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7 Available at: www.justice.gov.uk/downloads/legal- aid/funding-code/lord-chancellors-guidance.pdf. Recent developments 8 Available at: www.justice.gov.uk/downloads/legal- aid/funding-code/chancellors-guide-exceptional- funding-non-inquests.pdf and www.justice.gov. in housing law uk/downloads/legal-aid/funding-code/chancellors- guide-exceptional-funding-inquests.pdf respectively. 9 Available at: www.justice.gov.uk/downloads/legal- aid/funding-code/evidence-requirements-for- private-family-law-matters.pdf. Jan Luba QC and Nic Madge continue their monthly series. They 10 Available at: www.justice.gov.uk/downloads/legal- would like to hear of any cases in the higher or lower courts relevant to aid/funding-code/guidance-reporting-controlled- work.pdf. housing. In addition, comments from readers are warmly welcomed. 11 The standard terms 2013, available at: www.justice.gov.uk/downloads/legal-aid/civil- contracts/standard-terms-2013.pdf. POLITICS AND LEGISLATION the rules on costs as recommended by Lord 12 2013 standard civil contract: specification, Justice Jackson’s Review of civil litigation costs. available at: www.justice.gov.uk/downloads/legal- Legal aid for housing cases Numerous other amendments are made to the aid/civil-contracts/2013-standard-civil-contract- general-specification.pdf. Since 1 April 2013, legal aid help in housing handling of multi-track and other civil cases. 13 Sample 2013 standard civil contract schedule, cases has only been available from holders of a The small claims track limit (below which costs available at: www.justice.gov.uk/downloads/legal- 2013 Standard Contract (or a varied 2010 cannot usually be recovered) has been doubled aid/civil-contracts/final-draft-schedule-2013.pdf. Standard Contract) issued by the former Legal from £5,000 to £10,000. A swathe of new Services Commission (now the Legal Aid CPR Practice Directions (and amendments to Agency). In 2012/13, there were 533 suppliers Practice Directions) accompany the changes: with contracts to undertake casework in 61st update – practice direction amendments housing law but 828 suppliers bid successfully (Ministry of Justice (MoJ), April 2013).4 for contracts for 2013/14.1 Although the number of mortgage As the bid round was non-competitive, the possession claims issued in the county courts available work (in the form of 51,889 ‘matter continues to fall, the recent increase in starts’) will have been distributed among as possession claims by landlords is continuing. many of those bidders as passed the In the last three months of 2012, 38,934 self-verification exercise and accepted the landlord possession claims were issued in offered contract. and : equivalent to over 3,250 The increased interest in providing legal aid every month, or more than 100 a day: services for housing law may have been Statistics on mortgage and landlord possession stimulated by the retention within the scope of actions in the county courts in England and legal aid of most housing cases: Legal Aid, Wales: October to December 2012 (MoJ, Sentencing and Punishment of Offenders February 2013).5 In the same period, over (LASPO) Act 2012 Sch 1. However, legal aid 8,660 warrants for possession, generated by will only be available in those cases meeting landlord possession claims, were actually the criteria specified in new regulations: the executed by county court bailiffs. Civil Legal Aid (Merits Criteria) Regulations 2013 SI No 104. Guidance on how to apply Housing benefit in social housing the criteria has been issued by the Lord The new size criteria elements of the housing Chancellor: ’s guidance under benefit (HB) scheme were applied to working- section 4 of Legal Aid, Sentencing and age social housing tenants on 1 April 2013: Punishment of Offenders Act 2012.2 the Housing Benefit (Amendment) Regulations Some housing cases otherwise excluded 2012 SI No 3040. They are expected to lead from scope might be covered by the new to benefit reductions for 660,000 households ‘exceptional funding’ arrangements in LASPO with one or more spare bedrooms. The detail is Act 2012 s10. For guidance as to how that explained in HB/CTB Circular A4/2012 Housing category operates, see Lord Chancellor’s benefit size criteria restrictions for working age exceptional funding guidance (non-inquests).3 claimants in the social rented sector from 1 The new (higher) rates for experts in April 2013. housing disrepair cases, for which the Housing The National Housing Federation (NHF) has Law Practitioners Group pressed successfully, published an information leaflet for tenants Vicky Ling is a consultant specialising in are set out in The Civil Legal Aid (Remuneration) about this and the other main HB changes, legal aid practice and a founder member of Regulations 2013 SI No 422. describing who will be affected and how the Law Consultancy Network. E-mail: tenants can get help and advice: What you [email protected]. She and Simon Housing cases in the county courts need to know about changes to housing Pugh are co-editors, with Anthony Edwards, The latest amendments to the Civil Procedure benefit (NHF, February 2013).6 The House of of LAG legal aid handbook 2013/14, April Rules (CPR) took effect on 1 April 2013: the Commons Library has published a helpful policy 2013, £45. Civil Procedure (Amendment) Rules 2013 SI briefing on the issue: Under-occupation of No 262. They make fundamental changes to social housing: housing benefit entitlement AprilLA_40_46 09/04/2013 18:46 Page 42

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SN/SP/6272 (25 March 2013).7 Matthew Hennessy-Gibbs ‘Cash is king’, Inside relevant legislation provided that the right to The NHF has also published research Housing, 22 February 2013.13 occupy would be lost in cases of absence commissioned from the University of Every HB authority is being allocated exceeding six months (subject to exceptions). Cambridge and Ipsos MORI considering the additional central government funding to meet On a claim for possession, a court made a likely impact of these and other welfare reforms some of the administrative costs of the impact possession order because the applicants had on housing association landlords: Impact of of the various reforms to HB being introduced been absent for more than six months and welfare reform on housing associations (NHF, during 2013. This includes £4m in respect of there was no good reason to extend the period. January 2013).8 the impact of the social housing size criteria. Appeals against that order were dismissed. The The details of the allocation to each local applicants complained to the European Court Direct payment of housing benefit authority are given in Department for Work and of Human Rights that their right to respect for Several local housing authorities have been Pensions Circular HB/CTB S2/2013 Additional their home (article 8) had been infringed. participating in demonstration projects funding to meet the costs of implementing The complaint was declared inadmissible. designed to test the new arrangements for welfare reform changes in 2012/13.14 The domestic courts had applied the relevant payment of universal credit (including the legislation and considered the reasons for housing costs element) directly into the bank Housing and anti-social behaviour absence and the applicants’ circumstances. accounts of tenants, on a monthly basis. The draft Anti-social Behaviour Bill has Although there had been no explicit reference Southwark identified 2,000 tenants to take completed its pre-legislative scrutiny by the to the proportionality of eviction, the court itself part in its area (1,500 council tenants and 500 House of Commons Home Affairs Select did not consider that eviction could be said to tenants of Family Mosaic housing association). Committee. Its report states that current be disproportionate in all the circumstances of Its key findings were that: timescales for court proceedings do not reflect the case. Ⅵ only 60 per cent of the 2,000 tenants were ‘the misery caused by ASB [anti-social successfully moved onto the pilot scheme; behaviour]’ and the committee recommended Ⅵ 11 per cent refused to take part or were abandoning the shift of remedies into the POSSESSION CLAIMS unable to engage with the council; county court because: Ⅵ 14 per cent were later deemed too Secure tenants vulnerable to take part; and We heard that this was likely to severely Ⅵ Brent LBC v Tudor Ⅵ there was a lack of understanding about slow down the process for dealing with ASB as [2013] EWCA Civ 157, personal finance among some tenants and county courts are under pressure from reduced 6 March 2013 others were unable to obtain a bank account.9 staffing and more litigants in person because Ms Tudor’s mother was a secure tenant of a Based on these findings, the council has of the reduction in eligibility to civil legal aid. six-bedroom property. She died in March projected that its rent arrears for council County courts were also likely to be further 2009. As a member of the tenant’s family who tenants could increase by £14m when direct away for victims to attend: (House of Commons resided with the tenant throughout the payment is implemented borough-wide. The Home Affairs Committee. The draft Anti-social 12-month period ending with the tenant’s estimated additional administrative cost will be Behaviour Bill: pre-legislative scrutiny. Twelfth death, Ms Tudor was entitled to succeed to the in excess of £400,000 per year. Report of Session 2012–13).15 tenancy under Housing Act (HA) 1985 s89. A similar situation has been reported by The council sought possession under Schedule Wakefield. Its chief executive told a Private rented sector 2, Ground 16 arguing that the accommodation parliamentary committee that: A major new report on the private lettings afforded by the property was ‘more extensive market by the Office of Fair Trading (OFT), than is reasonably required by the tenant’. At Overall, we have seen an increase in debt based on an analysis of nearly 4,000 trial, HHJ McDowell found that the property to about 11% of the debit, which normally on complaints made by people renting a home as was reasonably needed to accommodate Ms 31,000 properties is 2.9%. People who came well as those letting out a property, has Tudor’s brother and two of his children, as well into the demonstration pilot with no arrears identified several consumer protection issues: as herself, and her disabled brother. The now have an average of £180 debt going The lettings market: an OFT report (February council appealed. forward. On arrears cases, we used to make 2013).16 The OFT found that both tenants and The Court of Appeal dismissed the appeal. five, six or eight visits; now it is 40 visits in landlords were concerned about fees and The judge had correctly identified the legal test each particular case. One thing that is not charges levied by agents, poor service as whether, at the date of the hearing, there understood is that the cost of administration of provided and that ‘surprise’ charges were had been genuine occupation of the property the system by the landlord, which could be an introduced or ‘drip-fed’ once contracts have by Ms Tudor’s brother and children. Although extra £3 million to £5 million of bureaucracy, is been signed. The report sets out a number of he did not set out the reasons for his findings being borne by full and partial rent-payers.10 recommendations for government, industry, in an ordered manner or deal with the enforcers and others in order to make the implications of his rejection of important parts The House of Commons Library has lettings market work better for tenants. of the brother’s evidence in a way that was published a helpful policy briefing on the issue: understandable without extensive recourse to Paying the housing element of universal credit the underlying documentary material, on the direct to tenants in social rented housing HUMAN RIGHTS evidence before him, it was open to him to SN/SP/6291 (18 March 2013).11 The reach the conclusion he did. Chartered Institute of Housing has issued How Article 8 Ⅵ Paragon Housing Association to ... manage income collection effectively Ⅵ Lazarenko v Ukraine v Manclark (CIH, February 2013).12 App No 27427/02, [2013] ScotSC 11, Social landlords are being encouraged to 11 December 2012 8 February 2013 ensure maximum income recovery after the The applicants were tenants of a housing The defendant was a secure tenant suffering move to direct payments: see, for example, department flat. They moved abroad. The from paranoid schizophrenia. She could not AprilLA_40_46 09/04/2013 18:46 Page 43

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maintain her home. The garden was overgrown, section 214 damages because by that time the decision of the local authority to seek weed-ridden and full of rubbish. Inside the deposit had been protected. possession. The corollary to this was that a home, internal doors had been removed or Deputy District Judge McConnell was local authority faced with such a challenge was damaged, glazing to doors and windows had satisfied that the claimant had received the required to give reasons for its decision to seek been smashed and boarded up, and the deposit on 11 September 2007, when the new possession so that the court, in conducting a interior was dirty, cluttered and malodorous. tenancy agreement was entered into. He had proportionality review, could decide whether an The property was an eyesore, acting as a not protected it at that date and so the section order was justified. magnet for anti-social behaviour. The 21 notice served on the same day was not It was for the tenant to raise the defendant would not co-operate with agencies valid (HA 2004 s215(3)). The claim for proportionality challenge by way of defence and attempting to help her, or allow access. A possession was dismissed. to establish a seriously arguable case that move to more suitable sheltered housing had his/her own circumstances overrode the been arranged, but was cancelled by the Non-secure tenants particular exercise by the council of its defendant. The housing association sought Ⅵ Fareham BC v Miller public responsibility to manage the available possession relying on the discretionary ground [2013] EWCA Civ 159, public housing stock for the benefit of the relating to ‘waste’. 6 March 2013 community as a whole. Only in exceptional Sheriff K J McGowan found that the ground In 2009, the council accepted that Mr Miller, a cases is it possible for the tenant's personal was made out and that it was reasonable to 30-year-old man with a long history of circumstances to establish a claim to maintain order possession. persistent criminal offending, was homeless a home under his/her existing tenancy. Ⅵ Croydon LBC v Massoud and in priority need and that he had not The Court of Appeal was not persuaded that [2012] EWCA 1827, become homeless intentionally. He was Mr Miller had a defence to the possession 6 December 2012 granted a non-secure tenancy under HA 1985. claim on either Wednesbury or article 8 In June 2005, a council tenant travelled to In 2011, other tenants complained about the grounds. Although his personal circumstances Burundi. In her absence, a transfer request behaviour of another man living in the flat. In needed to be seriously considered, they did not was approved. The council agreed that her son April 2011, while Mr Miller was serving a prison raise a sufficiently compelling case as to could sign the tenancy agreement for the new sentence, the council served a notice to quit. require a full-blown proportionality review. premises in her absence. Without returning to In May 2011, a housing officer met Mr Miller’s the UK, the tenant died in November 2005. probation officer and a representative from the Boats The son claimed that he had succeeded to the Drug Intervention Programme and agreed to Ⅵ Moore v British Waterways Board new tenancy as he had lived with the tenant at give him another chance. The conditions for his [2013] EWCA Civ 73, her former home and had moved into the new release on licence were tightly drawn so as to 14 February 2013 property. HHJ Ellis found that the succession require him to live at the flat alone. However, Mr Moore owned several vessels (including one conditions in HA 1985 s87 were not met the flat became a ‘running sore of criminal which he occupied as his home) moored long because the son had not resided with the behaviour which … so upset some of the term in the tidal part of the Grand Union Canal, tenant for 12 months before her death. neighbours that they have requested anonymity adjacent to his riparian land. The British McFarlane J refused permission to appeal. in respect of their complaints for fear of Waterways Board (BWB) gave notice that the There was no prospect of the court disturbing reprisals [and] made their lives intolerable’ vessels were moored ‘without lawful authority’ the judge’s findings of fact. (para 15). The council claimed possession, within the meaning of the British Waterways relying on the April 2011 notice to quit. Mr Act 1983 and requiring that he remove them. Assured shorthold Miller served a defence denying that he had Hildyard J found that Mr Moore had not tenants: deposits committed any breaches of the tenancy demonstrated any right under the general law Ⅵ Malik v Brohier agreement. He also raised an article 8 defence to moor vessels permanently, either in Bow County Court, based on his vulnerability as an ex-offender association with his riparian ownership or 25 October 201217 and drug addict. Recorder Wood dismissed the possession, or otherwise and that therefore In December 2004, the defendant was granted claim for possession. He was satisfied that they were present ‘without lawful authority’. a fixed term assured shorthold tenancy of a service of the notice to quit was a reasonable The Court of Appeal allowed Mr Moore’s self-contained house. She paid a deposit of and proportionate exercise of the council’s appeal. Although the rights of the riparian £996. The tenancy was extended several times powers of estate management having due owner did not include a right permanently to by agreement. The latest tenancy was granted regard to its duty under the HA, but that ‘the moor vessels, the BWB had failed to establish on 11 September 2007 for a fixed term of six correct legal interpretation of the events that that Mr Moore was doing anything unlawful. months. On the same date, the claimant happened … [was] that, the notice [to quit Absent some infringement of statute or served a HA 1988 s21 notice, expiring on 10 was] revoked [and] the tenancy was reinstated (eg, trespass or nuisance) what a March 2008. At the expiry of the fixed term, a in its original terms’ (para 28). person did was ‘lawful’. ‘England … is not a statutory periodic tenancy arose. The claimant The Court of Appeal allowed the council’s country where everything is forbidden except landlord retained the deposit throughout, but appeal and made a possession order. First, as what is expressly permitted; it is a country did not protect it, saying that since he had a matter of law, it was impossible for the where everything is permitted except what is received it before 6 April 2007 (when HA 2004 council to revoke the notice to quit. The May expressly forbidden’ (para 38). The notices Part 6 came into force), he did not believe that decision to give Mr Miller another chance was were quashed. he was obliged to protect it. In May 2011, the never more than a conditional one and, once claimant issued a claim for possession relying he had reoffended, the council decided to on the section 21 notice. The defendant filed press ahead with its claim for possession. and served a defence and counterclaim arguing Second, the grant of a non-secure tenancy to a inter alia that the deposit had not been homeless person did create article 8 rights protected. At trial, she withdrew her claim for which were necessarily engaged by any AprilLA_40_46 09/04/2013 18:46 Page 44

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Costs detailed. Such accounts should be produced. but certified this question of general public Ⅵ Munu v Southwark LBC Ⅵ Rey-Ordieres v Lewisham LBC importance: ‘May rental income from a [2012] EWCA 1874, [2013] UKUT 14 (LC), property which is unlicensed contrary to section 18 December 2012 8 January 2013 95(1) of the be a person's The council sought arrears of rent and a The applicant was a leaseholder on the benefit as being property obtained as a result possession order against their tenants Mr and Brockley Estate. The council entered into an of or in connection with particular criminal Mrs Munu. The tenants counterclaimed for agreement with a contractor for the renovation conduct for the purposes of section 76(4) of breach of the covenant of quiet enjoyment and of the estate (which comprised 500 leased the Proceeds of Crime Act 2002?’ for disrepair. The trial took between two and properties and 1,300 tenanted homes) as part Ⅵ Oxford City Council v Tariq three weeks of court time, with allegations and of a private finance initiative arrangement. The Oxford Magistrates’ Court, counter-allegations on each side. The arrears applicant and 23 other leaseholders applied to 8 February 2013 of rent were proved to be £1,172.82. HHJ a Leasehold Valuation Tribunal (LVT) for a The defendant landlady dumped her tenant’s Matheson QC made a conditional order for declaration that the service charges levied for belongings outside his home, changed the lock possession suspended for 18 months, 2007–09, in consequence of the works, were to the front door and refused to allow him back requiring the tenants to pay £10 per week unreasonably high. The LVT found that the in. Police tried to persuade her to allow the towards the arrears. He awarded damages of works had been reasonably undertaken but tenant to keep his belongings in his room over £5,750 on the counterclaim. Each of the disallowed certain management fees and the weekend as he was unable to arrange tenant's three children was awarded £500. The ‘on-costs’. storage, but she refused. Following the damages did not extinguish the claim because On appeal, the council argued that an LVT eviction, the tenant was forced to sleep rough there were also earlier orders for costs against could not go behind the terms of a public on several occasions. The defendant pleaded the tenants, but the totals broadly balanced. procurement contract which had been subject guilty to unlawful eviction (Protection from HHJ Matheson QC made no order for costs on to competitive tendering. The Upper Tribunal Eviction Act 1977 s1). the claim and counterclaim. The tenants rejected that submission. The contract terms Magistrates imposed a community order sought permission to appeal against the orders were only persuasive evidence on the point. with an unpaid work requirement of 80 hours. for possession and costs. They ordered her to pay £460 compensation to Maurice Kay LJ refused a renewed the tenant and a contribution of £1,162.50 application for permission. On the facts, the ANTI-SOCIAL towards the council’s costs. tenants had a bad payment history and a BEHAVIOUR ORDERS Ⅵ Cornwall Council v Stoddern conditional possession order was justified. The Truro Magistrates’ Court, costs order broadly reflected the ‘score draw’ Ⅵ Pender v DPP 4 February 2013 outcome of the litigation (para 2). An appeal [2013] EWHC (Admin), The defendant was a private landlady. On would have no real prospect of success. 23 January 2013 inspection of a property let by her as a HMO, A magistrates’ court made an anti-social council officers found overcrowded living behaviour order (ASBO) against Mr Pender. On conditions, serious fire safety concerns and a LONG LEASES his appeal to the Crown Court, he argued that dangerous spiral staircase to the attic room no ASBO should have been made because he that was steep, lacked handrails and had no Service charges lacked capacity to understand any of its guarding to prevent someone falling. It served a Ⅵ Morshead Mansions Ltd v Mactra requirements or comply with them. He relied HA 2004 prohibition order requiring the attic Properties Ltd on medical evidence to that effect. The appeal room not to be used for any purpose other [2013] EWHC 224 (Ch), was dismissed in the Crown Court, but he than for storage (or the taking of remedial 15 February 2013 appealed to the High Court. action). The property had no HMO licence. The The claimant was the lessee of 19 flats in a The Divisional Court allowed that further council prosecuted for failure to comply with block. The leases provided that, as soon as appeal. The real issue was whether Mr Pender the notice and failure to obtain a licence. practicable at the end of each accounting year, had capacity to comply with the prohibitions On guilty pleas, the court ordered payment the landlord must provide an ‘... account of the in the order. The medical evidence had of fines and costs totalling £4,560.77. Expenses and the Service Charge ... such clearly been that he could not. No adequate Ⅵ Leeds City Council v Henry account to be certified by the Landlord’s reasons had been given in the Crown Court Leeds Magistrates’ Court, auditors ...’ The claimant brought a claim for not accepting that evidence. The ASBO 24 January 2013 against the freeholder seeking accounts of the was quashed. The defendant was a private landlord with expenses and service charges payable under several multi-occupied properties in Leeds. He the leases. The freeholder argued that it had had been prosecuted by the council in March not been ‘reasonably practicable’ to provide CRIMINAL OFFENCES 2011 for operating two licensable HMOs them. The lessee denied that the lease without licences. In respect of several required detailed accounts and contended that Ⅵ R v Sumal & Sons (Properties) Ltd properties, he failed to provide gas safety and a simple list of expenses would be sufficient. [2012] EWCA Crim 3109, electrical safety certificates after numerous HHJ Bailey made an order for production of the 18 December 2012 requests. He also failed to comply with HMO accounts. The freeholder appealed. The defendant property company succeeded in licence conditions relating to fire safety. The Warren J held that, on a true construction of some aspects of its appeal against a sentence council prosecuted again as a result of the the leases, full accounts were not required. The for failing to hold a house in multiple disregard of tenant safety. freeholder had to show what had been paid or occupation (HMO) licence under HA 2004 (see The defendant was convicted and ordered had become due for payment and what service [2012] EWCA Crim 1840; October 2012 Legal to pay £8,400 in fines and £5,000 towards charge income had been received. There was Action 34). The Court of Appeal refused the council's costs. no requirement to produce anything more permission to appeal to the Supreme Court, AprilLA_40_46 09/04/2013 18:46 Page 45

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Ⅵ Harlow Council v Hossain Closure order decided to provide the family with two self- Chelmsford Magistrates’ Court, Ⅵ Croydon LBC v Kite contained units in a hostel (one for the father 22 January 2013 Croydon Magistrates’ Court, and one for the two sisters) in continued The defendant converted a house and let parts 7 January 2013 performance of its duty. The units were on the of it to four separate households without The defendant was the proprietor of same floor of the hostel, but a few yards apart. having a HMO licence. He pleaded guilty to a accommodation let to tenants and known as The Court of Appeal held that the statutory charge of failing to obtain a licence. the ‘Gomers Hotel’. Neighbours complained to obligation to provide accommodation for an He was fined £10,000. The council was the council about drug dealing and noise. applicant ‘together with’ other household awarded £800 costs. Witnesses said that there was ‘persistent members (HA 1996 s176) could not lawfully Ⅵ Leeds City Council v Digwa nuisance and disorder’ at the premises for a be performed by the provision of two separate Bradford Magistrates’ Court, number of months. self-contained units: see [2011] EWCA 21 January 2013 The court made a three-month premises Civ 463; [2011] HLR 32; June 2011 Legal The defendant was a private landlord. On closure order prohibiting anyone from entering Action 25. inspection of a property let by him, council or remaining at the address during that period. The Supreme Court, by a majority, reversed officers found inadequate fire precautions, The defendant was ordered to pay £6,683.60 that decision. It held that the statutory test is mould and electrical hazards together in prosecution costs to the council. satisfied by a single unit of accommodation in representing a risk to the health and safety of which a family can live together, but that it may the tenant. Improvement notices were served also be satisfied by two units of accommodation under HA 2004 Part 1 in October 2011 for the HOMELESSNESS if they are so located that they enable the works to be completed by January 2012. family to live ‘together’ in practical terms. Works were only undertaken in early January Intentional homelessness Whether they are so located is a question of 2013, almost 12 months later. The council Ⅵ Ibrahim v Wandsworth LBC fact for the council on which a decision could prosecuted for failure to comply with [2013] EWCA 20, be set aside only for error of law. In the instant an improvement notice. The defendant 29 January 2013 case, there had been no such error. pleaded guilty. Ms Ibrahim applied to the council for He was fined £2,800 and ordered to pay homelessness assistance under HA 1996 Use of bed and costs of £2,993 plus a £15 victim surcharge. Part 7 when her assured shorthold tenancy breakfast accommodation Ⅵ Sandwell Council v Athwal and Kaur expired. The council decided that she had Local Government Ombudsman Sandwell Magistrates’ Court, become homeless intentionally. The Complaint 7 January 2013 notification of that decision under HA 1996 Ⅵ Croydon Council The defendants were private landlords. In May s184 failed to set out the accommodation duty 11 010 420, 2012, they were convicted of failure to comply owed to her as an intentionally homeless 1 February 201318 with an improvement notice in respect of a person in priority need: HA 1996 s190(2). Ms In July 2011, Merton decided that an applicant tenanted property. They then attempted to Ibrahim applied for a review, but the finding of met conditions for referral of her application for undertake the necessary works ‘on the cheap’ intentional homelessness was upheld and an homelessness assistance (HA 1996 s198) and around the tenant. That resulted in what the appeal to the county court was dismissed by decided to refer her application to Croydon. district judge (magistrates’ court) described as HHJ Redgrave. Croydon accepted the referral and from 2 conditions of ‘Dickensian squalor’. The work Ms Ibrahim appealed to the Court of Appeal August 2011 it provided accommodation. done was unsatisfactory and incomplete. contending that the defect in the decision The applicant had children but, despite the They were fined a further £500 each, notice had required the reviewing officer to terms of the Homelessness (Suitability of ordered to pay £1,500 each in compensation follow the ‘minded-to’ procedure in Allocation Accommodation) (England) Order 2003 SI No to the tenant, and the council was awarded of Housing and Homelessness (Review 3326, the council booked her into bed and costs of £4,000. Procedures) Regulations 1999 SI No 71 reg 8 breakfast accommodation for more than the Ⅵ Haringey LBC v Mehmet Parlak, and this had not been done. maximum period of six weeks. A Law Centre Watchstar Ltd and Watchacre The appeal was dismissed. The defect had indicated that it would issue judicial review Properties Ltd been immaterial to the question of whether or proceedings if the applicant was not moved by Tottenham Magistrates’ Court, not the applicant had become homeless 3 October 2011. She was moved to self- January 2013 intentionally and had caused no prejudice contained accommodation on 29 September The defendants were private landlords. Council (because the applicant had been accommodated 2011. Croydon did not notify the applicant that inspections found four properties operated as pending the review and appeal for a period it had accepted the referred duty, or tell her HMOs, two without licences. All were in an longer than that for which she would have been how it would perform the duty, until 18 unsatisfactory condition. accommodated under section 190(2)). October 2011. The defendants pleaded guilty to offences The Local Government Ombudsman found under the HMO Management Regulations Suitable accommodation maladministration: relating to the four properties and to failure to Ⅵ Sharif v Camden LBC Ⅵ in keeping the applicant in bed and apply for HMO licences for two of them. [2013] UKSC 10, breakfast accommodation for more than the Despite those pleas, fines totalling £40,000 20 February 2013 legal limit of six weeks; and were imposed plus £4,462.50 in costs. This The claimant’s household included her disabled Ⅵ in failing to notify acceptance of a duty and reflected their poor history of previous father and her dependent younger sister. how it would be performed (which had convictions for similar offences. Camden owed the main housing duty under the prevented the applicant having a decision that homelessness provisions of HA 1996 s193 she could review). and initially performed it by providing a However, the investigation was discontinued three-bedroom house. Later, the council by the ombudsman when the council agreed AprilLA_40_46 09/04/2013 18:46 Page 46

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to remedy the injustice by paying the Ⅵ R (EAT) v Newham LBC of the proceedings had achieved exactly what applicant £400. [2013] EWHC 344 (Admin), the claimant had sought. 28 February 2013 Offer of temporary accommodation The claimant was a two-year-old child. She 1 Available at: www.justice.gov.uk/downloads/legal- Ⅵ Maswaku v Westminster needed accommodation because she and her aid/tenders/faq-itt-notification-and-verification- Jan13.pdf. City Council mother were homeless. They had had to leave 2 Available at: www.justice.gov.uk/downloads/legal- UKSC 2012/0240, their private rented home. The mother was not aid/funding-code/lord-chancellors-guidance.pdf. 11 February 2013 eligible for homelessness assistance under HA 3 Available at: www.justice.gov.uk/downloads/legal- Justices of the Supreme Court have refused 1996 s185 (because she was a Ugandan aid/funding-code/chancellors-guide-exceptional- the homeless applicant’s application for national who had applied unsuccessfully for funding-non-inquests.pdf. permission to appeal against the dismissal of indefinite leave to remain and whose appeal 4 Available at: www.justice.gov.uk/courts/ procedure- her appeal by the Court of Appeal (see [2012] against that decision remained outstanding). rules/civil/pdf/update/cpr-61-pd-making- document.pdf. EWCA Civ 669, 18 May 2012; July 2012 Legal Newham’s children’s services department 5 Available at: www.justice.gov.uk/downloads/ Action 42) because the application did not accepted that the claimant was a ‘child in statistics/civiljustice/mortgage-landlord-2012- raise an arguable point of law. They said that need’ under CA 1989 s17. It decided that it q1/mortgage-landlord-possession-bulletin-q4- the Court of Appeal was right for the reasons would not provide accommodation but would 12.pdf. it gave. assist with travel to Uganda. This was on the 6 Available at: www.housing.org.uk/publications/ grounds that the claimant’s mother had find_a_publication/general/housing_benefit_ unsuccessfully made a claim for ‘asylum’ and changes.aspx. 7 Available at: www.parliament.uk/briefing-papers/ HOUSING AND CHILDREN that, accordingly, support should be provided sn06272.pdf. by the UKBA pending her departure. 8 Available at: www.housing.org.uk/idoc.ashx? Ⅵ R (Durani) v Secretary of State for John Powell QC, sitting as a deputy High docid=eb2e162d-59d5-4509-82ae-ffbf1c73 Home Department Court judge, quashed the decision. The claim c953&version=-1. [2013] EWHC 284 (Admin), for indefinite leave to remain did not expressly 9 Available at: www.southwark.gov.uk/news/ 19 February 2013 or impliedly seek ‘asylum’. article/1149/southwark_council_reports_findings_ from_direct_payment_benefits_test_project. The claimant was a young Afghani national. He 10 Available at: www.publications.parliament.uk/ was arrested when found in the back of a lorry pa/cm201213/cmselect/cmcomloc/uc833-iii/ in Nottingham. He applied for asylum. Local HOUSING AND uc83301.htm. social services carried out an age assessment COMMUNITY CARE 11 Available at: www.parliament.uk/briefing-papers/ and concluded that he was an adult. He was sn06291.pdf. detained by the UK Border Agency (UKBA). He Costs orders 12 Available at: www.cih.org/resources/PDF/ asserted that the assessment had been wrong Ⅵ R (Dempsey) v Sutton LBC Policy%20free%20download%20pdfs/How%20to% 20manage%20income%20collection%20 and that he was a child. C1/12/2342, effectively.pdf. In judicial review proceedings, Walker J held 21 February 2013 13 Available at: www.insidehousing.co.uk/need-to- that the age assessment had been manifestly The claimant was disabled. She lived in know/briefings/cash-is-king/6525862.article. flawed. The outcome had been recorded as residential accommodation provided by the 14 Available at: www.dwp.gov.uk/docs/s2-2013.pdf. ‘inconclusive’ and requiring ‘further work’ but council and part-funded by the local primary 15 Available at: www.publications.parliament.uk/ no further assessment had been undertaken care trust. The council decided that on 15 pa/cm201213/cmselect/cmhaff/836/836.pdf. (para 71). Furthermore, the social workers December 2012 it would move her to 16 Available at: www.oft.gov.uk/OFTwork/markets- work/othermarketswork/lettings/. had not put their concerns about his asserted alternative accommodation. The claimant did 17 Gurminder Birdi and Suzanne Bird, solicitors, Moss age to the claimant for comment. The not consider the alternative accommodation & Co, London and Liz Davies, barrister, London. detention had been unlawful and damages suitable for her needs. In November 2012, her 18 Tony Martin, solicitor, South West London Law would be awarded. solicitors asked the council for copies of the Centres®. Ⅵ R (AT, AG and HG) v Islington LBC care plan and needs assessment on which the [2013] EWHC 107 (Admin), decision to move her had been based. Despite 1 February 2013 reminders, these were not provided. On 14 The claimant and her two disabled sons sought December 2012, the claimant issued judicial judicial review of an assessment of the family’s review proceedings and obtained an interim needs made under the Children Act (CA) 1989. injunction preventing her from being moved Their accommodation was overcrowded and before a trial fixed for March 2013. was not on the ground floor. It was unsuitable The parties then negotiated an agreement given the disabilities of the children. The under which the claimant would be challenge was put on the basis that the accommodated at a disabled persons’ unit with assessment had failed to deal with the various support. She applied for her costs. A High contingencies which might arise in relation to Court judge refused because: the provision or non-provision of temporary or Ⅵ she had issued the claim rather than pursue alternative housing. alternative remedies such as a complaints Philip Mott QC, sitting as a deputy High procedure; and Jan Luba QC is a barrister at Garden Court Court judge, dismissed the claim. The Ⅵ it was impossible to say which party would Chambers, London. He is also a recorder. assessment had been lawful and reasonable. have succeeded at trial. Nic Madge is a circuit judge. The authors are The family had housing needs but they were The Court of Appeal allowed an appeal. grateful to the colleagues at notes 17 and being addressed by their application under the Alternative remedies had been inappropriate in 18 for transcripts or notes of judgments. council’s allocation scheme. the circumstances of urgency and the outcome