Case law update

19 May 2020


By Matt Lewin


‘Disability’ and ‘vulnerability’ are separate concepts: the job of a homelessness officer is to decide whether or not an applicant is vulnerable.

In both cases, the appellants challenged section 202 review decisions in which the reviewing officers had not made explicit findings that they were disabled (within the meaning of the Equality Act 2010), and so argued that the decisions had been made in breach of the Public Sector Equality Duty.

The Court of Appeal held that there was no requirement that every decision letter should contain an explicit finding as to whether or not the applicant was disabled. After all, the concepts of ‘disability’ and ‘vulnerability’ derive from different Acts of Parliament and involve different tests. The most important distinction between the two is that “disability is to be assessed without reference to measures being taken to correct or treat the disability, whereas vulnerability is to be assessed taking into account such measures.” [45]

In this context, the focus of a section 184 or 202 decision looks beyond the basic question of whether or not an applicant is disabled: its focus is on his or her ability to deal with the consequences of being homeless, i.e. their vulnerability [56].

The Court of Appeal observed that there is a substantial overlap between the test for vulnerability and the requirements of the PSED – so much so, that “[i]t is difficult to see how that task can be performed without a sharp focus on the extent of the illness, handicap or physical disability; and its effect on the person’s ability to deal with the consequences of homelessness“. [68] As my colleague Catherine Rowlands put it – a phrase which clearly appealed to the court – “the task of the reviewing officer is not to label; it is to understand.”

In both cases, the Court of Appeal concluded that the reviewing officers had done exactly that and the appeals were dismissed. Catherine Rowlands and Rowan Clapp represented Hertsmere Borough Council. Michael Paget and Zoë Whittington represented Watford Borough Council.

Section 204 appeals allow any public law issue to be raised – but contracting-out arguments are errors of form, not substance, and so are very unlikely to succeed.

The Court of Appeal has dismissed what may be the last challenge to the contracting-out of section 202 review decisions.

Mr James was granted permission to appeal to the Court of Appeal against a review decision, produced on Hertsmere’s behalf by an external reviewing officer, on one ground: that the review decision was invalid because the Council had not lawfully contracted-out its statutory review function.

The first issue for the Court of Appeal was whether ‘policy’ challenges – which have no bearing on the merits of the decision itself – could even be raised in a section 204 appeal. Lewison LJ had expressed misgivings about section 204 appeals being used for this purpose in Panayiotou v Waltham Forest LBC [2017] EWCA Civ 1624.

The Council argued that they could not. The Court of Appeal noted that, no less than 20 years earlier, my colleague Ranjit Bhose QC had made the same argument for the local authority in Nipa Begum v Tower Hamlets LBC [2000] 1 WLR 306 – unsuccessfully. [18]

In this case, the Court again rejected Ranjit’s argument and held that an appeal on a “point of law”, for the purposes of section 204, goes beyond “points of housing law” and “extends to the full range of issues that would otherwise be the subject of an application to the High Court for judicial review”. [31]

However, the Court of Appeal went onto dismiss the appeal. On the facts, the contract with the external reviewing officer had been lawfully made. In any event, if there had been any error in that process, the Council could (and had) retrospectively validated the contracting-out by ratification. The challenge, in this case, was one of form and not substance, meaning that there could be no sensible objection to ratification after the event.

Ranjit Bhose QC and Riccardo Calzavara represented Hertsmere Borough Council.

Being without legal representation may amount to a “good reason” for delay in issuing a Section 204 Appeal.

In this case, the Court of Appeal has given important guidance on granting permission to appeal out of time, under s.204(2A).

Mr Al Ahmed sought assistance from Crisis on receiving a negative s.202 decision letter. They struggled to find a legal aid firm to take on his case. Eventually, a firm was instructed and, within two days, grounds of appeal had been drafted and an appeal issued at court – albeit a month out of time.

The Circuit Judge granted permission to appeal out of time, on the basis that “without a legal representative this appeal was never going to go anywhere” and therefore it had been reasonable to wait until lawyers could be instructed before issuing the appeal. The authority appealed to the High Court which allowed the appeal and refused permission to bring the appeal out of time.

Mr Al Ahmed then appealed to the Court of Appeal. Shelter intervened in the appeal.

The Court of Appeal placed great weight on the evidence of Shelter’s CEO, Polly Neate, which “presents a bleak picture of the difficulties faced by homelessness applicants in bringing an appeal under s.204 … without legal advice and representation, and of the difficulties they may face in finding someone to provide those services under legal aid, especially as a result of the post-LASPO shrinkage of the housing advice sector.”

The appeal was allowed: the High Court had been wrong to exclude the difficulties faced by a litigant in person as an irrelevant consideration. The essence of the judgment appears in [34]:

Everything will of course depend on the circumstances of the individual case, but it would be both surprising and unfair if difficulties of that kind could not be taken fully into account and given appropriate weight in the assessment of whether there was a good reason for failure to bring an appeal in time and, to the extent that it arises as a separate issue, for delay in applying for permission to bring an appeal out of time.”

Nonetheless, the Court was keen to stress that its ruling does not give “carte blanche to delay” and that, among other factors, it will be necessary to scrutinise carefully how diligently the applicant acted in seeking legal aid. [35)

Court of Appeal re-states approach to assessing costs in settled judicial review claims.

The claimant issued judicial review proceedings to challenge the lawfulness of the authority’s personal housing plan (section 189A) and its discharge of the relief duty (section 189B). Within days of the final hearing, the authority produced an updated plan and offered to re-house the claimant in self-contained accommodation. The parties agreed that the claim had become academic so the proceedings were compromised by consent order. As they could not agree on costs, the parties sought a ruling from the judge.

The judge made no order for costs, on the basis that it was impossible, without conducting a full trial of the claim, what, if any, causal connection there was between the claim and the authority’s subsequent offer of accommodation. The claimant appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal and (at [24]-[29]) re-stated the well-known principles in M v Croydon [2012] EWCA Civ 595:

(1) if it was clear that one party had been successful, the court will normally order costs in that party’s favour.

(2) if the claimant does not succeed in getting all of the relief she has claimed, the court will often make no order for costs – unless it can, without much effort, decide that one of the parties has clearly won, or won to a sufficient extent to justify some order for costs in her favour.

(3) if the claim succeeds on terms which do not reflect the relief sought by the claimant, the general rule would be no order for costs – unless it is reasonably clear which party would have succeeded at trial, in which case there would be some force in the argument that that party should be awarded costs.

In this case, the issue was causation: the claimant had achieved the relief she was seeking – but did her claim cause or contribute to that result or would it have happened anyway? The Court of Appeal observed that “the cases show that causation is a relevant and sometimes decisive factor in the exercise of the court’s discretion concerning costs” [31].

However, the Court also noted that the investigation of an issue like causation needed to be kept within reasonable and proportionate bounds [38], especially bearing in mind the summary nature of the costs assessment process [39]. The judge’s conclusion that it was impossible to say which party had “won” was upheld and the appeal dismissed.

The main housing duty must be discharged immediately on it being accepted.

The claimant and his family were owed the main housing duty (s.193(2)). In late 2017, they were offered a 4-bedroom property in discharge of that duty. The claimant and his family moved in, but requested a review of its suitability. The reviewing officer, in a letter issued in February 2018, agreed that the property was unsuitable for the claimant’s daughter. Nonetheless, more than two years later, the family remained in the property – the authority apparently having done very little to identify suitable alternatives in the meantime. A judicial review claim was issued, alleging that the authority was in breach of the main housing duty and seeking a mandatory order requiring the authority to provide suitable accommodation.

The questions for the court ([36]) were:

(1) is an authority in breach of the main housing duty if they leave an applicant in accommodation which it is not reasonable to occupy, even for a short period?

(2) if so, does the breach occur automatically or is the authority allowed a reasonable period of time in which to secure suitable accommodation?

(3) if there is a breach, what remedy should the court grant?

The key principles to take from the judgment are these:

• An authority may lawfully decide that, although an applicant’s current accommodation is not reasonable for them to continue to occupy indefinitely (meaning they are homeless as defined by s.175), that accommodation is nonetheless suitable for them to occupy on a short-term basis in discharge of the main housing duty – giving the authority time to secure suitable long-term accommodation: see Ali v Birmingham City Council [2009] UKHL 36. In this case, however, the reviewing officer had explicitly concluded that the current accommodation was not suitable, even in the short term. [88]

• Once it has been established or accepted that the accommodation currently occupied by the applicant is not suitable, the authority is automatically in breach of the main housing duty. The duty must be discharged as soon as it is accepted: the authority does not have a reasonable period of time in which to secure that suitable accommodation is available. [92]

• Even if that was wrong, and the authority did have a reasonable period of time in which to secure suitable accommodation from the point of accepting the main housing duty, on the facts of this case, that time had now expired: after two years, “enough was enough”. [96]-[98]

• Nonetheless, even if the court finds the authority in breach of the main housing duty, it will not order the impossible. However, the burden is on the authority to demonstrate that it has taken all reasonable steps to secure suitable accommodation is available for the applicant. [101], [120]

In this case, the judge was very critical of the “vague” evidence relied on by the authority and concluded that “far from taking all reasonable steps, the defendant has not taken the claimant’s case seriously”. [106] This justified the unusual step of making a mandatory order requiring the authority to secure suitable accommodation within 12 weeks: “a mere declaration will not lead to a sustained and thoughtful effort to assist the claimant and his family”. [121]

Housing management

A breach of the PSED was no defence to a possession claim against a tenant who had obtained the property by deception.

Mrs Durdana and her husband were former employees of Luton Borough Council who had made false statements on their homelessness application to secure an allocation of accommodation owned by Luton Community Housing. Mrs Durdana had accepted a caution and her husband had pleaded guilty at Luton Crown Court to offences of obtaining housing by deception.

Luton Community Housing issued possession proceedings, relying on ground 17 of Schedule 2 to the Housing Act 1988 (the landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by the tenant or a person acting at the tenant’s instigation).

Mrs Durdana and her daughter were disabled. The housing association had prepared a two-page “Equality Act Review” but it was, in many respects, inadequate. The document was not prepared until after the claim had been issued, the officer who prepared it had not been adequately trained to complete it and it gave no consideration as to the impact eviction would have on Mrs Durdana and her daughter. The document did note that the effect of Mr and Mrs Durdana’s dishonesty was to have deprived other families of desperately-needed social housing.

Nonetheless, the PSED required the housing association to have proper regard to Mrs Durdana’s and her daughter’s disabilities in making a decision to seek the family’s eviction. That was not a “trump card” – in that it needed to be balanced against other factors, such as the housing association’s established policy of recovering possession in cases of housing fraud – but the failure to have proper regard to their disabilities meant that the housing association had breached the PSED by issuing the possession claim.

At trial, it was accepted by both parties that a breach of the PSED was not necessarily fatal to a possession claim and that it would be appropriate, in some cases, to grant possession notwithstanding the breach. That has since been confirmed as correct by the Court of Appeal in Aldwyck Housing Group v Forward [2019] EWCA Civ 1334, which was decided after the trial in Durdana.

The trial judge, having found a breach of the PSED, considered that the question for the court was whether the housing association would “inevitably” have issued the claim, even if it had carried out a proper consideration of the family’s disabilities. The Court of Appeal allowed an appeal by Luton Community Housing on this point: that was setting the bar too high; the correct test was whether it was “highly likely that a proper PSED assessment would [not have] led to a different decision” [31]-[32].

The Court of Appeal’s emphatic conclusion was that the answer to that question was “yes”:

• There is a severe shortage of available, affordable accommodation [34]
• There was no question that Mr and Mrs Durdana would have been granted the tenancy if they had provided honest answers on their homelessness application – the property would instead have been allocated to other qualifying applicants of whom there were and are many [34]
• Against that background, the housing association was justified in operating a policy of seeking to remove tenants who have obtained their accommodation by deception – “nothing else could have acted as a sufficient counterbalance to the social objective which underpinned the policies of [the housing association]” [35]

Canada Goose v Persons Unknown [2020] EWCA Civ 303 – 5 March 2020

Court of Appeal gives guidance on the correct procedure for interim injunctions against “persons unknown”.

The Canada Goose store on Regent Street in London has attracted persistent protests from animal rights activists. The majority of protestors have done so peacefully and lawfully but a minority had committed unlawful acts, including criminal offences.

Canada Goose issued a claim for an injunction against “persons unknown who are protestors against the manufacture and sale of clothing made of or containing animal products and against the sale of such clothing at Canada Goose, 244 Regent Street“. The injunction was sought pursuant to a number of common law torts: trespass, “watching and besetting”, public and private nuisance and conspiracy to injure by unlawful means. A without notice interim injunction was granted.

Canada Goose applied for summary judgment on the claim. However, not only was the application refused, the interim injunction was discharged. Nicklin J considered that the claim form had not been properly served and, in any event, there were realistic prospects of defending the claim. He noted that the description of “persons unknown” was far too broad, meaning it would apply to someone protesting as far away as Penzance.

Canada Goose appealed unsuccessfully to the Court of Appeal. In dismissing the appeal, the Court provided guidance on applying for interim injunctions against “persons unknown” in protester cases [82]:

(1) “Persons unknown” cannot include any people whose identity is known at the time of issuing proceedings: if their identity is known, they should be joined as individual defendants. “Persons unknown” are, by definition, people who have not been identified but are capable of being identified and served with the proceedings. “Persons unknown” may include both anonymous defendants who are identifiable by an appropriate description and “newcomers”, i.e. people who in the future will join the protest and will fall within that description.

(2) The “persons unknown” must be defined in the claim form by reference to their conduct which is alleged to be unlawful.

(3) An interim injunction may only be granted if there is a sufficiently real and imminent risk of a tort being committed to justify quia timet (i.e. anticipated wrong) relief.

(4) The injunction order must identify those subject to it: individually by name, if known and identified; or described as “persons unknown” in such a way as to enable them to be identified and served with the order. If an alternative form of service is to be used, it must be set out in the order.

(5) The acts prohibited by the injunction must correspond to the threatened tort. They may include lawful conduct if, and only to the extent that, there is no other proportionate means of protecting the claimant’s rights.

(6) The terms of the injunction must be sufficiently clear and precise as to enable persons potentially affected to know what they must not do. The prohibited act should be described in ordinary language. The prohibited acts should not be defined by a legal cause of action (e.g. trespass). The description of the prohibited acts should avoid referring to the defendant’s intention, unless that is strictly necessary to correspond to the threatened tort, done in non-technical language (which the defendant is capable of understanding) and that the intention if capable of proof.

(7) The interim injunction should have clear limits in terms of geography and time.

As for final injunctions, the Court held that while they may be granted against persons unknown, in protester cases that cannot include newcomers: there is a fundamental principle that a person cannot be made subject to an injunction without having had notice of the proceedings as will enable them to be heard.

The problem for Canada Goose is that private law proceedings are an inherently unsuitable means for trying to permanently control public protest. The Court contrasted private law injunctions with local authorities’ power to make a Public Spaces Protection Order, which expressly requires the authority to take into account matters such as freedom of expression and assembly and require consultation.

Ranjit Bhose QC represented Canada Goose.

Children’s services

AR v Waltham Forest LBC [2020] EWHC 622 (Admin) – 16 March 2020

A severe shortage of secure local authority accommodation for children in police custody means the court will not order an authority to do the impossible.

When a child is arrested by the police, and they are to be detained, the general rule is that they should be detained in local authority accommodation. Where it applies, s.38(6) of the Police and Criminal Evidence Act 1984 provides that the custody officer is subject to a duty to secure that the child is moved to local authority accommodation, and the local authority is subject to a corresponding duty to receive and provide accommodation for such children under s.21(2)(b) of the Children Act 1989.

The legislative policy is obvious: children should not be detained in police cells if at all possible. The legislation imposes an absolute duty to provide (non-secure) accommodation when it is requested, but where secure accommodation is requested, local authorities are only required to have a reasonable system in place to enable them to respond to such requests.

No local authority owns and manages its own secure accommodation. The provision of secure accommodation is extremely limited: all local authorities in England and Wales have access to a pool of just 15 secure accommodation providers available through a centralised arrangement known as the Secure Accommodation Network – and none are in London. In reality, notwithstanding the arrangements that were in place, Waltham Forest had not been able to provide secure accommodation in any case following a s.38(6) request. Where secure accommodation is requested, but not available, the child remains in police custody.

The claim was dismissed. The reality was that the number of s.38(6) requests was very small and that they had been properly considered – even if the severe limitations on the availability of secure accommodation, and the considerable travel times involved, meant that in each case the request had been refused. Waltham Forest was not at fault as it had no practical alternative to using the pooled system and its decision not spend its limited resources on providing, staffing and maintaining its own secure accommodation was far from being irrational.

Ashley Underwood QC represented Waltham Forest LBC.

Private sector licensing

Waltham Forest LBC v Marshall [2020] UKUT 0035 (LC) – 14 January 2020

Upper Tribunal upholds authority’s enforcement policy for calculating penalties for selective licensing offences.

Waltham Forest had adopted a “Civil Penalties Matrix” for calculating financial penalties under s.249A of the Housing Act 2004. The policy comprised six bands, each of which provided a minimum tariff for different offences with adjustments made to the final penalty to take into account mitigating and aggravating factors.

Applying that policy, the authority imposed financial penalties on two landlords. The landlords successfully appealed to the First-Tier Tribunal, which significantly reduced the penalties in both cases.

The authority successfully appealed to the Upper Tribunal. The FTT had paid no more than “lip service” to the policy and had given no reasons for departing from it. The penalties originally imposed by the authority were reinstated. The UT held that, in future cases, the FTT must accept the authority’s policy and should only depart from it where the appellant can demonstrate good reasons for doing so.

Dean Underwood, Tara O’Leary and Riccardo Calzavara represented Waltham Forest LBC.