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Housing Law Practitioners’ Association

Minutes of the Meeting held on 18 July 2007 Park Crescent Conference Centre

Anti-Social Behaviour

Speakers: Ed Fitzpatrick, 1 Mitre Court Chambers Steve Povey, Shelter Cymru

Chair: Liz Davies, Garden Court Chambers

Chair: Welcome to tonight’s HLPA meeting. Firstly, could I check whether anyone has any corrections to the Minutes of the last meeting in May on Defending Possession Cases. Those Minutes are therefore approved. Tonight we have two speakers on Anti-Social Behaviour. Steve Povey is currently from Shelter Cymru, although he has had a long history of housing activism not just in Wales but also in London. More recently he has been exposed to both perspectives because he has been doing some training for social landlords on the Respect Action Plan and other forms of anti-social behaviour so he is going to give us an idea of the perspective from the landlord’s side as well as the policy and legislative overview. Then Ed Fitzpatrick, who is a barrister at what is now 1 Mitre Court and used to be 8 King’s Bench Walk, is going to give us an update on anti-social behaviour cases and some tactical tips on defending them and so forth. Ed has a number of notable cases to his name, most recently the homelessness case of Shala v Birmingham City Council, which hopefully we can talk about during the Information Exchange. He is a former housing officer; he has been active in HLPA for many years and, indeed, he was involved in drafting HLPA’s response to the Government’s consultation on closure orders.

Steve Povey: I would like to talk about the policy and legislative developments around anti-social behaviour before Ed then takes us through some of the developments in the courts and also shares his extensive experience of actually appearing in the courts in many of these cases. What I propose to do is take you through some of these policy and legislative developments with reference to my handout. Within the handout are the details of the proposals, some of them new, some of them imminent, also throughout the presentation I will also make some comments and observations about some of these proposals. I look forward, specifically, to hearing your views and comments on everything that Ed and I look at this evening. I have had a long association with HLPA and I am aware of the experience and expertise gathered in the room today and what I propose to do is to take particular attention of the views that you raise and the comments that you have. I then propose to return to Wales where I will flagrantly pass them off as my own, if that is okay with you? The trade-off is, I think, in doing that I promise not to set up a rival organisation!

There is a common theme to the developments that I propose to look at, something that draws them all together and that is that, to a greater or lesser extent, they all appear or are all mentioned within a document called the Respect Action Plan. Now the Respect Action Plan is a fairly hefty and wide-ranging cross-Government policy paper which was issued in January 2006 and was very much the first significant development after the fall-out from the 2005 General Election when the Labour Party manifesto and the first pronouncements on domestic policy all brought us into line with this notion of respect, except that it is Respect now with a capital R, as you may have noticed, the Respect Agenda and the decision to place Respect and issues around anti-social behaviour at the heart of domestic policy. The Respect Action Plan contains a wide range of proposals, policy commitments, proposals to change the law, funding commitments and everything we are going to look at in the next twenty minutes or so started life, to a greater or lesser extent, within that. The first points that I want to look at, on page 2 of your handout, are these Family Intervention Projects. The Government has committed itself to provide £28 million as a start-up fund for these Family Intervention Projects and also to provide guidance and practical assistance in the creation and development of these projects. For those of you who may not be familiar with what a Family Intervention Project is, the thing you need to be aware of about these Projects is that they do involve, I am afraid, the R word, something which is obviously difficult to say in too much company. We have checked that there is nobody here from the Daily Mail. Rehabilitation; these are those projects, many of which have been up and running for many years now, that actually work with, and again whisper it, the perpetrators. That is right, ladies and gentlemen, hard earned public money being spent on the perpetrators of anti-social behaviour and if you take a moment you can hear the screams of anguish from the editors at the Mail and the Express. The idea of working with the perpetrators and trying to achieve what I would suggest is the real holy grail, not just addressing the anti-social behaviour but stopping it ever happening again. The Government appears now, with this commitment, to finally have accepted that there is some merit in that argument. Now why would a Government which is so attuned to the vagrancies and nuances of popular culture decide to strike out in, let us be fair, a somewhat radical way? Well I would suggest to you that there is one very good reason and that is because the Family Intervention Projects work and they work quite stunningly well. When we talk about working, we are talking about the worst offending families being rehabilitated and being reintegrated back into society and not causing any more problems for their neighbours. In that sense the Government is somewhat playing catch-up here; they are building upon existing success. Progress in this area has been quite swift; if I can just draw your attention quickly to the bottom of page 3 you will see that a press release on 8 May 2007 has already recorded there are now 53 Family Intervention Projects up and running in England and Wales and that press release was actually quoted from Louise Casey, who is now the ASB tsar. As Liz alluded, I used to work for Shelter here in London and for a very, very brief period Louise Casey was my boss and I do not know about you but when people leave organisations 1 always wonder what happened to them. I never had that thought about Louise; I have always known what has happened to her.

Some comments about the Family Intervention Projects in this proposal. The first point, I think, to be aware of is that the Government commitment is to provide start-up funding. Once the start-up funding is spent, once the project is started up, it then falls to the project to continue to find the funding to keep going and that is a challenge. We have seen this with a lot of the existing projects because what that will involve and does involve is whilst the Government may be on board, to an extent, with the notion of rehabilitation local funders may not be and local communities may not be because of the particularly emotive environment around anti-social behaviour and particularly the way that it is reported and commented upon. So there are challenges there about once you get your project set up, maintaining the funding and allowing the project to continue. One of the existing Family Intervention Projects is Shelter Cymru’s Valleys Inclusion Project, or VIP as we like to call it, we learned a very valuable lesson here from Shelter in England. There is the Shelter Inclusion Project, which many of you may be aware of, which is based in the north of England, in Rochdale. When it was first set up it was called the Rochdale Inclusion Project until somebody in the press department said, “I’m not sure the acronym is really going to garner too much confidence in its abilities to rehabilitate.” The Valleys Inclusion Project received start-up funding from the Welsh Assembly; that funding has just run out. We have just received a very positive evaluation for the project but as yet it cannot continue because we have no funding so I will be passing a can round later on and please feel free to contribute towards it. But is a real example of the difficulties with maintaining these projects. The second point is start-up funding for family intervention projects, not start-up funding for single people intervention projects, and many of the existing projects that pre-date this were not just concerned with dealing with problem families so there is a limit there to how much start-up funding is available. However, having said all that, it is a fairly confident start, I hope you will agree.

Please do not get too carried away; let me bring you crashing back down to earth with page 4, sanctioning housing benefit. This is mentioned in the Respect Action Plan but, as I am sure many of you will recall, the root for the notion of linking the payment of housing benefit to your behaviour can at least be traced back to 2002 and the circulation of a Private Member’s Bill that first espoused, certainly in the public consciousness, the idea of linking the payment of housing benefit to your behaviour. There is a footnote at the bottom of page 4 which gives more details of that and some of you may recall that the Private Member concerned was one Frank Field. The idea was, I think the phrase is, “kicked into the long grass” at the time but it appears that the Government has bought a Flymo, cut down the long grass, gone and got the idea and brought it back because it has clearly found favour. However, what we now have is slightly different from Frank Field’s proposal. Again, the Government has not been hanging around here.

2 As you will see in the handout, the Welfare Reform Act received Royal Assent on 3 May 2007 and within the Welfare Reform Act are the proposals to introduce a sanction for the payment of housing benefit for those guilty of anti-social behaviour who do not take steps to moderate their behaviour despite support being offered and provided. Before I take you quickly through the details and before you get overly concerned by this proposal, if I can just flag up at the top of page 6 of your handout, you will see that it is intended to pilot this proposal for at least two years. You will notice as well that the proposals are going to be piloted in England alone and not in Wales, so a result there then! We had to lobby quite hard for that one. There is also, as you will see, a sunset clause which was introduced to the Bill right at the very end, which requires the Government to go back to Parliament before this sanction can be rolled out nationally so they will have to take the results of the pilot schemes back to Parliament before it can go any further.

However, having said all of that, a quick overview of what the proposals are; first of all, the conditions for the sanction and then the sanction. The conditions are fourfold. Number one, there has to be what is called a relevant possession order. This means a possession order based upon one of the statutory nuisance grounds so that immediately takes out of the remit all of those anti-social tenants who were evicted under introductory tenancies, demoted tenancies, assured shorthold tenancies and the like. The rationale here is that if we are going to dock your housing benefits because of your behaviour, it has to be behaviour which has at least been proved in court and not just proved in the coffee room at the housing office. There is at least, I suppose, one very faint silver lining for the anti-social tenant whose tenancy has been demoted and the consequences of the demotion has been to bring him up short and he has reformed his ways only to forget to put in his housing benefit renewal application form and be evicted for rent arrears. At the very least, when you struggle to get into the private rented sector there will not be a housing benefit sanction. The second condition is as a result of that possession order and your behaviour, you must have been evicted from that tenancy. So if it is an outright order that results in your eviction, that is the second condition met. If it is a suspended or postponed order, as long as you are evicted as a result of further anti-social behaviour that breaches the terms of the suspension or the postponement, the second condition is met. The third condition is that the local authority has served upon you a warning notice which you have failed to comply with without good reason. This warning notice can be served where the local authority has proposed a rehabilitation service to you and you have unreasonably turned it down and the warning notice tells you that if you continue to turn down this offer without good cause there is a benefit sanction that may be just around the corner. The final condition makes sense, really; clearly the sanction is of little use if you are not entitled to housing benefit. Do not, though, believe that will not stop it being imposed, I am sure.

The details of the sanction itself are on page 5, we do not know the sanction yet because it is going to be contained in Regulations. We have been given a clear idea from Government of what they propose the sanction to be; it will be a power first of all. Secondly, there will be three stages to the sanction, we understand. For the first four weeks that you do not comply with the warning notice your benefit entitlement will be reduced by 10%. For the next four weeks by 20%, it is introducing you to the fact that things are getting tighter; you might want to engage in this rehabilitation programme. At the end of eight weeks, if you have still not engaged, we go from 20% to 100% and that sanction can stay in force for up to five years from the date of the possession order; not the date of the eviction but the date of the possession order.

Are there any issues around this? I think there probably are. If I may share one or two with you, I am sure you have got plenty of your own. It seems to me that definitions are going to be crucial in the pilot scheme. What is the definition going to be of “good cause”? The legislation allows for Regulations that will permit the payment of housing benefit even where the sanction applies; this, we understand, is to address two issues; number one, hardship and number two, vulnerabilities. How they will be phrased, again we will have to wait and see. Secondly, there is the extent of rehabilitation of services, what we mean by rehabilitation service and how widely available these are going to be. This does seem to go hand in hand, somewhat, with the development of the Family Intervention Project. Thirdly, and it is a while since I have worked in London but I am guessing this one probably still applies, the housing benefit system; not the slickest operation in town. To add to an already incredibly complex and overburdened system further developments and further requirements may be seen as somewhat foolhardy, we will have to wait and see. Clearly this is a sanction that only targets those on low incomes and predominantly is only going to target those in social housing. It will also, it would appear, make it even harder for those evicted from social housing to get into the private rented sector. The private landlord who is saying, “I don’t take anybody on housing benefit,” that is met with the response “well, I’m not on housing benefit, it’s

3 been all sanctioned because of my behaviour” may not be of much assistance. The reality is, as I am sure many of you are aware, that if need be, people will find the money to pay their rent, how they find that money may not be by legal means and this is another concern that possibly is thrown up by the sanctions. We are waiting to see where and how and when the pilot schemes will be rolled out but it is certainly something to watch over the next few years.

Moving on to page 6, we have the Respect Management Standard. Now the Management Standard is applicable to social landlords; it is a good practice tool and guide. It builds very much upon good practice and work by the Audit Commission. Good practice as to the key components of a high performing anti- social behaviour team within a social landlord. The idea is that social landlords are invited to sign up to a commitment to try and meet the Respect Management Standard so in one sense it is a benchmarking tool. In another sense it is a kind of informal auditing tool. You will see within the handout what the six current key components that are seen as making up the Respect Management Standard. Social landlords are encouraged by the DCLG to sign up to the Standard. You will see on pages 7 and 8 further details of how landlords can sign up and, in particular, at the top of page 8 the benefits of signing up clearly will be a much more efficient and effective housing management service in tackling anti-social behaviour but you will also see some other choice benefits of signing up. I am particularly taken by No. 3, Access to the Respect Squad, renegade fugitives at the edge of the law parachuted in to deal with anti-social behaviour or possibly just a very fancy way to describe civil servants, I am not quite sure. A couple of issues around this; this is clearly something that is very internal for social landlords but clearly what this does, it seems to me, is to recognise the challenges of managing anti-social behaviour, the challenges to social landlords in particular of managing anti-social behaviour. No surprises; there is no equivalent Respect Management Standard for the landlords of the private rented sector although you will be aware of the latest consultation by the Law Commission upon regulation of the private rented sector which has recently been issued. This may be of use with landlords who you know have signed up to the Standard in assisting those who maybe are not happy with how their landlord has responded to allegations of anti-social behaviour, be they the victims or be they the perpetrators. Finally, what I think it does possibly assist social landlords in, along with the existing requirement to have anti-social behaviour policies and procedures, is one of the biggest issues which social landlords, the front-line officers report day in and day out and that is how to manage unrealistic expectations amongst complainants. The complainant who is adamant that the local authority should forthwith obtain an ASBO because his neighbour, every Thursday when the bin-men come round, is putting his bin bag on the wrong side of the drive, a real case reported to me by a social landlord. The challenge there for social landlords; how do you deal with that gap between the over-inflated expectation and the reality of what the situation demands and what the law allows a social landlord to do? Maybe policies and procedures which are quite clear and honest may assist those landlords in managing that expectation.

Moving on to closure orders on page 8. I have an apology to make I am afraid, colleagues. I was invited to come and speak to you a couple of months ago now, and so taken was I with the invite that I got to work on this handout somewhat eagerly and reminded myself that I must get back and finish it off and then email it to HLPA. I promised myself that the last thing I must do before I emailed it off was forget to update my handout to take into account the Criminal Justice and Immigration Bill, which was issued in Parliament on 26 June and, sure enough, and true to my word, the last thing I did before I emailed this to HLPA was to forget to put in the handout reference to the Criminal Justice and Immigration Bill.

Closure orders, Ed is going to speak a bit more about closure orders later on. I am sure many of you are familiar with the current law on closure orders and the availability to the police to seal and shut down premises through the use of a notice procedure and an application to the magistrates for an order in respect of premises which are used for the production, supply and use of Class A drugs, or crack houses I think they are known in London. The proposal contained within the Respect Action Plan was to extend that power so that it would be available for premises engaging in all forms of serious and persistent anti- social behaviour and in many ways mirror the position in Scotland which we will come to in a moment. It was included in the consultation process in November which closed in February and, as you probably noticed, there is a fairly clattering pace being picked up here and, sure enough, on 26 June this year the first reading of the Criminal Justice and Immigration Bill in Parliament included proposals to extend the availability of closure orders to include premises where there is persistent and serious anti-social behaviour. Some issues that I would put forward; first of all, between the Bill which has been introduced into Parliament and the consultation document. The first point is this, and we had forewarning of this from the previous Home Secretary in a speech he made to the Police Federation, the actual Bill, although this

4 was not contained in the consultation document, extends the power to obtain closure orders for anti-social behaviour to local authorities as well as the police. There was a general question in the consultation; do you think anybody else other than the police should maybe have this power? Clearly there was sufficient response that the Government has decided within the Bill to propose that power is made available to local authorities. The second point is that the consultation made quite clear the point that before a closure notice was to be served, the police had to be satisfied that all other avenues had been exhausted. That implication that closure orders should be the last resort is not replicated in the Bill; there is no requirement, save for a requirement that the police have consulted with the local authority and the local authority has consulted with the police before the closure notice is served. The final point between the consultation and the Bill; the consultation talked about the courts having the power to close premises for twelve weeks and the Bill reflects the current law on closure orders and talks about closing premises for three months.

Reference is also made at the bottom of page 10 about the position in Scotland. Now in Scotland, where they have proper devolution, their law on closure orders was wide enough to include any form of serious anti-social behaviour and very much the current Bill is seen as bringing the English and Welsh position into line with the Scots but, again, there are a number of clear differences which could become important, particularly when lobbying and trying to influence the Bill. The first one is that only the police have the power in Scotland. Secondly, when applying for a closure order in Scotland the Sheriff must consider two things; he first of all must consider the ability of the occupier to find alternative accommodation and, secondly, he must have regard to the vulnerability of any non-offender who has been occupying the accommodation, which would seem to address one issue which has always been raised about closure orders, a phenomenon known as “cuckooing” where, particularly, young or single vulnerable people have been taken advantage of by other groups who then use their premises, as in crack house cases using them to deal drugs, and then disappearing once the police move in and the closure order takes effect. There is nothing in the Bill regarding housing costs, not surprisingly, and one of the issues about closure orders is whilst they are in force you may well have double the housing costs and how is that going to be addressed? I suppose the final issue, and Ed will come back to this, again based on our experiences of closure orders as they currently stand and despite the pronouncement in the policy documents, will they really be used as a last resort and will they really not be used as a fast track to eviction? We will have to wait and see but clearly plenty to come on that issue.

The next issue is parenting orders on page 11, which is an extension of the existing power which historically and previously was only available to local education authorities and schools to enter into parenting contracts and apply to courts for parenting orders: the rationale here being about trying to moderate the behaviour of a minor by working with and placing obligations and sanctions upon the parent or guardian of that minor. When the relevant part of the Police and Justice Act came into force on 29 June 2007, the availability of parenting contracts and parenting orders was extended to local housing authorities and RSLs.

Moving on, finally, to page 14 a couple of issues about injunctions and ASBOs, as many of you may be aware, again these all stem from the Respect Action Plan. The law around anti-social behaviour injunctions was slightly tweaked in April; the Government felt that the courts, in particular, did not quite get the message they were trying to get across about the test for granting anti-social behaviour injunctions and, in particular, the scope and the wording of injunctions so the law has been slightly tweaked in this regard. Section 153A has been amended to make it clear that when talking about nuisance or annoyance to a person that person does not have to be named, they do not have to be specific. It can be a class of persons or a group of people to make injunctions a more anonymous tool.

ASBOs, we would not be able to do anything about anti-social behaviour if we did not have something on ASBOs. A couple of points; from 11 May 2007, again in line with the Respect Action Plan, the availability of ASBOs was extended to catch the remaining organisations to whom local authorities have transferred management of their stock, so this will include Arms Length Management Organisations, Tenant Management Organisations and PFIs.

Also a couple of forthcoming amendments in the Criminal Justice and Immigration Bill; Clause 108 proposes an annual review of ASBOs that are granted and in force in respect of minors and Clause 109 proposes a slight amendment, again, where ASBOs are made in respect of minors, the court must have regard to the making of an individual support order.

5 Hopefully, what you can see is that much that was proposed in this Respect Action Plan that touches and cuts across housing is already in force and the rest of it is on its way and I have remarked before how quickly a lot of these developments are being made. Whether in the haste, some of the detail is maybe being overlooked, I think is very, very much open to debate. One final point, I suppose, and in light of a couple of other developments that have nothing to do with housing, if you do ever sit down with a copy of the Respect Action Plan, as I am sure many of you have and may want to go back to tonight, you will see at the back there is a lot of pen pictures of all the Ministers including the Prime Minister at the time and their comments about how they are committed to everything that is in this Plan. Not one single Minister who signed up to this Plan is still in the same job. Now whether that has any impact and whether we see any change in respect of the Government’s position to anti-social behaviour I am not sure; the early signs seem to suggest probably not but we will have to wait and see. I think Ed now will take us closer to home and into the court room.

Chair: Steve, thank you very much. We will take questions after Ed’s presentation.

Ed Fitzpatrick: Can I just say from the start that when I was invited by HLPA to do this talk on an update on the law of anti-social behaviour I scrimmaged away for a couple of weeks and then someone in chambers pointed out that in May of this year in Home Truths there is an article by Rebecca Cattermole entitled Anti-Social Behaviour Legal Update which contains the complete update on her book on Anti- Social Behaviour and Disorder and is hugely comprehensive, covers all the case law and the new legislation. So rather than be done for plagiarising what she said in that article what I thought I would do is to deal with some of the matters of practice, interesting points of practice that have arisen recently.

The first of those from the notes is in relation to possession claims and it is the interplay between the anti- social behaviour order on the one hand and the possession claim. The first case that really dealt with it was Manchester City Council v Higgins. In that case there was an anti-social behaviour order in relation to the defendant’s recalcitrant son and there Lord Justice Ward found that whilst making an anti-social behaviour order could in some cases be a harbinger to better time, “the mere fact of it having been made and remaining in place serves in this case to emphasise the seriousness of the misbehaviour.” In that case, of course, the young individual was said by Lord Justice Ward to have immediately cocked a snook at the courts by breaching his order so it was hardly surprising that on a possession claim much reliance could be placed on the fact that there was an ASBO to curtain his behaviour.

The position was revisited in Knowsley Housing Trust v Anita McMullen. That was a case where, again, it was the behaviour of the defendant’s son that was causing the problems and there Lord Justice Neuberger, as he then was, said “the existence of an ASBO may be of particular assistance to the tenant (especially in resisting an outright order for possession) where, as here, the person responsible for the nuisance is not the tenant, and the tenant cannot control the behaviour of that person. The existence of the ASBO may thus justify suspending the order for possession when the court would otherwise have made an outright order, and, in some cases, it might, I suppose, justify dismissing the claim for possession.” But not in that case. So an order in place, an order that has not been breached can be very useful in arguing against a possession order, certainly against an outright possession order. The Court of Appeal in that case also went on to say in general when there was no requirement on making a suspended order or a postponed order, that a warrant had to be applied for on notice to the defendant. In that case, because of the particular difficulties of the defendant who was disabled and the involvement of the Official Solicitor was considered to be an exceptional case where that was justified. What is quite interesting is, and I would be interested to hear what other people’s experience is, but since the decision in Hall v Bristol City Council and Hassan and the introduction of the new N28A which, obviously, only relate to postponed orders in relation to rent, it seems to be the case that many claimants are quite prepared to have a postponed possession order in anti-social behaviour cases, nuisance cases, that follows as much as it can the wording of N28A. It is postponed on terms with no date specified but there is a requirement for them to notify the court if they are saying it has been breached. I know, speaking to other practitioners, that whilst they go along with the idea of a postponed order in some serious cases they wanted simply to say that the possession is postponed generally but if the tenant breaches any of a set of conditions then automatically it comes to an end so there is no requirement to go back to court. But certainly in my experience the first instinct of many landlords, and indeed some judges, is to say, “we’ve got to follow this N28A format” and then there has to be, as it were, an application to the court to say that there has been a breach.

6 The second matter I have dealt with is in relation to the case at paragraph 4, Sheffield City Council v Shaw which on the facts was an extremely serious case involving persistent stalking by the individual of a neighbour’s daughter and a huge number of breaches of anti-social behaviour orders. What happened in that case was that a probation officer came before the County Court prior to the Crown Court considering sentence and boldly put forward the plan which was to try and persuade the Crown Court to impose a supervision order. I think at the last hearing Wendy Backhouse raised her eyebrows at the decision in the case although one factor was that the victim had in fact moved from the area so the defendant who was stalking her did not, on the face of it, have knowledge of her address. But in relation to the case Lord Justice May did comment that it may have been preferable for the Crown Court to have sentenced on the breaches of the anti-social behaviour orders prior to the County Court determining the issue of possession. That may be something that is worth deploying because often in relation to these cases if it is on the cards that there will be a possession order and the only issue will be whether or not it is postponed, it may be worth relying on that to try and get the case adjourned because, obviously, that may be helpful to the client.

In relation to the case of Shaw what was also interesting was that Lord Justice Sedley, again, in his judgement made reference to his earlier judgement in the case of Lambeth LBC v Howard where in the introduction of the Human Rights Act he was interested in advocating that the courts deal with these cases in terms of proportionality. Again in Shaw he called for “a structured analysis that was a practical and principled way of reaching a self-explanatory decision about reasonableness.” The considerations of that would include:

 that the reasons given to justify the interference must be relevantly sufficient;  that the interference must correspond to a pressing social need;  that the interference must be proportionate to the aim pursued.

In fact in the case of Howard he there set out that the anti-social behaviour can, in fact, be so serious that nothing else will achieve the purpose of protecting the victim than an outright possession order and, of course, in this context we have got the statutory requirement of considering the other neighbours.

It may be in some cases that it is helpful to address the court in terms of proportionality; does it make a difference whether you argue proportionality or reasonableness? Some of the factors on proportionality; it may be just a prism that helps you get the judge’s attention and certainly, as if often the case, there is an element of neighbours provoking the defendant and causing a lot of the disturbances, then it may not be proportionate to make an outright possession order.

In the case of Shaw Lord Justice Sedley in concluding sets out that the judge had reached a view that a forthwith order whilst lawful was more drastic than was necessary. So if one can present to the court the options that make it not necessary, then it is worth doing.

The next case I discuss in the notes is the case of Gloucester City Council v Simmonds. Now that was a case where an outright possession order was made in circumstances where the defendant suffered from a disability in the form of a mental impairment comprising of an emotionally unstable personality disorder. The possession order was made and there was an application to appeal and Lord Justice Tuckey refused the application on the basis that in terms of causation the district judge was entitled to find that the defendant’s conduct which gave rise to the claim for possession did not relate to any disability. That was found to be essentially a finding for the judge and not amenable to appeal. In relation to arguments under the Disability and Discrimination Act one has to consider whether the anti-social behaviour is related to the disability and I know that we are still waiting for the decision in the Lewisham case where, as I understand, that one was one of the points that was argued before the court.

In relation to the question of reasonableness and, again, it has been said many time before but I think it is worth re-iterating, one relevant factor in terms of reasonableness is the whole question of whether or not the local authority or the RSL has followed their own policies vis a vis vulnerable tenants. In terms of RSLs there is, of course, the Housing Corporation Regulatory Circular 07/04; “associations should pursue alternative interventions retaining evictions as a last resort” and “evictions should be considered only when other interventions have failed to protect the wider community.” That was one of the factors that allowed the Court of Appeal in Moat Housing Group v Harris and Harkness to revisit the whole question of

7 reasonableness and the whole question of whether the possession order ought to be suspended. So that can be extremely useful in terms of asking searching questions about what is the background to this eviction and what has been the contact with the tenant over the years and steps taken to comply with any policy guidance?

In terms of case review, at paragraph 9 I deal with some of the very recent cases. There is not much to say about it because all it demonstrates is that in this field the Court of Appeal again is reluctant to intervene in wide discretions of the trial judge in reaching decisions in the exercise of their discretion as to whether to make a possession order. The case of Lambeth LBC v Assing was a case where the tenant had, in fact, been charged with assault on a concierge and was sentenced to a community order with a requirement that he perform 100 hours unpaid work and undergo an anger management course. By the time of the possession hearing that was a year down the road and things had apparently gone very well. The local authority, perhaps graciously, were saying, “well, we’re not going for an outright possession order, we want a demotion order or a postponed order.” The district judge said, “well the situation is now that things are going so well that neither of those orders is in fact reasonable.” On the facts there it was found that the Council staff did not need the protection of a postponed order and it was not reasonable to make a demotion order. Appeal was refused and I understand that there has been a further appeal to the Court of Appeal and there was a listing for it last week but I do not think anything further has been heard. Just in passing, in relation to demotion orders introduced bv the Anti-Social Behaviour Act 2003, the applications for demotion orders do not seem to have taken off in the way that I think was anticipated. I think the viewpoint of many landlords is, well we may as well go for an outright possession order and see what happens.

In relation to a case where the court was prepared to intervene, I have cited Moat Housing Group v Harris and Harkness and there the two factors were the failure to have regard to their own tenancy agreement and the guidance contained therein. Also it was said to be a failure to take into account the interests of the family; in particular there were two members of the family who were entirely blameless. So in terms of considering the exercise of the discretion we can find a feature of the case as being wholly disregarded that is important and is a way in. I think there has to be a recognition that if you are arguing that the decision was perverse you have not got a chance but in terms of what constitutes a highly significant, relevant feature sometimes one can form the view that is a feature that the Court of Appeal want to rely on because they do not like the decision, otherwise it has been a great balancing exercise and you are being pedantic. I think there is more and more a tendency when one appears in this type of case to arrive at court and start raising issues about, “well, why was there no hearsay notices? Why is it only the housing officer? Any letters telling people about the court hearing?” We then get this bored condescension saying, “oh why don’t you ask the housing officer in the witness box?” It’s a matter of weight. I think it is important that the courts are made aware of it and, indeed, some judges these days express great disinterest in the whole question. Of course, the neighbours who have jobs will not come to court because they are at work, unlike your client. So I do think that it is very important just to shake the tree a little to put this passage before the court and, obviously, in relation to the fact that they are not there, the reasons for it, the steps that have been taken. So quite often we find that there has not even been a letter sent to them and no evidence whatsoever that they are aware of the hearing. Of some significance is that there is a Judge Mitchell at Clerkenwell County Court who has now started issuing directions saying, “I want hearsay notices to be served and complied with” in his cases. It will be quite interesting to see how far he takes that. At paragraph 13 I have set out Section 4(2) which, as I have said, is a benchmark and the Court ought to be referred to it in detail.

In paragraph 14 of the notes I deal with suspensions and there are many, many cases now where the issue is the Sheffield City Council v Hopkins type hearing. The order has been breached and the claimant wishes to introduce allegations of anti-social behaviour. Fairly recently in other quarters, shall I say, there were murmurings that a stance had to be taken on this because, by and large, I think the experience is that the courts are very willing to list these hearings for a day and sometimes a day and a half. There were murmurings to say, “well that’s not right, it’s not a trial, the evidence should be generally written evidence and it should all be summary and proportionate.” In my experience that has not really taken off and there seems to be little problem in getting proper directions for such hearings, but I do not know whether anybody else has had that argument raised to say, “no, let’s try and deal with it on the papers” where, as all these cases do revolve around contested evidence, I think the over-riding objective under the CPR has to bite.

8 The next section I would like to deal with is the whole question of anti-social behaviour orders and I think for many practitioners because the majority of cases are dealt with in magistrates’ courts, there can be an inclination not to really show great interest in what happens there or be unduly concerned about it. Obviously, under the Act, if there are other proceedings in the county court then there can be a claim for an anti-social behaviour order and the interplay between anti-social behaviour orders and anti-social behaviour injunctions is of some interest. At paragraph 16 I have set out a brief summary of some of the points that arise. Firstly, in relation to prohibition in the ASBO, it must be necessary and orders must be tailor made for each offender. Secondly, there is the requirement that it runs for two years which, on the fact of it, is a long period and, obviously, if it is an anti-social behaviour injunction the normal term would be for a year. In terms of hearsay evidence, again, there have been a number of cases on this and hearsay evidence can be relied on with proper guidance, as it were. Properly informed of the scale and nature of their relevant anti-social behaviour and in relation to it, there is now some disquiet about cases involving anonymous witnesses. In the case of M v The Director of Public Prosecutions there was a discussion in the court as to how far that should be taken. The court said there, lurking in the background, was the fundamental question of appropriateness if crucial evidence comes from anonymous witnesses. I think with that regard, clearly the way in which those statements were taken, whether there were contemporaneous records of the complaint would all be relevant factors.

In relation to the standard of proof; proving the anti-social behaviour is to a criminal standard but in relation to the question of whether the order is necessary the civil standard suffices. In terms of breach of an anti-social behaviour order, the order itself does not amount to criminal offence but the breach of it is a criminal matter and must be proved to the criminal standard. Generally, if prohibitions are found to be too wide or poorly drafted they should be struck out. Just perhaps to give a couple of examples on that, there was an anti-social behaviour order which prohibited the defendant from any act of anti-social behaviour in the city of Manchester. It was held that it was too wide on the grounds of lack of definition or limitation of the behaviour and also breadth of the geographical areas. In terms of the actual prohibitions in the order, there was a case where the order specified that doing anything which may cause damage; that was the prohibition and the court found that that was far too wide and would include the defendant scuffing his shoes. Another case that, on the face of it is a pretty harsh order that was imposed was a the case of Caiger where a 56 year old man with deep rooted alcohol problems pleaded guilty for the magistrates and got a very strictly imposed ASBO, one of the terms of which was that he should not cause harassment, alarm and distress to anyone within a specified hospital or its grounds. On the day of his release he collapsed outside a public house, assaulted a paramedic and a police officer who came to their assistance. The police, in fact, took him for treatment to the hospital which was specified in the order against his wishes because he knew he was prohibited. He swore at hospital staff and behaved in an abusive manner by spitting. Taking account of the fact that he had made a genuine attempt not to be taken to the hospital his sentence was reduced from three years to eighteen months, which seems slightly bizarre. In relation to the making of an anti-social behaviour, one has to look at whether it is necessary. It is not supposed to be there as punishment; it is supposed to be there as preventative so if there is an element of excluding someone from as many places as possible that can be struck down.

In relation to the term, as I have said, it has to be for two years. Paragraph 18 makes reference to Section 20 of the Drugs Act 2005 which is now in force. This allows the court to make an intervention order against the defendant if their anti-social behaviour is connected with drug abuse. One of the conditions is that the intervention order is desirable to prevent a repetition of the behaviour, such orders to apply for six months. It is also the case that in relation to sentencing for breach of the order in a Magistrate’s Court or the Crown Court, and if there is a breach of an order in the County Court that has to be dealt with in the Magistrate’s Court at first instance, the Court has the full powers to make community orders which these days can include orders in relation to mental health treatment, drug rehabilitation and alcohol treatment. That is, in a sense, an important difference between such an order and anti-social behaviour injunctions which are, obviously, dealt with in the County Court as a contempt of Court. I have set out some cases in relation to sentencing which I do not need to go into any further but just to contrast the position in relation to anti-social behaviour injunctions, and in particular in relation to committal sentences, there is a power of the court where a person can be remanded for a medical examination and a medical report can be prepared under Section 156. The Court has limited powers to make orders under the Mental Health Act and can make a hospital order but as I experienced in one case you get a sympathetic judge who says, “well this person’s got alcohol problems” and they send him off for a medical report but when they come back the difficulty you have is that they can only be sentenced as a committal, which is fine, adjourn, suspended sentence or a custodial sentence. One can try and be creative and say you could introduce

9 some kind of a sentence whereby they were required to go on an alcohol detox rehabilitation programme but judges are naturally very reluctant where it is not properly supervised to do that, or some judges will but many judges will not. Therein lies the problem because there are now quite a lot of cases where the accumulative effects of continually breaching orders results in persons going from perhaps a fourteen day sentence, three months, six months and then nine months; situations involving chronic alcohol problems and being required to stay away from the area where they caused all the problem but that is the area where they have lived for twenty years and they will return to it. The County Court seems to have no sensible mechanism at the moment to deal with that in a constructive way and you just get exasperated judges saying, “well I’ve given you five chances already so I’m going to increase your sentence for another three months.”

Finally, in relation to closure orders there have, in fact, been a couple of cases that are helpful in terms of the way in which they are putting the brakes to an extent on the way in which closure orders take effect. Firstly the case of Hooper cited at paragraph 23. What has to be shown is that there is a continuing problem of disorder or serious nuisance at the time of the hearing so it cannot be very historical in terms of what has been said about the drug dealing at the property causing the anti-social behaviour. It has to be said that a brief hiatus of a few weeks will not suffice. In relation to adjourning the hearings, there is the helpful decision in R (Cleary) v Highbury Corner Magistrates Court where Lord Justice May held that the “statutory intention is that the first 48 hour hearing should be an effective hearing if possible.” He then set out circumstances where it should be adjourned in order to allow the defendant to fairly oppose an adjournment and in relation to it also sets out that the written evidence should be provided before the hearing and “an overview statement may be useful to serve as a document in the nature of the pleaded case.” He also recommended that all the written evidence be served well in advance of the adjourned hearing and suggested that, truncated perhaps, but notices be served in terms of Civil Evidence Act notice. At the end of his judgement he also referred to the fact that “defendants in applications for a closure order may risk being dispossessed from their home for up to six months, and the statute for obvious reasons expect both that witnesses will be identified and that they may have to attend for cross- examination.”

I think the reality is that in practice the position is that the witnesses do not attend Court and the officer in the case has gone round, interviewed neighbours after the notice was served and they have provided their statements saying, “it’s been terrible, there’s been drug dealing for month in, month out and I’m too frightened to come to Court to give evidence.” In a recent case I had the housing officer did not attend the Magistrates Court but again gave a statement to say, “well, it’s been horrendous, there’s been drug taking for years, people have had to move.” Surprisingly, in the County Court when he came to give his evidence he said, “well, we think one person may have moved and in fact I used to go down the street every day, I never saw anything but somebody else in the office said that there was a problem.” The difficulty is that untested evidence goes before the Magistrates Court and the other caveat is the fact that it is dealt with in a very pre-emptory, fast fashion; it is not the sexiest case for solicitors and barristers in the criminal field to deal with and it tends to be dealt with in a pretty perfunctory manner. I think the funding is not great and so more often than not you find people coming and saying, “well I was told there was no chance so we just submitted to it.” The order is made on the Civil Standard but a finding off that when you come further down the road to the possession hearing is always going to be significant. In the consultation document proposing to extend one of the things they sought to reassure everyone was that in relation to the fact that there has been a closure order, that will not have anything to do with possession at all; it is not significant. I think it would be interesting to see the statistics for closure orders where possession has then been pursued because I think statistically it is a very high rate of possession orders made, not least because persons are out of the property for three to six months, the status quo has changed, the witness statements say, “well, it’s been brilliant, they’ve gone, the problem family have been moved from the area, it’s great, we don’t want to go back to that hell that we had.” That is the status quo that the judge has got to look at. The second factor that I think is very important is, quite frankly, the difference in the evidence required on your crack house case because on a crack house case, generally you have got some surveillance of the property, persons coming to and fro all hours of the night and day then a raid and some drugs paraphernalia found. A wholly different situation is the sort of neighbour allegations of noise nuisance going on year in, year out and complaint. It is not as open and shut a case, as we all know, when we come to actually hear evidence at trial. So it does not lend itself for that pre- emptory application to the Court, which is what is proposed in relation to extension. I think to say that it will have no impact on possession proceedings is laughable; the status quo has been changed, they are

10 away from the property. It may also be that they have had to find themselves private rented accommodation elsewhere in the meantime so in all it is an extremely bad idea.

Chair: Thank you to both Steve and Ed for very useful contributions. Are there any questions or any practical experiences on closure orders, postponed possession orders or any of the other matters that either Steve or Ed touched on that anyone wants to share?

Emily Orme, Arden Chambers: Where you are defending an anti-social behaviour order and you are privileged enough to be given hearsay notice, you have a seven day window in which you can apply for witnesses to be called for cross-examination and certainly I have used that as a kind of tool in challenging the hearsay evidence that is put before the Court at the earliest opportunity but it is a very small window and you have to act very, very quickly. I just thought I would raise that as something to be aware of, particularly in the light of some of the recent case law that has come from the High Court dealing with the lawfulness of the service of hearsay evidence. So do bear that in mind when you are have a case like that put before you to make sure that you do make that challenge because it can be very important.

Ed Fitzpatrick: Obviously yes, that is an important thing to do but if you meet the challenge and they do not produce the witness the case will not be chucked out. What it will go to is weights and consideration of that and obviously in circumstances where it is said, “well this witness can’t come to Court because they are in fear of their life,” that will be a powerful feature. But certainly I think, yes, it is very important to get a notice and to respond to it and put them on the spot.

Tracey Bloom, Doughty Street Chambers: Just a couple of comments, picking up on something Ed said, really, and giving an example of a problem. I think one of the problems about closure orders is funding so those of us who are here do not actually tend to do them because it is criminal lawyers who tend to do them because it is within their funding scope. I think that is problematic because of the way that the criminal lawyers deal with this is a very different perspective to how the housing lawyers would deal with it, particularly now that closure orders may be used for anti-social behaviour. Certainly in the very early days I sought to appeal a closure order that had been made after the gentleman had actually returned; by the time he went to the Crown Court he was back in because it was a three months closure order and it had taken so long. The judge was absolutely incandescent with us that we were in Court; he could not understand that one of our reasons for appealing was that we wanted the order set aside because we felt that it would affect him because they were taking possession proceedings; they were relying on the conviction in the Magistrates Court as evidence to support them in the possession action. He persuaded the other side to apply for wasted costs against me and the other counsel and those of you who know about wasted costs will know that if you do that you are given the opportunity to make representations. So the other side, having been persuaded by this judge at Southwark to make this application against us, we dutifully had to make representations and turn up to explain why we and the solicitors should not personally pay for this appeal. When we got back in front of the same judge he completely denied that he had suggested that this was the appropriate way to deal with it, although he maintained that it was quite improper to seek an appeal in that case. Now I still take the view it was the completely proper thing to do; that is was practically important to him for us to maintain this appeal. Ultimately, you might want to know, the local authority dropped the possession action because they accepted that there was insufficient evidence to obtain possession against him. He was very much in the category that Steve was talking about which was the “cuckoo” category; he was an elderly West Indian man whose house local people used to smoke crack in and he accepted that happened but he felt that he had no power to avoid it.

But I think the funding issue is actually very important because unless you are in a large solicitors firm where you have criminal funding and housing funding there is no cross-over and therefore it seems to me what happens is that the housing lawyers get it after the Magistrates Court has been dealt with and quite often issues that we might raise at civil lawyers, for instance about the consultation issue and whether the consultation has been dealt with properly, there has not been time in the Magistrates Court. I do think that is going to be a very serious concern. I do not know whether Steve or Ed have a comment on that but it does seem to me it is going to be a real worry when it is extended to anti-social behaviour that we are not having that input as housing lawyers at that stage.

Ed Fitzpatrick: That is a big problem. Talking to criminal practitioners it is dealt with as pretty small beer and if they go to Court and have to read about the magistrate’s hearsay notices and civil cases and then

11 get referred to the Civil Evidence Act, they say “the evidence is overwhelming, why don’t you give your argument in the County Court?” And it is not. I think it is clear from the plethora of challenges that have been made who are well versed in it but day to day it is not; it is something that someone of the lowest rank, as it were, heads of to Court to deal with.

Steve Povey: I would echo that but I would also say that there is enough of a struggle at the moment trying to get the Legal Services Commission area officers to accept that reasonableness is a defence. Trying to do this now on the back of the fact that there is evidence also that the police have served some notice, I agree totally, it is going to be a huge issue and I think it is something that we will see more of, certainly on our side of the profession.

Vivien Gambling, Hodge Jones & Allen Solicitors: This is probably primarily a question for Steve Povey. I have not quite got my head around the housing benefit sanctions, although as you pointed out it has been there in the background as a threat for some time. Firstly, on the second condition, if I understand correctly, the claimant has ceased to live in the home as a result of the possession order. In practice how often do you think that is likely to happen, that somebody has actually ceased to live in the home and then is still continuing to be entitled to housing benefit? The second question is what sort of challenges do you think we are likely to be making in cases where sanctions are imposed? Is it likely to be an area rife for judicial review if sanctions are imposed by local authorities or any other type of challenges you foresee?

Steve Povey: To take your first point, the sanction only kicks in if, effectively, eviction is a result of the behaviour. I have posed this a few times; I have been involved in providing some training to social landlords on the Respect Action Plan and you can almost see the eyes light up when this sanction is mentioned. But then when you actually sit down and say, “okay, well you tell me, as a local authority or a housing association, in the past twelve months how many people have been evicted as a result of anti- social behaviour where you have gone to Court and proved the ground?” Actually it is very few and I think the point here is that whilst there are concerns about the message that this is sending and the policy behind it, the actual practical implications may be not as wide-ranging as possibly would first appear. Turning to how would you challenge the sanction, there is proposed within, again, the Regulations that there will be provisions for appeal under the Housing Benefit Scheme so it would be an appeal in the same way that you would currently appeal a decision not to back-date or a decision that there was no good cause or whatever it may be. So you will have these cases running alongside your more traditional housing benefit challenges and then ultimately they will end up at the independent tribunals. Undoubtedly they may move on from there but we have still to see the detail behind that.

Pamela Robotham, College of Law: On that point I cannot quite envisage the situation where somebody would not be in a property and claim housing benefit, is this what it means?

Steve Povey: The rationale or the chronology is that you have been taken to Court and that did not change your behaviour and the Court may have given you a second chance, it may have be a postponed or suspended order and that did not change your behaviour; you were then evicted. The local authority or somebody offers you this rehabilitation package and you throw it back in their face and the argument is, why should the state continue to pay your rent.

Pamela Robotham, College of Law: So that would follow you into the subsequent property?

Steve Povey: Absolutely yes, once you have been evicted, and the reality is that what we are talking about is people who would be evicted from the social rented sector, who are then looking, because of allocations policies, to access the private rented sector. It is within the private rented sector and the subsequent property that the sanction would bite.

Chair: If there are no further questions I would like to thank our speakers and move on to the Information Exchange.

David Watkinson, Garden Court Chambers: I would like to report on three things on behalf of the Law Reform Working Group. First of all our response to the Small Claims consultation paper was submitted by the closing date of last Friday. You may remember that the question here was, do you approve of the small claims housing disrepair limit remaining at £1000.00? You may guess what the burden of the

12 response was to that. But I thought you also might be interested to know that the regulatory impact assessment part of the consultation paper quoted quite liberally from evidence that it had received from the Housing Law Practitioners Association, which is a good example of members getting in on the ground floor with the Department before the consultation paper was issued. I think that is another factor which shows how the appointment of our lobbyist over a year and a half ago is bearing fruit because it is through her activity that members were brought into contact with the relevant officers in the Department. Thanks to Andrew Brookes of Anthony Gold Solicitors who actually drafted the response.

Then the second thing is the Law Commission’s second consultation paper on housing, proportionate dispute resolution. It is the second paper because we had a previous one last year which did not seem to be producing much by way of ideas but what looked like producing a mouse has actually produced a mountain. This report asks for our views on the transfer of County Court housing jurisdiction in homelessness, disrepair and possession to the new tribunal system that is going to be set up under the Tribunal and Enforcement Bill that is in its last Parliamentary stages, with the addition of housing High Court jurisdiction to the same structure. But the scheme requires that legal aid be available for appearance before those tribunals. It is a fairly well thought through paper, again it quotes liberally from the response to the first paper received from the Housing Law Practitioners Association but only to answer the points that were made there rather than to agree with them. However, it is a report that is obviously going to require a considered response and the closing date for that is 28 September. The paper is on the website so you can view it and notice of the Law Reform Working Group’s meeting to consider the response will also be on the website and will be sent to members.

The last paper that I mention is, again, a Law Commission paper and this on encouraging responsible letting and Steve referred to it earlier. This is a far less exciting paper; it proposes that we have a private sector regulator and for that we have until 12 October to reply.

Bear in mind also that these are Law Commission papers and my shelves, if not yours, are dusty with Law Commission reports which are never found in subsequent legislation. However, the proportionate dispute resolution paper I think is right in line with current Government thinking so that one we really do have to buckle down to deal with.

James Harrison, Edwards Duthie Solicitors: Behind the scenes it has been a busy few months in trying to deal with the intransigence of the Legal Services Commission and this Government on legal aid. We were all I think very pleased when we saw the report of the Select Committee on the Government’s proposals. For a moment at least we felt vindicated. The Government, however, has just not engaged with the very serious criticisms that the Select Committee made and they are just intent on driving their great vision of legal aid through and I think it is correct to say that practitioners are more concerned than ever. There is some Parliamentary time for this; there was a debate last week, and it is more important then ever to contact your MP and deliver the line that we will not be around much longer. They will be concerned about that, not least because these people are going to be coming to their constituency sessions with these problems which they have not been able to resolve because they have not been able to get to a lawyer. So if you do find the time whilst trying to do ever more and more work to write to your MP it is a really valuable thing to do. The Working Group has put together a booklet of case studies and frequently asked questions of twenty pages which was sent around and is available on the Housing Justice Campaign section of the website. It tells, I think, ten stories of housing cases and how the legal aid changes threaten those and the frequently asked questions section is quite useful as well. We have had a supply of these printed and if anyone has any bright ideas about how they are going to use them in addition to sending them to MPs, please contact me and make use of them.

If you were not already depressed enough, the Commission has now published the detail of the unified contract for the housing specification. The good news is that the first specification has been revised a little to deal with some of HLPA’s comments but it is not all good news; there is still some problematic stuff in there. It is on the website and please just have a look at it and write to the Commission if you think there are problematic bits with it. As I say, if there are any ideas about tackling this, as ever contact me through the website or any other members of the group.

David Watkinson, Garden Court Chambers: I just want to give a special thanks to James for doing a lot of work on the housing specification which I think involved attending at least two meetings with Legal Services Commission representatives which tend to be rather bruising affairs, I think. James commented

13 earlier that the last remark made was, “if you think any of your points are matters that might go to judicial review, could you let us know?” So that is something that we will be thinking about. Also, a lot of people contributed to a draft letter to MPs which I think is probably on the website or is being emailed around at some stage so if you are struggling with where to start there is a precedent letter around. I know everyone is really, really busy all the time but it would not take much to use that and send it to your MP with any individual experience you want to draw on. I think that Gareth Mitchell, Tracey Bloom and Nowsheen Bhatti also deserve special thanks for contributing to the booklet which is the focus of our housing justice campaign and has been sent out to over 200 MPs.

Ed Fitzpatrick: I would like to report on the case of Shala v Birmingham City Council reference 2007/EWCA/CIV/624. It was the usual situation; homelessness, priority need. Our appellant is suffering from post traumatic stress disorder and severe depression. The evidence supplied, nullified by Now Medical saying not that serious, medication suggests that she is not that depressed, and what was completely strange in the case was the fact that they did not even bother putting a psychiatrist’s report before Dr Keen for his analysis when that report was the only proper report and it said that she was entirely unstable. In relation to it, for once, thankfully, the Court of Appeal were interested in the whole question of the status of medical advisors and their first brush approach was to say, “clearly this isn’t an expert you’re dealing with; you’re dealing with an evaluator, someone who explains and considers expert medical evidence and then sort of puts it into common parlance for hard-pressed reviewing officers.” But then gradually, as they read about some of the cases they said, “look here, it does appear that this Now Medical is treated as expert evidence” and, helpfully, they then give guidance. Particularly Lord Justice Sedley gives important guidance as to the way in which this evidence should be received. In fact what he does is he limits the way in which it can be relied on unless proper steps were taken. Firstly, one of the things that he suggests is that how can you give a proper opinion if you have not got expertise in the area? Secondly, if you are acting as an expert you need to examine the patient. Thirdly, if you do not want to do that, surely you should then speak and consult with the experts in the case? In relation to the situation, I think it makes it much more difficult, as I said, for such reports to be used to simply nullify the evidence that is produced on behalf of applicants, which seems to be in the majority of cases. There are some other helpful points which I will not detail here. One is the fact that in many of these cases the reports from Now Medical say exactly the same things; one of them being a level of medication strongly suggested this person is not depressed despite what everybody else says. In relation to that Lord Justice Sedley again sets out that that is not necessarily going to be a proper indicator of the seriousness, it may be for other reasons not on that medication. So again, that is something that no longer can be relied on as a way of shutting the door. But certainly the detail of it is worth reading.

Robert Latham, Doughty Street Chambers: Just to forewarn two judgements which are coming up. Firstly, I mentioned at the last meeting the challenge against Legal Services Commission with regard to Regulation 24 of the CLS Financial Regulations 2000, which is relevant in assessing whether someone is within the limit of financial eligibility if they are working and they are not paying their rent. It is the case of Southwark Law Centre v Dennis and the Legal Services Commission, the hearing was in front of Judge Collins and judgement is on Friday. Secondly, in Malcolm v Lewisham judgement is being given on 25 July. Can I also raise something which perhaps could have been raised under the Executive Report. James Bowen is not here but there was a meeting of the Administrative Court User’s Group last week. I think everyone is aware the caseload in the Administrative Court has doubled over the last twelve months and the office staff and the judiciary have remained at about the same level and there are massive backlogs building up. Also, without any consultation there has been a reorganisation and at the end of August Lynne Knapman, who addressed the Association in January, is retiring and instead of having the Head of the Administrative Court Office the heads are going to be merged between the Administrative Court and the QBDs so we are going to lose a strong spokesman to try and keep the Administrative Court Office working efficiently. I am fairly appalled that this change has occurred without any consultation; I think the judiciary are equally appalled and I think at the next Executive it would help if anyone has got any horror stories in the Administrative Court to let us know so that we can raise it formally. It does seem to me that the Administrative Court was an area of excellent practice but because of being starved of resources major problems are arising which is very much affecting the extent to which they can provide an effective remedy.

Michael Hyde, Shelter Hertfordshire: Just quickly back with regards to the case of Shala. First I must give thanks to Edward Fitzpatrick as I have been quoting vociferously at my local authority over the past week because I have been dealing with an astounding case. One of the things that we have, as I am sure

14 a lot of people in this room have, at the moment is a significant problem with Now Medical and some of the decisions that they are putting out. One of the wider approaches I was thinking of dealing with Now Medical, is there any route to challenging the actual doctors through, potentially, the GMC or, I have to admit I studied tort law a while back and my knowledge of tort is not up to date, is there any duty of care there from the doctors who are making these decisions to the homeless individuals? Because some of these decisions, I feel, are being made very irresponsibly by the doctors. I was wondering if anybody had any thoughts on that or any approach to the doctors?

Ed Fitzpatrick: Certainly there was one case I had where a psychiatrist was completely incensed by the silliness of the Now Medical standard report and the psychiatric problem which said, “level of medication has not been hospitalised as yet so it suggests that it is not serious.” They were proposing to make some sort of complaint but in the end the case settled and I do not think they were too excited about it after that.

Karen Taube, Traymans: I showed a Now Medical report to my sister who is a GP and it was about the level of medication and she was horrified and urged me to report Dr Keen to the GMC but I have to say I have not done so yet. So I think if anyone is brave enough to we might get somewhere but perhaps we can rely on Lord Justice Sedley instead.

Helen Tyrrell, Central London Law Centre: I was at a HLPA seminar on homelessness a few weeks ago and the tutor was working at Shelter, I think his name is Chris Morris, and he told me that he is liaising with the Ethics Committee of the Royal College of Psychiatrists and the General Medical Council to do exactly that to Dr Keen, one of the main issues focusing on the fact that he is not examining the patients. Another issue, of course, is that he is purporting to give evidence for which he has no expert knowledge so I think London Central Shelter are having a go on that basis.

Chair: Anyone else want to join in on Now Medical specifically

David Watkinson: Our colleague from Shelter Hertfordshire asked about a case. Now there were a series of tort cases a while ago which were all to do with the accountants who made reports to the company and their liability to the shareholders because, of course, they painted a rosy picture of the company and the shareholders then increased their shareholdings and all lost when the company crashed. Of course the analogy is Dr Keen who makes the report to the local authority so primarily his duty is to the local authority but then the question is does he then owe a duty to the homeless person who, as a result of his report, does not get housing and suffers incalculable psychological illness as a result? That kind of case that you are really going to have to look at for approaching it in a legal way rather than through the professional medical way, which I think is probably the better way to go.

Robert Latham, Doughty Street Chambers: Firstly an admission, I have on my desk a letter from Dr Keen inviting himself to one of our Chamber’s seminars on how you deal with priority need but I will be responding shortly! Secondly, looking at Ed’s case, I do recall a comment from Lord Justice Sedley that we do not know the number of cases where he has come up with positive recommendations and what are solicitors doing to use the Freedom of Information Act, because we should be putting in requests for information as to the percentage of cases he has come up with positive recommendations and the number he has come up with negative recommendations. If local authorities say that cannot be gathered at reasonable expense then we need to take it further. It is going to be a long slog but I think that is a road that we have got to go down. Thirdly, I think my view is that Dr Keen is damaged goods but he is still going to be around for the next two to three years. The background is that local authorities never knew how to deal with medical evidence put forward by lawyers and often had to keel over and the Department of Communities has encouraged them to show a bit more backbone, which is why Dr Keen is used so much. What I think we do need to share is any expert evidence we can get which undermines his guidelines which we can put on the HLPA website or elsewhere and we do really need to feed it into a review process. I think the stage is coming when we are building up more and more ammunition to discredit him but it is going to need time.

Chair: Any other cases or policy developments?

Ed Fitzpatrick: Just in passing, the most bizarre case I have seen in a long time is the case of Graves v Graves, reference 2007/EWCA/CIV/660, on which the decision of the Court of Appeal came out on 3 July. It was family dispute where on the divorce the wife was to live with the former husband as his tenant and

15 the tenancy was based on the fact that she would get 90% housing benefit. In the event, not surprisingly, housing benefit said, “oh we think there’s a bit of a former relationship” and they refused to pay it. But the issue that went before the Court of Appeal was as to whether the tenancy was frustrated by dint of the fact that it was implied term that the contract would end if housing benefit was not payable and the Court of Appeal ran with that. So whether or not that could be deployed in any practical situation I know not but it is very strange and weird decision.

Chair: I will now draw the meeting to a close and remind you that our next meeting is on 19 July on the topic of Access to Housing outside the Housing Act.

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