The Dangers of Refusing An Offer Of Accommodation For Homelessness Applicants

Homeless applicants have always faced a major problem if they refuse an offer of accommodation from a council which has accepted a duty to house them under Part 7 of the Housing Act 1996.  The problem has been that if they refuse the offer then there is a risk that the council will be entitled to treat its duties towards them as discharged.  This is turn means that the council will be entitled to refuse to make them any further offers of accommodation and evict them from their temporary accommodation. This is the equivalent of hitting a snake right at the end of a game of snakes and ladders and going back all the way to the beginning where the applicant is homeless but being unable to throw the dice again because the applicant will be deemed to have made themselves intentionally homeless by refusing an offer of suitable accommodation giving rise to the loss of their last accommodation. 

There was always a possibility that the applicant might be able to successfully challenge the suitability of the offer of accommodation which they had refused by way of a review and all pursuant to Sections 202 and 204 of the Housing Act 1996. However, the risk was that if the review/appeal was unsuccessful and the decision that the accommodation was suitable could not be challenged then the applicant was left in the position outlined above and on the face of it facing street homelessness.

There were of course always safety nets to protect many applicants from becoming street homeless even if they have refused an offer of suitable accommodation.  The most obvious being the duty of the local social services authority to provide assistance under Section 17 of the Children Act 1989 including assistance in obtaining accommodation for those applicants with children.  Applicants without children whose medical conditions were such that they required looking after under the Care Act 2014 might still be entitled to accommodation pursuant to that Act.  This left applicants without children  who had been found to be vulnerable but might not have Care Act needs in a particularly difficult situation.  

The recent decision in the Court of Appeal in the case of Bromley v Broderick (B5/2019/0293) highlights a further problem for those who refuse offers of accommodation.  This being that the applicant is not entitled to ask the council to consider what accommodation might be available at the date when a review is completed for the purposes of deciding whether the accommodation which was offered was suitable.  This is because where an applicant has refused an offer of accommodation a council is entitled to treat their duties as discharged and need not considered the suitability of any other accommodation for the applicant.  Where the applicant has not refused the offer then the duty is not discharged and the local authority is obliged to consider at the date of the review whether there are any other suitable properties available for the applicant which would mean that the accommodation which was originally offered to them is unsuitable. The case is considered in more detail at Nearly Legal and on the Cornerstone Chambers Website. 

Because of the original problem of the risk of street homelessness I have always had to advise clients to accept offers of accommodation even if they were adamant that they did not want to live in the property.  It might be possible to confidently advise people to refuse an offer if the accommodation was so obviously unsuitable for them that it could never be found to be suitable.  An example might be where somebody in a wheelchair was offered a property which had no lift and which required them to climb a number of stairs to gain access.  In situations where the unsuitability was not so obvious the client had to be advised that they should accept the offer even though it meant that they were at risk of paying 2 lots of rent.  They could also be advised that they didn’t have to move into the new property whilst they requested a review and that it might take the council some time to evict them from their temporary accommodation.  

Clients understandably often take some persuading that they should accept an offer of accommodation which they do not wish to accept.  Making them aware of the dire consequences of refusing an offer sometimes works.  Often though, the applicant has already refused the offer by the time they consult me.

As a result of the above risks I have prepared the following set text which I advise anybody dealing with challenges of the suitability to include in advice letters or emails sent to applicants who are considering whether or not to accept an offer of accommodation which they have received from a local authority. It is important that any such advice is confirmed in writing:

A key point to remember is not to refuse any offers of accommodation which you receive even if you are unhappy with the property which has been offered. Instead you should accept the offer and request a review of the decision pursuant to Section 202 of the Housing Act 1996. I can assist you with this if necessary. I can then make representations in support of the review which may lead to the council withdrawing the offer. Alternatively the council may uphold the decision that the accommodation is suitable for you. It may be possible to challenge this by way of an appeal to the County Court under Section 204 of the Housing Act 1996 if it can be shown that the council have made an error of law in reaching the decision.

If you do not refuse the offer of accommodation then the council can consider whether there is more suitable accommodation available for you at the date when the review is completed. There is no guarantee that they will do so but it is certain that if you refuse the offer they do not have to do so. The effect of you refusing an offer is that the council will treat their duties towards you as having ended. 

Additionally, you refuse an offer of accommodation and the council later uphold the decision that it was suitable for you they are then entitled to treat their duties towards you as discharged. This means that they will not make any further offers and will evict you from your temporary accommodation. I have been consulted by a number of people who have made the mistake of refusing offers of accommodation without realising the very serious implications of doing so until it is too late. I am therefore setting out this advice to you in detail so that you do not make the same mistake.

As a final thought I don’t think that having the right to have suitability considered at the date of a review makes very much difference in practice.  It seems to me that a well-worded review decision letter will be difficult to challenge even if the offer had been accepted.  The only real benefit is that an applicant who has not refused an offer may be able to take advantage of a change in the available housing stock between the date of the original offer and the date of the review.  If a property has become available which would be more suitable for them than the property which they were originally offered and the council let them know about it then if they haven’t refused the first offer they can accept it whereas those who have refused the first offer cannot do so.  

What To Do About Bad Quality Local Authority Housing Filess

For many years I have been experiencing problems with the quality of housing files received in homelessness cases from local authorities.  In the days before digital documents I used to wonder if the council staff deliberately shuffled the papers up before sending them to me in order to make them more difficult to read.  They often appeared to be in no order at all and took a long time to sort into date order.  This became worse after the introduction of digital documents as some councils have tended to provide not just a copy of their file but various computer files which comprised the file.  These can be in a number of different formats including PDFs, Word documents, spreadsheets, TIFs, and other formats which neither me nor my computer had seen before and which could not be opened. It then takes a lot of work to convert these into a format which enables me to read them and to prepare an appeal bundle for the Court in a Homelessness Appeal. 

The London Borough of Lambeth are repeat offenders when it comes to providing really bad quality disclosure of housing files.  This led to a dispute which came before HHJ Lethem at a telephone hearing on 9 June 2020 in the case of Fowell-Boston v Lambeth which has not been reported as far as I know.

The background to the above hearing was that Lambeth applied to strike out my appeal on the basis that I had not provided an amended Grounds of Appeal within a deadline.  That deadline was dependent on the council having sent me a copy of their file in order for me to prepare the amended Grounds.  I opposed that application and made a cross application for an Order debarring the council from defending the appeal on the basis that they had failed to comply with the Order requiring them to provide a copy of their file.  This was because I maintained that there were a number of documents missing from the various files which they had sent me so they could not be said to have sent a a copy of their whole file. By the time of the hearing the actual appeal had settled but it was necessary to determine the above issues in relation to who should pay the costs of the appeal. 

At the hearing HHJ Judge Lethem provided very useful guidance based on his understanding of the situation which was actually based on any arguments put by either side but on his own observations.  He referred us to CPR 6.20 which deals with the methods of service of documents.  This deals with the usual means of service such as personal service or postal service and goes on at paragraph 6.20 (1)(d) to refer to “fax or other means of electronic communication in accordance with Practice Direction 6A”.

Practice Direction 6A – Service within the United Kingdom deals in detail with service by fax or other electronic means at paragraph 4.1.  It provides that documents can be served electronically but only where the party or solicitor has indicated to the party serving the document that they are willing to accept service by electronic means.  Importantly paragraph 4.2 states that where a party intends to serve a document by electronic means that party must first ask the party who is to be served whether there are any limitations to the recipient’s agreement to accept service by such means (for example the format in which the documents are to be sent and the maximum size and attachments that may be received).

The importance of this rule can be seen from the case of Barton v Wright Hassaal LLP (2018) where a Claimant had served a Claim Form on the solicitor for the Defendant by email the day before the limitation period for doing so expired.  He did not ask for agreement to accept service in that format.  The Defendant later pointed out that they did not consider that they had been served and that the Claimant was therefore out of time for pursuing the Claim. The Claimant unsuccessfully challenged this all the way to the supreme court where it was held that he was out of time because he did not obtain agreement to serve the Claim Form electronically. 

I had made it clear to Lambeth in this case and in a previous case that I was unhappy about the way in which they were serving documents in multiple formats.  HHJ Lethem stated that he did not consider that Lambeth had served the documents in accordance with the rules because they had not asked whether there were any limitations on the manner in which I was prepared to accept service of documents before sending documents to me electronically and that there had to be agreement on such limitations before service could be effected in this way.

In conclusion the Judge stated that he was not prepared to accept that I had agreed to accept the documents in the format given and that the requirements of paragraph 4.2 had not therefore been met.  This meant that the housing files had not been served. The Judge stated that he was fortified in his finding by the above case of Barton v Wright Hassal LLP (2018) where the court had held that paragraph 4.2 requires prior enquiry.  As a result Lambeth’s application to strike out my appeal was dismissed.  This was because the time limit for me to serve the amended Grounds of Appeal had not started to run because Lambeth had not served the documents which they were required to serve before I was obliged to serve the amended Grounds of Appeal.

Following the above hearing I have made a point of ensuring that I notify local authorities that I am only prepared to accept electronic service of documents subject to the limitation that the documents are provided in PDF format and sorted into date order.  I have stated that I am only prepared to accept composite bundles of PDFs rather than multiple individual PDF files.  I do this by inserting the following recital in the draft Directions Order which I send to the court when issuing a Section 204 Appeal:-

“Upon the Appellant giving notice that he/she is prepared to accept service of documents in digital format for the purposes of CPR 6.20(d) but subject to the following limitations for the purposes of rule 4.2 of Practice Direction 6A – Service within the United Kingdom:-

  1. The documents must be sorted into date order.
  2. The documents must be provided in one combined PDF or more than one combined PDF file if the size of the initial file or files are too large to be attached to an email message.”

I then include in the actual Directions Order a provision which reads:-

“The Respondent shall serve a copy of the Respondent’s housing file in the format set out above within 14 days of receiving this Order.”

I have not had any disputes yet with authorities who have served electronic documents in breach of an Order to the above effect.  I hope that the above arguments will enable me to persuade courts in future that folders filled with badly named documents in various formats of the kind which I have been sent by Lambeth in the past and by other authorities are not acceptable and will not constitute service of documents.

The above is fine as far as to Section 202 Appeals go but does not of course apply to files served in connection with Section 202 Reviews.  It may be arguable that the above rules apply to service of documents such as these provided in anticipation of litigation.  However the Data Protection Act 2018 is of assistance.  I am not sure of the precise section of the Act but I see from the section of the Information Commissioner’s Office website dealing with rights of access that those responding to a Subject Access Request “should provide the information in an accessible, concise and intelligible format”.

When I request copies of files in connection with Section 202 Reviews I generally do so with reference to the Data Protection Act 2018.  Therefore, in the event that I receive documents in the future which are badly named and in multiple formats I propose to refer to the above guidance with a view to making a complaint the Information Commissioner’s office if necessary. I anticipate that many local authorities will argue that whatever format they produce their files in will be in compliance with this.  It may therefore take a complaint to the Information Commissioner for this to be resolved.  If anybody else has any information about this and/or the particular section of the Data Protection Act 2018 which applies please leave a comment.  

New Legal Help Form Out - May 2020

I have just noticed that a new version of the Controlled Work 1 Form or as it is better known, the Legal Help Form came out on 15 May.

Its the May 2020 version which I think replaces the May 2018 version. Here is a link to the Gov.UK Page.

It looks pretty much identical to the 2018 version. I have only found the following changes:-

  1. The questions about Gateway Work at page 2 have gone.
  2. There is now a helpful warning / request at the bottom of page 4 - "PLEASE DON'T STRIKE THOUGH THE ENTIRE PAGE TO INDICATE THAT THE QUESTIONS DO NOT APPLY - QUESTIONS MUST BE ANSWERED". I think that this would look better at the top of page 5.
  3. NASS Support half way down page 14 is now referred to as Asylum Support (AS)

I have only had a quick look so I may have missed other changes. If anybody else spots any please leave a comment.

This seems to be the only new form. There is no new Key Card as far as I can see. Again, please leave a comment if you see any other changes.

 

Thoughts on the case of JA & Ors, R (On the Application Of) v The London Borough of Bexley (2019)

An examination of a Judicial Review involving the refusal of support under Children Act 1989 for a family claiming destitution.

The aproximate text of the podcast is set out below. A note of the case and the link to the judgment which is referred to is here. 

This case involved a successful Judicial Review of a decision by the London Bexley to refuse housing and subsistence payments to a mother and 3 children under the Children Act 1989. This post can also be listened to as a podcast or watched on Youtube. The references to paragraph numbers in the judgement below are to the paragraphs on the Baili report. 

The factual background was  that mother had been working and supporting her family until 2015 when she had to stop due to her immirgration status as an overstayer. This status meant that she had no recourse to public funds and was not able to claim benefits or obtain housing as a homeless person under Part 7 of the Housing Act 1996. It also meant that she was not allowed  to rent a private property herself even if she had the money with which to do so. She and the children were however entitled to be provided with accommodation and subsistence payments under the Children Act if Bexley was satisfied that they were destitute. 

For just over two years Bexley accepted that the family were destitute and provided them with housing and subsistence payments. However, in September 2017 they carried out a new assessment and decided that the mother had additional income which she had not disclosed and that the family were not destitute. They carried out a fraud investigation and in June 2018 reached a decision that the family were not destitute, the children were not therefore in need and the family were not entitled to housing or support. 

Judicial Review proceedings were  issued and led to a 2 day hearing in January 2019 and a judgment from David Casement QC sitting as a Deputy High Court Judge on 1 February. He found that the council had failed to carry out a proper assessment or investigation and that their decision was Wednesbury unreasonable so that it had to be quashed. The judgement is worth reading as it shows how an unfair and hostile assessment by a council can be challenged through attention to detail. Unfortunately it has been very common for councils to make decisions of this kind and to hope that they can successfully defend Judicial Review proceedings by repeating unfounded accusations against destitute families. 

The political background to the case lies in the creation of the hostile environment for migrants openly and unashamedly encouraged by David Cameron’s government. This built on the hostility of the previous Labour governments which had denied access to mainstream housing and support for migrants through the introduction of the Nationality, Immigration and Asylum Act 2002. Treaty obligations meant that the governments were not able to deny all support to children and leave them sleeping in the street with no food which is why accommodation and financial assistance remained available to destitute children and their families under the Children Act. 

The changes since 2002 meant that hundreds of families with children who might previously have been entitled to mainstream housing and benefits now had to seek support under the Children Act. This in turn meant that Children's Services Departments were inundated by huge numbers of applications. They struggled to deal with this flood in terms of carrying out the necessary assessments let alone providing housing and support for those families whose children were found to be in need. 

Unfortunately staff in many Children's Services Departments responded to the crisis which led to destitute families seeking assistance not by speaking out about the plight of the children but by adopting an increasingly hostile approach towards the children and their parents themselves. Lewisham council, for instance which for a long time was one of the worst when it came to the mistreatment of destitute children openly adopted a policy which it called “Robust Front Door”. This soon led to applicants being routinely branded as fraudulent and to assessments being carried out with a view to justifying the decision which had been taken to refuse assistance and to keep the front door shut. Applicants would be routinely refused support because their accounts were considered to be “plainly incredible” (an expression used by for Bexley in this case - see paragraph 36) or were accused of not cooperating with the assessment process because they were trying to hide their real comfortable incomes.

The hostile approach taken by councils towards destitute children received encouragement in 2013 with the case of R (MN) v Hackney where the council had decided that they were satisfied that the children of the family were not in need for the purposes of Section 17 of the Children Act because the parents were considered to have refused to cooperate with the assessment by not answering questions. A judicial review of the decision was dismissed. Unfortunately, I understand that the case was settled and the family were housed before the decision could be appealed. The original judgment was therefore left on the books and served as a green light for councils to slam their robust front doors in the faces of applicants. All they had to do was to complete an assessment report which concluded that the applicant parent(s) had failed to cooperate and had been dishonest. If the applicants issued Judicial Review proceedings indignant barristers reciting the allegations of fraud and bad faith on the part of the applicant would attend court. If they were lucky a busy judge might dismiss a Judicial Review challenge having concluded that Parliament had intended that local authorities should assess the facts in this sort of case such that it was not for judges to question the specialist decision making of council staff and that in any event that it seemed that the applicant had not cooperated with the assessment process. Fortunately in this case the Judge adopted an approach of subjecting the council’s decision making to an appropriate level of scrutiny. 

So lets see what actually happened in this case. 

I am not going to go into the legal framework in detail here as that would take too long. I will try and to this another time. For now though please just accept that in order for the family to be entitled to housing and subsistence payments the council had to be satisfied that they were destitute after carrying out a balanced assessment and only having regard to relevant matters.

In their decision they gave twelve reasons for this which are set out at paragraph 24. These can be summarised as being:-

  1. She had failed to provide timely evidence of the destitution claimed
  2. Her bank statements showed that she had regularly spent money on non essential items which she would not have done if she was really destitute. 
  3. Despite claiming to be separated from her ex husband and divorced she maintained a good relationship with him and he was providing support for her family.
  4. She had other sources of income such as family, friends and work. 

The mother’s challenge was based on four arguments which are listed at paragraph 3. These were that 

  1. The council’s decision was based on material errors of fact. 
  2. The council had failed to make sufficient enquiries and its decision is procedurally unfair. 
  3. The council’s decision was based on a failure to take account of relevant and material considerations and based on taking account of irrelevant matters. 
  4. The council’s decision was irrational and on the facts of the case was not one which was open to the council to take. 

A good example of these errors of fact and of taking irrelevant matters into account was that that council had relied on the fact that the mother owned an iPad. They also referred to her owning computers. The mother confirmed that she did have an iPad and a computer (only one) but she stressed that she had bought these before she was destitute when she was working. She said that the council had never asked her when they were bought but had nevertheless asserted that they were bought after she became destitute. She also pointed out that the council had failed to put a number of their concerns such as this one to her so that she might have a chance to answer them. This was the point about procedural unfairness. 

She also pointed out that the council’s assertions to the effect that she was receiving financial support from her ex husband was not based on any real evidence but was mere speculation. 

The council had also suggested that the family could be given accommodation by family and friends without any evidence to suggest this. 

In response to this the council argued that the mother was lying about the income available to her. They agued that they did not have to prove that she was receiving income from any of the sources they mentioned but that they were entitled to conclude that she was not destitute because she was not considered to have been full and frank during the investigation. The council did have to concede (see paragraph 36) that the mother had not even been asked about some of the things such as the purchase of the ipad. 

Sadly this incredibly unfair approach is not unusual. The old argument about the mother’s account being “plainly incredible” was raised. The argument usually goes along the lines that the mother has been in the UK for a long time so it is plainly incredible for her to suggest  that she does not have a support network which can provide her with housing and money. In reality I tend to find that by the time they apply to the councils destitute families have run out of people to help them and apply to the council as a last resort. The council suggested (at paragraph 43) that the council’ decision should be “looked at in the round so as to see the overall picture…”. This seems to be a request not to scrutinise the decision but to look at it in an unfocused or a superficial manner way which might lead to a prejudiced and unsupported conclusion being reached. 

The Judge was not prepared to abandon property scrutiny and observed (at paragraph 44) that something more than mere suspicion or feel is required on the part of the council before drawing inferences with potentially serious consequences for the family. He went on to conclude at paragraph 48 that the council’s decision was flawed for the reasons argued by the mother and that the decision was therefore quashed. 

Conclusion

This case is very encouraging. It shows councils cannot simply accuse people of lying and fraud without proper evidence obtained through a fair and balanced assessment process in the hope that a judge will consider their accusations in the round and not subject them to scrutiny. I hope that judgments like this will lead to an improvement in the quality of assessments by council staff. 

A final word of warning here is not to think that a Claimant in Judicial Review proceedings can run arguments such as those run here about defective decision making and expect a Judge to adopt them straight away. I suspect that a very large amount of work went into this case in terms of analysing the council’s evidence and preparing counter evidence and arguments to show what the actual position was. This worked so well that it almost makes it look easy to achieve such a great outcome. Based on my experience it must have required great effort and skill on behalf of the Clamant’s legal team to scrutinise and respond to  the council’s evidence so that the Judge was obliged to find in their favour. It could easily have gone the other way if the work had not been put in and answers to the accusations were not provided. 

Problems at Central London County Court - Update

This is an extract from the Resolver form for complaints about HM Courts and Tribunals Service

Two weeks ago I posted about problems I had been having with Central London County Court not issuing an appeal against a Possession Order or dealing with an urgent application to stay enforcement of that Order pending the outcome of the appeal. The day after I posted that I received a letter from the Court dated 30 May informing me that my appeal papers which I had sent on by email on 2 May had been received and referred to a Judge. The letter did not say anything about my application to stay enforcement.

I have also been able to speak to somebody Court. As the system showed that it was my third call and that nobody had called back the outside caller centre was able to put me through to somebody at the Court. She told me that there was nothing that could be done about my urgent application from a month earlier. This was because the papers had been referred to a Judge. I asked if somebody could not go to the Judge's office and see if this case could be moved closer to the top of the pile of cases waiting to be dealt with by the Judge. I was told that this would not be possible there were many Judges to whom papers were sent and the Court did not keep a record of which Judge a particular case was referred to. This meant that until the Judge returned the papers there was nothing that Court staff could do to progress the case.

I have made a formal complaint to the Court about the way in which this case has been dealt with and about the failure to the Court to reply to emails or phone messages. I have submitted the complaint via the Resolver service with the Court Service use. I am not very impressed with this service so far. I have provided details of my complaint and indicated how I am feeling using emoji's as requested but so far the problem is unresolved.

Meanwhile I have obtained an amendment to the Legal Funding Certificate so that I can spend a large amount of (what should be) unnecessary tax payer's money on an application to the High Court to stay enforcement there because Central London County Court have been unable to deal with the application which I made to them 6 weeks ago. In the absence of an Order from Central London County Court staying enforcement the landlord has transferred the case to the High Court for fast enforcement.

The problems with this case do not appear to be an isolated glitch amidst an otherwise efficient service. I sent another appeal to the Court on 17 May. I have heard nothing back yet despite sending an email asking for an update on 7 June.

I would be grateful if anyone else experiencing service failure type problems with the County Courts would send me the details so that I can post them on here. You can leave a comment or email at wflack63@gmail.com. I will keep the cases anonymous to maintain client confidentiality. I think that it would to have as many accounts of these difficulties in one place as possible n case people in case anyone ever needs persuading of the extent of the problem and the need for urgent remedial action.

Is The Public Sector Equality Duty A Paper Tiger When It Comes To Housing Law?

The simple answer to this question based on recent case law seems to be - Yes when it comes to possession proceedings but No when it comes to Homeless Appeals.

A paper tiger is something which appears to be strong but does not really have any power. The term was famously used by Mao Tse-Tung to describe American foreign policy in 1956. 

The Public Sector Equality Duty is set out at Section 149 of the the Equality Act 2010.  The Gov.UK Website page Equality Act 2010 Guidance states that it means that public bodies have to consider all individuals when carrying out their day-to-day work – in shaping policy, in delivering services and in relation to their own employees. It also requires that public bodies have due regard to the need to:

  • eliminate discrimination
  • advance equality of opportunity
  • foster good relations between different people when carrying out their activities

It would seem therefore that where it can shown that a tenant is suffering from a disability which might give rise to their public sector landlord taking possession against them the tenant might have a defence to the claim in that the landlord can hardly be eliminating discrimination if they are evicting someone in circumstances which amount to discrimination. Recent cases show that this is not however likely to be case.

The first weakness of the duty is that it is not a duty to take any action or desist from other actions. It is only a duty to have regard to the above matters. Thus the duty can be discharged if the landlord can show that they have had due regard to the duty but have gone on to take possession action anyway.

The second weakness is that even if the landlord cannot demonstrate that they had due to regard to the disability of the tenant before issuing possession proceedings or even later they can resolve this problem by having regard later on. This was what was held in the case of Powell v Dacorum (2019)

The third weakness is that a breach of the duty will not give rise to a defence if the landlord can show that even if they'd had due to regard to the disability of the tenant it would not have made any difference and that they would still have taken possession action anyway. This was what was held in the case of Steven Forward v Aldwyck Housing Group LTD (2019)

The approach taken in Powell and Forward was endorsed by the High Court on hearing the appeal in London and Quadrant Housing Trust v Patrick (2019)

Following these three cases there seems little prospect of success for a defence based on the Public Sector Equality Duty provided the landlord can demonstrate by the time of the trial that due regard has been had to the duty.

The ease with which the Public Sector Equality Duty can be discharged by landlords does make it appear to be a paper tiger when it comes to possession proceedings. It should however not be dismissed so quickly in other areas of housing law such as homelessness reviews and appeals. Local authorities were found to have made errors of law in failing to discharge the duty when dealing with disabled applicants in the cases of Lomax v Gosport (2018) and Kannan v Newham (2019).

The lack of bite for the Public Sector Equality Duty in possession should not actually be seen as as major problem for tenants. This is because the the Equality Act 2010 provides tenants with another more powerful weapon in the form of Section 15 of the Act which provides that a person discriminates against another if they treat them unfavourably as a result of something arising in consequence of their disability. This means that where a tenant is able to show that they have a disability which has given rise to possession action they will have a good prospect of being able to persuade a Judge that they have a good defence to the claim because it is based on unlawful discrimination. The landlord will then only be able to evict them if they can show that the discrimination is justified as a proportionate means of achieving a legitimate aim.

I hope to deal with Section 15 and when discrimination will be lawful another day but for now I will point out that the availability of Section 15 as a protection for disabled tenants means that it will generally only be in pretty much hopeless cases that the tenant has to rely on Section 149 and the Public Sector Equality Duty because they are unable to rely on Section 15. In order for the landlord to have persuaded the Court that the discrimination was lawful for the purposes of Section 15 they will have had to carry out an assessment which should meet the requirements of Section 149 and be able to show that they have had due regard. Where a Judge has held that discrimination is permissable for the purposes of Section 15 it is hard to see a Judge going on to find that the landlord has not had due regard to the issues set out in Section 149.

Section 15 does not arise as easily in homelessness cases where the council is not taking action against the applicant but has reached a decision based on consideration of their circumstances. The issues to be considered in Section 149 will therefore be of much greater importance.

Service Problems at Central London County Court

This post is to update anyone who is not already aware of the staffing shortages at Central London County Court and of the quality of service problems which arising from them.

In the case below I have not received any substantive response to my request for Central London County Court to an appeal which the Court has had for a month now since 2 May. The Court has also failed to reply to emails and telephone messages about the appeal.

On 2 May 2019 I sent papers to Central London County Court by email requesting that they issue an appeal against the Possession Order made in the Brentford County Court.  This was necessary because Brentford like many other County Courts no longer has any Circuit Judges to hear appeals from District Judges.  I included in my appeal papers a request for an Interim Order suspending enforcement of the Possession Order pending the outcome of the appeal. 

As at 28 May 2019 I had received no response from Central London County Court to my request or replies to the emails which I sent asking for an update other than standard automatic responses acknowledging receipt of my emails.  Meanwhile the landlord's solicitor informed me that he was arranging to attempt to enforce the Order through the High Court.  This meant that there was a risk of High Court bailiffs turning up at my client’s home at short notice.  I therefore telephoned Central London County Court to try and find out what could be done as a matter of urgency.  After waiting in a queue (I was number 36 the queue at the start of the call) for about ten minutes. I spoke to a member of staff who said that she would arrange for somebody to call me. 

Having heard nothing by 29 May 2019 I called the Court again.  I spoke to another member of staff.  She was able to efficiently confirm that she could see my request for an appeal on the computer system and that I had called the previous day.  She mentioned however that due to staffing levels at Central London County Court it was not expected that staff would respond for up to 4 days. She said that she did not work at Central London County Court itself but worked in another Ministry of Justice office outside London to which calls were transferred.  She said that her role was to pass messages on to Central London County Court asking them to respond directly to the callers. She said that the that if Central London County Court failed to respond to two such messages they would put the caller straight through to a member of staff at Central London County Court. She said that because of the staff shortages facing Central London County Court they were not expected to respond to a message for up to four days. I have still received no response and will therefore call back for a third time on Monday. My worry is that even then I won't be able to speak to anyone who can do anything more than pass a message on internally to someone who is supposed to be dealing with my appeal but isn't.

It is very worrying that Central London County Court is taking so very long to issue urgent court papers and routinely failing to respond to correspondence.  This is not the only case in which I have received no response to letters and emails sent to Central London County Court.  It is frustrating that Judges at Central London County Court still consider themselves entitled to impose very high standards on those appearing before them in terms of deadlines for taking steps in preparation of cases for trial or in refusing to extend deadlines or give permission to appeal out-of-time.  It would be helpful if they could recognise the difficulties which Legal Aid Lawyers face in the same way as the Courts due to funding levels nowadays and which prevent us from complying with the high standards which they still seem to consider to be appropriate when applying them to other organisations than their own.

First Podcast - Featuring Daniel Bacon

This is the first podcast I have uploaded.

The guest/co-host is Daniel Bacon of D Bacon Legal Blog

Please do not judge this first episode too harshly. We are both new to podcasting and will hopefully get better over future episodes.

In this episode we talk about the launch of this podcast and about Daniel's blog.

Links to Things Mentioned

Nearly Legal Blog
Front Line Hackney Blog

How The Legal Aid Means Test Excludes People With No Accommodation From Receiving Free Advice and Assistance

Legal Aid is supposed to be available for homeless people who need assistance in refusal by a local authority to provide them with accommodation which they are entitled to. 

The problem with the means assessment system is that a homeless person who is not receiving a passported benefit or an extremely low wage is likely to be ineligible for assistance. This is because they do not have any housing costs to be deducted from their income when calculating their disposable income.  If they had temporary accommodation which they were liable to pay rent for this rent could be taken into account but once they are homeless there is no housing cost and their disposable income goes up to a level which will often take them over the limit of £733.00 per month. 

To illustrate this; I was approached recently by a woman who had just been evicted from her temporary accommodation along with her daughter because the council had found her to be intentionally homeless. She needed help challenging this decision. Unfortunately, if she had come to see me before her temporary accommodation was cancelled she would have been eligible but once she had been evicted her wages and tax credits left her with a  monthly disposable income of £1,286.32. This took her over the eligibility limit by £553.33 which was less than her rent had been. This has the absurd effect that someone who has no accommodation and is therefore in more pressing need for the assistance is unable to get the assistance which they would have got before she lost her temporary accommodation. 

I wondered if there might be some way around this problem. I sent an email to the Legal Aid Agency’s Contact Civil Team which read:

I have recently been asked to help a homeless single parent. Who had been evicted from her temporary accommodationprovided by the council and is staying with a friend

She is working in a low paid job and would have been eligible for assistance under Legal Help up to the point when she was evicted from her temporary accommodation. However at that point she ceased to have any housing costs. This meant that the deductions from her income were reduced and her disposable income was increased above the eligibility limit.

The effect of the above is that whilst the client would have been eligible for assistance up to the point when she was evicted from her temporary accommodation she was not eligible once she had actually been evicted. I trust that you will agree that it cannot have been the intention of those who prepared the eligibility rules to exclude someone as a result of their need for assistance becoming more acute as in this case and that they should be penalised for having no accommodation which was the reason they sought assistance. Please can you let me know if there is any way in which a provider can assist a homeless person such as this under the Legal Help scheme or why it is considered appropriate for them not to receive assistance.

I received the following response. 

Legal aid is available to fund cases that are within the scope of the civil scheme (as per LASPO Act), for those who are financially eligible and whose case satisfies the merits test.  The means test is laid down in the regulations to determine who is financially eligible for funding; the limited circumstances where a waiver applies are set out in regulations 9-12 of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013, a waiver does not appear to be applicable in this case . You have indicated your concern that the individual in question does not qualify within the income limit based on her current income and outgoings.  Your concern is noted. With any scheme which assists vulnerable people, there will appear to be ‘hard cases’ at the margin.

This response can be summarised as confirming that there is no way round the fact that someone can lose their entitlement to Legal Aid based on their means as a result of losing their temporary accommodation. It is good to know that my concern has been noted by the Legal Aid Agency but disappointing that it is not shared. I guess its not the responsibility of staff at Contact Civil to agitate for defects in system to be repaired.

I think that there is a clear need here for the means test rules to be amended so as to allow people who have no accommodation to avoid being penalised for having no housing costs. This could be achieved by treating such people in the same way that people on passported benefits are treated. The Legal Help form could ask whether the applicant is on a passported benefit and/or has no accommodation of their own. 

When Is Someone Not "Properly" In Receipt of a Passported Benefit For Legal Aid Means Assessment Purposes?

This question came up last week when I was going through the bank statement of a new client whom I proposed to advise and assist under the Legal Help Scheme. She was receiving Income Support and entitled to be treated as receiving a passported benefit for Legal Aid purposes.

What worried me when going through the bank statement was that whilst there was clear evidence of payment in of Income Support there were other payments in such as child support and some other payments. I was not sure how high the level of this additional income would have to be before somebody at the Legal Aid Agency might refuse payment for the work on this case because I was said to have failed to adequately consider whether the client was property in receipt of Income Support.

I found an explanation what properly in receipt of a passported benefit means at paragraph 4 on page 12 of the Legal Aid Agency's Means Assessment Guidance. This states:-

The passporting benefit must be currently in payment (e.g. the individual will not be passported if the benefit claim is still being processed or if payments are suspended pending a fraud investigation) and the individual must be legally entitled to the payment. If the passporting benefit is in payment but there is a suspicion that an individual may not be “properly” in receipt—e.g. representations have been made against the individual’s means or the individual’s own declarations have indicated that relevant facts such as a partner, employment, sources of income and capital etc. have not been advised to the benefit office—their legal aid claim will not be passported.

The answer would therefore appear to be whether the information provided by the client gives rise to a suspicion that they are not entitled to the passported benefit which they are receiving. Following the withdrawal of Legal Aid for Welfare Benefits work the Legal Aid Agency can not expect most of us to have a specialist eye for possible non entitlement. I think therefore that as long was we can record that we have no suspicion that the information provided by the client means that they are not entitled to the passported benefit which they are receiving we should not be at risk of not getting paid.

I think that the danger signs when looking at the bank statements or other information provided by the client will be situations such as:-

  • The client's net income for the month up to the date when they sign the Legal Help is more than the net income limit for non passported benefits  - ie £733.00.
  • The client's wages are more than the Universal Credit Work Allowances.

This is not meant to be definitive advice on this question. I would welcome any comments on here or by email to wflack63@gmail.com If anyone would like to correct what I have said or add to it.