Tag Archives: Caselaw

Adesotu v Lewisham London Borough Council (2019) EWCA Civ 1405

Summary

In general terms, it is unlawful for a person who is exercising a public function to discriminate against another person by reason of his disability (Pt.3, Equality Act 2010). Claims for damages for such discrimination must be brought in the county court (ss.113, 114). That provision does not, however, prevent a person from raising such matters in a “claim for judicial review” (s.113(3); Encyclopedia, para.2-3691). A statutory review on judicial review principles is not a “claim for judicial review”: Hamnett  v Essex CC [2017] EWCA Civ 6; [2017] 1 W.L.R. 1155 (review of a traffic regulation order).Where a person applies to a local housing authority under Part 7, Housing Act 1996 and the authority are satisfied that he is homeless, eligible for assistance, has a priority need and has not become homeless intentionally then, unless the authority refer the application to another housing authority, they must secure that accommodation is available for occupation by the applicant (s.193(2), Housing Act 1996).

An authority cease to be subject to such a duty, inter alia, if, having informed the applicant of the possible consequences of refusal and of his right to request a review of the suitability of the accommodation, he refuses an offer which they are satisfied is suitable for him and they notify him that they regard the duty as discharged (s.193(5)).

The applicant has the right to request a review of any decision of a local housing authority as to what duty, if any, is owed to him under Part 7, including under s.193 (s.202). If the applicant is dissatisfied with the decision on review he may appeal to the county court on a point of law (s.204(1) Encyclopedia, para.1-3645). "Point of law" includes not only matters of legal interpretation but also the full range of issues which would otherwise be the subject of an application to the High Court for judicial review (Begum (Nipa) v. Tower Hamlets LBC [2000] 1 W.L.R. 306; (1999) 32 H.L.R. 445; Runa Begum  v Tower Hamlets LBC [2003] UKHL 5; [2003] H.L.R. 32); it therefore does not confer on the court a fact-finding jurisdiction of its own: Bubb v Wandsworth LBC [2011] EWCA Civ 1285; [2012] H.L.R. 13). In R (CN) v Lewisham LBC; R (ZH) v Newham LBC [2014] UKSC 62; [2015] H.L.R. 6, it was held that, in order to comply with Art.8, ECHR, it was necessary for s.204 to be  interpreted as empowering the county court to assess the proportionality of a proposed eviction from temporary accommodation following an adverse decision by the local authority and to resolve any relevant dispute of fact in the appeal.

In 2017, Ms Adesotu applied to Lewisham LBC for homelessness assistance. The authority concluded that she was owed the s.193(2) duty and offered her temporary accommodation pending a further offer. She did not immediately respond to that offer and, after five days, the authority notified her that they considered the offer to have been refused and that the s.193(2) duty had therefore come to an end. On review, the authority concluded that adequate time had been given for her to make up her mind and upheld the original decision.

Ms Adesotu appealed to the county court contending, inter alia, that she suffered from mental illness and that treating her as having rejected the offer amounted to disability discrimination; she should have been given more time to consider her position. The authority applied to strike out the appeal, arguing, inter alia: that allegations of unlawful discrimination could only be brought by way of a free-standing claim (ss 113, 114, Equality Act 2010) and not as part of a s.204 appeal and that the grounds of appeal raised matters which would need the county court to make findings of fact and hear oral evidence, something which was not permissible in a s.204 appeal (Bubb). The Circuit Judge accepted those submissions and struck the appeal out.

Ms Adesotu appealed to the Court of Appeal. She contended that a s.204 appeal was akin to a judicial review so that these issues could be raised in the appeal (s.113(3), 2010 Act). The Equality and Human Rights Commission intervened, arguing that, in light of R (CN) v Lewisham LBC; R (ZH) v  Newham LBC, it was possible for the county court to hear disputed factual arguments as part of a s.204 appeal.

The appeal was dismissed. Equality Act 2010 claims generally had to be brought by way of free- standing proceedings in the county court, with proper provision for disclosure, evidence and, if necessary, the appointment of an assessor. The exception for judicial review claims did not extend to a statutory review. The decision in R (CN) v Lewisham LBC; R (ZH) v Newham LBC had not referred to Bubb and could not be said to have overruled Bubb, which accordingly remained good law. R (CN)  v Lewisham LBC; R (ZH) v Newham LBC should not be extended to cover other possible factual

(This summary is from Inside Housing Bulletin 19 August 2019

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Articles About The Case

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Capsticks Update - September 2019

R (on the application of YG) (Claimant) v Hillingdon London Borough Council (Defendant) and Equality and Human Rights Commission (Intervener) [2018] EWHC 1937 (Admin)

R (on the application of YG) (Claimant) v Hillingdon London Borough Council (Defendant) and Equality and Human Rights Commission (Intervener) [2018] EWHC 1937 (Admin)

A local authority allocation scheme which prioritised people who had been resident in the local area for 10 years, and provided an additional uplift for households with an urgent need to move or an identified housing need, did not discriminate against a refugee who had been refused registration on the allocation scheme. The rule was justified by its objective of seeking to allocate a local authority's housing stock fairly at a time when the demand for public housing vastly exceeded supply; moreover, the limitation in issue required only that the claimant be treated the same as any other recent arrival.

This report is from Cornerstone Chambers'  Housing Cases of Interest from September 2018 prepared by Tara O'Leary

Pieretti v Enfield LBC [2010] EWCA Civ 1104 [2011] H.L.R. 3

Summary of case
Mr Pieretti and his wife rented a house in Edmonton under an assured shorthold tenancy. In April 2008 their landlady obtained an order for possession against them. In June 2008 the bailiffs evicted them. Meanwhile, in May 2008, they had applied to Enfield for the provision to them of accommodation.

They claimed that Enfield should secure that accommodation was available for their occupation. They claimed that they were (or, upon eviction, would be) homeless and eligible for assistance, that they had a priority need for accommodation and that they were not homeless intentionally or (to be strictly accurate) that Enfield should not be satisfied that they were homeless intentionally. In assessing whether they were intentionally homeless Enfield should have considered whether Mr Pieretti’s acts and omissions indicated that he had a mental impairment amounting to a disability and whether, therefore, the Disability Equality Duty should be applied to this decision.

Outcome
The Equality Duty applies to local authorities in carrying out their functions – all of their functions, whether this is in formulating policy or in its application to a specific case. In particular in the course of making homelessness determinations in areas in which a person’s disability could be of relevance, a local authority shall ‘have due regard to … the need to take steps to take account of disabled persons’ disabilities’. This would be relevant in relation to three areas in particular: the priority of need, the intentionality of homelessness and the suitability of accommodation.
(Summary Taken From Equality and Diversity Form)

 

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Nearly Legal Post - Homelessness – ‘due regard’ to disability

Arden Chambers Summary

 

IA, R (on the application of) v City of Westminster Council [2013] EWHC 1273 (QB)

A vulnerable former asylum seeker who was an unintentionally homeless person with both mental and physical health problems had a strong chance of successfully seeking judicial review where the local authority had, in deciding that his was not a priority case and refusing interim accommodation, failed to pursue proper inquiries, made procedural errors and acted unreasonably. The judge reviewed the inquiries which should have been made with particular emphasis on the situation of vulnerable former asylum seekers.
(Summary Taken From Jordan Publishing Site)

Anthony Thornton QC sitting as a deputy high court judge stated at [25] that:
“It is significant that the applicant does not have to “prove his case”. The inquiry process is an inquisitorial one and the Code clearly envisages that the case worker undertaking that inquiry will, in a case such as the claimant's, pursue a number of avenues of inquiry…”

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Nearly Legal Post - Too Soon?
Wikipedia Article on Gatekeeping

R v Hillingdon LBC ex p Puhlhofer [1986] AC 484, HL

The Facts
Mr and Mrs Puhlhofer were living with their two young children temporarily in bed and breakfast accommodation in a guest house. They had one single bedroom with no means of washing clothes or cooking. They applied to the local authority for accommodation as homeless persons because the room was inadequate for their needs. The council decided that they were not homeless or threatened with homelessness within the meaning of the Housing (HP) Act 1977, s.1.

The Court of Appeal
In the Court of Appeal Ackner LJ (supporting the judgment of Hodgson J) held that the word “accommodation”:

…cannot mean simply premises in which the applicant and his family are presently lodging. In my judgment the accommodation must be such that it is reasonable for the applicant and his family to continue to occupy it, having regard to the general circumstances prevailing in relation to housing in the area of the housing authority to whom he has applied (at p 493).

The House Of Lords
The House of Lords upheld the local authority’s decision. In deciding whether or not an applicant was homeless, the local authority did not have to consider whether any existing accommodation was appropriate or reasonable.

The consequence of the decision in Puhlhofer was that a person accommodated in conditions so intolerable that it would not be reasonable for him to continue to occupy that accommodation was not homeless although, if he actually left, he would not thereby become intentionally homeless.

This produced the inconvenient result that persons living in such conditions had to put themselves on the street before they could activate the local authority’s duty to provide them with accommodation

Corrrection of the House of Lords Error via the Housing and Planning Act 1986
During the passage of the Housing and Planning Act 1986, Baroness David backed by Shelter sought tenaciously to tackle the injustice that resulted from the decision in Puhlhofer. The successful amendment enlarged the definition of homelessness to include the requirement that accommodation must be reasonable to continue to occupy. Section 14(2) of the Act amended the Homelessness Act 1977 so as to add the requirement that the accommodation available to a person had to be "suitable" for them.

Significantly the predecessor provisions to ss 206 and 210 of the Housing Act 1996 – (discharge of functions by local authorities and suitability of accommodation with reference to fitness standards) were also brought in under the Puhlhofer amendment.

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7 July 2015 Doughty Street Chambers Seminar Material The End of Puhlhofer? copy

 

R v Royal Borough of Kensington and Chelsea ex p Bayani

In this case the Court set out guidance as to the scope of a courts power to interfere with a decision on the ground of insufficiency of inquiry. Neill J said at para 409

"(1) The duy to make inquiries is to make such inquiries as are necessary to satisfy the authority ... It follows therefore that as it is the authority which have to be satisfied the scope and scale of the inquiries is, primarily at least, a matter for them. But the introduction of the word 'necessary' indicates that there is a standard which those inquiries must observe. In other words, the inquiries must be those which are 'necessary' to enable the authority to make a decision.

(2) If the court is to intervene by way of judicial review, it must be on the basis, as I see it, that the inquiries have not reached the required standard in the circumstances of the case ...

(3) In deciding how a reasonable authority would have acted and what inquiries they would have made in the circumstances, the court must have regard to the speech of Lord Brightman in R v Hillingdon LBC ex parte Puhlhofer [1986] AC 484 where he said at p.518:

'... it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case ... Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely' ...".
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Regina -v- Thurrock Borough Council Ex Parte Williams; QBD 1981

The burden when determining intentional homelessness is upon the local authority to be satisfied that the applicant became homeless intentionally before it can reach a conclusion that he was so homeless; if its inquiries lead to doubt or uncertainty, the issue must be resolved in the applicant’s favour.

Link

Swarb.co.uk

Lally v Kensington and Chelsea London Borough Council 1980

Mr Justice Browne-Wilkinson ruled that an authority must given an intentionally homeless person a reason- able period of time; sufficient to reasonably enable him to obtain his own accommodation. In the present case the authority had acted illegally by imposing a 14 day time limit on the provision of temporary accommodation for the plaintiff, who had been found intentionally homeless.

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