Here is a link to the full judgment.

This is a very interesting case in which a social landlord's application for an injunction against a tenant accused of anti social behaviour was dismissed and the landlord was ordered to pay the tenant £27,500.00. It makes important reading at a time when landlords are making a lot of applications for injunctions like this in circumstances where they arguably should not be.

I should point out at the beginning of this post that I am biased. I am a solicitor who acts for Defendants in cases like this. What follows may therefore come across as critical of and lacking sympathy for landlords who have to deal with reports of anti-social behaviour and the lawyers who act for them.

This case concerned an application for an injunction under Anti-social Behaviour, Crime and Policing Act 2014 by a housing association against a tenant and her mother to stop them from engaging in alleged antisocial behaviour. The tenant counterclaimed for a declaration of disability discrimination and compensation on the basis that her behaviour arose from a medical condition and that her landlords were treating her adversely as a result of that.

The Judge considered the housing association’s evidence and found that almost all of the allegations of anti social behaviour had not been made out. The only instance of antisocial behaviour was when the tenant played her music loudly so as to drown out the noise of music being played by her neighbour. The injunction application was dismissed and the tenant was awarded £27,500.00 damages to compensate her for the disability discrimination.

The mother settled the case by agreeing to give undertakings to the Court not to behave in the manner alleged.

The Facts

The tenant suffered from Obsessive Compulsive Order which amounted to a disability for the purposes of the Equality Act 2010. Her condition led to her behaving in a manner which her neighbours found irritating. She had a compulsion to film what was happening around her on her mobile phone. She also had a habit of driving up and down the street and sitting in the car outside her home. Neighbours responded to this by subjecting her to abuse and by complaining about her to the landlords and the police. The tenant also complained to the landlord and police about the behaviour of the neighbours. After some years of this the landlords decided to apply for an injunction against the tenant.

The Legal Issues

The Claim

In order to obtain an injunction against the tenant the landlords under the Anti-social Behaviour, Crime and Policing Act 2014 the Judge had to be satisfied that she had behaved in an antisocial behaviour and that it was just and convenient for him to make an Order preventing her from doing so in the future. The Judge found that one minor allegation of anti-social behaviour had been made out. He therefore had to decided whether it was just and convenient to grant the injunction. He found that it was not for seven different reasons - see paragraph 76. The claim was therefore dismissed.

The Counterclaim

In order to successfully counterclaim for compensation for disability discrimination the Judge had to be satisfied the landlord had unlawfully discriminated against the tenant causing injury to her feelings. He found that they had and that the damages should be significant. Damages in this type of cased are assessed with reference to the Vento Bands as used more commonly in Employment Tribunals. In this case the Judge considered that the case fell into the top band and awarded £27,500.00.

The tenant also claimed damages for harassment under Equality Act 2010 but this part of the claim was dismissed.

Takeaway Points From the Judgment

• The Judge was critical of the fact that this case had ever been brought (see paragraph 68) and of the fact that the landlord staff did not understand the legal issues in the case in particular disability discrimination.
• The Judge was not prepared to give any weight to the hearsay evidence of one of the neighbours. She had not come to Court and the landlord had served a hearsay notice. The Judge pointed out that this notice did not set out any good reason for the witness not coming to Court to give evidence and referred at (paragraph 47)to the warnings given about relying on hearsay evidence by Brooke LJ in Moat Housing at paragraphs 135, 136 and 140
• The Judge criticised the size of the Trial Bundle (1,500 pages followed by a Supplementary Bundle at Trial) and Bundle of Authorities (350 pages). He stated at paragraph 35 “Undaunted by the glut of material already put before the Court, counsels’ closing submissions referred to yet further material not in either bundle. This must not be repeated in any future county court trial in this class of case”. This means that when preparing and agreeing bundles the lawyers should be include only relevant documents and avoid the temptation felt by those acting for council’s and housing associations to attach (what often seems like) their whole file of papers to the Particulars of Claim and then again to their witness statements.

This case is in many ways typical of the way in which social landlords often pursue applications for injunctions under the Anti-social Behaviour, Crime and Policing Act 2014. I believe that if so many of these cases did not settle there would be more judgments like this. The common characteristics include:

• The landlord’s staff have responded to the complaints made about a tenant by taking sides in a dispute and treating the tenant whose side they are not on as the enemy. This is often due to pressure which they face from the complainant neighbours which often includes complaints to their managers or inquiries from an MP about their failure to take action. They are therefore often intimidated by the complainants and feel compelled to be seen to take all possible action against and show as little sympathy as possible for tenant complained of so as to avoid further criticism of their role. It is notable that many of these sorts of cases involve complaints being made for many months or even years before the landlords take action. By then the complainant neighbours will be at their wits end and putting considerable pressure on the landlord to take action.
• The landlord’s staff do not understand the legal issues involved in dealing with disabled tenants who may behave in a way that distresses their neighbours. This includes not being aware of their own policies and procedures. Those policies often appear to have been written by senior management or outside consultants so that boxes can be ticked as to whether the organisation has such policies and procedures in place but then largely ignored. Even if staff are aware of issues around disability they will ignore these on the basis that the behaviour of the tenant being complained out is such that they can only be shown zero tolerance which then means zero understanding and a belief that the action taken is proportionate.
• The landlords and their lawyers produce witness evidence which tends to repeat verbatim the complaints made by the neighbours without scrutinising them. The neighbours are not told that they will need to come to court to give evidence and be cross examined at trial but are advised that it should be possible not to do so and give hearsay evidence on the basis that they are afraid of the tenant complained of or would find it distressing to come to court.
• The solicitors acting for the landlords have not given them appropriate advice about the weakness of the case or the fact that pursuing it amounts to discrimination causing considerable distress to a disabled tenant who has already been harassed by those complaining against them. If such advice is given but is ignored there is little that the solicitor can do other than continue with the claim. By the time the solicitors are instructed the legal proceedings may already have been issued by the client and brought to them after the Defendant obtains representation. The individual solicitors will often feel under pressure not to upset large corporate clients who might take their portfolios of work to other tougher solicitors.  The loss of such clients is not likely to impress their firm’s management. This leads to the solicitors adopting the role of attack dogs who will have no truck with talk of disability discrimination or other nonsense raised by those acting for Defendants given the appalling behaviour of the Defendant.
• The barristers acting for the landlords are also unable to provide advice or require the lay client to act on it  so as to  prevent disasters of the kind which happened in this case. By the time they are instructed the case will often be well on its way to trial and advice along the lines of “this case should never have been brought” is likely to cause irritation if not personal offence to their instructing solicitors and lay clients. They are left with little choice but to soldier on and make the best of a bad job and leave it to the Judge to give the advice.

Lessons From The Case

The lessons for social landlords arising from this case are that they should ensure that staff, including management are fully aware of the need to act fairly and decisively when dealing with complaints of anti social behaviour. They should carry out proper inquiries at an early stage and make findings of fact and plans of action. All staff dealing with these matters should be properly trained on the law relating to anti-social behaviour and disability and be aware of their own policies. Checks should also be put in place for proper assessments to be carried out before proceedings are issued including getting a written Advice from a specialist barrister. They can advise on the merits of the case rather than just being asked to represent the landlord at a trial which may only be weeks or days away.

The main lesson for landlord solicitors of cases like this is to provide bold advice to landlords who have applied for injunctions or want to do so in in circumstances like those in this case. I may be being unfair here as it may well be that they are already providing such advice but it is not being followed. I do get the impression though from the aggressively worded correspondence I receive from solicitors acting for landlords in cases like this that they have taken on the role of attack dog rather than wise counsellor.

The lessons for solicitors acting for Defendant solicitors are not to be deterred from defending disabled clients facing these types of actions and should follow the very impressive examples of the Defendant solicitors in this case. It is often tempting when provided with dozens of pages of witness evidence against a client that there must be something in it or that their can’t be so much smoke without some fire. The evidence provided by the Claimants should be subjected to the level of scrutiny applied by HHJ Luba QC in this case and not taken at face value. Witnesses should be required to attend at Court and objection taken with hearsay evidence. Where a client has a possible disability, specialist medical evidence should be obtained and a discrimination counterclaim considered from the start of the case.

Introduction

This month I have found a lot of very useful / interesting material at 42 Bedford Row's Housing Group website and on their YouTube Channel.

I have created this page which sets out the links I use to find housing law updates.  Please can anyone who knows of other sources let me know by leaving a comment.

Case Law

Ciftci v Haringey - Intentional Homelessness 

The council were held to be entitled to find that Ms Ciftco was intentionally homeless because she gave up accommodation in Switzerland and came to London where her sister had found a job for her and arranged for her to stay with a friend. The job did not last and she was asked to leave the friend's home. She argued that she was not intentionally homeless because she had believed the arrangements which her sister had made were sufficient to prevent her from becoming homeless. It was held that she could not argue this in good faith because she had failed to consider whether these arrangements were likely to last long enough to enable her to find accommodation of her own.
The full judgment is here. There is a good summary of this case on Lime Legal's site  - You need to scroll down to the New Housing Cases Section and on Nearly Legal

One passing thought I have is how much a problem intentionally homelessness is for applicants following the Homelessness Reduction Act 2017 and for those with children. It is likely that even if an applicant is not found to be intentionally homeless nowadays the most likely outcome of their application will be an offer of private sector accommodation. A relief duty would still be owed to someone who is intentionally homeless as this duty arises without consideration of intentionality. The duty is likely to be discharged by the council assisting the applicant in obtaining private sector accommodation. An intentionally homeless applicant with a child will still be owed a duty under Section 190 of the Housing Act 1996 and will be entitled to assistance under Section 17 of the Children Act 1989. Both of these routes will again be likely to lead to offers of private sector accommodation. It seems therefore that arguments about intentionality are a bit outdated now and belong in a past age where a successfully unintentionally homeless applicants could expect to receive an offer of social housing . Please feel free to correct me on this If you think I am wrong.

Global 100 Ltd v Laleva (2021) EWCA Civ 1835 - Possession 

An arrangement for Ms Laleva to move into a property was held to give rise to a licence and not tenancy. The Court of Appeal held that the County Court Judge who first considered the case had been entitled to make a Possession Order at the first hearing on the basis that the defence based on a tenancy having been created had no realistic prospect of success.

It might be argued that the decision in this case is of limited application and only effects people who enter into arrangements where they become property guardians. On the other hand the case can be seen as alarming in that it appears to undermine what housing lawyers have treated as the rule from Street v Mountford that where someone has exclusive occupation of even party of a property for which they pay rent they have a tenancy and the statutory protection which goes with it. The worry is that other landlords may be able to treat their tenants as licensees as a result of this decision.

The judgment also deals with the question of when a judge can make a Possession Order at the first hearing of a claim having found that there is no arguable defence. In a nutshell the court held that the test is the same as the test for making a summary judgment. This may give rise to more summary Possession Orders being made in the future.
The full judgment is here. For more on this case see Nearly Legal 

Metropolitan Housing v TM - Possession 

In this case the Court of Appeal held that although it was possible for a breach of the Public Sector Equality Duty to be remedied during a case and even in the course of evidence given a trial this should be avoided. This was due to the danger of confirmation bias preventing the landlord from carrying out a fair and balanced assessment and preferring to justify the defective decision to take possession action. It will always be preferable for the landlord to carry out a proper reassessment when new evidence comes to light showing that the original decision to take possession was possibly defective and in breach of the duty.

This case was a good example of what can go wrong if an internal review of new material is not carried out. The landlord accepted that had the new evidence been considered at the time of the original decision then they would not have taken possession action. However, they still thought that carrying on with the proceedings now that they had been issued was a proportionate response to the incidents giving rise to the possession proceedings.  Lord Justice Nugee stated at paragraph 66, "Absent considerable forensic gymnastics these two positions are inconsistent." That seems like a polite way of saying that the position was nonsensical.

My worry here is that the case would probably have gone the other way if an internal review had been carried out and had given rise to a carefully worded decision that it was appropriate to carry on with the proceedings. It might also have gone the other way if the housing officer had not conceded in the witness box that he would not have made the decision to take possession action if he had seen the evidence which was available by the time of the trial. Nevertheless this is a very important decision which shows that the Public Sector Equality Duty can not be ignored by landlords and that any breaches can be remedied if necessary at trial which is what most people were starting to think before this ruling.
The full judgment is here. For more on this case see this discussion by Robert Winspear of 42 Bedford Row.

R oao BG and KG v Suffolk County Council 2021 - Community Care
The Court held that Suffolk County Council were wrong in law to decide that they did not have power to assist two disabled men to have holidays and use recreational facilities. This case about community care rather than housing. It does however set out a useful and detailed consideration of the law relating to the care and support available under the Care Act 2014.
The full judgment is here. 

Webinars

New Webinars

Domestic Abuse And The Interaction With Housing Law Webinar - DG Legal

This webinar from DG Legal  considers the law in this area in detail and the implications of the Domestic Abuse Act 2021

Navigating Capacity Issues - Garden Court Chambers

This webinar from Garden Court Chambers Community Care Team considers the issues of capacity in specific areas which is of interest and use to housing lawyers as well as community care specialists

How To Understand Damp and Mould Claims - 42 Bedford Row

This webinar makes important viewing following renewed interest in damp and mould growth following the October 2021 Ombudsman report Spotlight on Damp And Mould Growth - Ombudsman Report.

Recommended Older Webinars

The above case of Metropolitan Housing v TM 2021 (see above) has renewed interest in the Public Sector Equality Duty as something not to be overlooked in possession proceedings. Before the decision in TM many lawyers had been tempted to write off the Public Sector Equality Duty because it did not give rise to an obligation to do anything in particular and becasue breaches could be remedied later on.

This Doughty Street Chambers - The Public Sector Equality Duty: Is It Dead In The Water? looks at the pre TM position from a tenant lawyer perspective whilst the Cornerstone Barristers webinar PSED Defence and Residential Claims does the same from a landlord lawyer perspective

Property Guardians: Who Are They And What Are Their Rights? - 42 Bedford Row

This webinar from February 2021 provide useful background information relevant to the above case of Global 100 Ltd v Laleva (2021) EWCA Civ 1835

Introduction

This is the second monthly update. The October update is here.

The areas I have been looking into are Law Reports, Webinars and new articles, web sites and blog posts. To find Law Reports I visit:-

• Lime Legal
• Capsticks Housing Insights Page
• Nearly Legal
• Legal Action Magazine Monthly Update - only available to subscribers
• The Trown Consultancy

If anyone else knows of any interesting information or sources of information which I have missed please let me know with a comment below

Webinars

I have not watched any new webinars this month.  I am hoping to watch the Garden Court Chambers Defences to S21 Possession Claims: Recent Developments. This took place on 25 November. I was not able to attend in real time am looking forward to watching the recording. The video should be available soon.

DG Legal's webinar on Domestic Abuse And The Interaction With Housing Law is coming up on 3 December

Two webinars non housing law webinars which I plan to watch are:-

1 Essex Court's Capacity and sex - the Supreme Court Decision in JB
and
1 Chancery Lane's Managing Capacity Issues in Personal Injury

They are not directly about housing law but I find that consideration of mental capacity areas is useful for considering its application to housing issues.

I still intend to watch 1 Chancery Lane's "How To Get The Most Out of" Series. These include:
How To Get the Most Out of Your Client
How To Get the Most Out of Your Barrister
How To Get the Most Out of Your Expert

Cases

R (Bereket) v Waltham Forest LBC QBD, 4 November 2021

In this case a homeless applicant received an offer of accommodation which she did not consider to be suitable. She sent an email message to the address given in the decision letter for requesting a review setting out her reasons for not wanting to accept the offer. Her message did not expressly state that she was requesting a review. Waltham Forest therefore refused to treat her as having requested a review within the statutory deadline. To the shock of most people who have commented on this, the High Court held that Waltham Forest were entitled to do so and dismissed the application for Judicial Review.

You can read more about this case via:

• Capsticks
• Nearly Legal
• Shelter  - 9 November

Hajjaj v City of Westminster (2021) EWCA Civ 1688

In this case it was held that when making offers of private sector accommodation to homeless persons local authorities do have to check that the property meets the requirements of Article 3 of The Homelessness (Suitability of Accommodation) (England) Order 2012 and cannot assume that it meets the requirements because the council considers the landlord to be reputable. On the other hand the council are entitled to rely on reports about the condition of the property from a landlord.

For more information see

• The full judgment
• Nearly Legal

SR v Lambeth London Borough Council Central London County Court 2021

This is an important decision in which Lambeth were found to have recited the law on vulnerability and the facts of the case but had failed to show how these had been used to reach a conclusion that the applicant was not vulnerable. The council was also criticised for failing to make inquiries and to preferring the advice of NowMedical who had not assessed or even met the applicant to the views of a consultant psychiatrist and social worker who had done. This was only a County Court judgment and a copy of the judgment does not appear to be available which is a great shame.

The case is covered in detail at  Nearly Legal

R (Ibrahim) v Westminster CC [2021] EWHC 2616 (Admin)

This case deals with the recurring question of when a council can reject a fresh a homelessness application by someone whose earlier application has been rejected. It is common for councils to reject such an application on the basis that the facts which it is based on are the same of the one which had been rejected. In this case the High Court held that it was enough for new material which had not been fully considered in the course of the last application to require the council to have to process a fresh application. For more information see:-

• The full judgment
• Summary by The Trown Consultancy
• Article about the case by Amy Stroud at the 42 Bedford Row website

Gul v Bilal Stratford Hearing Centre, 18 October 2021

In this County Court case it was held that a deposit is not treated as having been returned where the landlord gives the tenant a cheque for the money but the tenant does not cash the cheque. This meant in this case that the Notice of Seeking Possession relied on by the landlord was invalid. For more information see Nearly Legal 

 BL, R (On the Application Of) v London Borough of Islington [2021] EWHC 3044 (Admin)

In this case the Administrative Court held that the Claimant had capacity to be a party proceedings despite medical evidence suggesting that she might not be able to do so. The Court took into account the level of support / assistance which the Claimant could expect to receive from the Court and the Defendant. This case is unusual in that it is rare for the person who is said to lack capacity to be arguing that they have capacity. In my experience it is also usually the case that persons with mental health problems do not receive assistance or support from the courts or the Claimants. For more information see the Capsticks website for a summary. The full judgment is here.

Other Useful Information

This video of Lord Kerr criticising the government's prejudiced and inhumane approach to asylum seekers is important viewing even if it is not strictly speaking about housing law.

Introduction

In order to keep up with developments in housing law I try to visit the sources of new information at least once a month and find any new stuff which is there. I am going to try and share this process so as to spread the word about new developments and to try and promote discussion of the issues raised by the new information

The main areas I have been looking into are Law Reports, Webinars and new articles, web sites and blog posts. To find Law Reports I visit:-

• Lime Legal
• Capsticks Housing Insights Page
• Nearly Legal
• Legal Action Magazine Monthly Update - only available to subscribers

Lime Legal is also good for finding out about new articles or other developments in housing law.

For Webinars I make a note of the invitations I get mainly barristers chambers, mainly Doughty Street Chambers, Cornerstone Barristers, 1 Pump Court Chambers  and Garden Court Chambers More recently DG Legal who have been putting out a lot of good quality webinars. One of the most positive effects of coronavirus on my work has been that what were previously seminars held if offices or chambers are now on line webinars which can not only be watched in real time from home but also later on video. I very much hope that providers will continue to put webinars on line in this way in the future even if it is combined with old fashioned type seminars.

This month there have been a lot of top quality webinars, not least because Cornerstone Barristers Housing Law Week has taken place.

If anyone else knows of any interesting information or sources of information which I have missed please let me know with a comment below

Recent Webinars

Cornerstone Barristers

Housing Law Related Judicial Review
Collection and Use of Personal data: a Guide for Social Landlords
Dealing With Vulnerable Tenants
Allocation and Homelessness: What Are The Key Issues Facing Local Authorities?
Housing litigation Post Lockdown: Everything You Need To Know

Doughty Street Chambers

Resisting Anti-Social Behaviour From the Basics To Discontinuance and Committal
Possession Update 

DG Legal

Housing: Public Law Breaches
Best Practice Guide To Anti-Social Behaviour Cases

Notable Cases

Spahi-Shoaib v Kingston upon Thames Royal London Borough Council County Court (Central London), 31 August 2021
A County Court has held that a council had erred in its determination of whether a father was in priority need for housing.
A mother, who had a history of drug use, was unable to look after her teenage children. The children’s father applied to Kingston upon Thames Royal London Borough Council for accommodation and was placed in temporary accommodation outside of the Borough while his application was being considered. The children stayed with a family member. After assessing the application, Kingston upon Thames Royal London Borough Council decided that the father did not have a priority need for housing, as (1) his children were not living with him, and (2) section 189 of the Housing Act 1996 (“priority need for accommodation”) did not apply, as the children were not currently ‘dependent’ on him (as they lived with another family member). The father appealed.
In allowing the appeal, the County Court, held that Kingston upon Thames Royal London Borough Council should have considered whether the children may reasonably be expected to be dependent on their father, rather than whether they were currently dependent on him, and if so, whether it could reasonably be expected that they may live with him at some point in the future.
A transcript of this decision is not available.

Source - Capsticks Website

Local Government Ombudsman award of £27,000 compensation after 9 years of unsuitable accommodation - see Nearly Legal 

Other Useful Information

Domestic Abuse
The Domestic Abuse Act 2021: What does it mean for social housing providers? - By Tara O'Leary at Cornerstone Barristers. This was actually posted in July but is extremely useful so I have included it here. More recently Shelter have posted a summary of all  Court orders to remove the perpetrator and prevent abuse  on the Shelter Website.

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.