From Allocations to Article 8 - key cases in 2009

Although housing lawyers will probably remember 2009 for the legislative changes which swept away most of the difficulties associated with tolerated trespassers (Sch 11 Housing and Regeneration Act 2008), a number of significant cases were also decided last year. Emma Godfrey and Mark Baumohl analyse the key judgments of 2009.

Allocations

In R(Ahmad) v Newham LBC [2009] UKHL 14, the House of Lords considered a challenge to the lawfulness of Newham’s choice-based letting scheme. Applicants were placed in one of three categories; the largest category ("Priority Homeseekers") consisted of all households who fell within one of the “reasonable preference” categories in s.167(2) HA 1996. When applicants from that category bid for a property, it would be allocated to the bidder who had been a Priority Homeseeker for the longest. The scheme did not make any provision for applicants with greater housing needs to be given priority over others who also fell into one of the reasonable preference categories. (Direct offers could be made to the applicants with the most acute needs outside the choice-based scheme, but only if strict criteria were satisfied.) The lower courts had held that Newham’s scheme was unlawful for failing to determine priority between people within those groups listed in s.167(2), in accordance with the relative gravity of their individual needs.

The House of Lords allowed Newham’s appeal, holding that s.167 Housing Act 1996 only requires a reasonable preference to be given to particular groups of people, rather than to the individual households within those groups. An authority is not obliged to rank all reasonable preference applicants by reference to the strength of their respective cases. The “time waiting” aspect of the scheme was simple and transparent and the scheme could not be said to be irrational for making waiting time the determining factor between “reasonable preference” applicants. Once a housing allocation scheme complies with s.167 and any other statutory requirements, the courts should be slow to interfere on the grounds of alleged irrationality. The decision is important in approving a broad-brush banding scheme, and in emphasising that it is undesirable for courts to get involved in questions of how priorities are accorded in allocation policies.

Homelessness

There were also some important decisions on Part VII Housing Act 1996. In Ali & others v Birmingham CC [2009] UKHL 36 the local authority accepted that the applicants were homeless within the meaning of s.175(3) Housing Act 1996 because their current accommodation was not reasonable for them to continue to occupy. However, it decided to leave the applicants in that property until suitable permanent accommodation could be found. The House of Lords held that it was lawful for the council to discharge its duty under s.193(2) Housing Act 1996 in this way. A local authority can properly decide that applicants are “homeless” if it would not be reasonable for them to continue to occupy their existing accommodation indefinitely; however this does not mean that the accommodation is unsuitable for the purposes of s.193(2), as it may be reasonable for them to stay in their existing accommodation for a short while. The question of how long a household may be left in their existing unsatisfactory accommodation will depend on the facts of the case and is primarily one for the authority. This approach recognises the pressures on council housing stock and also that applicants who are “homeless at home” may prefer to remain in their home for a limited time while a more suitable property is found, rather than moving into temporary accommodation.

In the related case of Moran v Manchester CC [2009] UKHL 36 the House of Lords held that a woman who finds accommodation in a refuge, after fleeing violence, usually remains homeless within the meaning of s.175 Housing Act 1996 because the accommodation is not reasonable to continue to occupy indefinitely.

In De-Winter Heald & others v Brent LBC [2009] EWCA Civ 930 the Court of Appeal rejected an argument that it was unlawful for the council to contract out the performance of its s.202 reviews. Contracting out is permitted by the Local Authorities (Contracting Out of Allocation of Housing and Homelessness Functions) Order 1996 (SI 1996/3205). The court also found no appearance of bias on the part of the review decision maker, Mr. Perdios.

In R (on the application of G) v Southwark LBC [2009] UKHL 26 the local authority's Children’s Services department argued that it was not obliged to provide accommodation and ancillary services to a homeless child pursuant to s.20 Children Act 1989, because as a 17-year old he was in priority need and entitled to accommodation under Part VII Housing Act 1996. The House of Lords rejected this argument; the criteria in s.20(1) Children Act 1989 were satisfied, so the s.20 duty arose and children's services could not side-step that duty by referring the applicant to the housing department or by "labelling" the accommodation as Part VII accommodation.

Article 8 ECHR

The Courts have continued to grapple with the question of when art.8 ECHR may provide a defence to a possession claim, following the decisions in Doherty v Birmingham CC [2008] UKHL 57 and Kay v Lambeth LBC [2006] UKHL 10.

Liverpool CC v Doran [2009] EWCA 146 concerned the eviction of a traveller from a caravan site following termination of her licence by NTQ after a history of alleged anti-social behaviour. The Defendant had not had an opportunity to challenge the allegations made against her and raised a "gateway (b)" defence, arguing that the decision in Doherty had extended the scope of the public law challenges that could be raised. The Court of Appeal held that there is no formulaic or formalistic restriction on the factors which may be relied upon in support of a "gateway (b)" argument that the public authority’s decision to serve a notice to quit and seek a possession order was one that no reasonable council would have taken. When considering whether the decision to recover possession was one that no reasonable person would consider justifiable, the court should apply public law principles as they have been developed by common law. The Court of Appeal accordingly also rejected the argument that a decision, which a reasonable authority could have reached on the basis of the information available to it at the time, could be retrospectively invalidated once further facts became known.

In Wandsworth LBC v Dixon [2009] EWHC 57 (Admin) the High Court held that the common law rule in Monk v Hammersmith & Fulham LBC [1992] 1 AC 478 (that the service of a notice to quit by one joint tenant determines the tenancy, entitling the landlord to recover possession from all joint tenants) was not inconsistent with art.8, notwithstanding the decision of the European Court of Human Rights in McCann v UK. The judge considered that McCann concerned only the procedural effect of art.8 in its own particular circumstances, and considered it significant that in McCann (unlike in Dixon) the joint tenant had been coerced or persuaded to sign the notice to quit. The Court of Appeal refused permission to appeal.

In Manchester CC v Pinnock [2009] EWCA Civ 852 it was held that where a council seeks possession of a property let on a demoted tenancy, the county court cannot review the substance or rationality of the council’s decision to issue possession proceedings. The sole issue is whether the procedure under ss.143E and 143F Housing Act 1996 has been followed. Permission to appeal to the Supreme Court has been granted.

A case in which there was a seriously arguable "gateway (b)" defence is McGlynn v Welwyn Hatfield DC [2009] EWCA 285. Mr. McGlynn had a non-secure tenancy. Following complaints of anti-social behaviour the Council served a NTQ, but subsequently wrote to Mr. McGlynn stating that it would not take further action unless satisfied that there was a significant breach causing nuisance to other tenants. A year later, following further complaints of nuisance, the authority commenced proceedings. On making an order for possession, the district judge had no evidence before him from the authority setting out how the decision to issue proceedings had been reached, or what consideration had been given to the most recent complaints of nuisance. The Court of Appeal held that on the paucity of information available to him, the trial judge had been wrong to grant a possession order summarily. In the unusual circumstances of the case it was seriously arguable that no reasonable authority would have issued proceedings unless it was satisfied that there had been further incidents of anti-social behaviour. The "gateway (b)" issue was accordingly remitted to the county court for consideration at trial.

Setting aside possession orders

Finally, the case of Forcelux Ltd v Martyn Ewan Binnie [2009] EWCA Civ 854 is worthy of mention. The Court of Appeal held that a possession order made at a first hearing in proceedings brought under CPR Part 55 is not “made at trial” within the meaning of CPR 39.3. Therefore, on an application to set aside the possession order, the court can apply its wider case management powers under CPR Rule 3.1; it will still be relevant to consider whether the application was made promptly and whether the Defendant had a good reason for not attending the hearing, but the court has a broader discretion to set aside the possession order and can consider the wider circumstances.

Emma Godfrey and Mark Baumohl are barristers at Field Court Chambers.

See also the speech given by Lord Neuberger, Master of the Rolls, to the Social Housing Law Association conference in December 2009.