HOMELESSNESS CASE LAW UPDATE
PART VII HOUSING ACT 1996

Vulnerability and the duty to make inquiries -  the content of the s 204 grounds – the content of the appeal bundle

Cramp v Hastings Borough Council and Phillips v Camden LBC [2005] EWCA Civ 1005,  29th July 2005

Mr Cramp and Mr Phillips had applied for housing on the basis of homelessness. The authorities in each case decided that the applicant was not vulnerable and so was not in priority need, and hence was ineligible for housing. In both cases the applicants suffered from medical conditions as well as social factors which were said to make them vulnerable. In both cases there had been some medical material in the form of letters from doctors. C’s doctor was not in a position to say that a definite diagnosis of mental disorder could be made, and P’s doctor gave information that he had some difficulty climbing stairs due to his childhood injury. Decisions that they were not vulnerable were upheld on internal review without further enquiries.
Both men appealed to the county court against the councils’ decisions arguing that inadequate enquiries had been made medically, and in the case of P, also in relation to a lack of enquiries of his probation officer. Both s 204 appeals succeeded, the judges in each case finding that the council should have made more enquiries into the psychiatric or medical aspects and the probation officer.

Both councils appealed. The Court of Appeal (allowing the appeals) held that:

• it was for the council to judge what enquiries were necessary, and that an appealshould succeed only if it was shown that no reasonable authority could have failed to regard as necessary the further enquiries suggested on appeal (ie the basic ‘Judicial Review’ unreasonableness test applied in R v Nottingham CC ex p Costello (1989) 21 HLR 301 and confirmed in various later cases under the 1996 Act);
• in this case the judges below had showed a worrying tendency to overlook the fact that it would never be easy for a judge to find that a reviewing officer was wrong in law for failing to make enquiries which the appellant had not asked for.

On the practical conduct of s 204 appeals the Court stated that:

• it was bad practice to lodge bare grounds for appeal in the Appellant’s notice and then serve substantially amended grounds less than a week before hearing;
• Grounds of Appeal should “set the agenda” for the appeal and enable the court and the council to understand the agenda from the outset;
• it was quite wrong to include a copy of the whole housing file without regard to whether that was necessary in order that the court could reach its decision;
• the court should be astute to ensure that any additional evidence filed for the appeal was limited to that which was “necessary to illuminate the points of law that are to be relied upon”;
• an undisciplined approach to admission of new evidence might lead to the danger that the housing officer is found guilty of making an error of law by not considering evidence which was never before her when she made the decision.

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Intentional Homelessness – settled accommodation – pursuing a further application after one year

Mohamed v Westminster CC [2005] EWCA Civ 796, 15th June 2005

M applied for housing from Westminster and was refused on the basis that she was intentionally homeless. After that refusal, she and the children lived in a flat in London for a year, where the rent payable was £245 per week. M had only been awarded housing benefit of £200 per week. M was evicted for rent arrears and she made a further application for housing. The accommodation had been overcrowded and unaffordable for her from the outset.

Dismissing the further application W determined that, notwithstanding the fact that she had resided in the flat for a year, she had remained intentionally homeless since the original refusal. She had occupied the flat purely on the basis that she would ultimately be evicted thereby giving rise to a further housing claim.  It found that the flat had been unsuitable from the start since M clearly could not afford it, and because it had breached statutory criteria for overcrowding.  On that basis W determined that M had not broken the chain of intentional homelessness since the occupation of the flat had not been settled.

M’s s 204 appeal against that determination was dismissed on the basis that the review decision had not been irrational. M argued, inter alia, that W was wrong to have elevated the determination of whether the flat had been unsuitable because of overcrowding to a statutory test, and that what W should have considered was any causal link between her present homelessness and the initial finding of intentional homelessness.

The Court of Appeal, dismissing the appeal, held that it was plain that W had not set a statutory test for determining whether the flat had been unsuitable on the grounds of overcrowding, but had merely sought to demonstrate, by reference to the statutory criteria, that the unsuitability of the accommodation by virtue of its overcrowding had not broken the causal link between M’s original intentional homelessness and her current state. W had posed the correct question of causation and had been entitled to conclude that M had not broken the chain of intentional homelessness by taking up unsuitable or unreasonable accommodation. W was entitled to conclude that the accommodation was so unsuitable that it did not break the chain, on the basis that it was unaffordable and overcrowded, insecure and therefore not settled.

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Fresh applications after discharge of duty – Council’s power to refuse to deal with a new application

R (on the application of Griffin) v Southwark LBC (2004) EWHC 2463 (Admin)

Griffin and her partner applied in 2002 for housing under Part VII. However by the time an eventual decision was made to offer permanent accommodation, she no longer lived with him. She refused the accommodation, and Southwark decided that it had discharged its duty.
She then went to live with various relatives and friends, but then re-applied to the council in her name alone, again on the basis of homelessness. Southwark refused to accept the new application on grounds of no material change since the previous application and that it had already discharged its duty. Griffin applied for Judicial Review of that refusal to accept the application.
The Administrative Court held that the council had to investigate the second application unless the application was based on the same facts as existed at the time of the first application. (R v LB Harrow ex parte Fahia, (1998) 1 WLR 1396, HL).  In this case the Authority had been entitled to find that the application was indeed founded on the same facts, and to refuse to accept it because at the time of the determination of the first application (albeit not at the time of the making of the application) Griffin had been separated from her partner and not supported by him, and the same was true at the time of the 2004 application.

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Fresh applications after discharge of duty - Council’s power to refuse to deal with a new application

LB Tower Hamlets v Rikha Begum [2005] EWCA Civ 340, 23rd March 2005

In 2000 Ms Begum left her parents’ home and applied to the council, which accepted a housing duty. She and her child were placed in temporary accommodation. She gave birth to a second child. The Council then offered a secure tenancy but Ms Begum rejected the property as unsuitable. The Council took the view that it had discharged its duty and Ms Begum returned to live with her parents (November 2002).
In 2004 Ms Begum re-applied, on the basis that it was not reasonable for her to remain in the parental home with her family. Matters had moved on in that further family members had moved into the parental home which was now more crowded. Ten people lived in a 3-bedroom flat.
Tower Hamlets rejected her application on grounds of ‘no material change in circumstances’.  On appeal the Court of Appeal again applied the Fahia test (see above in Re Griffin). The only relevant basis upon which a purported application could be shown not to be a valid application was where it was based on exactly the same facts as the earlier application.  The council had been wrong to reject the application. The arrival of other family members at the parental home had affected the suitability of the accommodation.

Suitability of offers of accommodation

R (on the application of Tekin Calgin) v Enfield LBC [2005] EWHC 1716 (Admin), 29th July 2005 (QBD) – Judicial Review

Calgin applied for judicial review challenging the legality of the Respondent’s Out-of-Area Placement Policy for housing the homeless and their decision to offer him and his family accommodation in Birmingham. He lived with his wife and their 11-month-old baby, his two brothers and their families in a 3-bedroom house in Middlesex.  Enfield accepted that a duty was owed under s 184 and accommodation was offered in Birmingham.  Mr Calgin accepted the offer but sought review of the suitability of the accommodation (s 202). He argued that they had a strong family connection with the council’s area and that as they spoke no English and knew no-one in Birmingham they would be isolated. The council’s policy of accommodating families outside London was said to be incompatible with s 208 (duty so far as reasonably practicable to house in their own district) and that the decision had in part been influenced by cost considerations. An internal review upheld the original decision and held that it was consistent with the Out-of-Area Placement policy.

The court held that there was plenty of evidence which showed that the council genuinely faced considerable difficulties in finding appropriate accommodation to meet its needs within the borough at a reasonable cost. Although the meaning of “reasonably practicable” had to be determined in the light of the particular statutory context, cost was not an irrelevant or improper consideration.  It was for the council to determine whether it was reasonably practicable to obtain accommodation with its area. The court could interfere only if the decision was unlawful on Wednesbury grounds. There was a minimum standard below which the council could not fall, and lack of resources would not justify going below that standard, but it was a matter of judgment for the local authority to decide what accommodation was not reasonably practicable. The council took into account relevant matters, they had regard not only to the physical features of the property but also to the needs of the family.  Judicial Review was refused.

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CPR UPDATE 40

New amendments to the CPR of interest to LL&T and Housing litigators
UPDATE 40 from 1 October 2005

(1)        Stays for settlement negotiations – initial period longer than one month

(2)        Costs where the order is silent – some exceptions to the rule

(3)        Where an order imposes a striking out or dismissal sanction – effect immediate

(4)        Possession Claims on Line – the new scheme (coming soon)

1.         Stays for settlement negotiations – initial period longer than one month

Rule 26.4 has been amended to extend the period of time for which the court may stay
proceedings to enable the parties to engage in alternative dispute resolution (ADR).

• Previously the court was obliged to stay for one month but had the power to extend. Under the new amended rule, the court gains the power to stay for an initial period of such duration as it decides. The power to extend that period later remains in place.

6.4       (1)       A party may, when filing the completed allocation questionnaire, make a written request for the proceedings to be stayed while the parties try to settle the case by alternative dispute resolution or other means.

(2)       Where –
(a)       all parties request a stay under paragraph (1); or

(b)       the court, of its own initiative, considers that such a stay would be appropriate,
the court will direct that the proceedings , either in whole or in part, be stayed for one month, or for such specified period as it considers appropriate.

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2.         Costs where the order is silent

Rule 44.13 has been amended to regularise the position regarding costs in instances where it is common practice for an order to be silent on the subject of costs, most notably where an application has been made without notice and the order is silent as to costs or on appeal or judicial review permission applications.

• The position will now be that silence as to costs will not always imply “no order as to costs”. With effect from October 2005 the implication is that the order is “applicant’s costs in the case” in the case of orders for permission to appeal, permission to apply for Judicial Review and orders sought without notice to the other party.

Note that any affected party may apply at any time to vary the order.
 
44.13
(1A)     Where the court makes –
(a)       an order granting permission to appeal;

(b)       an order granting permission to apply for judicial review; or

(c)        any other order or direction sought by a party on an application without notice,
 and its order does not mention costs, it will be deemed to include an order for applicant's costs in the case.

(1B)     Any party affected by a deemed order for costs under paragraph (1A) may apply at any time to vary the order.

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3.         Striking out and dismissal sanctions

Practice Direction 3, paragraph 1.9 is amended to clarify the status of orders which state that a claim ‘shall be struck out or dismissed’ or ‘will be struck out or dismissed’.

1.9    Where a rule, practice direction or order states ‘shall be struck out or dismissed’ or ‘will be struck out or dismissed’ this means that the striking out or dismissal will be automatic and that no further order of the court is required.

4.         Possession Claims on Line (“PCOL”)  (www.possessionclaim.gov.uk)

New PD 55B Introduces the Possession Claims On Line (PCOL) arrangement. It is not up and running yet (despite the comments in the practice direction to PD 55B) but should be within a few months.
Key points to note are:

• the scheme is nearing the testing phase (it will be tested in courts in Wales from Jan or Feb 2006 until around May 2006 when it should be available in all courts);
• the scheme enables claimants (of any sort and not only bulk issuers) and their representatives to start arrears-only possession claims under CPR Part 55 by requesting the issue of a claim form electronically via the PCOL website;
• where a claim has been started electronically, the scheme enables the claimant or defendant and their representatives to take further steps in the claim electronically;
• the scheme enables electronic listing (the Defendant’s home court is notified and fixes the date);
• the scheme enables electronic requests for Bailiff evictions;
• the scheme enables on-line payment of issue fees or the use of a monthly direct debit for regular customers (makes matters easier for associations who do not have debit/credit cards).

A possession claim may be started online via PCOL if :

• it is brought under Section 1 of Part 55 and includes a possession claim for residential property by a landlord against a tenant, solely on the ground of arrears of rent (but not a claim for forfeiture of a lease), or a mortgagee against a mortgagor, as long as the mortgagee’s claim is solely on the ground of default in the payment of sums due under a mortgage;
• it does not seek any other remedy except for payment of arrears of rent or money due under a mortgage, interest and costs;
• the defendant has an address for service in England and Wales; and
• the claimant is able to provide a postcode for the property.

A claim must not be started online if a defendant is known to be a child or patient.

Starting claims via PCOL

• The claim form and Particulars of Claim (“POC”) may be completed on line in one document and it will not be possible to issue a claim form with POC “to follow”.
• No tenancy agreement/mortgage deed etc need be filed when filing the POC.
• The on-line POC must set out the history of rent/mortgage arrears in a schedule with the dates and amounts of all payments due and payments made, either from the first date of default (if that date occurred less than 2 years before the date of issue) or for a period of two years immediately preceding the date of issue; and must include a running total of arrears.
• Any history of arrears going back longer than 2 years must be exhibited to a witness statement.
• Notice of issue will be sent to Claimant either by email or by post.
• The claim and POC will be served by post.
• The computer assigns a court based on the defendant’s postcode, and sets a hearing date (courts will be expected to set aside regular “PCOL” slots in the listing diary so that the PCOL computer can fix available dates.
• The claim is deemed to be served on the fifth day after the claim was issued irrespective of whether that day is a business day or not.
• The claim will include details of a code to enable the defendant to access the case record on line if so desired, including filing a defence on line. (The general assumption of the designers however is that most defendants will not respond in that way).

Applications via PCOL

Parties may (in a PCOL case) apply on line for:

• issue of warrant;
• suspension of warrant; or
• any other types of application which will be listed on the PCOL website.

Court will send notice of service of the application and hearing date to parties by post (and/or electronically if they provide an email address).