Sie sind auf Seite 1von 6

LegalAction July/August 2018

Law and practice 41

Housing: recent
crucial condition for purchase of having breached her rights under article 8.
a specially protected tenancy, it could
not be said that she had a ‘possession’. The claim was upheld. The flat was
There had been no violation of article 1 Ms Darsigova’s home. It was common

developments
of Protocol No 1. ground that her eviction amounted to
an interference with her right to respect
• Titova and others v Russia for her home, was in accordance with
App No 4919/16, the law and pursued the legitimate aim
15 May 2018 of protecting the rights of individuals in
In 2008–09, a group of people need of housing. The eviction was not,
forged documents to show that they however, necessary in a democratic
owned a number of flats owned by society because neither domestic
Nic Madge, Jan Luba QC and Sam Bikić a specially protected tenancy of the City of Moscow. The flats were court had weighed the rights of other
Madge-Wyld highlight important a flat and the right to occupy it with then subsequently sold to private individuals and their need for housing
cases on human rights, the Rent her husband and two daughters. She individuals. Each sale was reviewed against Ms Darsigova’s right to respect
Act 1977, harassment, long leases, moved into the flat and continued to and approved by the City Registration for her home. The courts had therefore
housing allocation, homelessness, live there. The decision to grant her Department. In 2013, after the fraud failed to determine the proportionality
and housing for children. the specially protected tenancy was had been discovered, nine people of the applicant’s eviction.
challenged by three other employees were found guilty of fraud. In 2014, the
and quashed by the Zagreb Basic Court City of Moscow housing department • Sadovyak v Ukraine
of Associated Labour. In 1990, S’s brought civil proceedings against the App No 17365/14,
housing committee drew up a priority purchasers of the flats for their return. 17 May 2018
list for the distribution of flats. Ms Bikić A District Court in Moscow found the In 2001, Mr Sadovyak, a military officer,
was the first on the list. The company’s claim proved, and invalidated the was provided with a flat owned by the
workers’ council approved the priority purchasers’ title to the flats and ordered Lviv Military Academy. In 2003, he
list and on that basis she was entitled to their eviction. The purchasers’ appeals was dismissed from the military and
Nic Madge have a decision allocating a flat to her. to the Moscow City Court were refused. as a result given priority allocation for
The purchasers complained to the social housing from the Ministry of
In 1992, S’s flats were transferred ECtHR, contending that the invalidation Defence. In 2005, Mr Sadovyak and
for management to the Zagreb of their title had breached article 1 of his wife divorced. His wife and children
Municipality. In 1991, parliament Protocol No 1. were placed on a waiting list for social
enacted the Protected Tenancies (Sale housing by the local authority. None
to Occupier) Act, which abolished The claim was upheld. This was a case of them, however, were rehoused. In
specially protected tenancies and in which the City of Moscow ought 2012, the Frankivskyy District Court
Jan Luba QC regulated the sale of socially owned to have realised, when it reviewed refused an application for the family’s
flats. In 1995, Ms Bikić applied to buy and approved the sales, that the eviction from the flat by the Military
the flat. The Zagreb Municipality did not transactions were based on fraudulent Academy on the grounds that Mr
take any decision within the prescribed documents. No explanation had been Sadovyak and his family could not be
time limit of 60 days. In 2005, Ms Bikić given for why the City of Moscow evicted until they had all been provided
resubmitted her request. That request had approved sales by third parties with alternative accommodation. This
was refused because she had not been of flats owned by the City of Moscow. decision was overturned on appeal, on
granted a specially protected tenancy The consequences of any mistake the grounds that his occupation of the
Sam Madge-Wyld in respect of the flat. made by a state authority must be flat had never been formally authorised.
borne by the state and errors must A further appeal by Mr Sadovyak
Her subsequent civil claim against the not be remedied at the expense of the was dismissed. He and his family
City of Zagreb was dismissed because individual concerned. Accordingly, the complained to the ECtHR, contending
the priority list did not constitute a cancellation of the applicants’ title to that their eviction breached their rights
decision to grant a protected tenancy. the flats without any compensation under article 8.
Ms Bikić’s subsequent appeals were imposed an excessive burden on the
dismissed. She complained to the applicants, and failed to strike a fair The claim was upheld. The flat was
European Court of Human Rights balance between the demands of the Mr Sadovyak and his family’s home.
(ECtHR) that the refusal of her request public interest on the one hand and Their eviction would amount to an
Housing law news and legislation to purchase the flat amounted to the applicants’ right to the peaceful interference with their right to respect
update a violation of her right to peaceful enjoyment of their possessions on the for their home, but had some basis in
enjoyment of her possessions under other. It followed that the forfeiture domestic law and pursued a legitimate
Such has been the volume of recent, article 1 of Protocol No 1. of the flats had breached article 1 of aim, namely the protection of the
important, case law that the material Protocol No 1. interests of military servicemen in
for this section has been held-over to By a majority of five to two, the ECtHR need of temporary service-related
September’s article. dismissed her complaint. It noted that Article 8 accommodation. The eviction was not,
the case did not concern the issue of however, necessary in a democratic
whether Ms Bikić had the right to dwell • Darsigova v Russia society because the judgment of the
Human rights in the flat, but only whether she had the App No 54382/09, appellate courts had not been based
right to purchase it under the Protected 15 May 2018 on adequate reasons as it had failed
Article 1 of Protocol No 1 Tenancies (Sale to Occupier) Act. Under In 1999, Ms Darsigova was allocated to assess the proportionality of the
article 1 of Protocol No 1, ‘possessions’ a flat by the Leninskiy District of applicants’ eviction.
• Bikić v Croatia can be ‘existing possessions’ or claims Grozny. In 2009, the Leninskiy District
App No 50101/12, that are sufficiently established to Court declared the allocation null and Possession claims and article 8
29 May 2018 be regarded as ‘assets’. Where a void on the grounds that it had been
Ms Bikić was employed by S, a socially proprietary interest is in the nature of obtained fraudulently. Her appeal to • Hillingdon LBC v Holley
owned company. All S’s employees a claim, it may be regarded as an ‘asset’ the Supreme Court of the Republic of UKSC 2017/0226,
paid three per cent of their monthly only when the claim is sufficiently Chechnya failed and she was evicted. 21 March 2018
salaries as contributions to a housing established as to be enforceable (para She complained to the ECtHR and The Supreme Court has refused
fund. In 1988, S agreed to grant Ms 45). Since Ms Bikić did not fulfil the contended that her eviction had permission to appeal against the Court
42 Law and practice Housing: recent developments LegalAction July/August 2018

of Appeal decision ([2016] EWCA that they did not have responsibility waiting for a court date’ (para 44), even wife nor anyone else knew where he
Civ 1052; [2017] HLR 3; February for repairs and that the tenant did though, in fact, no proceedings had had gone. When they finally made
2017 Legal Action 46) because have responsibility for repairs. Mr been issued. contact, he told Mrs Smith that he
‘the application does not raise an Harris appealed against the fair rent was in Scotland; his benefits had been
arguable point of law of general determined by the Valuation Office HHJ Owen QC held that the stopped; and the rent had not been
public importance which ought to Agency. In his representations to the landlord had unlawfully harassed Mr paid. Mr Khan handed Mrs Smith a
be considered at this time bearing in First-tier Tribunal (FTT), he stated: Worthington and Ms Parkin, contrary letter that purported to give Mr Smith
mind that the case has already been ‘The lease that I have is a full repairing to Protection from Harassment Act notice to terminate the tenancy.
the subject of judicial decision and and insuring lease and as such I am 1997 s1. He awarded them damages, An advice centre wrote to Mr Khan
reviewed on appeal’. fully responsible for every aspect of pursuant to s3(2), of £4,750 and £4,160 pointing out that the notice was invalid
maintaining & repairing everything respectively. The landlord appealed and unenforceable, and that although
• Enfield LBC v Turner both inside and outside of the to the Court of Appeal, arguing that Mrs Smith was not the tenant of the
[2018] EWHC 1431 (QB), property.’ Notwithstanding that, in its its conduct fell significantly short of property, she had a legal right to occupy
25 May 2018 decision, the FTT stated: ‘The landlord the standard of gravity required to it under Family Law Act 1996 s30.
Ms Turner’s father was the secure is responsible for all repairs and constitute harassment. While she was out, Mr Khan entered
tenant of a three-bedroom council decorations.’ Mr Harris appealed to the the property and changed the lock.
house. After his death, her mother Upper Tribunal (UT). The Court of Appeal dismissed the On returning, she was unable to get in.
succeeded to the tenancy. When appeal. After referring to Majrowski She ended up sleeping on the floor of a
her mother died, Ms Turner had no HHJ Huskinson allowed the appeal. The v Guy’s and St Thomas’s NHS Trust friend’s house for many months.
succession rights. Enfield served a FTT was in error in proceeding on the [2006] UKHL 34; [2007] 1 AC 224
notice to quit and initiated a possession basis that the landlord was responsible and Sunderland City Council v Conn Although a district judge made an order
claim. Ms Turner and her son, who for all repairs and decorations. It was [2007] EWCA Civ 1492, Kitchin LJ reinstating Mrs Smith and preventing
lived with her, had many medical clear that the FTT’s decision could stated that ‘it was not necessary for the Mr Khan from seeking to exclude her
issues. The next year, Enfield offered not stand. It had erred regarding an judge to find that each particular item from the property, it emerged that Mr
them alternative accommodation important matter of fact, namely as to of correspondence was oppressive and Khan had relet the property to another
in a ground-floor flat with level who was responsible for the repairs to unreasonable. He was instead required tenant and was unable or at least
access. She refused the offer of new the property. There was also substance to consider the correspondence as a unwilling to comply with the order for
accommodation. A trial took place in concerns as to whether adequate whole, and that is what he did’ (para reinstatement. She did not enforce
and a possession order was made. Ms reasons were given. HHJ Huskinson 60). The judge had expressly directed the order for reinstatement and the
Turner appealed. quashed the decision and remitted the himself that he had to consider whether claim against Mr Khan proceeded for
matter to the FTT for reconsideration or not the conduct complained of damages.
Whipple J dismissed the appeal. The by a differently constituted tribunal. crossed the boundary between that
possession order was necessary and which was unattractive and even Although Mrs Smith sought a rate
proportionate as there were others unreasonable, and that which was of £220 per night by way of general
with greater need for three-bedroom Harassment oppressive and unacceptable. He damages for trespass, District Judge
properties. The trial judge knew that had found that the housing officer’s Nicolle awarded her £40 per night ‘by
Ms Turner did not want to move and Protection from harassment ‘approach was flawed and hopelessly reference to the amount of rent payable
that doctors had said that it would careless, and that the analysis … was (£9.86 per day) with an uplift to take
be detrimental to her well-being. The • Worthington and Parkin v utterly inadequate and uncritical’ (para account of what she described as Mr
judge had not misunderstood Thurrock Metropolitan Housing Trust Ltd 64). Khan’s flagrant disregard of the law’
BC v West [2012] EWCA Civ 1435; [2018] EWCA Civ 1125, (see para 13). The damages for trespass
[2013] HLR 5; December 2012 Legal 17 May 2018 The Court of Appeal rejected the covered the period from the unlawful
Action 27 and Hillingdon LBC v Holley Mr Worthington and Ms Parkin were submission that the letters ‘were eviction until the date of judgment on
(see above), and there had been no assured tenants. They were concerned unexceptional and of a kind regularly the basis that the tenancy either was
defect in her approach. Medical issues about anti-social behaviour in their sent by owners of social housing as part continuing or would have continued
coupled with long residence would not neighbourhood. With the consent of their efforts to protect their wider until then had Mr Khan not acted
defeat a local authority’s claim where of the landlord, Ms Parkin installed body of tenants’. The landlord made unlawfully. The judge also made awards
there was no succession. The judge CCTV equipment for the purposes threats and accusations ‘without taking of aggravated damages (£1,500) for
was also correct to hold that Enfield’s of her own security. Mr Worthington the most basic steps to ensure that injury to feelings; exemplary damages
interest prevailed and that it had acted set up a website, which collated and they had a proper foundation. They (£1,200); and damages for harassment
within the framework of Human Rights stored evidence of unacceptable were in fact totally unjustified. [In those (£500). Special damages for the loss of
Act (HRA) 1998 Sch 1 article 8. It was for behaviour with some commentary. This circumstances,] the judge had ample property were assessed at £1,000. The
the local authority to decide, according generated a considerable amount of material before him upon which to find total award was £14,773.37.
to policy, how to allocate its housing hostility from their neighbours and the that the conduct complained of crossed
stock. At the time of Ms Turner’s landlord received complaints that their the boundary and was oppressive and Mrs Smith appealed against the
application, there were 1,479 people recordings were causing a nuisance unacceptable, and that it amounted to quantum of the award in respect of
waiting for three-bedroom properties. and invading the privacy of other harassment’ (para 80). general and exemplary damages. HHJ
Enfield was entitled to say that the residents. It was also alleged that they Owen QC found that the district judge
house could be allocated to someone were taking inappropriate photographs Implied surrender and damages had erred in assessing the daily rate
with a greater need for it. of other residents, including children of damages for trespass. He held that
and young people. After the landlord • Smith v Khan the correct rate was £130 per day.
had requested that the cameras [2018] EWCA Civ 1137, However, he also found that there had
Rent Act 1977 be redirected and material on the 17 May 2018 been an implied surrender when Mr
website removed, it wrote to both Mr In June 2014, Mr Khan granted Mr Smith disappeared to Scotland and
Rent registration Worthington and Ms Parkin stating that Smith an assured shorthold tenancy Mr Khan had served his notice to quit.
it intended to take immediate action of a flat for a term of 12 months. He Mrs Smith’s only protection was under
• Harris Re Gloucester Place Mews to expel them from their homes. Its lived there with his wife, a Nigerian Protection from Eviction Act (PEA)
[2018] UKUT 166 (LC), solicitors also wrote with a threat of national who had no entitlement to 1977 s3 and the correct period for the
10 May 2018 proceedings ‘either for an injunction or state benefits. The rent was £300 purpose of calculating damages was 28
Mr Harris was a Rent Act 1977 statutory for possession of your home, or both’ per month and was funded out of days. The overall award was reduced to
tenant. In January 2017, his landlords (para 40). The housing association then Mr Smith’s housing benefit. In March £7,853.37. Mrs Smith appealed to the
applied for the registration of a fair wrote a further letter stating that it 2015, Mr Smith left the property and Court of Appeal, claiming that there
rent. The application form made it clear was seeking an injunction and was ‘still disappeared. Initially, neither his had been no implied surrender of the

LegalAction July/August 2018 Housing: recent developments Law and practice 43

tenancy and that the judge had been tenant not merely for the letting value than 12 months and it was therefore Ms Charles was obliged, under her
wrong to limit damages to the 28 days’ of the property of which they have a qualifying long-term agreement. lease, to pay Tower Hamlets a service
notice required under the PEA 1977. Mr been deprived, but also for the anxiety, Had the agreement been for a term charge. Tower Hamlets brought a
Khan cross-appealed against the judge’s inconvenience and mental stress of 12 months, but terminable within money claim against Ms Charles after
substitution of £130 per day. involved in the loss of what was the the first year, it would not have been a she refused to pay the service charge
tenant’s home. The Court of Appeal qualifying long-term agreement. for the years 2013/14 and 2014/15. Ms
In the Court of Appeal, Patten LJ referred to a ‘summary of recent county Charles sought to defend the claim
stated that HHJ Owen QC was wrong court decisions [indicating] awards Service charges on the basis that she had not been
to assess damages on the basis that ranging between £100 and £300 per provided with access to the supporting
the contractual term had come to an night’ (para 45). Although awards made • Saunderson v Cambridge Park accounts for each of the relevant
end by surrender. In this case, there in other cases cannot be treated as Court Residents Association Ltd service charge years. The case was
was no unequivocal indication by Mr strict precedents and judges must feel [2018] UKUT 182 (LC), then transferred to the FTT (Property
Smith that he wished to give up his free to base their awards on their own 29 May 2018 Chamber).
tenancy. Further, the issue of surrender assessment of the damage that has Mr Saunderson was the leasehold
had not been raised on the appeal. been caused, they do indicate the value owner of a flat within a block of flats. On 22 September 2016, directions
Mere absence was not enough in itself that has been placed by the courts in Cambridge Park Court Residents were made and a final hearing listed
to indicate an intention to abandon those cases on the additional factors. Association Ltd (Cambridge Park) was for 12 December 2016. The directions
the tenancy or to amount to a cesser HHJ Owen QC was entitled to take the his landlord. Under Mr Saunderson’s provided for Tower Hamlets to
of occupation for the purposes of view that the district judge’s award was lease, Cambridge Park was obliged provide Ms Charles with ‘evidence to
Housing Act (HA) 1988 s1. ‘The fact simply too low. The Court of Appeal was to provide him with certain services substantiate all costs incurred for the
that someone chooses or is forced to not persuaded that it should interfere and Mr Saunderson was obliged years in dispute’ (para 16) and then
work away from home does not mean with his assessment of the daily rate. to contribute towards the cost of for Ms Charles to prepare a statement
that his former place of residence has providing those services by payment of case explaining the basis of her
ceased to be his only or principal home’ The Court of Appeal dismissed Mr of a service charge. Most of the flats challenge to the service charge. Tower
(para 31). Khan’s cross-appeal and, on Mrs within the block received their heating Hamlets provided Ms Charles with the
Smith’s appeal, ordered Mr Khan to and hot water from a communal service charge certificates (which set
With regards to quantum, damages for pay damages for trespass from 15 April heating system. The lease did not make out the items of expenditure for each
trespass are not restitutionary. They are to 30 June 2015 inclusive at a rate of provision for Mr Saunderson or any of year) and a number of invoices for each
payable to compensate the displaced £130 per day, amounting to £9,880. the other lessees to be provided with or year. Ms Charles contended that this
tenant for the unlawful occupation To this was added a further £4,200 pay for the communal heating system. was insufficient evidence to enable her
of property by the trespasser. They made up of the awards of aggravated Initially, Mr Saunderson did not object to prepare her statement of case and
continue to be payable throughout the and exemplary damages, damages for to making a contribution towards applied to the tribunal for the case to
period during which the claimant’s right harassment and special damages. its cost. However, he subsequently be stayed.
to possession subsists and they are not disconnected his flat from the
therefore inconsistent with the pursuit communal heating system after it The FTT (Property Chamber) refused
in the same proceedings of a claim for Long leases ceased to provide him with adequate the application for a stay and Ms
an injunction to reinstate the tenant or heating and hot water, and installed his Charles applied for permission to
rightful owner to possession of their Qualifying long-term agreements own heating system. appeal from that order. Both the FTT
property. If such an order is made, (Property Chamber) and UT refused
damages will be payable up to the date • Corvan (Properties) Ltd v A few years later, he argued that he permission to appeal. On 12 December
when possession is restored. If there Abdel-Mahmoud should not be obliged to contribute 2016, the FTT made an order debarring
was no implied surrender, the assured [2018] EWCA Civ 1102, towards the cost of the communal Ms Charles from participating in the
tenancy continued for the remainder 15 May 2018 heating system as his lease did not hearing as she had failed to comply
of its contractual term until 30 June Corvan, the freehold owner of a block require him to do so and he no longer with any of the directions and had, in
2015, giving Mr Smith and therefore of flats, entered into a management received the service. The FTT (Property particular, failed to particularise the
Mrs Smith a continuing right to occupy agreement with its agents. The Chamber) decided that Mr Saunderson basis of her challenge to the service
during that period. agreement provided that it would ‘be was obliged to continue paying for the charge. Ms Charles appealed against
for a period of one year from the date communal heating system because he that decision to the UT.
However, it was unrealistic to regard of signature hereof and will continue had previously paid the cost without
Mr Smith’s assured tenancy as having thereafter until terminated upon three objection since 1994 and this had given HHJ Behrens dismissed the appeal.
continued after Mrs Smith elected not months’ notice by either party’. Ms rise to an estoppel by convention. Mr The FTT (Property Chamber) had
to pursue her claim for reinstatement Abdel-Mahmoud, a lessee, successfully Saunderson appealed to the UT. been entitled to debar Ms Charles
by enforcing the order which she argued in the FTT (Property Chamber) from taking part in the proceedings.
obtained, and both Mr and Mrs Smith and the UT (Lands Chamber) that the HHJ Hodge QC allowed the appeal. Tower Hamlets had complied with the
had accepted that they would not agreement was of indefinite duration Any estoppel that may have existed tribunal’s directions and there was no
regain possession. The occupation and was accordingly a qualifying long- between Mr Saunderson and good reason why Ms Charles could not
of the flat as their principal home term agreement (within the meaning Cambridge Park ended when Mr have completed her own statement of
therefore ceased. Since there was no of Landlord and Tenant Act (LTA) 1985 Saunderson stopped receiving the case. Moreover, Ms Charles had never
contractual right under the tenancy s20ZA(2)) as it was for a period of more benefit of the communal heating identified a single area of challenge to
agreement to a further lease and than 12 months. Corvan appealed to the system. The FTT (Property Chamber) the service charge.
neither of them remained in possession Court of Appeal. had further erred by failing to consider
paying rent, the tenancy came to an whether the payment for a service that Access and costs
end at the expiry of the fixed term The Court of Appeal dismissed the Mr Saunderson did not receive was
on 30 June 2015. There was no basis appeal. The use of the words ‘will reasonable within the meaning of LTA • Notting Hill Housing Trust v Esan
for awarding damages for a further continue’ introduced a mandatory 1985 s19. Had it done so, it could only Court of Appeal (Civil Division),
period after 30 June. After that date, requirement for the agreement to have concluded that the sum was not 16 May 2018
Mrs Smith had no right to occupy. The continue beyond the initial 12 months. reasonable. Ms Esan was a long lessee. Her lease
district judge was therefore wrong in This meant the term was for a period obliged her to allow access by the
awarding damages for the entire period of 12 months plus an indefinite period, • Charles v Tower Hamlets LBC landlord for repairs. In 2014, Notting
up to December 2015. which was subject to termination on [2018] UKUT 140 (LC), Hill was concerned about water leakage
three months’ notice being given. 15 May 2018 from her flat into another flat. It applied
With regard to the daily rate, damages This in turn meant the term of the Ms Charles was the leasehold owner of for an injunction requiring access.
for trespass must compensate the agreement was for a period of more a flat. Tower Hamlets was her landlord. Despite service of the application, Ms
44 Law and practice Housing: recent developments LegalAction July/August 2018

Esan did not attend the hearing and tribunal further noted that: had been at fault in two respects. First, sector equality duty in Equality Act
an injunction was granted. Ms Esan it had taken 33 weeks to complete the 2010 s149. The council accepted
accepted that she became aware of As a landlord who went on holiday review whereas its internal polices that it had not carried out an equality
the injunction but continued to refuse whilst leaving his property in a provided for completion within eight impact assessment but contended
access. Notting Hill applied to commit dangerous condition it is unfortunate weeks. Second, it was at fault in the that the decision had been taken in
her for contempt. Ms Esan eventually that the appellant chose to refer to way it reached its decision not to award full knowledge of the demographic of
agreed to provide access but the judge his sympathy for the Grenfell Tower Mr X medical priority based on advice residents on the estate and that they
ordered her to pay Notting Hill’s costs, victims in seeking the tribunal’s from its IHMA. The ombudsman said: would only make a single move to
summarily assessed at £3,052. Ms Esan indulgence (para 16). another permanent home.
appealed, arguing that she had not It is for the council to make a
been to blame for the leaking water decision on medical priority and Lewis J quashed the decision. He said
and that she had not been served with Planning enforcement/proceeds not the [IHMA]. The council is that:
any of the documentation before the of crime entitled to take account of the
committal hearing. [IHMA’s] opinion but must also take … the real issue of substance
• Islington LBC v Etek Developments account of other medical evidence was whether the defendant could
The Court of Appeal dismissed the (Tufnell Park) Limited1 it receives. In reaching its decision demonstrate that it had had due
appeal. For the purposes of the hearing Blackfriars Crown Court, the council should consider the fact regard to the impact on the elderly
before the judge, it did not matter 23 April 2018 that its [IHMA] has not examined or disabled of the loss of their
whether Ms Esan was to blame for On 7 September 2017, Etek or spoken to Mr X. Furthermore, the existing home. Elderly persons may
the leaks. All that mattered was that Developments (Tufnell Park) Limited [IHMA’s] advice does not address the well have lived for many years in a
she had not complied with the order pleaded guilty to breaching a planning issues raised by Mr X’s consultant home and wished to spend the rest
allowing access. She had not attended enforcement notice served on it by neurologist or his GP regarding the of their years in that same home.
the injunction hearing and had taken Islington in 2009. That notice had impact of his medical conditions on his Disabled persons may well have had
no steps to have the order set aside or required Etek to stop renting out housing (paras 28–29). an existing home adapted and can
to appeal against it. Further, the judge substandard and inadequate residential be certain that they can live, and
had been entitled to proceed on the accommodation, ie, a single dwelling The council agreed to: (1) carry out a function, in that environment. To
basis that, as the evidence indicated, house that had, in breach of planning fresh review of its decision regarding lose that environment may give rise
documentation had been left at the control, been converted into five flats. Mr X’s medical priority and his request to particular considerations as to
property. The Court of Appeal should for two-bedroom accommodation the impact of such a loss which are
be slow to entertain appeals from costs In April 2018, Blackfriars Crown Court and issue a reasoned decision; and (2) different from, and greater than, the
orders. The judge had had a discretion ordered Etek, in addition to a fine of pay Mr X £250 for the distress caused impact on other persons (para 38).
in making the order and, where there £8,000, to pay £304,458 under the by the delay and his time and trouble
was no error of law, the Court of Proceeds of Crime Act 2002. pursuing his complaint. On that issue the council’s case failed.
Appeal would only interfere where the The judge said:
exercise of discretion had exceeded On publishing his report, the
the generous ambit within which Housing allocation ombudsman said: The defendant did not specifically
reasonable disagreement was possible. address or have regard to the
This was not such a case. • Complaint against Croydon LBC Councils can take into account advice impact on groups with protected
Local Government and Social Care from independent medical advisers characteristics, in particular the elderly
Ombudsman Complaint No 16 017 when reviewing people’s housing and the disabled, of the loss of their
Enforcement of housing 593, applications, but the final decision existing home. It may well be that
conditions/smoke alarms 26 April 2018 must be down to the council itself. It not a great deal would have needed
The complainant (Mr X) lived in a one- is difficult to see how Croydon council to be said on this matter. It may have
• Badwall v Kingston upon Hull City bedroom council flat. He applied for a could base its review decision on been sufficient to draw that matter
Council housing allocation, by way of transfer, paperwork provided by someone who to the decision-maker’s attention and
First-tier Tribunal (General to a two-bedroom flat. He said that had neither examined nor even spoken then the decision-maker could have
Regulatory Chamber), he needed to move due to noise and to the man, without considering decided whether the contemplated
[2017] UKFTT PR_2017_0028 (GRC), anti-social behaviour, which was having evidence provided by the man’s benefits of the proposed development
21 December 2017 a significant impact on his epilepsy, medical specialists (‘Council ignores did outweigh any negative impacts.
Mr Badwall was the landlord of a and that he needed a two-bedroom medical evidence when deciding man’s Ultimately, however, I am persuaded
flat. On 7 May 2017, a council officer property so he could have a carer stay housing application’, LGSCO news there were matters relevant to the
inspected the flat and found the overnight. His initial application was release, 20 June 2018). discharge of the public sector equality
smoke and carbon monoxide alarm refused. duty which the relevant decision-
to be defective. On 10 May 2017, Hull • R (Buckley on behalf of Foxhill maker needed to have due regard
served Mr Badwall with a remedial He applied for a review and supplied Residents’ Association) v Bath and to but which were not drawn to the
action notice under Smoke and Carbon letters from his consultant neurologist North East Somerset Council decision-maker’s attention. In the
Monoxide Alarm (England) Regulations and his GP. At the council’s request, he [2018] EWHC 1551 (Admin), circumstances, there was a failure to
2015 SI No 1693 reg 5 requiring him provided a further consultant’s letter, 20 June 2018 discharge the duty imposed by section
to fit a functioning smoke and carbon which stated that he ‘has frequent A housing association applied to the 149 of the 2010 Act (para 40).
monoxide alarm within 28 days. Mr severe seizures and therefore needs council for outline planning permission
Badwall failed to do so. On 28 June supervision and quiet housing, to to redevelop a housing estate by the
2017, Hull fitted the alarm itself and, on ensure he gets sufficient undisturbed demolition of up to 542 dwellings and Homelessness
11 July 2017, served Mr Badwall with a sleep as sleep deprivation can provoke the provision of up to 700 new homes.
penalty notice in the sum of £2,000 in seizures’ (para 21). The council sent the The council granted permission on Interim accommodation
accordance with its own policy for first information to its independent housing the basis that existing tenants and
contraventions of the 2015 regulations. medical adviser (IHMA), who simply residents would be transferred directly • XPQ v Hammersmith and Fulham
Mr Badwall appealed against the wrote ‘epilepsy but no evidence health from their existing homes to new LBC
penalty notice on the grounds that he related housing needs’ (para 22). The homes on the estate, rather than being [2018] EWHC 1391 (QB),
had been busy at work and on holiday. council declined to award any medical decanted temporarily. 7 June 2018
priority and refused to authorise a two- The claimant was a victim of trafficking.
The appeal was dismissed. Hull’s policy bedroom transfer. The claimant sought a judicial review When she applied to the council for
was fair and Mr Badwall’s excuses did on the grounds that the council had homelessness assistance, she was
not warrant a departure from it. The The ombudsman found that the council failed to have due regard to the public provided with interim accommodation

LegalAction July/August 2018 Housing: recent developments Law and practice 45

pending a decision. She was given a 7 (homelessness). No response having was eligible for assistance [s185 of have a priority need because he was not
place in a mixed-sex unit with access been received, the solicitors sent a the Act] and was a priority applicant vulnerable. That decision was upheld
to a shared bathroom and communal letter before claim in July 2017. [s189]. Mr Lane for the defendant did on review.
kitchen. She said that while there, she not suggest that the claimant was
had been a victim of sexual assault and The council then responded, intentionally homeless at any time HHJ Roberts, unusually, varied the
harassment. After several weeks, she acknowledging the application and the after March 2015. Accordingly, if decision to a finding that Mr Raufi did
was moved to a self-contained unit fact that the HA 1996 s188 (interim the authority had continued to have have a priority need because he was
but said that while living there she was accommodation) duty had arisen. No reason to believe that the claimant vulnerable. The council had applied the
accosted by a person who was one of, or interim accommodation was offered. may be homeless, the interim duty wrong test to the issue of vulnerability,
was related to, those who had trafficked The council explained that it had to accommodate under s188(1) arose ‘namely a quantative [sic] approach
her. She requested and was granted an nothing that was ‘any better than the (paras 43–44). rather than a qualitative one’. It had
urgent move to a different area. current accommodation’ (para 28). On also applied the wrong test to the
8 February 2018, a claim for judicial Although the council conceded that it comparator. ‘The comparator is an
She brought a claim against the council review was issued. The council then had been in breach of that duty since ordinary person who is homeless, and
for damages for the sexual assault accepted, on 19 February 2018, that 31 July 2017, the judge found that ‘the such a person is healthy and robust’
and harassment she had suffered, it owed the main housing duty under defendant’s s188 duty to secure interim (para 86). The judge added that ‘in
victimisation and a risk of re-trafficking, HA 1996 s193. It offered a private accommodation arose much earlier, any event, on a proper assessment
psychiatric injury, re-traumatisation, rented sector tenancy of single-level in the first week of December 2015’ of the evidence, the [council] could
anxiety, stress, depression, fear and wheelchair-suitable accommodation, (para 48). From that date, the council only conclude that by reason of his
humiliation, and injury to feelings. She which the claimant accepted and bore the burden of demonstrating mental illness and physical disability
asserted a violation of her ‘rights as a moved into in March 2018. that it had complied with the duty. It [Mr Raufi] was vulnerable’ (para 87). He
victim and a gross interference with her failed to do so. Accordingly, there had thus upheld the majority of the eight
personal dignity’ (para 18), significant The claimant continued the judicial been a breach from December 2015 grounds of appeal.
psychiatric damage, the feelings of review claim seeking damages for the to February 2018, even though the
re-traumatisation, anxiety, distress, period 2015–18 on the basis that the court was satisfied that ‘from January
depression, fear and humiliation she council had failed to recognise its s188 2016 there was no suitable housing Housing and children
had suffered as a consequence of duty through that period resulting in an available from the defendant’s own
the two placements in unsuitable infringement of her rights under HRA stock and from November 2016 there • R (KI) v Brent LBC3
temporary accommodation, and 1998 Sch 1 article 8. was no suitable interim accommodation [2018] EWHC 1068 (Admin),
damages against the council in respect available to be secured by any means’ 10 May 2018
of breaches of the EU Trafficking Nigel Poole QC, sitting as a deputy High (para 50). In October 2016, the claimant (then
Directive (Directive 2011/36/EU). Court judge, held that: aged 16) entered the UK. Initially
In addition, she claimed aggravated Such a breach of duty could not found he stayed with an uncle, but that
damages and exemplary damages. Just because an application is a claim in negligence or for the tort relationship broke down. He sought a
She also claimed declarations that the ostensibly by a ‘not homeless’ of breach of statutory duty but might judicial review of the council’s refusal
council was in breach of its duties under applicant, and therefore might be amount to a breach of article 8. On to recognise him as a ‘child in need’
the Trafficking Directive, HRA 1998 Sch regarded as being made under Part the facts of this case, there had not requiring accommodation under
1 articles 4 and 8, HA 1996 s188 and VI of the Act, it does not follow that been a breach of the claimant’s own Children Act (CA) 1989 s20 and,
common law duties of care. it cannot constitute an application for rights under that article. In any event, subsequently, on his attaining the age
the purposes of Part VII – R v Islington a declaration of breach of the right of 18 on 5 January 2018, refusing to
Langstaff J dismissed the claim. Applying London Borough Council Ex p B (1997) would have been sufficient to mark the recognise his status as a ‘former relevant
O’Rourke v Camden LBC [1998] AC 188, 30 HLR 706 at page 710. The words breach. If that was wrong, only £2,000 child’ for the purposes of CA 1989 s23C.
he held that a breach of HA 1996 s188 ‘reason to believe that an applicant in damages would have been awarded.
did not give rise to a cause of action may be homeless’ [in s188] suggest No claim had been brought by the At trial, the council conceded that it
sounding in damages, whether for a low threshold for the duties under disabled child. was in breach of its duty under s20 in
breach of statutory duty or common law Part VII to arise (para 41; see R (Aweys seeking to accommodate K with his
negligence. The Trafficking Directive did and others) v Birmingham City Council Priority need uncle again in October 2017 despite
not have the direct or indirect effect of [2007] EWHC 52 (Admin); [2007] HLR the breakdown in their relationship
imposing a liability on the council. The 27; March 2007 Legal Action 18). • Raufi v Islington LBC2 and the unsuitability of the uncle’s
council could not be liable at common County Court at Central London, accommodation. However, it
law for the acts of the third parties On the facts, the judge found that: 4 June 2018 contended that the breach of duty had
complained of. The claims based on Mr Raufi was a refugee. In Iran, he had occurred before the claimant had been
articles 4 and 8 took the matter no … in March 2015 the claimant been imprisoned and tortured. In 2015, accommodated under s20 for the 13
further and failed on their facts. had applied to the defendant for he came to the UK and was granted weeks necessary to trigger the status of
accommodation, and that on receipt indefinite leave to remain in 2016. ‘former relevant child’.
• R (McDonagh) v Enfield LBC of the March 2015 application, given When his National Asylum Support
[2018] EWHC 1287 (Admin), that the authority already had the OT Service (NASS) accommodation David Elvin QC, sitting as a deputy
24 May 2018 assessment from October 2014, the ended, he moved in to live with his High Court judge, held that, following
The claimant lived with her authority had reason to believe that brother and his brother’s family in a the council’s belated compliance
three children in private rented she may be homeless as defined by one-bedroomed property. In January with its duties of candour and full and
accommodation. It was unsuitable s175(3). Accordingly, s183(1) of the 2017, his brother asked him to leave frank disclosure, it was plain on the
for her disabled son, a wheelchair Act was made out and so the later and he applied to the council for facts that the council ‘continued as a
user, as it was a two-storey house and provisions of Part VII applied. homelessness assistance. The medical matter of fact to treat K as a looked
the bathroom and toilet were on the evidence showed that he suffered after child beyond the 11 October
first floor. In March 2015, following It follows that under s184(1), the from: severe depression; anxiety; … and did so beyond the 13 weeks
reports from a social worker and an defendant should have made such post-traumatic stress disorder; urinary required to establish eligibility (which
occupational therapist, the council inquiries as were necessary to satisfy incontinence; plantar fasciitis, causing occurred at the end of October 2017).
treated the claimant as having applied themselves whether the claimant pain in his feet, as a result of falanga Indeed, I consider that he did not cease
for a social housing allocation under was eligible for assistance and if so, (beating to his feet); limited ability to to be looked after, or that the s20
HA 1996 Part 6. In January 2017, the whether any duty, and if so what walk; cervical pain; low back pain; and duty ceased, until he turned 18 on 5
claimant’s solicitors made it clear to duty, was owed to her under Part VII. non-alcohol-related fatty liver disease. January 2018’ (para 103). Accordingly,
the council that the claimant was The defendant does not dispute that Having taken advice from NowMedical, the claimant was owed the duties
seeking assistance under HA 1996 Part at all relevant times the claimant the council concluded that he did not contained in s23C.
46 Law and practice Housing: recent developments LegalAction July/August 2018

The judge said: permission for judicial review. It was • R (RL) v Croydon LBC4 The only other route to a costs
hoped that the home secretary would [2018] EWCA Civ 726, order in the claimant’s favour was to
Whilst I do not underestimate the intervene in the claim as an interested 11 April 2018 demonstrate that a court was:
difficulties faced by local authorities, party to provide information about who The claimant was a Ghanaian national
and their social services department, should provide support to the claimant. and the mother of three children aged … in a position to decide with
in these days of austerity and between six and 12. The eldest child sufficient confidence both (a) that
public funding cuts when available • Judicial Review by OC (A Minor) was a British national. The mother and Croydon had been legally obliged
accommodation is scarce and they and another the two younger children had leave to to produce the assessment prior to
have a duty to promote the welfare of [2018] NIQB 34, remain in the UK subject to a condition 28 October 2015 and (b) that it was
many children in need, it remains the 10 April 2018 that they should have no recourse to reasonable of the [claimant] to issue
responsibility of the council to comply The claimants were teenagers who public funds. The effect was that they the proceedings on that date. I say
with the law and the overriding duty had lived difficult and troubled lives were not entitled to homelessness ‘with sufficient confidence’ because it
to protect the individual child and that involving engagement with social assistance or social housing under HA would not be proportionate to hold
child’s welfare (para 109). services and criminal justice authorities. 1996 Parts 6 and 7. the equivalent of a full trial simply in
They sought a declaration that public order to determine liability for costs:
• R (FA) v Redbridge LBC authorities were to be absolutely The claimant told the council in the court has to do its best to reach a
Administrative Court, prohibited from using bed and September 2015 that she was facing fair conclusion on a summary basis,
27 April 2018 breakfast-style accommodation for eviction and the council began an with the fallback of making no order if
The claimant was a Nigerian national. single young vulnerable teenagers such assessment of her children’s needs that is not possible (para 75).
She entered the UK in 2002 as a visitor as themselves. under CA 1989 s17. The eviction took
but overstayed. She subsequently gave place on 15 October 2015 but the Applying that approach, the claimant
birth to a daughter. Her application for Keegan J considered R (M) v assessment had not been completed. could not succeed on costs:
leave to remain was refused. A further Hammersmith and Fulham LBC On 28 October 2015, the assessment
application was rejected, as was her [2008] UKHL 14; April 2008 Legal still not having concluded, she sought A section 17 assessment is a serious
application for asylum. An appeal Action 35 at para 27, in which Lady Hale judicial review seeking to achieve the exercise, requiring information
was dismissed. Appeal rights were described the ‘wisdom of … guidance’ provision of accommodation. She from several sources, and … local
exhausted in November 2016. The that ‘bed and breakfast accommodation obtained an interim order. authorities have many calls on their
claimant made a further application for is unlikely to be suitable for 16 and 17 resources. A court should be slow to
leave to remain on the basis that she year olds who are in need of support’. The assessment was concluded on find that an authority had been guilty
had been in the UK for over 10 years. Counsel in the instant case had ‘put 4 November 2015 and the council of unlawful delay simply because it
forward an impressive argument in agreed to meet the children’s had missed a benchmark target or its
In April 2018, she became homeless. support of an absolute prohibition on needs by provision of temporary performance may be shown to have
She was not eligible for assistance bed and breakfast accommodation accommodation. The renewed been sub-optimal in some particular
under HA 1996 Part 6 (housing using OC’s case by way of example’. application for permission to seek respect. There were indications that
allocation) or Part 7 (homelessness). The judge said: ‘I have considerable judicial review was withdrawn on the Croydon had encountered difficulties
She applied to the Home Office for sympathy with this case particularly basis that the parties would make costs in accumulating all the information
assistance under Immigration and as OC’s case highlights the dangers submissions in writing. Judge Gill, that it felt it required: given that
Asylum Act (IAA) 1999 s4 and also to in using this type of accommodation sitting as a deputy High Court judge, the delays in question were on
the council under CA 1989 s17. The where there are serious inherent made no order as to costs. The claimant any view not gross it would not be
Home Office decided she was not problems such as drug addiction. The appealed. proportionate on a costs assessment
entitled to support under IAA 1999 accommodation cannot simply be used to attempt to get to the bottom of
s4. On appeal from that decision, a to provide a roof over the head of a The Court of Appeal dismissed the exactly what had gone wrong or
tribunal concluded that she was not problematic young person’ (para 38). appeal. The relief sought by the claim whose fault it was (para 76).
destitute and dismissed her appeal. The (provision of accommodation) had
council said she was entitled to support Although the court would not ‘declare never been obtainable because s17 Jackson LJ agreed with the view
under IAA 1999 s95 and therefore IA an absolute prohibition on hotel/bed contains only a general duty to assess, that, although the no-costs order
1999 s122 prevented it from providing and breakfast accommodation in cases not a specifically enforceable duty to could not be disturbed in this case,
services. The claimant sought a judicial of this nature’, the judge stressed that provide accommodation absent an that conclusion was to be reached
review of that decision and applied for ‘the use of this type of accommodation assessment. Underhill LJ said: with some reluctance because ‘of the
interim relief. Although the claimant should be rare, restricted and heavily importance to solicitors undertaking
was a failed asylum-seeker, it was monitored’ (para 49). The court would More accurately, what the [claimant publicly-funded work of recovering
argued that she was to be treated as adopt the headline points that in was] seeking was an assessment costs on an inter partes basis not only
though her asylum claim was still extant respect of vulnerable teenagers, among under section 17 of the 1989 Act, when they succeed in litigation but
because the home secretary could other matters (para 50): which might (and indeed eventually when the litigation is resolved on a
provide support for an asylum-seeker did) lead to the provision of basis that represents success’ (paras
or their dependants if they were • The accommodation [provided] accommodation. At the time that the 78–79).
destitute: s94(5). should be suitable. proceedings were issued there was
• What is suitable will depend on the no dispute between the [claimant] 1 See ‘London borough secures its largest
Warby J held that, in conjunction with facts of each case. and the council that it was under ever confiscation order for planning
other provisions, CA 1989 s17 imposed • Bed and breakfast/hotel an obligation to carry out such an breaches’, Local Government Lawyer, 29
May 2018.
a duty on a council to assess and accommodation must only be used assessment: it had indeed started,
2 Kevin Gannon, barrister, London and
provide appropriate services. The issue in exceptional circumstances, for to the [claimant’s] knowledge, some
Osbornes Law, solicitors, London.
was the interaction between CA 1989 the shortest possible period and time prior to the commencement 3 See also page 20.
s17 and IAA 1999 ss4 and 95. Section accompanied by supports and of proceedings. The object of the 4 See also pages 20 and 24.
4 dealt with failed asylum-seekers, services. proceedings was not to secure an
s95 dealt with asylum-seekers. It was […] assessment but to secure it sooner
impossible to be confident about the • Social services will be expected to than it was feared would otherwise be
home secretary’s view of her status. It vouch all attempts to find suitable the case. That being so, the fact that
was a sufficiently debatable issue, as accommodation to a court and the assessment was in fact completed, Nic Madge is a former circuit judge. Jan Luba
to whether the council had reasonable to set out the exact nature of and that the [claimant was] QC is a circuit judge. Sam Madge-Wyld is
grounds for the belief that the Home temporary accommodation with an accommodated accordingly, does not a barrister at Tanfield Chambers. They are
Office would assist under s95, to justify emphasis on supports and services. represent ‘success’: that would have grateful to the colleagues at note 2 above for
interim relief until after a decision on happened anyway (para 74). providing details of the judgment.

Das könnte Ihnen auch gefallen