behaviour continued.   Social Landlord served a NOSP and the Recorder granted
      possession.

      HELD - On appeal – The Recorder was correct to find that the DDA applied and had its
      own code for justified eviction which required a higher threshold. Against that background,
      the court was accordingly being invited to exercise its discretion by way of promotion of
      unlawful conduct. Furthermore, the limitations on interference with the defendant's right to
      respect for her home were set out in the 1995 Act and it was appropriate for the powers
      accorded by the 1988 Act to be read compatibly with s 3 of the Human Rights Act 1998.

      Note that the case did not say that one cannot evict, one simply had to meet the higher test
      under the DDA to show that the action was justified within s.24(2) & (3)- The court said “The
      Act does not bar evictions: only those which are not justified by the specific circumstances
      set out in Section 24”.


      Manchester City Council v Romano (Disability Rights Commission intervening) and
      Manchester City Council v Samari. [2004] EWCA Civ 834, [2005] 1 WLR 2775 [2004] All
      ER (D) 349

      Two tenants of a Local Authority were the subject of possession proceedings under ground
      2 Housing ACT 1985 (the LA equivalent ground namely - that the tenant or a person
      residing in or visiting the dwelling house had been guilty of conduct causing or likely to
      cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a
      lawful activity in the locality and where it was reasonable to make the order). There was a
      nexus between the defendant’s mental state and the nuisance. Possession orders were
      made.

      HELD - On appeal – The DDA had to be read compatibly with the European Convention on
      Human Rights. Thus the court had to ask

                  whether the landlord held the opinion that it was necessary to serve a notice
                   seeking possession and/or to bring possession proceedings in order that the
                   health of an identified person or persons would not be put at risk.

                  whether that opinion was objectively justified, bearing in mind that health was
                   a state of complete physical, mental and social well-being and not merely the
                   absence of disease and infirmity.

      Appeal dismissed

      Guidance to the judges suggests that they ask the following questions in dealing with DDA
      and possession cases :

                 (a) Has the Claimant proved the case evidentially – and evidentially are the
                     grounds proved the result of the disability?
                 (b) Is tenant disabled within the meaning of the Act?



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           (c) Viewed objectively are the Social Landlord’s actions discriminatory?
           (d) Subjectively whether the HA felt that the initiation of proceedings was justified
               within the meaning in the act?
           (e) Whether objectively they were justified?


Knowsley Housing Trust v Anita McMullen [2006] EWCA Civ 539, [2006] All ER (D) 108
(May)

Tenant’s son was causing a nuisance and was the subject of an ASBO. Tenant had an IQ
of 63 and was unable discipline or control the actions of her son, her anti social behaviour
was slight and historic. The court made an order for possession suspended on condition
that there were no further actions of nuisance by the tenant or her son.

HELD - On appeal – The Tenant was disabled but her failure to control her son was not
due to her disability.

If this was wrong - a suspended order for possession, if it was otherwise appropriate, could
have been said to be "necessary" to protect the "health [and] safety" of people living in the
area.

Note – I have included this for two reasons. Firstly it is an example of the court simply
finding that the DDA was not engaged on evidential grounds. Of more interest, the court, on
an obiter basis, seems to have taken a more relaxed view of “health and safety of other
residents” than the court did in Brazier.


S v Floyd [2008] EWCA Civ 201, [2008] All ER (D) 264 (Mar)

Private Landlord brought a possession case for arrears of rent on the basis of grounds 8, 10
and 11 (There were 132 weeks rent owing). The District Judge had before her a report from
a cognitive behavioural psychotherapist stating that the defendant's presentation could best
be viewed as coming under the general heading of obsessive compulsive personality
disorder. However, the report did not assert that the defendant lacked capacity or that he
lacked capacity at the time of hearing before the district judge. He refused to adjourn on the
basis that the tenant had admitted more than 8 weeks arrears of rent and thus the
mandatory ground was engaged.

HELD - On appeal – The defendant had never suggested that his disability was a reason
for the landlord's possession proceedings or that his non-payment of the rent related to a
disability from which he suffered. Thus the DJ was correct to proceed as she did.

The court considered at some length whether the DDA could provide a defence to an
otherwise unassailable case. Mummery LJ went to some length to distinguish a tenant who
happened to be disabled and was being treated as any other tenant in the same position
would have been:

       “The legislation is not about disability per se: it is about unlawful acts of
       discrimination on a prohibited ground, i.e., unjustified less favourable treatment for a
       reason which relates to the disabled person's disability"




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This is quite important as one has to decide who one is comparing the disabled person with,
where the reason for the default under the lease is related to the disability. This theme is
picked up in Malcolm.

Note – another cases specific on its facts but an example of a case going the other way and
the Court of Appeal distinguishing Romano. It is suggested that it will be more difficult for
the tenant to create the necessary nexus between the disability and the non payment of
rent. The extract cited about the comparators did not sit comfortably with some other
discrimination cases law and gave the HoL the opportunity to change the law on
comparators – see below.




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London Borough of Lewisham v Malcolm [2008] UKHL 43

      The Facts.
      Malcolm had been diagnosed with schizophrenia. His condition was stabilised by
      medication. He had become a secure tenant of the local authority. He had exercised the
      right to buy his flat but before completion he had sublet his flat. The local authority had not
      consented to that subletting and accordingly Malcolm thereupon ceased to be a secure
      tenant by reason of the Housing Act 1985 s.93. It appeared that Malcolm had not been
      taking his medication at the time of the sublet. The local authority then discovered that
      Malcolm had sublet his flat and gave notice to quit and issued proceedings for possession.
      There was no evidence that the local authority was aware that Malcolm suffered from
      schizophrenia. The possession order was granted and the judge concluded that the
      provisions of the Disability Discrimination Act 1995 preventing discrimination by eviction did
      not apply because Malcolm had lost his security of tenure so that the court had no discretion
      to withhold a possession order, that Malcolm was not a disabled person and that his actions
      had not been caused by his disability. She further found that the causal relationship
      between the schizophrenia and the subletting was insufficiently established The judge
      further inclined to the view that there would be no discrimination by the local authority
      against Malcolm unless the local authority knew of his disability. She therefore made an
      order for possession.

      The First appeal
      Malcolm appealed to the Court of Appeal who held:

      (1)    On the evidence Malcolm's mental impairment did have a substantial, meaning more
             than minor or trivial, effect on his ability to carry out normal day-to-day activities and
             accordingly he was disabled within s.1 of the DDA 1995 Act, Goodwin v Patent
             Office [1999] ICR 302 approved.

      (2)    The local authority's reason for starting possession proceedings, namely the
             subletting, was 'related' to M's disability for the purposes of s.24(1)(a) of the 1995
             Act. The requirement that a reason related to a person's disability implied an
             appropriate causal relationship between the subletting and the disability. M did not
             have to establish that the disability was the actual cause of the subletting. The
             necessary causal relationship did exist in the instant case, Richmond Court
             (Swansea) Ltd v Williams (2006) EWCA Civ 1719, (2007) HLR 22 applied. In
             bringing proceedings for possession the local authority unlawfully discriminated
             against Malcolm, Clark v TDG Ltd (t/a Novacold Ltd) (1999) 2 All ER 977 applied.

      (3)    If the obtaining of a possession order would discriminate against a disabled person it
             would not be lawful to make the order because s.22(3) of the 1995 Act provided that
             such discriminatory treatment was unlawful. There was no exception for the case
             where the tenant had lost security of tenure under s.93 of the 1985 Act, Manchester
             City Council v Romano (2004) EWCA Civ 834, (2005) 1 WLR 2775 considered.

      (4)    Section 24 of the 1995 Act did not require the alleged discriminator to be aware of
             the claimant's disability and such lack of awareness was not a defence to a
             discrimination claim. It followed that even service of the notice to quit constituted
             unlawful discrimination.

             Appeal allowed




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Note – The issues touch on some novel points. What happens if the ground is mandatory or
       the tenant has lost protection? Is it a requirement that the Social Landlord knew of
       the disability. The court is taking a strong line. Perhaps HHJ Gayle Hallon was a
       little robust in her original decision but the court is now taking a fairly inflexible line.


The Second Appeal
The HoL held :

(1)    The act of discrimination has to be judged at the time that the act takes place (the
       unlawful subletting), not trial (Per Lord Neuberger).

(2)    Malcolm was disabled within the meaning of the act – the CoA ruling that Malcolm's
       mental impairment did have a substantial, meaning more than minor or trivial, effect
       on his ability to carry out normal day-to-day activities and accordingly he was
       disabled within s.1 of the DDA 1995 Act, Goodwin v Patent Office [1999] ICR 302
       was approved.

(3)    Although the act of discrimination complained of in this case was the possession
       action, it is artificial to break the possession process down into its constituent parts
       and the act of serving a NOSP could be discriminatory. (per Lord Bingham and
       Baroness Hale)

(4)    The language of the act is deliberately vaguer than usual causation language. The
       term is ‘relates to’ (see above) Lord Bingham said :

               “I take the expression to denote some connection, not necessarily close,
               between the reason and the disability. Judged by this yardstick, most of the
               decided cases and frequently-discussed examples fall into place”

(5)    The local authority were not aware Malcolm suffered from schizophrenia and his
       schizophrenia was not in its mind when deciding to serve notice to quit and take
       possession proceedings against him. Malcolm to show that his mental condition
       played some motivating part in the local authority's decision to terminate his tenancy
       and recover possession even though objectively viewed there may have been a
       causal connection unknown to the local authority between the sublet and Malcolm's
       disability. That he had not done. The local authority's reason was that Malcolm had
       sublet and moved out – it was a simple housing management function, Taylor v OCS
       Group Ltd (2006) EWCA Civ 702, (2006) ICR 1602 applied.

               if the physical or mental condition that constitutes the disability has played no
               motivating part in the decision of the alleged discriminator to inflict on the
               disabled person the treatment complained of, the alleged discriminator's
               reason for that treatment cannot, for section 24(1)(a) purposes, relate to the
               disability.

       Per Lord Scott. – Note that Baroness Hale takes a slightly wider approach saying
       that there may be discrimination where the Social Landlord knew or ought
       reasonably to have known of the disability.

(6)    (Baroness Hale dissenting) Parliament intended that the comparison contained in
       s.24(1)(a) (less favourable treatment) be a meaningful comparison in order to



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      distinguish between treatment that was discriminatory and treatment that was not. If
      a tenant had been given notice terminating his tenancy because he had sublet in
      breach of the tenancy agreement, there was no point in making the lawfulness of the
      action taken by his landlord dependant on whether notice to quit would have been
      served on tenants who had not sublet. The proper comparator would be a secure
      tenant with no mental illness who had sublet. Such a tenant would have received no
      different treatment from the local authority than Malcolm received. There was no less
      favourable treatment meted out to Malcolm and therefore no discrimination, Clark v
      TDG Ltd (t/a Novacold Ltd) (1999) 2 All ER 977 CA (Civ Div) overruled and S v Floyd
      (2008) EWCA Civ 201, (2008) NPC 34 considered.

(7)   A mandatory ground might be defeated on DDA grounds if it amounted to and act of
      discrimination, (per Baroness Hale and Lord Bingham who said) :

             “I would not, however, accede to Lewisham's contention, accepted by the
             judge but rejected by the Court of Appeal, that a claim for possession to which
             there is no defence under housing legislation can never be defeated even
             where the claim is shown to be discriminatory. Parliament has enacted that
             discriminatory acts proscribed by the 1995 Act are unlawful. The courts
             cannot be required to give legal effect to acts proscribed as unlawful. But I
             would not expect such a defence, in this field, to be made out very often.”

(8)   Per Baroness Hale - It might be useful to pose the following questions in most cases:

           What is the treatment complained of?
           What was the reason for the treatment?
           Did that reason relate to the disabled person's disability? And
           Was it less favourable than the treatment of others to whom that reason did
            not apply?




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Practice Points – The DDA post Malcolm:

      The DDA may be engaged in all cases where a landlord seeks possession, whether it is for
      arrears of rent or nuisance or some other ground (Brazier & S v Floyd). The legal adviser
      should be routinely considering whether there is the possibility of a DDA defence being run.
      Similarly the Social Landlord workers must be identifying the files where there is a possibility
      of the DDA (see further below in relation to compliance with the protocol).

      The bar for the DDA to be engaged is low – “substantial, means more than minor or trivial,
      effect on his ability to carry out normal day-to-day activities” (Goodwin v Patent Office [1999]
      ICR 302)

      Consideration has to be given to the DDA even where the ground for possession is
      mandatory or the tenant has lost the protection of the Housing Act 1988. If the service of
      the NOSP represents unlawful discrimination then the court might refuse to make an order.
      To hold otherwise would be to invite the court to sanction an act of unlawful discrimination.
      In this respect it is significant that the court saw the whole possession process as a single
      one and thus it can be tainted at a pre issue stage. (Malcolm)

      Whether the DDA is engaged may turn on the state of knowledge of the Social Landlord. In
      Malcolm the LB Lewisham did not know of his medical issues. I would advise caution.
      Firstly I am sure that Baroness Hale’s wider formulation: “it is necessary to show that the
      alleged discriminator either knew or ought to have known of the disability” is the better one.
      Will the law push the boundary slightly further to include situations were it was in the
      reasonable contemplation that persons with a disability might be affected by an action or
      policy? – I think so. It seems to me that advisers should be asking three questions of the
      Social Landlord. Did you know of the medical condition? Ought you to have known of the
      medical condition, was it in your reasonable contemplation that persons with a disability
      might be affected (e.g. Sheltered Housing).

      If the DDA is engaged the Social Landlord will be guilty of discrimination unless their action
      is justified. (Romano)

      To be justified the Social Landlord must show that they subjectively held the opinion that it
      was necessary to serve a notice seeking possession and/or to bring possession
      proceedings in order that the health of an identified person or persons would not be put at
      risk. (Romano) Thus advisers and housing officers must be in a position to show that they
      considered and held the view that the actions were justified within s. 24(3). Training and
      procedures will materially assist the Social Landlord to minute the important information and
      decisions.

      To be justified the Social Landlord must show that they were objectively justified to hold
      this view, bearing in mind that health was a state of complete physical, mental and social
      well-being and not merely the absence of disease and infirmity. (Romano). Again this may
      well turn on the quality of the information recorded by the Social Landlord.

      Advisers might find it useful to pose the following questions in most cases:

                  What is the treatment complained of?
                  What was the reason for the treatment?
                  Did that reason relate to the disabled person's disability? And


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            Was it less favourable than the treatment of others to whom that reason did
             not apply?

There has to be some causal link between the disability and the ground sought to engage
the DDA. (McMullen & S v Floyd) However the link need not be as close as in other torts
and is vaguer. (Malcolm). The seismic shift in Malcolm was to take a narrower definition of
the comparator which will assist Social Landlords.

Remember the above note about the amendments to the s.24 and the Code.




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Protocol for Possession Claims based on Rent Arrears

See Appendix 1 for the protocol – it does not start at paragraph 12 !

Really the protocol is designed to tackle the issue of rent arrears before they become a pressing
problem and court action is required. It is designed to ensure that the tenant is contacted as soon a
possible, that any vulnerability they might have is catered for and that they have clear information
about their arrears and the right to benefit (if any). Seen in this light the commencement of any
action for rent arrears marks the failure of the protocol to divert the case away from the courts.

Remember that it is the duty of the Social Landlord to offer to assist the tenant in any claim that the
tenant may have for arrears of rent. (paragraph 7).

The JSB has recently altered its housing law modules to increase the profile of the protocol and
ensure that both salaried judiciary and deputy district judges have the protocol very much in mind.
Social Landlords can thus expect an examination as to whether the protocol has been applied.

The protocol really comes in three phases:

                    From Arrears commencing until the service of the NOSP.
                    NOSP to Commencement of proceedings.
                    Post Commencement.

Pre-NOSP.

Key points arising from Paragraphs 1 -18

       Take action as soon as the tenant falls into arrears and try to agree an affordable scheme
       for paying the arrears back

       Provide quarterly rent statements and rent statements complying with paragraph 3 upon
       request

       Paragraph 4 of the protocol is particularly important.       For a long time judges have
       suspected that mental health issues and vulnerability have been at the heart of many rent
       arrear cases. We now rely on the Social Landlord to flag the issue up.

       4       (a) If the landlord is aware that the tenant has difficulty in reading or understanding
               information given, the landlord should take reasonable steps to ensure that the
               tenant understands any information given. The landlord should be able to
               demonstrate that reasonable steps have been taken to ensure that the information
               has been appropriately communicated in ways that the tenant can understand.

       Does the Social Landlord flag files for those who have had breakdowns and may not open
       their post, those with literacy issues, not just those with general learning difficulties but those
       with specific learning difficulties (Dyslexia)? Do accurately do they log home visits, how do
       they inform the tenant of a home visit?

       4       (b) If the landlord is aware that the tenant is under 18 or is particularly vulnerable, the
               landlord should consider at an early stage-



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             (i) whether or not the tenant has the mental capacity to defend possession
             proceedings and, if not, make an application for the appointment of a litigation friend
             in accordance with CPR 21;

             (ii) whether or not any issues arise under Disability Discrimination Act 1995; and

      Try to avoid litigation if you have concerns about those with mental health issues where they
      may be protected parties within CPR 21. The moment that a judge has credible evidence
      that the defendant may be a protected party they are under a duty to hold an enquiry
      Masterman Lister v Brutton and Co and Jewell and Home Countries Dairies [2002] EWCA
      Civ 1889. This probably involves staying the action while medical reports are obtained and
      a hearing decides if the party is a protected party. If they are then a Litigation Friend will
      have to be appointed, a member of the family or even the Official Solicitor. Public funding
      will then be applied for and solicitors then instructed. Then one may find the dreaded DDA
      defence!

      Beware of cases where the tenant may be eligible for Housing Benefit and has provided the
      information required. In such cases it may be that the possession claim should not even be
      started (see paragraph 7 as amended). A similar situation arises where the tenant keeps to
      an agreement to pay arrears post service of the NOSP.(Paragraph 10) or a failure to
      consider Alternative Dispute Resolution, (Paragraph 11) Providing the ground id non
      mandatory, it is difficult to see how a judge can be criticised for striking out an action that
      should not have been begun. Does the Social Landlord advise tenants to seek help from
      the CA or other debt advice agencies? (Paragraph 8). What thought do they give to ADR?
      (Paragraph 11) What would say if the judge asked the question?


Post NOSP

      Remember the paragraph 9 duty post service of the NOSP to make “reasonable attempts to
      contact the tenant, to discuss the amount of the arrears, the cause of the arrears, repayment
      of the arrears and the housing benefit position”.

      If the tenant complies with any agreement made at this time then the Landlord should agree
      to postpone the court proceedings. (Paragraph 10)


Post Issue

Requirements :

      Housing Benefit

           Court should have evidence as to whether it is likely that the tenant will be eligible for
            Housing Benefit,
           whether the tenant has made a claim and
           what the status of that claim is.


      Capacity and Disability

           Court should have evidence as to whether the Social Landlord considers that the
            tenant, is vulnerable by reason of age (Under 18) or


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    whether there is any history of mental issues such as may effect their ability to
     understand or respond to the documents sent in accordance with the protocol.
    Court should also receive information about whether there are any Disability
     Discrimination Act issues in the case.

Evidence for the hearing.
   The court will need to know that paragraphs 12 &13 of the protocol has been complied
   with namely:

    That the tenant has been provided with an up to date rent statement not less than 10
     days before the hearing.
    That the Social Landlord has disclosed to the tenant what is known of the tenant’s
     Housing Benefit situation 10 days before.
    That the tenant has been informed of the date and time of the hearing and the order
     applied for.
    That the tenant has been advised to attend the hearing as the tenant’s home is at
     risk.
    That the tenant has been advised that if they comply with an agreement made after
     the issue of proceedings, then the Social Landlord will agree to postpone the
     proceedings.
    At TWCC, we will be prepared to receive evidence on these five matters orally
     providing that it is supported by documentary proof of compliance




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Practice Points – The protocol:

       Social landlords have to develop policies and processes which are protocol complaint.
       Some are very good, some are very poor. They key is to sit down and draft letters that are
       protocol complaint and often based on the protocol wording.

       Second is the issue of training, Housing Officers have to understand the philosophy of the
       protocol. It is no good if (as happened to me in the last two months) where perfect protocol
       procedure was interspersed with some pretty threatening correspondence which
       undermined the protocol.

       Social Landlords are very poor at complying with paragraph 13(c) – giving a tenant who has
       breached an agreement “clear time limits within which to comply”.

       An interesting issue arises as to what a court might do if they are faced with a mandatory
       ground for possession based on rent arrears (e.g ground 8 for a RSL) and a significant
       breach of the protocol.

       Applying the logic of Malcolm and other DDA cases one might think that a failure to
       implement the protocol which had a link to the arrears (say by a failure to help the tenant
       with a benefits claim) would lead to the court striking the claim out as to hold otherwise
       would be to support a breach of the protocol and thus undermine it, rendering it nugatory in
       such cases. If the tenant can defeat a mandatory ground using a DDA defence surely they
       can defeat a bad breach of the protocol in mandatory cases?

       Not so – Paragraph 14 specifically states that the court can adjourn, strike out or dismiss
       claims for failure to comply with the protocol, in cases other than those brought solely on
       mandatory grounds.

       This raises a number of intriguing possibilities. What happens if the claim is brought under
       mandatory and discretionary grounds? Could the court refuse permission to amend to
       delete the discretionary grounds and then say that they were striking out the whole claim
       including the mandatory ground on the basis that the claim was not brought solely on
       mandatory grounds? Certainly the use of the word ‘solely’ would suggest a court could do
       this, though it would seem to run counter to the apparent thrust of the paragraph
       distinguishing mandatory and discretionary grounds.

       Even more intriguing is the position of the tenant who is in arrears of rent because they have
       a disability within the meaning of the DDA? It would seem that they cannot defeat the claim
       based on mandatory rounds on the basis of the failure to comply with the protocol but they
       can use that to evidentially provide compelling weight to the DDA defence. And all this is
       leaving aside whether the tenant can raise such a defence given the Malcolm decision on
       comparators!




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Miscellany of Other Cases


Costs

         Waltham Forest LBC v Maloba : [2007] EWCA Civ 1281, [2008] 2 All ER 701, [2008]


         Facts – A homelessness appeal. The Respondent was born in Uganda and came to the UK
         in 1989 acquiring British citizenship in 1997. He married and initially his wife and family
         occupied an annex to the family home in Kampala. They joined him in the UK and lived in
         rented accommodation. They were faced with eviction and presented to the council as
         homeless. The council found that they were not homeless in that the property in Kampala
         was available and it was reasonable for them to occupy it. The Respondent sought a review
         of that decision, stating that he lived in England and not Uganda. The reviewing officer found
         that that house in Kampala was available and it was reasonable for the claimant and his
         family to stay there. The respondent appealed successfully to the Circuit Judge who found
         that the decision that the Respondent and his family should return to Uganda was not one
         which a reasonable council could have arrived at. He ordered the council to pay two thirds
         of the Respondent’s costs.

         The LA appealed both decisions and the Law Society were given permission to intervene in
         the costs appeal.

         On the costs aspect the LA said that where the LA appealed, there should be a general
         presumption in favour of a stay on the costs orders until the outcome of the appeal was
         known. To hold otherwise might deprive them of the right to recover costs against an
         assisted party under a Lockley order.1

         Held –
         (i)          There should not be a practice on appeals under s 204 of the Act that any order
                      for costs made against the local housing authority should be subject to a stay until
                      after the re-determination of the homelessness application and any subsequent
                      appeal unless there was a good reason for refusing the stay.

         (ii)         The court's discretion was, however, wide enough to enable it to grant such a
                      stay if it considered it just to do so.

         (iii)        The potential implication of such a rule of practice could be far-reaching. It would
                      be easily arguable that the same principle should generally apply to any statutory
                      appeal or judicial review in which a publicly funded litigant succeeded in having a
                      decision quashed and the matter remitted to the original decision maker. The
                      court would be cautious about introducing a general practice with potential wider
                      consequences which it was unable properly to assess.

         (iv)         In the instant case, there was no ground for criticising the way in which the judge
                      had exercised his discretion in relation to costs.




1
  See Lockley v National Blood Transfusion Service [1992] 2 All ER 589, [1992] 1 WLR 492 – the order essentially permits
the successful non assisted party to set off costs orders in their favour against the liability in costs to the assisted party
and permits recovery where it would other wise be the subject of assessment under the Access to Justice Act.



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Practice Points -

       One can have sympathy for the LA. In almost all cases of this nature the represented party has the
       benefit of public funding. Almost by definition the applicant for housing will not be good for the costs of
       the appeal. Thus the LA are on a hiding to nothing. In normal circumstances they might be able to
       claw back some of the costs of successful appeal by way of a Lockley order. Without the stay they
       potentially will lose this advantage.

       The Law Society argued that if such a stay were imposed even fewer firms would do this sort of work.

       It was really the implications of the application that troubled the court. How far could it extend? What
       difference is there where there are applications for judicial review. This would not be confined to
       housing appeals, what about other applications involving the LA. Methinks the CoA wanted to sit firmly
       on the lid of this Pandora’s box.

       Having said this the CoA have left the door firmly open for applications in individual cases and I would
       have thought is essential that those representing local authorities will make the application to try to
       protect their client’s position.

       In reality I do find myself wondering how important all this is. My experience as a costs judge suggests
       that there are normally huge delays in the assessment of such costs and the cynic in me induces me to
       wonder if the LA will simply spin out the assessment of costs until the substantive appeal is heard.




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Lee v Birmingham City Council. [2008] EWCA Civ 891


Facts – Lee was a tenant of Birmingham City Council. Through solicitors she sent a letter
to the LA invoking the Pre-action Protocol for Housing Disrepair Cases. It did not specify the
amount of any consequential damages claim but mentioned various complaints attributed to
the disrepair. These were principally attended to within a month and amounted to about
£265.

Negotiations went on in relation to consequential loss and costs. The sticking point was
costs. Lee issued in the fast track claiming damages in the bracket of £1,000 to £5,000. It
was agreed that the costs were small claim track costs as they were less than £5,000 and
there was no claim for specific performance. However the Claimant sought an order for fast
track costs until the time when the works were done. It was argued that unless such an
order was routinely made then the tenant’s legal adviser would run the risk of being unable
to commence proceedings during the protocol period and would be unremunerated for their
work.

Held –

(i)      there was insufficient evidence to decide whether the order was justified under the
         overriding objective BUT.

(ii)     The key question was whether in order to make the CPR and the protocol operate in
         the manner that must have been intended, some order for pre-allocation costs was
         necessary.

(iii)    It has to be accepted that the introduction of protocols means that there is a potential
         liability for costs before the issue of proceedings. Indeed the whole rationale of the
         protocol was to lead to settlement prior to the need to issue. That must mean that
         there is a potential liability to pre-action costs.

(iv)     Its object was very clearly that, provided the claim was justified, it should be settled
         on terms that included the payment of the tenant's reasonable costs: and costs
         calculated according to the track to which the claim would fall if made by way of
         litigation. There was no other way to read the combination of para.3.7 and guidance
         note 4.10 of the protocol. Without some order as to the early-incurred costs, it would
         be open to a landlord who was liable for want of repairs to adopt a deliberate policy
         of omitting to repair until the protocol letter was received, and then repairing without
         admitting liability so as to ensure that any subsequent court claim fell to the small
         claims track.

(v)      Such an order was necessary if the protocol was not to operate as a means of
         preventing recovery of reasonably incurred legal costs. A tenant with a justifiable
         claim for disrepair would need legal assistance in advancing it. He had to initiate it in
         accordance with the protocol. If the effect of the claim was to get the work done, then
         providing that the landlord was liable for the disrepair the tenant should recover the
         reasonable costs of achieving that result.

(vi)     Pre-allocation costs orders were, by r.44.11, unaffected by allocation. The court's
         powers were unrestricted in relation to pre-allocation costs. It was perfectly proper to
         make an order in relation to them under r.44.9(2) if to do so was necessary to ensure




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                  that the protocol did not operate to prevent recovery of costs reasonably incurred in
                  achieving the repair.

         Practice Points -
             The first of a trio of Birmingham’s activity in the housing field. There is a lot at stake in this case in that
                one cannot fault the way in Birmingham acted in the case. They get the protocol letter and within a
                month the work is done at relatively minimal cost. So why should they have to pay costs? And if they
                do have to pay costs how many other cases will there be in the wings?

              The answer is because someone has to pay the lawyers to activate the protocol. They are not
               registered charities (…yet) and the tenants need legal assistance in order to properly activate the
               protocol. It is really an access to justice thing.

              To a costs lawyer there is very little of surprise in the case. We all know that the liability as to costs
               arises before the issue of proceedings. Indeed I would argue that that has always been the case2 thus
               the fact that the Defendant sought the costs is no surprise. The fact that the costs up to the completion
               of the works fall within the fast track are because of the possibility of there being an application for
               specific performance. Indeed I would go further. Depending on the case, the complexity of the facts
               might lead me to allocate a case otherwise destined for the Small Claims Track into the Fast Track
               anyway. It is not all about the value of the claim.

              Really it comes down to this, - All else being equal, if the LA have let the disrepair get into a state where
               the lawyers are involved, the over riding objective requires that they will have to pay the costs at fast
               track rates until the work is done.

              See also Alker v Collingwood (below) on the extent of the duty to repair.




2
  In the pre CPR case In re Gibson's Settlement Trusts; Mellors and another v. Gibson and others [1976 G. No. 4166] -
[1981] Ch. 179 Sir Robert Megarry said
      (1) On an order for taxation of costs, costs that otherwise would be recoverable are not to be disallowed by reason
          only that they were incurred before action brought. This is carried by the Pêcheries case, where the order was for
          party and party costs, and also by the Frankenburg case, where the costs were on the basis which was then
          known as the solicitor and client basis, but is now called the common fund basis
Quaint language but the principle is clear!



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s.222 Local Government Act 1972

      Birmingham City Council v Shafi v Ellis (unreported) HHJ MacDuff - 10.01.08

      Facts – A decision of HHJ MacDuff (as he then was). It was alleged that the Defendants
      were members of criminal gangs operating in Birmingham. The Claimants sought ambitious
      orders namely

      (i)      prohibiting the Defendants from being in any public place in the company of a
               number of named persons (all said to be members of the same gang) within the city;
               (“the non association clause”)

      (ii)     excluding the Defendants at all times from defined areas of the city (“the exclusion
               clause”); and

      (iii)    forbidding the Defendants from assaulting harassing or intimidating any person
               lawfully present within the city (“the non molestation clause”)

      these orders were the precise mirrors of ASBOs sought and obtained in other cases in the
      Magistrates Court


      Held -

      (i)      There are only two categories of case where s.222 may be used. The first is in
               support of the criminal law. The following principles apply:

               a. “that the jurisdiction is to be invoked and exercised exceptionally and with great
                  caution”
               b. that there must be “something more than mere breach of the criminal law” and
               c. that “the essential foundation for the exercise of the court’s discretion to grant an
                  injunction is…….the need to draw the inference that the defendant’s unlawful
                  operations will continue unless and until effectively restrained by the law and that
                  nothing short of an injunction will be effective to restrain them”.
               (See City of London Corporation v Bovis Construction Ltd [1992] 3 All ER 697)

      (ii)     The second category is seeking to prevent the commission of a public nuisance.


               "A public nuisance is a nuisance which is so widespread in its range or so
               indiscriminate in its effect that it would not be reasonable to expect one person to
               take proceedings on his own responsibility to put a stop to it, but that it should be
               taken on the responsibility of the community at large."

               (Per Denning LJ in Attorney General v PYA Quarries Ltd 1957] 2 QB 169


      (iii)    The Claimant was seeking to use s.222 to overcome the evidential and other hurdles
               imposed by Section 1 of the Crime and Disorder Act (as amended by the Police
               Reform Act 2002 and the Anti-Social Behaviour Act 2003) – as such this was not
               within the ambit of the application to characterise it as exceptional.




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(iv)        They should have used that route with all the safeguards that the legislation
            contains.

(v)         It was telling that the Claimant did not seek to identify the crimes that it sought to
            restrain in its category one application.

(vi)        In principle the court could make the exclusion and non association orders in support
            of a category one or two application but must do so with great care.

(vii)       That the Claimant would have to prove participation in relevant activity (crime or
            nuisance) in the past. That is the least requirement. Guilt by association was not
            enough. (obiter)

(viii)      these are matters which would require proof to the criminal standard. (obiter)

(ix)        that large elements of the remedy sought by the Council are simply too wide in their
            scope. (obiter)

(x)         Article 8 of the HRA was engaged and the Claimants had failed to show that the
            infringement was pursuant to a legitimate aim. (obiter)


Practice Points:

         An ambitious attempt by Birmingham City Council to circumvent the ASBO procedure by using s.222
          Local Government Act and thus overcome some of the safeguards in the Crime and Disorder Act.

         The first and most important point is that this decision is on appeal. The appeal has been heard and
          the decision is awaited. It is by no means assured that the CoA will uphold the approach of HHJ
          MacDuff. That appeal will govern this and Birmingham v B (see below).

         Sticking my neck out – I would be surprised if the CoA felt that the application was a legitimate attempt
          use s.222 where there was in place a recent and extensive body of legislation designed to deal with the
          precise evil that the Claimants sought to restrain. In this respect it is significant that they were seeking
          the same order as they had been seeking in the Magistrates Court.

         I think that the CoA will be concerned at the breadth of Birmingham’s ambition and whether the
          jurisdiction proposed by them was HRA compliant.

         The more interesting aspects are whether there is a third a third category of application; where the
          Claimant seeks to uphold the public interest or to comply with a duty a third category. Birmingham said
          that this existed. HHJ MacDuff found that there was no such separate category which was simply a
          species of categories one and two. The CoA may disagree and in doing so cautiously widen the ambit
          of s.222.

         It will be interesting to see what the CoA make of their previous decision in Nottingham City Council v
          Zain (A Minor) [2001] EWCA (Civ) 1242, [2002] 1 WLR 607 – reference to Birmingham v B and others
          (Below) shows that MacDuff and Coulson J came to different opinions in this respect. See below.

         Judge MacDuff has taken a fairly restrictive view of s.222 – The CoA may be cautiously more liberal,
          but probably not as liberal as Birmingham want them to be!




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Birmingham City Council v B [2008] EWHC 1224 (QB)

Facts -

An appeal from another decision of HHJ MacDuff. The Claimant sought to restrain the eight
defendants from entering the Lozells and Newtown areas of Birmingham on the grounds
that, in one way or another, they were involved in dealing Class A drugs there. Essentially,
the appellant’s claim was for an injunction to prevent a public nuisance within those areas of
its city. Following his decision in Shafi & Ellis HHJ MacDuff held that he had no jurisdiction
to grant the injunctions.

Held -

(i)        HHJ MacDuff wrongly concluded that he had no jurisdiction. Nottingham City
           Council v Zain (A Minor) [2001] EWCA (Civ) 1242, [2002] 1 WLR 607 dealt with a
           very similar case and found that there was a jurisdiction to seek the order.

(ii)       The Shafi & Ellis decision was going on appeal and it was appropriate to re-instate
           the injunctions until such time as the decision in the Shafi & Ellis appeal is handed
           down.

Practice Points -

        Again this decision will be governed by the outstanding appeal in Shafi & Ellis and the comments in
         relation to that case apply.

        Zain was a decision on a strike out application where the CoA found that the court was wrong to have
         struck out the claim and that the local authority did have the right to seek the order. That case involved
         an order preventing a known drug dealer from going onto an estate. Thus it was much closer to the
         facts of this case. The difference between HHJ MacDuff and Coulson J was that the former took the
         view that the court had not decided that there was a jurisdiction merely that there was a case to go to
         trial, Coulson J felt that the decision went beyond that.

        Given the difference of opinion on this point the decision was perhaps predictable.

        There are significant differences in the factual base of this case and Shafi & Ellis – in this case there
         was an allegation of drug dealing in class A drugs. Thus this application was much more focussed than
         the Shafi & Ellis case. Indeed it might be argued that, on a true analysis this case was a category one
         (prevention of crime) case and Shafi & Ellis was a category two (prevention of nuisance ) case.

        This cases touches on one of the interesting aspects of Shafi & Ellis – how far the Zain decision went.

        Watch this space!




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Service Accommodation

     Wragg v Surrey County Council [2008] EWCA Civ 19

     Facts – Each of the Respondents were employed by the Defendant council as countryside
     rangers or were the family of rangers. Their contracts required them to occupy their
     premises for the better performance of their duties. Their contracts contained a term to the
     following effect:

              “It shall be a condition of your service, as a Ranger/Senior Ranger
              with the Surrey County Council that you will occupy, on a permanent
              and full-time basis, a property to be provided by the County Council.
              This property is provided for the better performance of your duties.
              This will be a service occupancy and not a service tenancy and your
              right to occupy will determine with your Contract of Employment.

              Payment for this accommodation is not a rent but an occupation
              charge and it is not intended to create a tenancy. You will be required
              to sign a separate letter giving details of the property and the
              conditions of occupancy.

              In the event of the termination of your employment with the County
              Council, you will be required and expected to surrender, immediately,
              such housing accommodation you then occupy.”

     Each Respondent sought to buy their property under the right to buy legislation. The council
     denied that they had the right contending that they were not secure tenants of the council.


     Paragraph 2(1) of schedule 1 to the Housing Act 1985 provides that:

              “… a tenancy is not a secure tenancy if the tenant is an employee of
              the landlord or of –

                     a local authority,
                     …

              and his contract of employment requires him to occupy the dwelling-
              house for the better performance of his duties.”


     The trial judge held that notwithstanding the above terms, the Respondents were secure
     tenants of the council and had the right to buy. The council appealed.

     Held -

     (i)      the legislation required two tests to be satisfied namely (1) that the contract requires
              the employee to occupy the dwelling house and (2) that the requirement is for the
              better performance of his duties.

     (ii)     The first test is simply a question of construction of the contract. Either it requires
              the employee to occupy the dwelling or it does not.


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(iii)       The second condition, however, raises an issue of fact outside the contract: the
            question is not whether the contract states that the requirement is for the better
            performance of his duties, but whether the requirement is in fact for the better
            performance of his duties.

(iv)        This conclusion is consistent with approaches to similar provisions elsewhere. The
            legislation intended to remove tenants from security only where there was a real link
            between the occupation and the better performance of his duties. It would be
            unsatisfactory if one had to take the words of the contract at face value and impose
            on the tenant the requirement to prove that the contract was a sham. Conversely the
            right to recover the premises should be dependent on the reality of the premises
            being used for the better performance of the duties and should not depend on what
            was put into the contract.

(v)         The statutory provision should be construed as including an objective test: “for” is to
            be read as “to enable”, the essential question being whether the required occupation
            of the property is intended to promote, and is reasonably capable of promoting, the
            better performance of the employee’s duties.

(vi)        The court will look at all the circumstances in deciding whether the required
            occupation is for the better performance of the employee’s duties.              Those
            circumstances will include the reasons given for the imposition of the requirement to
            occupy the property and the considerations taken into account in imposing that
            requirement, scrutiny of which is likely to be particularly important in determining
            whether occupation of the property was reasonably capable of leading to better
            performance of the employee’s duties. It will also be relevant to consider the factual
            history in so far as it casts light on whether occupation of the property was or was
            not reasonably capable of leading to better performance of the employee’s duties.
            The test is not whether, in the particular case, the requirement to occupy the
            property has in fact led to the better performance of the employee’s duties.

(vii)       The occupation must be for the better performance of the employee’s duties, as at
            the date when notice is given under the 1985 Act. But if the condition was satisfied
            at the time when the contractual requirement was first imposed, then in the absence
            of a relevant contractual variation or a fundamental change in the underlying factual
            circumstances it is difficult to see why it should not continue to be satisfied
            thereafter; and equally, if the condition was not satisfied at the time when the
            contractual requirement was first imposed, it is difficult to see how it could come to
            be satisfied subsequently in the absence of a relevant contractual variation or a
            fundamental change of circumstances

(viii)      On the facts, the judge had misdirected himself and the Respondents were not
            secure tenants and thus could not have the right to buy.

Practice Points -

         A useful consideration of the law in relation to service tenancies, producing clear guidance for those
          who have to advise in this field. Plainly the contractual term was pretty clear and unambiguous.
          Naturally the council argued that this was an end to the matter and in absence of an allegation that the
          terms of the contract were a sham, the parties were bound by its terms which met the wording of the
          legislation.




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 The consideration of the issue is two stage. The first stage should be simple in terms of construing the
  contract. Although the Local Authority lost on the simple lease construction point, local authorities
  would be well advised to draft tight terms of the contract as the start. Even though this is not definitive
  of the issue it may provide some important evidential weight. Of course if reasons for the requirement
  can be included then this may help the case evidentially.

 The second stage is the factual. In keeping with the general approach of the courts in this field, the
  CoA decided that they could and should look beyond the form of the words and decide if the condition
  was met in reality.

 The timing for looking at this reality, got a little convoluted in the court. At one level they were very
  clear. The time for considering the reality of the situation is the time when the notice (in this case the
  notice to purchase the property) was given. The court then backtracks on that by observing that, if the
  condition was met at the start of the tenancy and there has been no variation, then it is likely it will be
  met at the time that the notice was served and vice versa. Thus adviser might wish to approach this
  issue in three stages. First ask whether the condition was met at the time that the contract was entered
  into. Second look at whether there has been a variation of the contract between the date of the
  contract and the time when the notice is served and finally to step back and ask if there are any other
  factors which are likely to cause the court to consider that the condition was not met at the time that the
  notice was served.




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Suitable Alternative Accommodation.

      Manchester City Council v Benjamin [2008] EWCA Civ 189

      Facts – Benjamin was the secure tenant of Manchester City Council in succession to her
      parents. The property had six bedrooms. On 14 July 2005 the Council served a notice
      seeking possession in reliance on Ground 16 of Sch 2 to the Housing Act 1985, that is to
      say that the Property was more extensive than was reasonably required by the Defendant.
      In August 2005 the Defendant applied to purchase the Property under the right to buy
      provisions of the Act. The Council offered her an alternative property with two bedrooms in
      Chorlton. (it then became apparent that the property would be subject to a transfer to a HA
      and thus the tenant would cease to be a secure tenant.) This was refused and the LA
      sought possession, Benjamin counterclaimed for an order conveying the property to her.

      In its material respects s.85 states:
             "(1) The court shall not make an order for the possession of a dwelling house let under
             a secure tenancy except on one or more of the grounds set out in Schedule 2.

             (2) The court shall not make an order for possession -

             ...

             (c) on the grounds set out in Part III of that Schedule (grounds 12 to 16) unless it both
             considers it reasonable to make the order and is satisfied that suitable accommodation
             will be available for the tenant when the order takes effect;

             and Part IV of that Schedule has effect for determining whether suitable
             accommodation will be available for a tenant."

      Schedule 2 specifies the grounds for possession of dwelling-houses let under secure
      tenancies. Ground 16 in Pt III of that Schedule specifies a ground on which the court may
      order possession if it considers it reasonable and suitable alternative accommodation is
      available. Ground 16 is:
             "The accommodation afforded by the dwelling-house is more extensive than is
            reasonably required by the tenant and -

                     (a) the tenancy vested in the tenant by virtue of section 89 (succession to
                     periodic tenancy), the tenant being qualified to succeed by virtue of section
                     87(b) (members of family other than spouse) and

                     (b) notice of the proceedings for possession was served under section 83 (or,
                     where no such notice was served, the proceedings for possession were begun)
                     more than six months but less than twelve months after the date of the previous
                     tenant's death."

      At trial various concessions were made reducing the issues to two in number (1) (1) was the
      alternative accommodation offered by the Council to the Defendant "suitable" within the
      meaning of s 85(2)(c) and (2) was it reasonable to make an order?



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The Council's argued that
          it needed the Property in order the better to deploy its housing stock and
          a significant number of families were waiting for a property the size of the
              Property.

Tenant said an order should not be made because:
           The defendant would lose the right to buy and would have to re-qualify.
           Because she would now be an assured tenant she would have less
              advantageous rights to buy.
           She had a genuine intention to foster children.

HHJ Holman refused to grant possession. The LA appealed.

Held -

(i)         the court had to consider whether HHJ Holman was right to find that the loss of the
            tenancy of the existing property meant that the tenant had to start again with the new
            property. HHJ Holman had relied on two previous decisions of the court namely
            Kensington & Chelsea RLBC v Hislop [2004] HLR 434 and Basildon District Council
            v Wahlen [2006] EWCA Civ 326, [2007] 1 All ER 734, [2006] 1 WLR 2744. The court
            found that the comments of the court were obiter and wrong.

(ii)        The statutory scheme is that if the secure tenant is to have the right to buy the
            freehold of the dwelling-house of which he is the tenant and the landlord is the
            freeholder, the conditions of Sch 4 relating to the period to be taken into account for
            the purposes of s 119 must be satisfied and that period must be of at least the
            number of years specified in s 119(1). The minimum period in respect of a tenancy
            commencing before 18 January 2000 is 2 years and in respect of tenancies
            commencing after that date is five years. It is to be noted that the provisions are
            mandatory and that there is nothing in the language of s 119 or Sch 4 that expressly
            requires the qualifying period to be a period during which the secure tenant, either
            the original tenant or the tenant by succession to a deceased secure tenant,
            occupied the dwelling-house in respect of which he is given the right to buy as his
            only or principal home.

(iii)       He judge therefore erred on the issue of suitability.

(iv)        Better deployment of the housing stock of a local authority is a relevant reason for
            seeking possession of an under-occupied property and it is an impermissible
            justification to do so simply to avoid losing a property from that housing stock.
            (Wahlen approved).

(v)         The fact that the property was to be transferred to a HA was not relevant.

(vi)        HHJ Holman got that wrong too!

(vii)       Appeal allowed.


Practice Points -

         Some very welcome guidance on the interface between the right to buy and the right of the LA to better
          deploy their housing stock.


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 The big step forward was that the court departed from the previous view expressed in the cases of
  Hyslop and Wahlen. It seems that a tenant can utilise Schedule 4 to avoid a complete restart of their
  right to buy. This had weighed heavily in the decision of HHJ Holman and thus weighed less heavily in
  the mind of the CoA.

 Note the important distinction for Social Landlords. When approaching these matters it is permissible to
  say that the require a larger property for the better deployment of their housing stock not just that they
  do not want to lose a large property. They will thus have to beyond simply saying that they want to
  keep the property.




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Procedure

          Southwark London Borough Council v Onayomake 2007] EWCA Civ 1426

          Facts – The LA sought possession against the defendant who occupied premises following
          the death of his mother. The tenant counterclaim for a declaration that he had succeeded to
          the tenancy. Directions were given. Neither side complied with them save that the LA did
          file the pre-trial checklist. A Case Management Conference was ordered, the LA attended,
          the Defendant did not. The defence and counterclaim was struck out and it was ordered
          that the matter be heard undefended. The Defendant’s solicitor applied under CPR 3.9 on
          the basis that the solicitor that had been due to attend the hearing had been delayed by
          public transport and had been unable to contact the district judge.

          The District Judge held that the striking out was disproportionate but taken with all the other
          failings it was appropriate. He heard the matter and ordered possession. On appeal the
          Recorder upheld the DJ.

          Held -

          (i)        If tenant’s solicitor had attended the hearing it was inconceivable that the judge
                     would have struck out his defence and counter-claim. Instead it was likely that the
                     worst that would have happened would have been the making of an unless order.
                     Defendant's solicitor had not made numerous errors but had merely failed to attend
                     court at the correct time. Applying the factors contained in CPR r.3.9(1) the district
                     judge was plainly wrong to deny the relief sought.

          (ii)       If, under CPR r.3.9(1)(f), the failure to comply with an order of the court was solely
                     the fault of a legal representative it would not follow that the court had no power and
                     had to accede to an application for relief from sanctions imposed. The mere fact that
                     the proceedings were possession proceedings and that O's home was at stake
                     would not mean that, if just, the court could not strike out a defence and counter-
                     claim as the district judge had.

          Practice Points -

                  Perhaps the biggest surprise is that DJ took such a bold course in the first place and the Recorder
                   upheld him (which is it should be!).

                  On a more serious note, the court seems to have taken a fairly relaxed view of the fact that the
                   Defendant’s solicitors had not complied with the directions. It seems to me that the only saving grace in
                   this respect was that the Claimants were no better. In my view this, coupled with the fact that the
                   solicitor was held up in traffic and that this was about someone’s house would probably have saved the
                   matter in the TWCC.

                  I am sure that there would have been unless orders and a certain amount of judicial ire.

                  Faced with this situation one might wish to consider the Mercan Shipping (London) Ltd v Kefalas
                   3decision that says that the sanction has to be proportionate.




3
    Mercan Shipping (London) Ltd v Kefalas [2007 ]EWCA Civ 463




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Sukai Onwuama v Ealing London Borough Council [2008] EWHC 1704 (QB)

Facts – Claimant was the tenant of Defendant LA. She brought proceedings for disrepair
under s.11 Landlord and Tenant Act 1985. She failed to call expert evidence and the court
found that the damp in her property was probably condensation and thus outside s.11.

She commenced a second action seeking to call evidence to show on the balance of
probabilities that the damp was due to rising damp. The second action was struck out as
the first decision was res judicata.

She appealed and submitted that the principle of res judicata should not apply to s.11 of the
Act as it imposed a continuing duty to keep the premises in repair and that to apply the
principle would frustrate the will of Parliament.

Held -

(i)         The application of the principles of res judicata was in the public interest; there must
            be a finality to litigation.

(ii)        The application of those principles to cases involving leases to which s.11 applied
            did not frustrate the will of Parliament, and there was no reason why those principles
            should not apply in such cases.

(iii)       It was clear that S was seeking to claim in the second action in regard to the same
            damp of which she had complained in the first action.

Practice Points -

         One might have thought that the tenant was entitled to commence a second action. She still had the
          damp and there is a continuing obligation on the LA to comply with s.11.

         None of the above could be seriously disputed. The real issue of re-litigation was the causation issue.
          The court had already decided that the cause of the damp was, on a balance of probabilities
          condensation and she could not go behind that.




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Extent of the obligation to repair

       Alker v Collinwood Housing Association [2007] EWCA Civ 343

       Facts – The tenant tried to open her front door which had ribbed glass in it. Her two year
       old son had not been strong enough to push it open, so she put her hand on the glass,
       which broke causing horrific injuries.

       The claim was framed as a claim for damages for breach of the statutory duty arising under
       s 4 of the Defective Premises Act 1972 ("the Act")

       At trial it was found that the glass door was constructed in accordance with the building regs
       prevalent at the time of the construction of the property. The knowledge that this sort of
       door represented a safety hazard had been known since 1963. The Defendant had no
       knowledge of any actual despair of the door because there was not such disrepair. The
       usual clause permitting the representatives of the housing association permission to enter to
       inspect and repair was included in the lease. There was the usual exterior repairing
       obligation on the landlord.

       The Recorder found for the Claimant and gave permission to appeal.

       Held -

       (i)         two basic conditions have to be present to engage the act – (a) a duty on the part of
                   the landlord for the maintenance and repair of the premises and (b) the landlord
                   knew or ought to have known of the relevant defect. Both were present here.

       (ii)        To be engaged the Landlord must have a right to enter the premises. Here again
                   there was such a right.

       (iii)       Thus the issue was whether the glass door represented a relevant defect for the
                   purpose of the act. The Social Landlord argued that the act could not impose a
                   wider duty to repair tan that found in the lease. What the tenant was trying to do was
                   to impose a covenant to ‘make safe’ not to keep the home in good condition. The
                   Respondent said an obligation at least to maintain, perhaps to repair, and certainly
                   an obligation to keep in good condition encompasses and includes an obligation to
                   make safe at any rate if major structural works are not required.

       (iv)        The reasoning of the Recorder was fundamentally flawed. It equated a duty of repair
                   and/or maintenance with a duty to make safe. The Respondent proposed such an
                   equation moreover in a case where the thing in question - here the glass panel - was
                   not in disrepair at all and there had been no failure at least as a matter of ordinary
                   language to maintain it. There is nothing to warrant for such an equation, a covenant
                   to maintain comes no closer to a covenant to make safe than does a covenant to
                   repair.


       Practice Points -

                A rather unusual case in that two of the more ubiquitous claims were not used, (a) a common law duty
                 of care was simply not used and (b) s.11 HA was not available as the landlord had no notice of the
                 disrepair.




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           The first port of call has to be to see what repairing obligation the landlord was under. It was agreed
            that the s.4 duty could not extend beyond this. Now in this case the terms was ‘to keep the house in
            repair’. This really gave rise to the argument, in that the tenant said that the term meant that the glass
            had to be changed to keep the property in good repair. Those drafting leases need to have this point in
            mind. For example would there have been the same argument if the terms was “to keep the property in
            good repair but not to improve on the condition of the property compared with the time when it was let.”.
            I think not.

           In any event the court fell back on the natural English meaning of the words and imposed the narrower
            duty.

           The case has some other interesting areas which are rather obiter but suggest answers to other
            questions. They consider McAuley v Bristol City Council [1992] QB 134 and the extent to which a lease
            can have implied into it a right to enter to carry out repairs for the removal of that risk of injury. This
            might be of use to those who have to consider Gas Act injunctions.

           There is a useful little diversion in the speech of Carnwath LJ about the meaning of the words
            "maintenance" and "repair" and the importance of the case of Mitchell v Department of Transport [2006]
            EWCA Civ 1089, [2006] 1 WLR 3356 where the relevant authorities are reviewed again useful in
            considering the meaning of these terms.



C. J. Lethem.
1st September 2008.




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