Case update

18 Feb 2019

Housing, Public Law and Judicial Review

By Matt Lewin


Kannan v Newham London Borough Council [2019] EWCA Civ 57

The Public Sector Equality Duty continues to trip up reviewing officers. In this case, the Council’s suitability review decision was quashed for a breach of the PSED.

Mr Kannan was disabled and could not climb the steps to his accommodation without serious pain. Even though Now Medical had advised that the accommodation was unsuitable on medical grounds (when assessing Mr Kannan’s Part VI application for re-housing), the reviewing officer concluded that it was suitable.

The Court of Appeal found that the reviewing officer’s treatment of Mr Kannan’s disability was “highly unsatisfactory”. He had failed to deal with one of Mr Kannan’s principal complaints (the lack of accessible bathing facilities) and his generalised reference to others also living in accommodation that was not “ideal for their needs” lacked the “sharp focus” required by the PSED, as was also the case in Lomax v Gosport BC [2018] EWCA Civ 1846. Lewison LJ signed off his judgment with an important reminder: the mere recitation of Lord Neuberger’s formula in Hotak is “no substitution for actually doing the job.”

Safi v Sandwell Metropolitan Borough Council [2018] EWCA Civ 2876

The Council’s review panel upheld a decision that Ms Safi was not homeless because, although overcrowded, she had sufficient priority on the allocation scheme that she would soon be in a position to source appropriate accommodation.

The decision was quashed. The Council had failed to direct itself in accordance with Ali v Birmingham City Council [2009] UKHL 36. This required the Council to take into account Ms Safi’s present circumstances (which included the impending birth of her second child) and (a) ask whether it would be (both for now and for the foreseeable future) reasonable for her to continue to occupy her one-bedroom flat, (b) if it was not reasonable, consider how long in the short term it would be reasonable for her to continue to occupy her one-bedroom flat and, finally, (c) decide whether she would be able to secure more suitable accommodation through the waiting list before the end of that short term period.

Catherine Rowlands represented Solihull MBC.

R (AR) v Hammersmith and Fulham London Borough Council [2018] EWHC 3453 (Admin)

A local authority may not provide accommodation under its “general power of competence” (s.1 of the Localism Act 2011) to accommodate a person who is ineligible for assistance pursuant to s.185 of the Housing Act 1996). AR was Lithuanian and had no right to reside in the UK and was therefore ineligible for assistance. The court rejected his argument that the Council had power to accommodate him under the general power of competence. The restriction in s.185 was a “pre-commencement limitation” for the purposes of s.2 of the Localism Act 2011 and therefore prevented the Council from using s.1 to secure accommodation for AR.

Alibkhiet v Brent London Borough Council [2018] EWCA Civ 2742

Only a hermit could be ignorant of the terrible shortage of affordable housing in London, said Lewison LJ, in these conjoined appeals challenging Brent’s and Westminster’s policies on out-of-borough placements. Against this background, the Court of Appeal warned against “imposing onerous duties on housing authorities struggling to cope with the number of applications they receive from the homeless, in the context of a severe housing shortage and overstretched financial and staffing resources.

In the Brent case, although there was accommodation available within London, the applicant was offered a property in Smethwick, in the West Midlands. The Court of Appeal upheld that decision as having been made in accordance with the Council’s temporary accommodation policy. In the Westminster case, despite having accommodated the applicant and her family in temporary accommodation for more than two years, the Council was not required to continue to wait in the hope of more local accommodation becoming available.

Andy Lane and Riccardo Calzavara appeared for Westminster CC in the conjoined appeal of Adam v Westminster City Council.

R (AE) v Brent London Borough Council [2018] EWHC 2574 (Admin)

A case under s.17 of the Children Act 1989 but concerned with a familiar theme of homelessness law: out-of-borough placements. The Council sought to accommodate a homeless family with children in need within a 60-minute commute of the children’s grandparents’ home, their school and other services. The decision to set the commuting limit at 60-minutes involved no interference with the Article 8 ECtHR rights of the mother and her children and was not unreasonable.

Zoë Whittington represented Brent LBC.

Housing management

Powell v Dacorum Borough Council [2019] EWCA Civ 23

A local authority did not breach its PED at the stage of seeking to enforce a suspended possession order. In this appeal to the High Court, the Council had obtained an SPO against a tenant who had committed drug dealing offences in his property. The PSED was not raised until an application to suspend the warrant on the day of execution. The Council had made proper enquiries as to whether the tenant was disabled at the time the warrant was requested and had therefore not breached the PSED. When new medical evidence came to light, the Council carried out a proportionality assessment which concluded that it remained proportionate to seek to enforce the SPO. That (retrospective) proportionality assessment was itself lawful and complied with the PSED.

Andy Lane and Ruchi Parekh represented Dacorum Borough Council.

Haringey London Borough Council v Simawi [2018] EWHC 2733 (QB)*

When a secure tenant (under a tenancy agreement granted before 1 April 2012) dies, their spouse/civil partner or (in the absence of a spouse/civil partner) a member of the tenant’s family may succeed to their tenancy: ss.87-88 of the Housing Act 1985. There is only one right of succession. A tenant in whom the tenancy became vested on the death of the previous tenant is herself a successor and therefore no further right of succession arises on her death: ss.88(1)(e). However, a tenant to whom the tenancy was assigned following marital breakdown is not a successor (unless the other party to the marriage was a successor): s.88(2).

Mr Simawi argued that the “one succession rule” discriminated against family members of deceased widowed tenants (who were subject to the rule) compared with family members of deceased divorced tenants (who were not). However, the court held that there was no discrimination falling within the ambit of Article 14 ECtHR. In any case, there was an objective justification for any difference in treatment which was not manifestly without reasonable foundation.

* The Court of Appeal heard Mr Simawi’s appeal on 23 January 2019 and judgment was reserved.

Forward v Aldwyck Housing Association [2019] EWHC 24 (QB)

In this ASB case, for the first time the court considered the exploitative practice of “cuckooing” –where criminals take over the home of a vulnerable person and use it for their own criminal purposes – in the context of the PSED.

The housing association had not carried out any enquiries as to the state of the tenant’s physical and mental health before issuing possession proceedings. An equality impact assessment carried out before the trial was conceded to be inadequate because it did not consider any other alternatives to possession. However, the tenant had not provided adequate medical evidence to support his own case that he was being exploited due to a disability rather than, for instance, his own addiction to illegal drugs.

The judge granted possession and an appeal to the High Court was dismissed. The court observed, however, that “a rigorous consideration of the impact of the decision to commence eviction proceedings, against the equality objective encapsulated in the PSED, is required. It must be done with an open mind and not as a defensive ‘sweep up‘.”

Livewest Homes Ltd v Bamber [2018] EWHC 2454 (QB)*

A registered provider granted a 7-year fixed term tenancy with a 12-month starter period. The tenancy agreement provided that the tenancy could be ended by the landlord giving two months’ written notice during the starter period. Although that appeared to be a breach of s.21(1B) of the Housing Act 1988 (minimum six months’ notice required), the effect of the notice served during the starter period was to create a statutory periodic tenancy which could be terminated on two months’ notice.

* The tenant’s appeal was heard by the Court of Appeal on 17 January 2019. Judgment was reserved.

FJM v United Kingdom (76202/16), European Court of Human Rights

In McDonald v McDonald [2016] UKSC 28, the Supreme Court had held that an occupier of private sector accommodation could not rely on a defence under Article 8 ECtHR to a claim for possession brought by a private landlord. The tenant’s further challenge to that decision was rejected as manifestly ill-founded by the European Court of Human Rights: parties to a private sector tenancy had voluntarily entered into a contract, which is governed by legislation prescribing how their ECtHR rights are to be respected. The ECtHR endorsed the Supreme Court’s preference for contractual certainty and consistency in the application of the law and observed that allowing a tenant to raise such a defence would be “wholly unpredictable and potentially very damaging”.


Nottingham City Council v Parr [2018] UKSC 51

The Supreme Court held that local housing authorities can impose a condition on an HMO licence limiting occupation of an HMO to a particular class of people, in this case full-time students only.