Housing Team Hits of 2018-19
Housing, Public Law and Judicial Review
By Tara O’Leary
In this article, we have taken the opportunity to highlight some of the leading cases in which members of Cornerstone Barristers’ Housing Team have been involved since our last Housing Day in October 2018, together with a few cases which will be coming before the courts in the coming months.
Alibkhiet v LB Brent; Adam v City of Westminster  EWCA Civ 2742
Andy Lane and Riccardo Calzavara successfully acted for Westminster in these conjoined appeals against out-of-area placements in discharge of homelessness duties. The Court of Appeal dismissed the appellants’ arguments that where in-borough accommodation is not available, local authorities were obliged to ‘wait’ and continue searching for accommodation so that they can say they have done all that is ‘reasonably practicable’ to house the applicant.
Godson v LB Enfield  EWCA Civ 486, March 2019
David Lintott acted for the successful local authority in this case, which held that local authorities can move homeless applicants from one temporary accommodation to another in exercising their duty under s. 193(2) even absent a change of circumstances which renders the accommodation unsuitable. It was also held that where the local authority holds that its duty has ceased due to a refusal of suitable alternative temporary accommodation, and the tenant does not appeal, he cannot later try to re-open the finding of intentional homelessness on a subsequent housing application.
Adesotu v Lewisham LBC  EWCA Civ 1405, August 2019
Dean Underwood and Riccardo Calzavara appeared for the successful local authority in this case that equally belongs under the heading of the Equality Act heading (below). The Court of Appeal ruled that the County Court does not have jurisdiction to determine substantive claims of alleged discrimination within the context of s. 204 appeals: any such allegation must be litigated in a separate Part 7 County Court claim.
Procedure in possession claims
Salix Homes v Graciano Mantato  EWCA Civ 445, March 2019
Andy Lane acted for the successful housing association in this claim which considered whether a landlord can lawfully issue a second claim if it had obtained an earlier SPO on the same grounds (e.g. rent arrears) more than six years ago. The answer: yes it can. Further and different rent arrears had accrued in the period between the two claims, giving rise to a new cause of action, and it may often be in the tenant’s interests to issue fresh proceedings.
Equality Act, Discrimination and the PSED
Powell v Dacorum Borough Council  H.L.R. 21, January 2019
Andy Lane and Ruchi Parekh acted for the successful local authority in this case, which concerned the application of the PSED upon enforcement of an SPO by obtaining a warrant of possession. The tenant had failed to raise the PSED when the order was made or in his initial application to suspend the warrant: it was first raised only upon a second appeal to the Court of Appeal, which was dismissed. The Court held that the application of the PSED was contextual and differed from case to case: the decision of a local authority to continue possession proceedings was very different from a ministerial decision on national policy. It further held that the local authority had taken all reasonable steps to comply with the PSED, and reiterated that any defects in the PSED assessment can be remedied at a later stage of proceedings.
This year the Supreme Court also refused permission to appeal in two important cases in which our members had succeeded before the Court of Appeal:
- Paragon Asra v Housing Limited v Neville  EWCA Civ 1712, March 2019. The Court of Appeal ruled that the courts do not need to reconsider disability discrimination and proportionality in all applications to enforce suspended orders for possession. Ryan Kohli acted for the successful housing association.
- Hertfordshire CC v Davies  1 WLR 4609, June 2019. This was a case which dealt with a plethora of issues at first instance in the High Court, including service occupancies for employees living in ‘tied accommodation’, Article 14 ECHR, indirect disability discrimination and the validity of notices to quit. On appeal, the Court of Appeal dealt with s. 11 of the Children Act 2004 and the PSED. Andy Lane and Tara O’Leary acted for the successful landlord throughout the proceedings.
Public law housing cases
R (TW) v Hillingdon BC (No.2)  EWHC 157 (Admin), February 2019
Kelvin Rutledge QC and Andy Lane appeared for the local authority, which had reviewed a 10-year residence requirement in its allocation scheme, following an earlier decision that it was unlawful because it put Irish Travellers at an unjustified disadvantage. The decision to continue applying the policy was ruled unlawful due to inadequacies in the underlying evidence and analysis.
R (JCWI) v SoSHD and others  EWHC 452 (Admin), March 2019
Riccardo Calzavara acted for a tenant in one of these conjoined appeals, which challenged the Government’s “Right to Rent” scheme which imposed obligations on private sector landlords to ensure they did not provide accommodation to persons who do not have immigration status in the UK. The High Court ruled that the scheme was discriminatory and unjustified under Arts. 8 and 14 ECHR and in breach of the PSED: an appeal before the Court of Appeal is listed in December 2019.
R (Humber Landlords Association) v Hull CC  EWHC 332 (Admin), March 2019
Wayne Beglan and Alex Williams acted for the local authority in successfully resisting a judicial review of the Council’s decision to revise its Private Sector Housing Enforcement Policy, which governed its approach to enforcing housing standards and property hazards.
R (SN) v Enfield LBC  EWHC 793 (Admin), March 2019
Michael Paget acted for the successful local authority in this judicial review challenging its decision to cease providing a woman and her children with accommodation and subsistence under s.17 Children Act 1989. The claim was dismissed on the basis that the local authority had conducted an adequate assessment of the children’s needs.
R (Z) v Hackney LBC and Agudas Israel Housing Association
 EWHC 139 (Admin), February 2019 and  EWCA Civ 1099, June 2019
Matt Hutchings QC acted for the successful local authority in this challenge to the lawfulness of a housing association’s policy to only allocate its housing to members of the Orthodox Jewish community. The High Court and Court of Appeal both ruled that the scheme, over which Hackney LBC had nomination rights, did not amount to unlawful discrimination against non-Jewish housing applicants, because (amongst other reasons) there was evidence to support the Orthodox Jewish community’s particular unmet housing needs.
Public Spaces Protection Orders
Dulgheriu & Orthova v LB Ealing  EWCA Civ 1490
Ranjit Bhose QC, Kuljit Bhogal and Tara O’Leary successfully acted for Ealing in this appeal, in which the Court of Appeal comprehensively upheld the legality of a Public Spaces Protection Order (‘PSPO’) which created the UK’s first ‘buffer zone’ restricting protests outside an abortion clinic. The Court confirmed that persons accessing the clinic for abortions have a reasonable expectation of privacy under Art. 8 ECHR, provided important guidance on the statutory tests and evidence relevant to the making of PSPOs, and held that Ealing’s PSPO was proportionate and justified. An application to appeal against this decision is currently pending before the Court of Appeal.
Next up for the housing team
Ranjit Bhose QC and Ruchi Parekh will appear in RB Kingston-Upon-Thames v Moss, which is listed for a two-week trial commencing in late October 2019. This case concerns the contentious issue of the lawfulness of local authority landlords acting as water resellers under contracts with Thames Water, following the decision in Jones v Southwark LBC  EWHC 457 (Ch).
Ranjit and Riccardo Calzavara are also acting for the local authority in the case of James v Hertsmere BC, in an appeal from a decision of HHJ Richard Methuen QC at Central London CC on 20 February 2019. The appeal is listed for hearing before the Court of Appeal in December 2019 and concerns the legality of the Council’s arrangement to contract out its homelessness decision-making functions to a third party. It is hoped this appeal will remedy the uncertainty as to whether this issue is justiciable within a s. 204 appeal, arising from Lewison LJ’s obiter remarks in Panayiotou v LB Waltham Forest (2017) EWCA Civ 1624.
Riccardo is also instructed in relation to the appeal in R (JCWI) v SoSHD and others  EWHC 452 (Admin), which is presently listed for hearing at the Court of Appeal in January 2020.
Riccardo is also acting for the local authority in LB Waltham Forest v Marshall, an appeal to the Upper Tribunal (Lands Chamber) against a decision of the First-Tier Tribunal which reduced the amount of a fixed penalty notice (‘FPN’) issued by the local authority against a landlord who failed to obtain a licence for a privately rented property under the Council’s selective licensing scheme. The appeal concerns whether the FTT must apply and/or provide weight to local authorities’ own policies on determining the level of appropriate penalty. It may therefore provide important guidance for local authorities who have begun issuing FPNs in lieu of prosecution under ‘rogue landlord’ powers introduced by the Housing and Planning Act 2016.
Kuljit Bhogal has also been instructed on a number of challenges to other PSPOs, which may reach the court in the coming months: one concerning an order which prohibits rough sleeping, and another which creates a ‘buffer zone’ outside another abortion clinic in a different local authority district.