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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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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

Boyland and Son Limited v Persons Unknown, 20 December 2006

Boyland and Son Limited v Persons Unknown, 20 December 2006 (Court of Appeal).
The Court of Appeal has rejected a squatter's argument that the introduction of section 89 of the Housing Act 1980 allows a court to suspend an order for possession to give the squatter time to vacate.

The squatter contended that although the decision in McPhail v Persons Unknown [1973] Ch 477 made it clear that the court did not have discretion to suspend an order for possession against squatters, the situation had changed with the introduction of section 89.

The Court of Appeal confirmed that McPhail remains good law, despite the provisions of section 89.

[Source Practical Law Company]

Bailii Transcript

Hackney v Side By Side (Kids) Ltd 2003

Any court had jurisdiction to stay the execution of a warrant of possession issued under section 89 of the Housing Act 1980.

The Court of Appeal (Lord Justice Tuckey, Lord Justice Jacob and Sir William Aldous) so held on November 25, 2008, in dismissing an appeal brought by Admiral Taverns (Cygnet) Ltd against Mr Justice Teare who, on July 21, 2008, stayed execution of a warrant of possession against Craig Daniel and Tracy Daly in respect of the Castle Tavern, 1 Bowling Green Street, Kennington, London.

SIR WILLIAM ALDOUS said that there were three cases where section 89 of the 1980 Act had been considered. Mr Justice Harman in Bain v Church Commissioners for England ([1989] 1 WLR 24) held that “court” in section 89 was limited to the county court.

However, Mr Justice Stanley Burnton in Hackney London Borough Council v Side by Side (Kids) Ltd([2004] 1 WLR 363) did not follow that and held that “court” included both the county court and High Court.

In Boyland and Son Ltd v Rand([2007] HLR 24) the Court of Appeal preferred the decision of Mr Justice Stanley Burnton, but that case did not consider a stay.

In his Lordship’s judgment, “court” in section 89 meant any court.

[Source Kennington News]

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Holmes-Moorehouse -v- Richmond Upon Thames [2009] House of Lords

The father had been awarded shared residence for three children. He asked the local authority to provide appropriate housing.

Held: The authority’s appeal succeeded. A housing authority when making an assessment had wider responsibilities than does a court considering residence. The criteria look similar but not the same. ‘The question which the housing authority therefore had to ask itself was whether it was reasonably to be expected, in the context of a scheme for housing the homeless, that children who already had a home with their mother should be able also to reside with the father. In answering this question, it would no doubt have to take into account the wishes of both parents and the children themselves. It would also have to have regard to the opinion of a court in family proceedings that shared residence would be in the interests of the children. But it would nevertheless be entitled to decide that it was not reasonable to expect children who were not in any sense homeless to be able to live with both mother and father in separate accommodation.’ The court of appeal had been incorrect to say that resources were not an issue for the authority to consider, and nor should it intervene in children applications.

Baroness Hale said that when making the shared residence order the court should have included among its considerations the residence which either party could provide. In the circumstances where as here a party could not provide the residence facility, a shared residence order should not have been made: ‘Family court orders are meant to provide practical solutions to the practical problems faced by separating families. They are not meant to be aspirational statements of what would be for the best in some ideal world which has little prospect of realisation. Ideally there may be many cases where it would be best for the children to have a home with each of their parents. But this is not always or even usually practicable. Family courts have no power to conjure up resources where none exist. Nor can they order local authorities or other public agencies to provide particular services unless there is a specific power to do so. ‘
Source: Swarb.co.uk

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Din (Taj) v Wandsworth LBC [1981]

Although the Supreme Court went to great lengths to suggest that this earlier judgment from the House of Lords was not being overturned and remained good law, they effectively overturned it in the case of Haile v Waltham Forest London Borough Council [2015]. This was on the basis that following the case of Birmingham v Ali; Moran v Manchester 2009  the Court had to take future events into account.

The appellants had applied for emergency housing as homeless persons, anticipating loss of their secure accommodation after falling into arrears. The Council reject their application, but a County Court quashed that decision. The Court of Appeal re-instated it, and the applicants now appealed again. The applicants had first sought advice from the council and had been told to stay in their existing accommodation, but had instead taken temporary accommodation.
Held: The appeal failed (Lord Russell Of Killowen, Lord Bridge Of Harwich dissenting)
Lord Wilberforce said of the 1977 Act: ‘One of the main purposes of that Act was to secure that, when accommodation is provided for homeless persons by the housing authority, it should be made available for all members of his family together and to end the practice which had previously been common under which adult members of a homeless family were accommodated in hostels while children were taken into care, and the family thus split up. The emphasis on treating the family as a unit appears from section 1 which provides that a person is homeless for the purpose of the Act if he has no accommodation, and that he is to be treated as having no accommodation if there is no accommodation which he ‘together with any other person who normally resides with him as a member of his family . . is entitled to occupy’ (section 1 (1) (a)). The particular emphasis on families with children appears from section 2 which provides that a homeless person has ‘a priority need for accommodation’ when the housing authority is satisfied that he is within one of certain categories, the first of which is that ‘he has dependant children who are residing with him or who might reasonably be expected to reside with him’: (section 2 (1) (a)).’
Lord Fraser of Tullybelton said: ‘While the main purposes of that Act was to secure that, when accommodation is provided for homeless persons by the housing authority, it should be made available for all the members of his family together and to end the practice which had previously been common under which adult members of a homeless family were accommodated in hostels while children were taken into care, and the family thus split up. The emphasis on treating the family as a unit appears from section 1 which provides that a person is homeless for the purposes of the Act if he has no accommodation, and that he is to be treated as having no accommodation if there is no accommodation which he ‘together with any other person who normally resides with him as a member of his family . . is intended to occupy’ (section 1(1)(a)). The particular emphasis on families with children appears from section 2 which provides that a homeless person has ‘a priority need for accommodation’ when the housing authority is satisfied that he is within one of certain categories, the first of which is that ‘he has dependant children who are residing with him or who might reasonably expect to reside with him’: (section 2(1)(a)).’
Lord Lowry said: ‘to be homeless and to have found some temporary accommodation are not mutually inconsistent concepts’.
Source Swarb.co.uk

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Birmingham v Ali; Moran v Manchester [2009] 1

The House considered appeals challenging whether local authorities who gave unacceptable housing to the homeless had satisfied their obligations to them as homeless people. What was meant by the phrase ‘accommodation which it would be reasonable for him to continue to occupy’? In the Birmingham cases large families had been temporarily housed in accommodation which was too small, and in the Manchester case a mother having rejected the unsatisfactory temporary accommodation had been deemed intentionally homeless.
Held: Parliament did not intend that a woman who left her violent partner and found temporary shelter in a women’s refuge should no longer be considered homeless. The refuge was a mere staging post until she had decided where to go from there. However, it is proper for a local authority to decide that it would not be reasonable for a person to continue to occupy the accommodation which is available to him or her, even if it is reasonable for that person to occupy it for a little while longer, if it would not be reasonable for the person to continue to occupy the accommodation for as long as he or she will have to do so unless the authority take action.
It was lawful for Birmingham to decide that an applicant is homeless because it is not reasonable for him to remain in his present accommodation indefinitely but to leave him there for the short term. We would not agree that it is lawful for them to leave such families where they are until a house becomes available under the council’s allocation scheme. The present accommodation may become unsuitable long before then. In the Manchester case the decision that Mrs Moran was intentionally homeless was quashed.
(Source Swarb.co.uk)

 

See Also
Nearly Legal Post - No Reasonable But Sutiable
Bailii Report 

Haile v Waltham Forest LBC [2015]

Summary

This appeal raised the basic question of whether an applicant can say: “What I did in the past to cause me to become homeless back then is not the reason why I am homeless today. I would be homeless now anyway. So I am not now intentionally homeless”

Ms Haile was the assured shorthold tenant of a room in a hostel for single people.

The tenancy terms prohibited occupation of a room by more than one person.

In June 2011 Ms Haile became pregnant.

In October 2011 she moved out, gave up her tenancy and went to live with a friend.

When the friend later asked her to leave, she applied as homeless.

She was provided with interim accommodation under Housing Act 1996 section 188 and in February 2012 gave birth to her daughter.

In August 2012 the council decided that she had become homeless intentionally by giving up her tenancy: Housing Act 1996 section 191(1).

That decision was upheld on review. A judge dismissed an appeal.

On a second appeal, Ms Haile said that the correct date to be used to assess intentional homelessness was the date of the council’s decision and not the earlier date of departure from the last settled accommodation. By the later date the claimant could not reasonably have occupied her former room because she had a child.

She tried to distinguish the old House of Lords decision to the contrary - Din v Wandsworth LBC [1983] AC 657 - because it had been decided before any question of 'reasonable continued occupation' had been included in the definition of homelessness (now section 175(3)).

The Court of Appeal dismissed the appeal. It said that the decision in Din was still binding and that:

“Section 190(1) of the 1996 Act uses the phrases "is homeless", "is eligible for assistance" and "became homeless intentionally".

Sections 192(1) and 193(1) use similar phrases.

The deliberate switch from the present to the past tense indicated that the Council must investigate the historic cause of the applicant's homelessness, but consider all other issues by reference to the present state of affairs.

On a further appeal to the Supreme Court, Ms Haile also argued that the birth of her baby broke the chain of causation between her deliberately leaving the hostel, and her state of homelessness when her application was considered. She again invited the court, if necessary, to depart from the House of Lords’ decision in Din v Wandsworth LBC [1983] 1 AC 657.

The Supreme Court held that Din had been correctly decided and remained good law.

But it also decided that there must be a continuing causal connection between the deliberate act satisfying the statutory definition of “intentional” homelessness, and the homelessness existing at the date of the council’s decision.

In this case, the appeal was allowed by a majority (4:1) because the reviewing officer did not consider whether the cause of Ms Haile’s current state of homelessness was her surrender of her tenancy.

The birth of the baby had meant that she would have been homeless, at the time her application was considered, whether or not she had surrendered the tenancy.

It was actual events which had materialised post-dating the departure from the last accommodation that were important.

This summary is from the Law Digest

Swarb.co.uk

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