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News

Case law update

19.02.2021

By Tara O'Leary

Homelessness

R (Minnott) v Cambridge CC [2021] EWHC 211 (Admin)

A judicial review irrationality challenge in which the court upheld a local authority’s decision that a homeless applicant did not have a local connection to Cambridge, and its refusal to accept a second homelessness application from him. Mr Minott had unlawfully continued to occupy his temporary accommodation after it was terminated by refusing to leave and resisting a change of the locks. He remained there until he had been in Cambridge for a total of 6 months, then claimed this gave him the requisite period of local connection and that it was a ‘new fact’ sufficient to support a second homelessness application. The court rejected these arguments as “wholly fanciful” and characterised his actions as “tantamount to a manipulation of the homeless statutory regime”

Mohammad v SoSHD [2021] EWHC 240 (Admin)

The failure of the Secretary of State to comply with a mandatory injunction requiring it to provide an asylum seeker with accommodation pursuant to the Immigration and Asylum Act 1999 could result in proceedings for contempt of court, notwithstanding that the breach was by a Minister. The decision provides a cautionary tale for any local housing authorities subjected to mandatory injunctions to accommodate homeless people using their Part VII Housing Act 1996 powers. 

Nikolaeva v Redbridge LBC [2020] EWCA Civ 1586

A local housing authority has not made a ‘final offer of accommodation’ for the purposes of ending the main homelessness duty under s.193 merely by making a nomination for allocation to a housing association. Nomination may never give rise to the actual provision of accommodation. 

Bullale v City of Westminster [2020] EWCA Civ 1587

For the purposes of intentional homelessness, living in overcrowded accommodation may not be sufficient to ‘break the chain of causation’ because it can mean the accommodation is not settled. However Westminster’s intentionality decision was found to be flawed because it focused solely on overcrowding and failed to consider several other circumstances relevant to whether accommodation had been ‘settled’.

Bankole-Jones v Watford BC [2020] EWHC 3100 (Admin)

A section 204 appeal was transferred to the High Court as it raised important points of public interest. The Court confirmed that the County Court does have jurisdiction to transfer s.204 appeals in suitable cases. It rejected the argument that all rough sleepers are automatically ‘vulnerable’ within the meaning of s.189(1)(c) by reason of the COVID-19 pandemic. Further and in any event, this particular applicant had never put any argument to the local authority that he was vulnerable as a result of the pandemic; for example he had not identified any medical conditions that meant he was more vulnerable in this respect than an ordinary homeless person. Catherine Rowlands acted for the successful local authority.

Bromley LBC v Broderick [2020] EWCA Civ 1522

The Court of Appeal confirmed that when a homeless applicant refuses an offer of accommodation and the local authority terminates the main homelessness duty, suitability should be determined on the date of offer rather than some later date. The court should take a different approach only in rare and unusual cases, where there is a material change in circumstances subsequent to the refusal of the accommodation.

Stanley v Welwyn Hatfield BC [2020] EWCA Civ 1458

The Court of Appeal confirmed that when a local authority conducting a s.202 review fails to produce the review in time but produces a late review decision, the homeless applicant has a choice of appeal against the original s.184 decision or the late s.202 review decision, but not against both. On the facts of this case, the applicant’s solicitors had agreed an extension of time for the s.202 review with the local authority and had thus ‘elected’ to pursue an appeal against the review. Absent special circumstances giving rise to a legitimate interest in pursuing an appeal against the s.184 decision, any County Court considering a ‘composite’ appeal would usually be justified in treating the appeal as against the review decision. Andy Lane and Riccardo Calzavara acted for the successful local authority.

R (Ncube) v Brighton and Hove CC [2020] EWHC 3646 (Admin)

The Administrative Court refused to order interim relief in a claim for suitable accommodation by a homeless former asylum seeker on the grounds of the Government’s ‘Everyone In’ scheme for rough sleepers during the pandemic. The ‘Everyone In’ policy had excluded asylum seekers, and in any event there had been a breach of the duty of candour: the applicant had failed to inform the court that he had applied for accommodation under s.4 Immigration and Asylum Act 1999 the day before the hearing.

R (Nnaji) v Spelthorne BC [2020] EWHC 2610 (Admin) (available on Westlaw)

Another decision that the COVID-19 pandemic, in and of itself, did not require a local authority to accommodate a homeless applicant. Mr Nnaji commenced judicial review of Spelthorne’s decision that it would not provide him with s.188 interim accommodation because it was not satisfied there was reason to believe he was in priority need. The court refused his application for interim relief on the basis he had failed to show a strong prima facie case that decision was unlawful.

R (Mitchell) v LB Islington [2020] EWHC 1478 (Admin); [2021] HLR 5

In this judicial review of a local authority’s refusal to provide an applicant with temporary accommodation, the Administrative Court ruled when and how the s.188 interim accommodation duty comes to an end in light of the amendments made by the Homelessness Reduction Act 2017. In short, an express notification referring to sections 190 and 193 will suffice. However the local authority may lawfully terminate interim accommodation before the s.189B relief duty comes to an end. Catherine Rowlands acted for LB Islington.

Possession claims

Croydon LBC v Kalonga [2021] EWCA Civ 77

The Court of Appeal confirmed the procedure which must be used to terminate a fixed-term secure tenancy, including ‘flexible tenancies’, prior to expiry of the fixed term. In summary, the tenancy must contain a forfeiture clause and the landlord must use the forfeiture-like procedure prescribed by s.82(3) Housing Act 1985 rather than ‘normal’ proceedings for possession. Kelvin Rutledge QC and Riccardo Calzavara acted for Croydon LBC.

Taylor v Slough BC [2020] EWHC 3520 (Ch)

This is the latest of a series of decisions by the higher courts which confirm that a social landlord’s breach of the Public Sector Equality Duty (‘PSED’) under s.149 Equality Act 2010 is not fatal to a claim for possession. Rather, the breach can be cured by subsequent compliance with the duty at any later stage in possession proceedings. Ruchi Parekh successfully represented the local authority at first instance and on appeal.

Gateway Housing Association v Ali [2020] EWCA Civ 1339; [2021] 1 WLR 289

The Court of Appeal confirmed the correct procedure to be followed by landlords seeking to recover possession of properties following the death of a tenant; and in particular, the procedure for service of a copy of Notice to Quit upon the Public Trustee. This decision supersedes the earlier County Court decisions in Pavey v Hackney LBC and Hackney LBC v Henry, which were unreported but had been widely relied upon at County Court level. 

Oshin v Greenwich RBC [2020] EWCA Civ 388; [2020] HLR 26

The Court of Appeal confirmed that an applicant’s false statement about her immigration status on her social housing application form had induced the local authority to grant her a secure tenancy, which was thus entitled to possession under Ground 5, Sch. 2 Housing Act 1985. Ms Oshin had subsequently applied for – and been granted – a second secure tenancy at different premises. However on the facts of the case her original false statement had remained material to the later decision to grant the second tenancy, for which possession was sought.

Housing allocation

R (Nur) v Birmingham CC [2020] EWHC 3526 (Admin)

Successful judicial review of Birmingham’s decision to reject bids for Part VI housing made by a homeless family which included an adult child with disabilities. Birmingham’s allocation scheme was intended to give priority to families with minor children. However it had been operated unlawfully because it failed to make any allowances or reasonable adjustments to cater for the situation of dependent children over the age of 18, particularly those dependent in consequence of their disability. The question of whether the housing allocation scheme itself was discriminatory was adjourned and may be revisited.

R (Flores) v Southwark LBC [2020] EWCA Civ 1697

Successful appeal concerning a challenge to Southwark’s allocation decision. Southwark had decided that taking a tenancy of a one-bedroom flat had been a ‘deliberate act’ designed to cause statutory overcrowding, and in consequence refused to award the family its highest priority under its allocation scheme. The Court of Appeal rejected this analysis: the operative cause of overcrowding had been the family’s limited income, which prevented them from finding better housing, as well as the growth of the family over time.

R (Z) v Hackney LBC and Agudas Israel Housing Association [2020] UKSC 40; [2020] HLR 48

A charitable housing association’s allocation policy, which effectively meant that it allocated housing only to applicants from the Jewish Orthodox community, was not in breach of the Equality Act 2010. The association’s policy was a legitimate and proportionate means of meeting the particular housing needs of that community. By extension, the local authority’s nomination agreement with the housing association was also lawful. Matt Hutchings QC and Andy Lane acted successfully for Hackney LBC.

Housing management

TJ v London & Quadrant Housing Trust, Unreported, HHJ Saggerson sitting at County Court at Central London, 18.11.20

A successful claim in negligent misstatement brought by a housing association tenant concerning statements made to her by her landlord in the context of an application for mutual exchange. Before her exchange, the tenant made inquiries of L&Q as to whether there had been reports of anti-social behaviour at the property; an officer told her she had checked the system and there had not been any complaints. This was incorrect. The mutual exchange duly took place and the tenant subsequently suffered serious racial abuse and threats by her neighbours, to the extent she was eventually obliged to live elsewhere. It was held that by offering information about ASB at the property L&Q had assumed a duty of care towards the tenant, which it had breached. The tenant was awarded £31,000 in damages. Although this decision is not binding and is fact-specific, it may have very considerable implications for social housing providers.

RB Kingston-Upon-Thames v Moss [2020] EWCA Civ 1381; [2021] HLR 6

The Court of Appeal confirmed that local authorities are water ‘re-sellers’ for the purposes of the Water Resale Orders 2001 and 2006. In consequence, whilst collecting water charges from its secure tenants alongside the weekly rent, the local authority had been charging its tenants more than the statutory maximum permitted by those orders. Ranjit Bhose QC and Ruchi Parekh acted for the local authority.

Additional and selective licensing and HMOs

Sutton v Norwich CC [2021] EWCA Civ 20

In this appeal from a mammoth Upper Tribunal decision, the Court of Appeal considered the correct approach to sentencing when Housing Act 2004 offences are committed by a company and also its director or other officers. The courts must beware of ‘double punishment’, but there is no requirement to set an overall penalty and then apportion it between the company and director. There is also no bar to the aggregate of fixed penalties (each of a max. £30,000) which may be imposed up to and beyond that figure. 

Thurrock Council v Palm View Estates [2020] UKUT 355 (LC)

A local authority employee had informed the landlord of an HMO that it did not need to apply for a licence until a planning issue was resolved. However this did not amount to a reasonable excuse for committing the offence of managing an unlicensed HMO: it might be a reasonable excuse for failing to apply for a licence, but not for continuing to run or operate the property as an unlicenced HMO. 

Hussain v Waltham Forest LBC [2020] EWCA Civ 1539

The Court of Appeal confirmed that in deciding whether a person is ‘fit and proper’ for the purposes of being granted an additional or selective licence for rented premises, courts and tribunals are entitled to take into account conduct which underlies spent convictions. This decision is of great significance for all local housing authorities and private landlords, but also licensing authorities and those carrying out licensable activities in other regulatory contexts. Riccardo Calzavara appeared for the successful local authority.

Sheffield CC v Husain [2020] UKUT 292 (LC)

The Upper Tribunal confirmed that when setting the appropriate level of penalties for Housing Act 2004 offences, the Tribunal must apply a local authority’s policy with regard to the facts at the date of the offence and not a subsequent point in time, such as the date of an appeal. The proper approach is to assess the culpability of the offender and the harm or risk of harm to which the occupants of the property were exposed, i.e. at the date of offence, rather than following later improvements to the premises.

Thurrock Council v Daoudi [2020] UKUT 209 (LC)

The Deputy President confirmed that, absent special circumstances, once the First Tier Tribunal determines that an offence has been committed it should not refuse or decline to impose a penalty. Any such decision requires “substantial justification” and requires more than mere sympathy toward the personal circumstances of the offender or their family.  

R (Mohamed) v Waltham Forest LBC [2020] EWHC 1083 (Admin); [2020] HLR 34

A Divisional Court confirmed that the offence of managing or having control of unlicenced HMOs contrary to s.72(1) Housing Act 2004 is a strict liability offence which does not require proof of a defendant’s mens rea. Further, informations stating the bare elements of the offence were sufficient to satisfy the statutory requirements and enabled the Magistrates’ Court to lawfully issue summons for prosecution. Dean Underwood acted for the successful local authority.