The question of whether a woman who is staying in a women’s refuge is entitled to be treated as homeless and rehoused by a local authority still comes up from time to time.  Women who apply to local authorities for accommodation as homeless persons whilst staying in a refuge are sometimes wrongly advised by council staff that they are not entitled to assistance. The reason given for this is that they are living in a refuge so they are not homeless. 

The legal position is set out in Section 175 (1) of the Housing Act 1996 which provides that a person is homeless if she has no accommodation available for her occupation. 

Section 175 (3) provides that a person shall not be treated as having accommodation available to them unless it is accommodation which it would be reasonable to continue to occupy.

It should go without saying that the accommodation which the woman left because of domestic violence can’t be treated as reasonable for her to continue to occupy. If it does need saying then Section specifically provides that it is not reasonable for someone to occupy accommodation where they would be at risk of domestic violence. This leaves the question of whether a refuge where they won’t be at risk of violence can be treated as accommodation such that the applicant is not entitled to be treated as homeless. 

In Birmingham City Council v Ali and Others; Moran v Manchester City Council 2009 the Supreme Court The Supreme Court held that refuge accommodation would generally not be reasonable for them to continue to occupy for more than a short time.

A Women’s Refuge is not reasonable to continue to occupy for anything other than a short term for a number of reasons including:-

1. It is usually never intended to be anything more than a temporary haven which someone will only stay in on an emergency basis. 
2. The rules required to maintain secrecy and protect residents from violent partners, such as not having guests or telling people where you are staying are incompatible with what is considered to be a home. 
3. Refuges are unlikely to be appropriate places for children to live.

Outline of The Case

In this case the court considered the impact of depression on TC's capacity to make a decision as to whether to have an operation and whether had capacity to conduct litigation. She had previously consented to having an operation was found to lack capacity to do so as a result of becoming depressed. The full judgment is here.

I have also produced a YouTube video on this case which can be found here  and a Notion Page which can be found here

After considering a psychiatrist's report the Judge applied the Test for Determining Mental Capacity set out in Sections 2 and 3 of the Mental Capacity Act 2005

He held that TC had demonstrated that she was able to understand and retain information in regard to her diagnosis and the treatment interventions available. She was also able to communicate her decision. However, he held that as a result of her depressive illness, she was experiencing symptoms of hopelessness and she did not consider that she had a future. He stated that as was typical with severe depression TC was experiencing catastrophic thinking and that as a result, she was unable to weigh up the information she had been given in order to make a capacitous decision. He therefore concluded that TC lacked capacity to make decisions about her medical treatment.

The Judge went on to consider TC's capacity to instruct a solicitor and conduct these proceedings. He found that due to her limited motivation and sense of hopelessness she would be unable to identify an appropriate representative and weigh up the necessary information to provide instructions. Therefore, it was his view that as a consequence of her mental disorder TC was unable to weigh up the necessary information to conduct these proceedings and thus lacked capacity to do this.

I found out about this case from the 39 Essex Chambers Website where there is a very useful report on this case. This points out the how this case demonstrates the importance of promptly obtaining expert evidence, with the permission of the Court, in cases such as this, even when the application is urgent. The expert evidence on capacity, in particular, was able to explain to the court’s satisfaction how TC had gone from being able capacitously to decide upon her medical treatment to being in a position where she lacked that capacity. That is to say how, as a result of the catastrophic thinking associated with her severe depression she was unable to weigh up the information relevant to the decision in question.

The Wider Implications of The Case

This is an important decision beyond the issue of consenting to medical treatment. It has a wider application for all lawyers and advisers dealing with persons suffering from depression. In the area of housing law I have found that many clients who are facing eviction due to rent arrears were suffering from depression which may have caused or at least contributed to their difficulties in paying the rent, maintaining benefits claims needed to enable them to pay the rent, engaging with the landlords and getting help with their problems. The genuine difficulties faced by the tenants has often been overlooked and their rent problems have been attributed to laziness or some other deliberate decision not to comply with their obligation to pay their rent such that it is appropriate for them to lose their homes. If medical evidence can be obtained as in TC's case to show that the client is suffering from a level of depression such that they lack capacity they are likely to have a legal defence to a possession claim and grounds for applying to set aside or suspend a warrant for possession. The tenant's catastrophic thinking and sense of hopelessness may prevent them from weighing up the information needed to make decisions such as whether to respond to correspondence or challenge negative benefits decisions. Like TC these feelings may mean that they lack the motivation to take action themselves and to obtain assistance from others such as housing advisers or solicitors.

The defence to a claim for possession arises from the Equality Act 2010 which provides that adverse treatment of a person due to something arising from a disability which the landlord was aware of amounts to unlawful discrimination. Where a medical condition is sufficient to deprive someone of capacity to make a decision then it will usually also amount to a disability - see Definition of Disability. If it can be shown that a landlord is discriminating in this way the tenant is likely to have a full defence to the claim for possession.

Enforcement of a Possession Order which was made before the landlord was aware of the tenant's medical condition or before the tenant began to suffer from depression will amount to unlawful discrimination even if the application for the original Possession Order did not.

Where it can be established that the tenant lacked capacity and the landlord was aware of this when an earlier Possession Order was made then it may be possible to have that Order set aside on the basis that the Order was made in breach of The CPR 21 Rules Protected Parties which prevents Orders being made against persons lacking capacity (also known as Protected Parties) before a Litigation Friend has been appointed to act for them.

Where a landlord continues to take action against a tenant for reasons arising out of a disability such as depression then the tenant may also be entitled to counterclaim for substantial damages for the distress caused by the discrimination. See the County Court case of Poplar Harca v White (2015) (unreported) where a tenant was awarded £4,500.00 damages where a landlord had pursued possession action despite being aware of the tenant's disability.

For more information on such defences to possession claims based on disability see Equality Act 2010 Defence To Possession Claim.

The Test For Deciding Whether Someone Lacks Mental Capacity

If the Test for Determining Mental Capacity is applied to the issues of making decisions in relation to management a tenancy, managing a benefits claim and instructing a solicitor then it is likely that they will be found to lack capacity to make the decisions just as the person in this case lacked capacity to make decisions about medication. An impairment of the brain or mind giving rise to such a lack of capacity is very likely to amount to a disability for the purposes of 2010.

To apply the Test for Determining Mental Capacity in a case like this the following steps need to be taken

1. Carry out the Diagnostic Test and identify an impairment of the mind or brain which might give rise to a lack of capacity. In this case that was identified as the TC's depression which gave rise to catastrophic thinking
2. Carry out the Functional Test and determine whether the impairment is likely to prevent the person from making a decision for themselves. In this case the catastrophic thinking caused by TC's depression prevented her from being able to weigh up the information which she had been given so as to make a decision.

Further information on depression and its impact on capacity can be found in Understanding Depression - Harvard Medical Scool and More Than Sad: Depression Affects Your Ability To Think

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.  

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.  

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.

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.