Tag Archives: Homelessness

JA & Ors, R (On the Application Of) v The London Borough of Bexley [2019] EWHC 130 (Admin) (01 February 2019)

Summary

The Administrative Court allowed the claimant children's application for judicial review of a decision of the defendant local authority that their carer was not destitute. Given the evidence and materials before the authority at the time of the decision or which reasonably could have been available to the authority if appropriate enquiries had been made, the decision to find that the carer was not destitute and that the claimants were not children in need had been Wednesbury unreasonable. (This is from the Counsel Magazine Website)

Law Reports

Bailii

Articles About The Case

Local Government Lawyer -Claimants win challenge over decision by council that mother was not destitute

AR, R (on the application of) v London Borough of Hammersmith and Fulham [2018] EWHC 3453 (Admin) (19 December 2018)

Summary
This case concerned an unsuccessful Judicial Review of a refusal by a council to provide a single homeless man with no recourse to public funds with accommodation under the the Care Act 2014

Local government – Housing. On the claimant's application for judicial review of the defendant local authority's decision that it did not have power to provide the claimant with accommodation, the Administrative Court dismissed the application on the basis that: (i) the authority's decision not to provide accommodation under the Care Act 2014 was lawful; (ii) the authority would not be able to provide accommodation to the claimant under s 1 of the Localism Act 2011; and (iii) the claimant was excluded from such provision pursuant to Sch 3 to the Nationality Immigration and Asylum Act 2002 on the ground that such support was not necessary for the purpose of avoiding a breach of his rights under the European Convention on Human Rights or his EU rights. - This is copied from from Counsel Magazine Web Site

Law Reports

Bailii

Articles About The Case

It is mentioned on the Capsticks  - Housing case law - January 2019 update

Fedakova v Peterborough City Council (2019)

Summary

This is a County Court case in which an Appellant was granted permission to appeal out of time to the County Court under Section 204 of the Housing Act 1996

Law Reports

Apart from being mentioned in Legal Action Magazine July/August 2019 this only appears to be reported on the Case Law Digest Website

Articles About The Case

None that I am aware of.

Thomas v Lambeth (2017)

Summary

This was an important case even though it was only in the County Court. The Judge allowed an appeal against a vulnerability decision where Lambeth had relied on advice from Now Medical. That advice consisted of stating that the applicant was not vulnerable because they did not suffer from conditions which the applicant had not claimed to suffer from but ignoring the conditions which the applicant did claim to suffer from.

Law Reports

Report Thomas-v-Lambeth

Articles About The Case

Nearly Legal - Vulnerability, Medical Evidence and Now Medical 

Mitre Court Buildings - Homelessness: Council’s Medical Report Relied On ‘straw Man’ Argument

Samuels v Birmingham CC [2019] Supreme Court 

Video

Summary

This appeal considered whether the respondent was entitled to treat the appellant as intentionally homeless on the basis that part of her income from subsistence benefits was available to meet the shortfall between her contractual rent and the housing benefit awarded to her, and whether sufficient reasons were given for this decision.

The Supreme Court unanimously allowed the appeal.

The Court held that the Homelessness (Suitability of Accommodation) Order 1996 requires the authority to take into account all sources of income, including all social security benefits, and there is nothing in it to require or justify the exclusion of non-housing benefits of any kind. It also requires consideration of the applicant’s “reasonable living expenses”, which necessitates an objective assessment. The Court considered that the review officer in Ms Samuel’s case asked whether there was sufficient “flexibility” to enable her to cope with the shortfall between her rent and her housing benefit, but that the question ought to have been what her reasonable living expenses were, to be determined having regard to both her needs and those of the children. The Court determined that it was difficult to see how Ms Samuels’ expenses could be regarded as unreasonable, concluding that it was hard to see on what basis the finding of intentional homelessness could be properly upheld. As such the Court hoped that on reconsideration the council will be able to accept full responsibility under Part VII of the 1996 Act for Ms Samuels and her family.

Law Reports

Supreme Court Web Site

Bailii

Articles About The Case

Nearly Legal - Affordability and intentionality – Adding It Up

Mark Prichard - Rent Shortfalls & Homelessness: David Defeats Council But Not Goliath

 

 

Lambeth v Johnston [2008] EWCA Civ 690

Summary

In carrying out the review of the decision that Mr Johnston was not homeless Lambeth firstly reached a decision to the effect that his drug problem did not give rise to vulnerability which was irrational. The reviewing officer decided that it was not necessary for him to send a minded to letter which was also unlawful.

Law Reports

Bailii

Articles About The Case

Centre for Adult Social Care Report 

Nearly Legal - Deficiency in a decision

Trown Housing Consultancy

 

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kannan v Newham London Borough Council [2019] EWCA Civ 57

Summary

The Court of Appeal held that a reviewing officer had failed to discharge the Public Sector Equality Duty when considering whether a property was suitable for a disabled applicant

Law Reports

Bailii

Articles About The Case

Capsticks -Housing case law - February 2019 update

Ward Hadaway Speed Read

Five Paper Buildings

Nearly Legal

Tenure is not a medical matter