HOUSING LAW PRACTITIONERS’ ASSOCIATION

Minutes of Meeting held on 18 September 2002

Abbey Community Association

Mental Health, Community Care and Housing

Chair: Anne McMurdie, Anthony Gold Solicitors

Speakers: Sally Hughes, Fisher Meredith SolicitorsStephen Knafler, 2 Garden Court Chambers

Chair: I would like to welcome you to this evening’s meeting on Mental Health, Community Care and Housing. Our first speaker is Stephen Knafler of 2 Garden Court Chambers, followed by Sally Hughes of Fisher Meredith Solicitors. There will be an opportunity at the end of their speeches for people to ask questions. So I would like to thank Stephen Knafler for coming to speak to us this evening and hand over to him.

Stephen Knafler: Thanks very much for the invitation to speak tonight. I intend to talk about rights to housing found in mental health and community care law but one should be aware, however, that mental health and community care law does contain other housing related rights. For example, under Section 2 of the Chronically Sick and Disabled Persons Act 1970 local authorities are under a duty to provide practical assistance in the home and also adaptations where necessary to meet the needs of the disabled person. Under Section 23 of the Housing Grants Construction and Regeneration Act 1996 housing authorities are under a duty to provide disabled facilities grants and that is a resource free duty. See the case of R v Birmingham ex parte Mohammed which is at 1999.1 Weekly Law Reports 33. Further, for example, I have never seen it used for this purpose, but the duty to provide after-care services at Section 117 of the Mental Health Act 1983 is plainly broad enough to require adaptations and other housing work to be carried out. As indeed, is the duty at Section 17 of the Children Act 1989. Now there are limitations inherent, currently, in the law relating to disrepair. For example there is no duty to carry out necessary improvements, no civil duty to abate statutory nuisances, no general civil liability for noisy dwellings, etc, etc. So it is foreseeable that practitioners might turn to mental health and community care law to bridge these gaps in legal provision in appropriate cases. But I am not going to talk about that this evening other than to the extent that I have already done so. I am going to talk about community care and mental health rights to housing and I am going to try to follow the notes that I hope you have reasonably closely.

The main sources of housing rights are found at Section 21 of the 1948 Act, as you see there. That contains the duty to provide residential accommodation which has been judicially defined as including ordinary accommodation. Section 17 of the Children Act contains a duty to provide services which has been judicially defined as including accommodation, Section 20 of the Children Act, accommodation. Section 117 of the Mental Health Act 1983 contains a duty to provide after-care services; again that has been judicially defined as including ordinary accommodation.

Now first of all, there has to be an assessment of need and a care plan. The provisions listed at paragraph 2 of the notes make it mandatory for local authorities to carry out assessments of need and prepare care plans. The duty arises in each of these three different fields; National Assistance Act 1948, the Children Act and Mental Health Act, the duty arises when there is merely an appearance of possible need. So there is a very low threshold. The authority for that is the case of R v Bristol CC ex parte Penfold mentioned at Paragraph 4. Penfold applies to assessments under the 1990 Act, that is for adult services, but it is not possible to distinguish those sorts of assessments from assessments under the Children Act or the Mental Health Act and to say that a higher threshold applies. If no assessment is carried out, the remedy is judicial review.

Assessments, moving on to paragraph 3, must comply in substance with detailed guidance issued under Local Authority Social Services Act 1970. This is quite distinct from the duty merely to have regard to guidance that one finds at Part 7 of the Housing Act 1996. The guidance requires there to be generally written assessments, consultation with health and other professionals, with carers, obviously with the service user. They require there to be a full disclosure of what the local authority’s eligibility criteria are and, quite usefully, they require the views of the service user to be ascertained and recorded in writing. And for points of difference, divergence between the local authority view and the individual service user’s view to be recorded and for those points of difference to be explained and justified. There are also, in the Children Act guidance, namely The Framework, there are also time limits for the assessment. Seven days for an initial assessment and thirty-five days for what is called a core assessment. And there are a number of other detailed provisions that one needs to be familiar with and, as I said before, the local authority must comply in substance with the guidance so that any substantial deviation from the pattern and from the requirements of the guidance is unlawful. I should also state that all of the guidance mentioned in these notes can be downloaded from http://www.doh.gov.uk/publications/coinh.html. The one thing you cannot get from there is the policy guidance which you have to buy from HMSO under its proper official title of Community Care in the Next Decade and Beyond.

Now, in relation to children without families, at paragraph 5, there is a statutory duty at Section 20 of the Children Act 1989 to provide accommodation for children in need within the local authority area where there is no-one with parental responsibility. Where the child is lost or abandoned or where his carer is unable to provide him with suitable accommodation or care for whatever reason. The accommodation under Section 20 is, on the face of it, just for the child. By virtue of Section 23 of the 1989 Act it must be with a family, a relative or some other suitable person or in various sorts of children’s homes or in accordance with other suitable arrangements. It is highly contentious whether such arrangements can include ordinary bed and breakfast or housing and what one sometimes sees is local authorities accommodating children in need under Section 20 in that sort of accommodation. But there is a strong argument that that is unlawful because those arrangements are not included in those specifically enumerated in Section 23, namely with a family or in particular types of caring institutions.

Moving on to paragraph 6, it was and it still is, although it should not happen any more, the scandal whereby children would leave care under Section 20, often having been in care all their lives or most of their lives, in an abrupt and unplanned way. I mean one is familiar with reading letters which go virtually like this: ‘Happy Eighteenth Birthday, here is your notice to quit, please go to the housing department’. The Children (Leaving Care) Act 2000 is designed to remedy that. As you can see from the notes, if you have been a child looked after for at least thirteen weeks after the age of fourteen and you are still looked after as you turn eighteen, there are a number of duties on the local authority preparatory to the child reaching the age of eighteen and afterwards. First of all there must be a pathway plan which is an assessment of the child’s likely future needs. There must be a personal advisor, a sort of care co-ordinator, who ensures that the needs are met. And then under Section 24 there is the on-going duty to continue to provide children after the age of eighteen and up to the age of twenty-one years with the same assistance that was provided before the age of eighteen, including accommodation. Of course, accommodation in the sense of ordinary accommodation should not be necessary for children leaving care on account of the new Homelessness Priority Need for Accommodation England Order 2002. Which, as you all know, makes every former looked-after child in priority need up to the age of twenty-one and renders them in priority need after the age of twenty-one if they remain vulnerable.

Paragraphs 7 and 8, as I think you will know, Section 20 of the Children Act 1989 is the vires for the provision of accommodation and other services to unaccompanied asylum seeking children. And it is cheering to read the Children (Leaving Care) Act 2000 Regulations and Guidance to note that the Department of Health goes out of its way to make it clear to local authorities that all those provisions about pathway plans, personal advisors, so on and so forth, do apply to unaccompanied asylum seeking children who are reaching or passing the age of eighteen. And specific provision is made for such children who obviously will not qualify for housing assistance under the Housing Act like other children reaching the age of eighteen. But specific provision is made to ensure that they are not dispersed. Children with families have become more contentious in recent months. The attention is currently focused on the three cases set out at paragraph 9. R(G) v Barnet LBC if I can just explain that case a little bit. The interesting thing about Section 20 of the Children Act 1989 is that the duty to provide accommodation

2

to the homeless child in need is, without any doubt, specific and individually enforceable which may not be the case with provision under Section 17 of the Children Act. So relying on that and building on it, the submission made in G was that Section 23(6) of the 1989 Act added to the specific duty at Section 20, a duty to secure accommodation for both child and carers under Section 20. And what Section 23(6) provides is that in making arrangements under Section 20, subject to any regulations made by the Secretary of State, the local authority must make arrangements for the child to enable him to live with a person falling within another sub-section, ie a parent, unless that would not be reasonably practicable or consistent with his welfare. In other words, Section 23(6) requires arrangements under Section 20 to be made to enable the child to live with the parent unless that would not be consistent with the child’s welfare. And the argument on behalf of the child in that case is that the making of arrangements to enable a child to live with his parent includes the entering into of arrangements with, for example private sector landlords, for accommodation to be provided. And thereby one bypasses all the arguments about Section 17 not giving rise to specifically enforceable duties. And that argument was accepted by Mr Justice Hooper and not accepted by the Court of Appeal and the House of Lords will have to make its mind up about it.

In R(A) v Lambeth LBC the background was an assessment of the needs of a severely disabled child or children which concluded that they needed more suitable accommodation. And the local authority did not accept that that assessment gave rise to any enforceable duty under Section 17. And then, this was the famous case where the Court of Appeal went completely mad and decided off its own bat and in the teeth of opposition from both claimant and respondent, that there was no duty at all under Section 17 to provide accommodation. And that no duty under Section 17 was specifically enforceable at the suit of an individual.

The third case in this lovely trio of cases is R(W) v Lambeth LBC where, unusually, the Court of Appeal completely reversed A v Lambeth so far as concerned the content of the duty at Section 17 and held that the earlier decision was per incuriam and that Section 17 did encompass the provision of housing and then modified slightly what A v Lambeth said about the enforceability of the duty by saying that social services authorities which are cash strapped would not be criticised as having acted unlawfully for failing to provide accommodation under Section 17 save in extreme cases. And I suppose that would apply to many London local authorities, hypothetically. I think the practical point to make about all of this is that little has changed for most practical purposes and little is likely to change for most practical purposes. If you have an intentionally homeless family with nowhere to go you will definitely get an injunction now just as you would have done six months ago or a year ago. Once it becomes clear that there are potential alternative housing options with relatives or friends and so on and so forth, then you will find the likelihood of the Court intervening in the local authority assessment of what is compatible with the interests of the children to be that much reduced. But there should be no confusion about the fact that, as I say, if you have an intentionally homeless family where on the facts there really is nowhere realistically for them to go, there is no difficulty at all on any of these cases in getting an injunction. Well in any of these cases if one leaves out A v Lambeth of course. I should say that the scope of Section 17 is not at issue in the House of Lords and in any event as you see from paragraph 10 amending legislation is coming along at least for persons who are not persons from abroad.

The R (J) v Enfield LBC case is very interesting because it draws attention to the very wide power at Section 2 of the Local Government Act 2000 to basically do anything the local authority wants for the benefit of individuals within the local authority area. And Mr Justice Allias held that that was broad enough to encompass the provision of accommodation to individuals. And broad though that power was, it could not be exercised so as to result in a separation between homeless parent and child because of the impact of Article 8. R (Ali) v Birmingham CC Mr Justice Moses held that duties under the Children Act gave rise to civil rights within the scope of Article 6 although he then went on to hold that judicial review was an adequate remedy. And then in R (Stewart) v Wandsworth, Hammersmith & Fulham and Lambeth LBC those three local authorities there, the Court held that the responsible local authority is the authority for the area in which the children are physically present. Even if they are they there for transient purposes, even if they are there simply during school hours while they go to school and even if they are placed there by another authority exercising duties under the Housing Act.

Paragraph 12 looks innocuous in the notes but it is in fact vital because if you delete ‘paragraph 12’ the typescript on the page immediately leaps into three different typescripts and fonts and various other terrible things happen! So that is the building block on which all of these notes are based!

3

In terms of adults the case really to look at first of all and to go back to is the case of R v Hammersmith & Fulham ex parte M, P, A & X which had a particular result for asylum seekers, as you see there. But the broader interest of M, P, A & X is that it established Section 21 as a kind of safety net in two different ways. Firstly, it made it clear that people who were not ill, disabled or old, etc. could be eligible for residential accommodation for special reasons, for example destitution. It also made it clear that residential accommodation could be ordinary accommodation and that there was not any special magic in that phrase. So that people who were ill or disabled or elderly and whose current ordinary accommodation was incompatible with their care needs have this other alternative avenue by which they could seek to improve their housing circumstances. It is still the case that residential accommodation includes ordinary accommodation despite quite heavy pressure from the Court of Appeal in the Abdul Wahid case to reverse the previous case law. The high point of the Section 21 litigation is probably the case of Tammadge where a woman had four children, three very severely disabled and autistic teenage boys and one young girl who was perfectly well, and who I recollect was called Precious, and in terribly inadequate housing circumstances. And she successfully used Section 21 to eventually obtain an order requiring the local authority to purchase two adjoining houses and knock them through to provide the family with the suitable accommodation which they definitely had coming to them and had had for many years.

For present day practical purposes I think one of the greatest uses of the 1948 Act is found really at paragraph 16. The 1948 Act simply contains no equivalent of intentional homelessness. If you are within what has been called the proud embrace of Section 21 because of old age, disability or other special needs you are in there pretty much for good no matter, within reason, what you do. The duty only comes to an end on the authority of the Kujtim case where someone’s behaviour has been so bad over such a long period of time that it manifests an unequivocal intention to actually refuse the service. The test is as high as that. Obviously the duty comes to an end if you actually do refuse the service in terms but whatever is the opposite of the sting in the tail is, the other nice thing about Section 21 is that the duty only remains ended if the circumstances do not change. So unlike the case with intentional homelessness where you have the mark of Cain on your forehead for quite a long time until you acquire settled accommodation or some other really significant thing happens. Under the 1948 Act the only change of circumstances that is needed is for the service user to come along and establish that he no longer has an unequivocal intention to refuse the service. So that is the effect of Kujtim. So for example, in the case of mentally ill people, they can lose their accommodation due to intentional homelessness. It is settled law in terms of homelessness that you can be in priority need because of mental illness but still be intentionally homeless when that mental illness leads you into anti-social behaviour. It is the case of Bell which is at 27HLR234. But that sort of person having been excluded from the housing scheme can still apply for residential accommodation under the 1948 Act and get within that much more liberal regime.

Just a quick word about Wahid: a practice had grown up of judicially reviewing local authorities whose social workers said in community care assessments that X client needs better accommodation. And the basis of these judicial reviews was that by saying in a community care assessment this person needs better accommodation the local authority had accepted that the client needed residential accommodation and therefore an enforceable duty to meet that need had come into existence. Now a Court of Appeal just said that was not the case, that the duty arises under Section 21 where an assessment establishes that the person concerned needs care and attention because that is the trigger phrase in Section 21. When social workers state in a community care assessment that a person needs better accommodation for health or social welfare reasons what they are in fact doing is complying with their duties under a piece of guidance that I should possibly have mentioned in the notes. It is called LAC (93) (12) Housing and Community Care. And what this guidance does, in addition to containing various sort of planning and co-operation duties between housing departments and social services departments, is enjoin social workers to champion the cause of their clients with the housing department to try to enhance their chances in terms of getting a transfer or under the Allocation Scheme. And that is basically what social workers are doing when they simply say somebody needs better housing.

Our other speaker is going to very kindly deal with mental health. I will deal briefly with human rights. We have incorporated the European Convention on Human Rights; we are at paragraph 18 now. Of course we have signed up to a number of other International Conventions. These Conventions do contain housing rights. In fact the International Covenant on Economic, Social and Cultural Rights contains a duty

4

on states to provide adequate housing for everybody. But we have not incorporated these Conventions into UK law so their use is limited but obviously by no means are they totally useless because they can be used to explain the ambit of other Conventions and obviously to explain ambiguity. I just thought people might like to be aware of the Concluding Observations of the UN Committee in relation to the International Covenant and you can find the Observations which are reported in the European Human Rights Reports where they deplore the UK’s failure to incorporate these internationally accepted obligations. For example to provide adequate accommodation for everybody. They deplore the failure to provide adequate education to judges and others about it and deplore what they regard as de facto discrimination against a number of vulnerable groups in the housing field. So when circumstances get desperate one can always think about dragging that out.

In terms of destitution, detained persons obviously has a possible utility by analogy with people who are not detained but with destitution one is sometimes asked what might happen to destitute people. Particularly destitute people from abroad, if and when, possibly more when than if, the Government further amends the National Assistance Act 1948 or the Children Act 1989 to exclude certain categories of people from abroad from all assistance entirely? I do not believe that such amendments will have the desired effect, if the desired effect is to reduce people within the jurisdiction to destitution whatever their immigration circumstances for two reasons. One Articles 8 and 3 but particularly Article 3 of the European Convention on Human Rights. In the R(Hussain/ASA) v SSHD case, paragraph 21, Mr Justice Stanley Burnton did not say that Article 3 requires states to provide the basic minimum necessities of life to people. He did not go that far because he did not have to on the facts of the case. But he did decide that to deprive people of those rights, once the state has afforded them, would be a breach of Article 3. And of course, most people from abroad will at some point have received some form of assistance from the state in one shape or form or another. The other relevant case is R(Othman) v SSW&P where there was some argument in Court about whether Hussain was correctly decided and Mr Justice Collins took the view that it really did not matter because outside of the ECHR our own common law recognised a duty to provide subsistence to persons who would otherwise be destitute. And the relevant case is the case re the inhabitants of Eastbourne where Lord Ellenborough Chief Justice said ‘as to there being no obligation for maintaining poor foreigners … the law of humanity which is anterior to all positive laws obliges us to afford them relief to save them from starving’. That is part of our common law. I have no doubt at all that Chief Justice Bingham would say the same in this day and age. And it may be interesting to read (or not) the ComBar lecture, the Commercial Bar lecture of 2001 which was given by Lord Hoffman, of all people. He decided that although it was a lecture to the Commercial Bar Association he would talk about public law. And he spent most of his time pursuing the rather contentious proposition that the Courts should not make decisions that might require the expenditure of public money because that was a matter for Parliament. But he did say, as a quid pro quo, that in the field of individual rights and freedoms, a field obviously highlighted by the ECHR, the Courts had a much freer rein. And he specifically stated in terms that he regarded it as being wholly incompatible with the European Convention on Human Rights for any individual to be left without the basic means of subsistence within the jurisdiction. In terms of Human Rights, just very very briefly, I draw your attention without going over them in any detail because time is moving on, to the three Italian cases at paragraphs 23 to 25. Three severely disabled Italian citizens, who could not unfairly be described as having been very awkward customers, have really carried the flag for disability rights in Strasbourg. Marzari v Italy, he behaved really appallingly and was therefore evicted but then re-provided with accommodation by the state who set up a publicly funded state body whose specific remit was to enquire into this person’s particularly unusual condition. He needed a temperature-controlled environment to keep him going. And complied with all that public body’s recommendations. One reads time and time again statements by the Court of Appeal in this country saying that of course Article 8 does not carry with it any duty to provide housing. That is of course complete nonsense. None of the cases say that and Marzari in fact makes it quite clear that although there is no general obligation to provide housing under Article 8, a positive obligation can arise in specific cases, for example, where a person is disabled. And time really is pressing on so I shall leave the other two cases drawing your attention in particular to Passannante. Thank you very much for your patience and I shall hand over to the next speaker.

Chair: Thanks very much for the contribution. I would now like to welcome Sally Hughes.

Sally Hughes: Thank you for asking me to speak. As you will see from my notes I have attacked the subjects in a completely different way, being the solicitor I am, as opposed to a member of the Bar. And I

5

must admit to feeling a little bit fazed by the sheer breadth of the subject matter. But I think the brief is very broad and I think it is one that is a big challenge to our profession. Most of us have grown up in a generalist, common law profession and now we are being squeezed into all the procedural specialities that have grown up out of our bureaucratised public funding systems. So we are a family or a housing or an employment or a welfare benefits or a particular sort of lawyer and the human story is getting lost in all of this. Well, it is not being lost; we are being confronted with the kind of cases that are presenting us with an amalgam of people’s problems. Our immigration clients have problems with the criminal justice system, our criminal clients have got housing and disability needs. The actual social profile of the people who are poor and who qualify for Legal Aid and who come to us with their problems is getting narrower and narrower. People who occupy social housing are becoming a narrower group of society; they are more likely to be mentally ill, whether it is because of their circumstances or whether they have a congenital problem or to suffer from some mental impairment or a learning disability. It has been mentioned by Baroness Scotland that it would be a nice idea if solicitors such as ourselves could act as a kind of legal social worker and deal with all the multi-faceted problems. But the client group that I am thinking of has a very special social definition. And a lot of what we have to do when we approach their problems is to consider them as people with the psychiatric or the psychological problems that they have and that many of the things that happen in their lives will stem from that. Or they may well be a carer of such a person and that is another story.

So I have included a preamble on access to legal services because in the normal course of practice you may not have encountered, I certainly had not until I started doing Mental Health Review Tribunals, clients who have a great deal of difficulty in instructing you. And who may be detained under section in a mental hospital or a psychiatric hospital or a psychiatric wing somewhere at the back of a general hospital that you spend hours finding all at Legal Help rates. And I mention some of the things that you might need to know about that. If you are visiting a secure psychiatric ward, a locked ward, you will have to make arrangements with the ward staff to visit your client. They are used to solicitors arriving to speak to people but the arrangements have to be made in advance. You may not have much contact with your client before you arrive because the only means of communication they might have with the outside world is one pay phone for a ward full of several dozen people. And a lot of those people may have mental health problems and the pay phone may be an object of severe contention between the people who have to use it. So there are various obstacles to getting your instructions. The Legal Services Commission will pay for out-bound travel if you get the form signed in advance somehow! I do not know if any of you have noticed that maybe things have changed since I was running around to hospitals a lot but these little things matter to us otherwise we do not stay solvent and we cannot do the job. But they tend to jam up the works when you are trying to explain what the form is, etc, etc.

When you meet your client, whether they are living in the community or whether there are some of the difficulties that I have described to you, they might be at some stage in their illness which makes it very difficult for them to communicate with you. In fact they may be very ill indeed and that requires quite a lot of time and patience and understanding of where they are actually coming from. And I do not have the time to describe or discuss the various difficulties that you might encounter. But something that ought to be in the back of your mind all the time is whether they are able to instruct you. Whether they may lack capacity and whether the people who might be helping to instruct you or seeing them with you or may have summoned your assistance have any conflicting interest. Also people who are undergoing a lot of treatment or who are in hospital will be very closely involved with the clinical staff who are providing their care and there is enormous antipathy to lawyers in some quarters. I do not say it applies everywhere but close and difficult and very important relationships grow up in psychiatric wards. And in order to give your client dispassionate advice and to enter into their concerns it is often quite important to establish with them what your role is and how far they can trust in you and the confidence that they can place in you. It is often very difficult to establish a relationship of trust and confidence for many reasons. And partly it is when someone is disorientated they may have come to rely on clinical staff to support them or a relative or they may have symptoms that are to do with their illness that makes it difficult for them to trust you. They may be experiencing feelings of paranoia, those of detachment, all sorts things like that. So it is a different scene and it is something that you may need to acquire a feel for but I think the thing is to be aware of those potential issues when you are dealing with your client.

I am really thrilled at Stephen’s wonderful setting out of the legal regime, or the legal scenario that we have. The only thing I would say about it is that we have had a very exciting year, I suppose, ever since A

6

v Lambeth was decided. All this law, it is not so much the usual kind of stuff we put in our blender and then dip out the tablespoon of what we need when we have got the facts together and we know what we might need for the client. It has been changing from week to week at times, hasn’t it? And I have had letters from defendants explaining that we should not issue yet because there is another case coming up that might blow us out of the water so why do we not just shut up for a bit. I think W v Lambeth was meant to be the magic bullet that would solve all the problems of the community care system but I think it raises more questions. But I think the thing that I feel about a lot of these cases is that they are very much determined on their facts. Even the appeals that we have gone through, and some of them are very, very long and convoluted, but if you actually un-pick a lot what is going on in them there is plenty of scope for casting your arguments. It gives us a lot of clues as to how we should be approaching some of the issues to do with community care assessments, how we approach the subject of asking for accommodation for clients. And so it will be interesting when we have our discussion period to knock that around with some real live cases maybe to talk about but I will not dwell on that in enormous detail. But it is a very live and exciting time to live in.

The next thing I wanted to talk about was how the kind of accommodation getting and community care planning process actually works for people with mental health problems. There is, as you will have realised by now if you did not before, a lot of departmental guidance in the area for all the professionals concerned, the clinical professionals who also have their medical and clinical background to bring to it, the social workers and the housing officers. There has been a raft of recent legislation on health and social care and what has been set up in recent years are two things. One is a hospital and treatment care regime called the Care Programme Approach. It is often referred to as the CPA, you hear about your client’s CPA meetings. The essence of this approach is that someone who is admitted as a psychiatric in-patient should not be left to rot in hospital and just simply maintained on a treatment regime. Every contact they have with the consultant and with the clinical staff should be governed by a programme which should be directed towards their ultimate discharge from hospital. And when you are dealing with defendants or if you are dealing directly with professionals on the ground at the outset of your cases or if you are trying to enforce agreements that have been made, it is worth keeping in mind that you are trying, often, to propel along the Care Programme Approach and to remind them that this is what is supposed to be happening for your client. It is very important if you are in at the sort of ground floor level, if you like, at the hospital admissions stage that this is what should be happening. And that you should be asking for the CPA reviews and, if necessary, if things are getting complex and you are making quite a strong case for certain outcomes that you are invited to the CPA meetings. And it does happen, it happens in Mental Health Act practice and it does happen to me in the community care practice.

Recent events and Stephen’s presentation has obviously drawn your attention to the distinction between the two legislative avenues into the community care system. It may differ from authority to authority. It should be part of the CPA approach that there is a referral to a social worker. That social worker will normally be attached to the mental health service of their local authority. But in some instances where they have been set up and this will become a national pattern, there is what is known as the joint service which has long obtained for people with learning disability but is now being extended to virtually all clinical and social services. The patient may often be discharged into a joint social services and health care regime and that is the next institution, if you like. If they have been detained under section, Section 17 of the Mental Health Act actually provides for services. It is a self-contained provision which allows for an assessment and for services of any sort and they are just as loosely defined, if you like, as Children Act Section 17. And the recent case that we have all been waiting for has decided, the Watson case, that there will be no charging for accommodation under that provision. So it is potentially a very valuable provision for your client because they do not have to pay for their accommodation if they are given accommodation.

A lot of the accommodation that is actually provided for people who reach the threshold for Section 117 services is, in fact, supported living accommodation in hostels and the like where the requirement to actually pay rent does not arise and different financial mechanisms might operate. But it still has led in the past to the deduction of benefits that was the subject of the House of Lords appeal. So often the CPA plan, this is where the linkages comes in, will include the type of support, the type of accommodation, the degree of support. When I say support, in the hostel accommodation I am thinking of there are often support workers working full time to help the residents with their daily living needs, to help to induct them back into looking after themselves, cooking and shopping, etc. etc. If they have been using street drugs or

7

they have alcohol problems or they have to take medication or they are under some form of other Section 25(a) supervision order, for instance, under the Mental Health Act they will assist your client to comply with all of those conditions or to gradually acquire the living skills they may need to get into independent accommodation. Our role if we are advising or even acting for someone who is going along that path is then to advise at different points and to assist with each transition to make sure that they do receive the assessments and reviews that they should be getting under the guidance. That if their circumstances change and that will trigger a reassessment under Section 47 of the NHS and Community Care Act, that that happens. And that, ultimately, they are heading out for independent accommodation in their own place in the big world. So that is a scenario that I very much keep in mind that their problems are not solved in one big blast, very frequently. It is a sort of salami slicing type of approach where when you are asked to advise you are trying to lock in to where they are along that road and thinking what provisions will apply to them at that stage and then seeing it through until there is a point at which you can disengage.

Section 47, just to sort of step back a bit, is not at all as embracing as Section 117 because it is now being described as the ‘gateway’ provision. It simply entitles you or your client to an assessment. The ‘threshold criteria’ will differ for an assessment under the 1990 Act because basically it is directed towards the whosoever who may have disability or need for care and support in the community. Every local authority is allowed to set its own threshold criteria. Obviously if the threshold is set too high and I know that at least one outer London Borough is attempting to manipulate its social services budget by raising the stakes for an initial assessment, then I would imagine that would be challengeable. But nobody has challenged it yet to my knowledge.

Stephen Knafler: I am sure it would be eminently challengeable.

Sally Hughes: Yes, but I have not seen that they have implemented it yet. It is Bromley in fact, our old friends.

Stephen Knafler: Well in that case it would definitely be challengeable.

Sally Hughes: But that is the first thing to look for. Does your client have a disability that would meet the local authority in question’s threshold for a social services assessment? It is always a good idea to give it a go. They can always say no and then we can always argue about it but I think it is a question of getting the feel. The case law is often not a great way of getting the feel for things because these are the tough cases that go the distance. But it is always worth just using your common sense because basically it is can a person live their life without the support of other people? And I have also put a little note about there are collateral provisions that you should be thinking about advising on. There are two sets of carers' legislation now. There is the 1995 Act and the Carers and Disabled Children Act 2000, which does not just apply to the carers of disabled children. There is a raft of provisions for carers of adults to obtain their own independent assessment that is not parallel with the service users assessment. And it is always worth remembering that. Because, particularly where mental ill health or learning disability is involved, the person with the mental illness or the learning disability is not always able to express a view about whether they want to accept services from a local authority or whether they would prefer their carer to carry on caring for them and knocking themselves out to do that. And so some relatives also may need advice on those other provisions and similarly the disabled facilities grants provision with which I am sure many of you are familiar.

A word about materials, obviously there is the excellent Legal Action which does the community care law update periodically. The text I use most of all, the thing I thumb through and refer to an awful lot is by Luke Clements and that is also published by LAG, it is called Community Care Law. And for the Mental Health Act, it is quite hefty but it is easy enough to carry out to hospitals is Jones’ Mental Health Act Practice. It is now in its eighth edition. Two editions came out very quickly because of the Human Rights Act. But it is absolutely compendious on a lot of these things including some case law on community care which has arisen in relation to people who have come within the provisions of the Act and it is published by Street and Maxwell.

Issues for people with mental ill health. I think a lot of these are scenarios that you can imagine might occur. It is very often the case that someone who is ill or who has a learning disability such that they are finding it difficult to cope with their lives often stand at risk of losing the housing that they have been living

8

in that is rented or even that they own. And if they are compulsorily admitted to hospital this can be a very rapid process. Their housing needs, things that might have happened to their flat during their absence are not always brilliantly taken care of. And they may be in hospital and faced with notices of possession and so on. And that is the point at which, as housing practitioners, you may be called upon by a mental health practitioner who is not able to handle the case. There are many scenarios but this is one that comes up over and over again and often the clinical or social services staff who are involved with them do not actually appreciate the urgency of acting quickly and that would be a straightforward possession case. There is a lot of very basic housing law that obviously can be applied but it is knowing the context and so on. Preserving housing is most important for inpatients, particularly if they are compulsorily detained, because having stable and secure housing to return to on discharge is a factor that is weighed by the Mental Health Review Tribunal. It may well be that your client meets the criteria for discharge so far as their mental state and their mental health is concerned but tribunals will be reluctant to give an absolute discharge if they have not got a home to go. And again, there is a lot of forward planning and thinking ahead to do if you are involved in the CPA meetings, if you are involved with the social worker and so on. It is thinking what their housing opportunities will be and thinking pro-actively about how you can be seeking to make sure that they are getting their accommodation properly and legally provided. And I actually mentioned when I was talking about the third bullet point that I have put ‘housing provision on discharge’ and the route to independent accommodation was what I was referring to. And last but not least is the great residential homes question about which there has been a lot of case law and about which we have not really alluded very much. But a lot of the issues that I have touched on here including capacity to instruct and so on and so forth do apply to these cases. And again, they are hybrids as indeed are a lot of the community care matters that we have been discussing because they generally involve the global needs of the client in terms of their care and their accommodation. And I am afraid it will have to be another story for now but that is certainly part of the agenda.

Chair: Thank you Sally very much. Now is the opportunity for you to ask questions to either or both of our speakers.

David Watkinson, 2 Garden Court Chambers: This is for Stephen. Going back to W in your paragraph 10, you said the scope of Section 17 is not at issue in the House of Lords. I understood but I may have got it wrong that the issue of whether or not Section 17 imposes a target duty is still a live issue in the House of Lords. That is one question. The next and related question is given we have this trio of cases including A and followed by W saying that Section 17 is a target duty, what part does that play in the submissions that you make when you go along for your injunction for your intentionally homeless family?

Stephen Knafler: What is not at issue in the House of Lords is the content of the Section 17 duty, namely that it includes accommodation. One of the things that is at issue is the extent to which local authority action can be challenged including the target duty question. Maybe I can just briefly explain what we say about that in the W case? What we say about it is that firstly if one looks at Section 20 there is a specific individually enforceable duty. There can be no doubt about that. If the making of arrangements under Section 20 and Section 23(6) includes the entering into arrangements for the provision of tenancies then the problem is solved. One does not even have to look at Section 17 to find a specifically enforceable individual duty to provide accommodation to the whole family. But leaving that to one side and looking at Section 17, what we say is you just have to look at the language. It provides not that local authorities shall have a power but that they shall be under a duty, albeit that the duty is a general duty there to provide a range and level of services appropriate to the needs of children in need. There is a simple point about that. That how can anybody say that a level of service is appropriate to the needs of children in need, getting back to the range of services, how can you say the level of services is not appropriate to the needs of children in need within the area if it does not mean the needs of those children because it has not got the level right? So that duty is simply not being met. Anyway, that is just one of the arguments. In terms of dealing with applications for an injunction tomorrow, the first thing to say where the facts warrant it is that W v Lambeth says that in an extreme case, in effect, the local authority must exercise its power to accommodate parents and children. And if you have a case where, on the evidence, there just is nowhere for the family to go then I think even the Court of Appeal would have to accept that that was an extreme case. And one simply gets by on the back of W v Lambeth, as it were. But the fall-back position is simply to say that W v Lambeth is wrong. The House of Lords has granted permission to appeal which shows that it is arguably wrongly decided and that the Court therefore should grant interim relief so that the status quo is preserved and so that everyone’s position is preserved. Although I should point out, and it may be

9

of particular use to know, that in the case of W v Lambeth the Court of Appeal did grant an injunction requiring the continuation of accommodation for W and her family right up until delivery of judgement by the House of Lords.

Liz O’Hara, North Kensington Law Centre: I just wanted to ask something about the Section 117 duty. I have had a number of clients recently detained under Section 3 and then discharged, literally with a letter to the Homeless Persons’ Unit who then come into the Law Centre later and it does not seem that anything is being provided under that Section 117 duty. What I want to know is whether retrospectively you can insist on assessments once someone has been discharged?

Sally Hughes: Yes, there is case law to say that the Section 117 duty is not sort of discharged or forgotten about once the person has left hospital. And in fact I cannot remember the title of the case but there was quite a considerable period in the case that was decided between the hospital discharge and the resumption of the Section 117 services. I think that on the facts of that case it was that they had been given Section 117 services that had then been terminated and then they had needed support again. So there is nothing to say that if you have not had it on discharge then you cannot have it. In fact, we are constantly harking back to it, I am sorry that it has gone out of my head the name of the case, when we are seeking Section 117 services for former Section 3 patients. And if it is happening time and again with the same hospital, the difficulty for you is that the client does not arrive until after they have been discharged so you are not able to do anything pre-emptive while they are still in hospital. And they have not been, presumably, allocated a social worker. So it is a letter to the responsible authority which is the local authority. Although it is also worth getting heavy with the Chief Executive of the NHS Trust so that they know because I would join them actually, because it is almost certain to be the case that they should have been referred into a joint service especially if they have been detained. But the over-arching responsibility is with the local authority who must then approach the NHS Trust to provide the clinical limb of the assessment and service provision. And to give them a very short deadline because obviously it is an emergency, they do not have anywhere to live and they need services.

Colin McCloskey, Jacqueline Everett & Co: I just wanted to underline a couple of points and then perhaps ask for your comments? The first is to emphasise the importance of Section 47. I would urge you to read even if it is just the first few paragraphs of it because it says that the local authority must carry out an assessment when it appears to them that the individual may need community care services. That in itself is extremely valuable to us as housing lawyers. If you are not a community care lawyer you should not get worried and concerned and confused by the great list of all the different Acts under which the community care services can be provided. The criteria the local authority must draw up is for the services that they provide. Is an individual eligible for services? That is what that criteria is for. The stage before that is what the local authority must do, which is to assess that person’s needs, provide that written assessment and then compare that with their eligibility criteria. I do community care and I certainly do not want to sit back and say to individuals ‘well I think your disability is this or it is to such an extent’ and we, as lawyers should not get trapped into that and we should not get tied up with the difficulty. It is the local authority’s duty to carry out the assessment, we ask for the assessment. Certainly you can give some indication as to why they need it and what you are aiming for but I am a bit cautious because you might then be closing some doors on certain things that you have not spotted or know about.

What I get very often is an assessment, unsigned by the client, saying here is your assessment. What was said earlier is definite, the assessment must include a comment by the individual: their comments on the assessment. That means that they must have seen the assessment. What I argue is that I do not like the assessment, no you have not finished the process, you have not finished the process of assessment. There is still a legal duty; you still bang them over the head with that until you get what you want. Saying ‘my client does not want this’, you must record it and I have very often got assessments changed in that way. The only other thing that was touched upon by Sally is that the Watson case is extremely important to us as housing lawyers. Someone has been in hospital under Section 3 and I am not sure whether it has been explained. Section 3 is when someone is detained for up to six months for treatment, that is when the Section 117 duty applies to provide an assessment and services. When they have been detained and discharged and it has been said that services must be provided and that will nearly always include accommodation. If you have someone either who has got a possession claim against them for rent arrears or any other claim, then you immediately go back to social services and say you should be paying this. And in fact people have got refunds back from social services, from the landlords, from local

10

authorities because they were never actually obliged at all to pay it. Now there is a moot argument there but it is certainly something that we can actually push and try.

Chair: Thanks Colin, do you want to respond?

Sally Hughes: Yes, I think there is some misunderstanding. Local authorities can operate a threshold for a Section 47 assessment which is not assessing for the specific services and that is the first step. It is very rare, it has never been the case that I have written and said there should be an assessment and they have not assessed because you include in the letter what your client’s disabilities are. But they can operate a threshold. It is usually so low as to be invisible when concerning the clients that may come to see us. But I was not referring to eligibility for the services that then follow on once the assessment is done. But perhaps I did not make clear that the assessment process is a separate and discrete and first stage. And it is very often the case that the professionals involved will be thinking of the end point before they have carried out their assessment. And it is something that we should be aware of because it is the whole spirit and tenor of the Act that the assessment must not be influenced by considerations of what we think the outcome is or what they think or what the professionals would like or what the particular bit of cake that has got to be divided up. Yes, there will be arguments about whether your needs can be met and that is all built into the legislation and the Guidance and the case law. But this is definitely a two-stage process and that is something that I think we have to be very firm about.

Tracey Bloom, Doughty Street Chambers: It is a sort of embryonic issue that I would like to have some feedback on which is to do with the choice-based letting schemes that a lot of the London Boroughs have now brought in. They have just brought them in and they are called choice-based letting schemes. Brent and other authorities in London have started them in relation to one-bedroom properties which seems to me are likely to be effecting people perhaps with mental health difficulties. I am ready to be corrected as to my understanding of how these schemes are going to run, but they are partnerships in London Boroughs. And the idea of these policies is that there will be web-sites or adverts going up and the local housing authorities will say you can come in and choose and you can bid for this property. So there may be ten one-bedroom properties up for grabs and all the people who are on the housing waiting list will get letters and they can come in and bid for their flat. And it seems to me that this is going to be very difficult for people with mental health and learning disabilities to operate and that it is a problem which we should identify because some of these policies may be unlawful. Other people may know more about these policies; they are just coming into being now as I understand it. They are unpublished which is probably why I have not seen one yet. But I do know that people are getting letters saying you will be able, as of September, to bid for a one-bedroom property and it does seem to me that this must be discriminatory for the type of client we are talking about here.

Chair: I think Stephen wanted to respond briefly on that.

Stephen Knafler: My understanding of Part VI of the Housing Act 1996 is that it requires housing authorities to have allocation schemes which are a) rational and which b) give a reasonable preference to certain categories of people among whom are surely to be found mentally ill individuals. And it is difficult, on the face of it, to reconcile the sort of floor of the Stock Exchange ethos translated to the local housing office that you have just described with that regime. Although, having said that, I think one would need to look at the regimes very carefully indeed to work out exactly what is going on. Because no doubt the local authorities concerned have taken advice about these matters and to have found some way, at least on the face of it, to make them compatible with a scheme which appears, obviously, to be fundamentally incompatible.

Chair: Thank you. We are running slightly short of time but two brief questions.

William Flack, Flack & Co Solicitors: I have got a question for both speakers. I think the best way to look at it is in terms of the issues that Sally has raised and this would be how you would feel about a further category of housing issues for people with non-acute mental illness and those which do not give rise to lack of capacity but are nevertheless debilitating? How we can pinpoint what you were describing as invisible thresholds? I always feel like I am being very naïve and about to open the floodgates if I ever suggest this but it comes up so many times in case work that I do. Which is that there are so many people out there suffering from depression to a debilitating degree which does not give rise to dysfunctional

11

behaviour so that people would recognise it as mental illness. But nevertheless it is debilitating, particularly when it comes to say renewing a housing benefit claim which has to be one of the most common forms of possession orders that I find. It is just simply people not being able to get their act together to do it. Now where I feel naïve is saying that that would give rise to a need for services from the council in that they need somebody to help them. To remind them to complete the forms and actually to fill them in and to make sure that they do not post them rather than take them in personally; those sorts of things because the result would be the loss of their home. Now do you think that would be something that would be covered by, say, Section 47 and if not I would be interested to know why not?

Sally Hughes: It is definitely covered by Section 47. On the straightforward question, would you get a Section 47 assessment about that person’s ability to cope and the services they might need, there are lots of services that are basically befriending or support services or call it what you will. I have had clients who have suffered from dyslexia and support has been given to them as a result of Section 47 assessment for someone to come and help them with their paperwork. The person in question that comes to mind was the mother of some severely disabled children and she was getting lorry loads of assessments and reviews and official correspondence. And her rent problems were mounting because Lambeth messed up her housing benefit for years and so on and so forth. Notices of possession, she almost lost the flat, loads of things like that because she could not understand the letters. She was mildly depressed but just simply on the basis of her dyslexia and her needs which was that she had an awful lot of paperwork she then got the services for which she was assessed. She was provided once a week for someone to come in and go through everything with her and get it all in order and colour coded. So that anything is possible. What you may find after you have fought the big battle for the assessment and got all of that and made sure it has been properly finalised and all the bits done and your client consulted about it and the clinical bit has been submitted is that you are then in an argument about service provision. And then you have to identify what can be statutorily provided. But generally there is cover for all things for a lot of these services. And an awful lot of people with chronic depression, chronic schizophrenia, that are sort of surviving at some sort of a level do need help with daily living. Just someone to come along and motivate and just call in on them and make sure that they are not still in bed, etc. And those services are provided, yes.

Stephen Knafler: I would just add to that. There remains a widespread tendency to discount depression in terms of its significance. And from a legal perspective there is a very useful passage in a case called R v Newham ex parte Lumley which is in the Housing Law Reports where Lord Justice Brook takes issue with Newham’s rather dismissive attitude towards depression. And he cites an interesting passage about depression from a recent Law Commission Report and really emphasises how serious it can be.

Chair: I would like to thank both our speakers very much for interesting and informative contributions. We move on now to the next part of the meeting to do something that I omitted to do at the beginning which was to see if anyone has any corrections to the Minutes of the last meeting? In which case I would like to ask Andrew Brookes to do the Chair’s Report please.

Andrew Brookes, Anthony Gold Solicitors: The first thing I wanted to do today was to plug the HLPA conference. Everyone who came in today got a leaflet and an application form for it. It is on 5 December at the Royal Institute of British Architects in London and it is called Housing Law in Action. It is a full day and I hope it will be both stimulating in terms of discussion about general issues in housing law and providing practical information. You can see from the programme inside the leaflet that we have got many of the leading luminaries in housing law speaking, including the Independent Housing Ombudsman, Professor James Driscoll, Professor Martin Partington, the Lord Commissioner, our former Chair Wendy Backhouse and Caroline Hunter. In the afternoon there are workshops on various issues including community care and housing law, followed by a retrospective of this year and a look forward to next year by Jan Luba and Russell Campbell. We are expecting it to sell out very quickly, particularly when October LAG comes out because the insert will be in there so please apply today. You will see that there are substantial discounts for HLPA members, and it is open to non-members as well, and it is much cheaper than any equivalent commercial course.

There was one other thing that I would like just to mention to members, which is the fact that it is likely that a panel for housing solicitors will be set up. I say solicitors advisedly. The Law Society tell me that it is being dealt with urgently which in Law Society terms means it may be some time before we actually see it. But it is also the case if you look at the Legal Services Commission’s Corporate Plan that they want to

12

encourage specialist panels for areas which do not have them and as soon as possible. You might know that family practitioners, for example, who are members of the SFLA panel get an enhancement on their Legal Aid rates if a panel member does the work. I think it is likely that may come to housing law. On Friday I am sharing a platform with the Chief Executive of the Legal Services Commission, Steve Orchard, and it would be helpful for me to communicate the views of the members about the issue of whether there should now be a housing panel. You might remember that a couple of years ago it was raised but was dropped. I know that there is not time now for a debate or a discussion of the pros and cons but I am sure most of you have thought that sort of thing. I would be very grateful if we could just do a straw poll of people here that I can pass on. For those who think that a housing panel would be a good thing, if you think that could you just raise your hands for me just to give us some idea? What about those who think it would be a bad idea? So there is a significant minority who think it is a bad thing. If people want to talk to me about that or e-mail me then please do so because I think it is something which is going to come up very shortly.

Chair: Thanks very much Andrew. I would now like to ask David Watkinson to update us on HLPA’s Housing Law Reform activities.

David Watkinson, 2 Garden Court Chambers: Martin Partington, when he addressed us earlier in the year, promised us a consultation paper on succession as part of the Law Commission’s rolling programme for the reform of housing law and it came out last week. And it is not just about succession; it is also about co-occupation, joint tenancies, notices to quit and succession. So that is why it runs to 156 pages, which is only about 50 pages shorter than the first one. So that looks like a meeting in early October to cope with the closure date for responses which is 15 November of this year. I have not fixed a date with my fellow working group members yet, but if there are other members in here tonight who want to be involved, then could you either leave a message at 2 Garden Court on 0207 353 1633 or e-mail me at davidw@2gardenct.law.co.uk.

Chair: Are there any other HLPA sub-committee report backs? No, in which case we move on to the Information Exchange part of the meeting.

Jan Luba QC, 2 Garden Court Chambers: I wondered, Chair, if I could start the Information Exchange in the same way we started the information exchange at the last meeting which was to look at the commencement of the Homelessness Act 2002? Colleagues will be aware that the homelessness provisions of the Homelessness Act 2002 were commenced in England at the end of July 2002 but, as we noted last time, the homelessness provisions in England were commenced without two of the most critical provisions. Those provisions were Section 11 of the Act and Schedule 1 paragraph 17. Those two provisions would: firstly, extend potentially the twenty-one day time limit for bringing an appeal to the County Court (at the discretion of the Court) and; secondly, would enable the Court to hear an appeal against a local authority decision to refuse to accommodate a homeless person pending a Section 204 appeal.

At the last meeting I raised the possibility that the Association might write to the Government protesting at the failure to introduce those two provisions (particularly as the Welsh Assembly had decided to introduce those provisions and all the other homelessness provisions in Wales with effect from 30 September). I am pleased to report to the meeting that, whether as a result of the very persuasive HLPA letter or otherwise, the Government has decided to commence those two provisions and they will both come into force in twelve days time on Monday 30 September 2002. It will therefore be necessary for the Civil Procedure Rules to be amended to cope with the commencement of these two new provisions. Accordingly, the Deputy Head of Civil Justice, Lord Justice May has made a practice direction called the Homelessness Appeals Practice Direction which also comes into force on 30 September and which will amend, in particular, the Practice Direction to Part 52 (appeals). The text of the new Practice Direction is to be found on the Lord Chancellor’s Department web-site and, of course, the commencement order bringing the two remaining provisions into force in England is on the Stationery Office web-site. These things are only available on the Web because neither of them has been published in print form yet.

The importance for colleagues present this evening in relation to these provisions is obviously to note these two important changes and to be ready for them on Monday 30 September. Rather strangely, the new provisions will apply even though the decisions sought to be appealed may have been made before

13

30 September (provided no appeal has actually been launched before 30 September). This will mean that quite old adverse s202 review decisions could now be appealed “out of time”. Colleagues will want to go back through files to find cases in which they may have previously advised clients that because 21 days had expired ‘nothing can be done’.

I apologise for having taken so much time to explain that, but I thought it might be useful to the meeting.

Chair: Thank you very much, it was very helpful. Is there anyone else who has any other information or comments or questions? I do not know if there is anybody here who could actually maybe then update us? I wondered if Sue Willman could explain what is happening with the Nationality, Immigration and Asylum Bill in housing terms because there have been some worrying developments which I think colleagues may need to hear.

Sue Willman, Hammersmith and Fulham Law Centre: Well I do not think there is much change since the last meeting. The Bill is going back to the House of Lords Report Stage in, I think, the second week of October. And the main thing which is going to effect HLPA members is that Schedule 3 which Stephen mentioned in his presentation and notes is going to be in substantially the same form as the Government has introduced it. And it will prevent local authorities from giving any children help under Section 17 Children Leaving Care Act. In fact, most of the kind of community care help provisions that we have talked about tonight will be outside of the powers of local authorities. Where failed asylum seekers, European nationals who are not here exercising their European law rights and other people who are unlawfully here such as people whose immigration claims have failed and they have got some kind of outside the rules application which is the ex parte O type of cases. All those people will be excluded. They can be brought back in again if you can argue that to exclude them will interfere with their Human Rights or their European Community Law Rights. So there will be plenty of individual case law opportunities but obviously that is difficult for the large numbers of people who are currently being supported by local authorities under those various provisions.

Chair: Thank you very much, that was very helpful. Does anyone else have any other comments or information for Information Exchange?

Simon Mullins, Edwards Duthie Solicitors: I just wanted to share an issue in Waltham Forest about the use of Ground 8 by registered social landlords in possession cases. I am aware that the Citizens Advice Bureau in Waltham Forest became aware quite late of a large stock transfer to London and Quadrant Housing Trust and colleagues will be aware that London and Quadrant are one of the worst abusers of Ground 8. The CAB has been making representations to the council to try to put pressure on London and Quadrant to agree that both existing tenants in the accommodation as to be transferred plus new tenants who will be in that accommodation will not, as a matter of principle, be subjected to Ground 8 possession proceedings. The current state of play is that the local authority has actually agreed to make as strong representations as it can to London and Quadrant although it is very late in the day because it appears that contracts have already been signed. There is not going to be a lot of success here. But I am saying to colleagues if your organisation has a remit to do this kind of work and you become aware of such stock transfers it may be worthwhile asking your local authority, if you have a friendly officer in the authority, if they will make representations to such a registered social landlord in good time. Waltham Forest are agreeing to do this because I think they recognise that the use of Ground 8 is going to impact on their homeless persons’ units. They do not want that, you know.

Chair: It is an extremely helpful contribution, thank you very much.

Nik Antoniades, Shelter: There is guidance which is to be followed by registered social landlords. It does not say they must not use Ground 8 but it does say, for example, that possession proceedings must be used as a last resort. All registered social landlords ought to have internal processes, procedures which should be in code form which they should follow beginning possession proceedings under whatever ground. So there will be some argument using the Complaints Procedure followed up by a complaint to the Housing Ombudsman should it not be dealt with through the Complaints Procedure. And it seems to me that may, and I would argue ought to, give you grounds to at least to adjourn the claim for possession if one has begun under Ground 8 where you can fit it in with the Complaints Procedure.

14

I would also refer colleagues to an article, I am afraid I cannot remember the date, but it appeared in The Guardian Society some months ago. It featured a solicitor, colleagues at Hackney Law Centre. But the message came through loud and clear from the Housing Corporation in the article that if RSLs are using any ground for possession where the arrears arise from housing benefit, the Housing Corporation has said that they will come down on them like a ton of bricks. Now I have spoken to the Housing Corporation about this and they said ‘well we have internal procedures, internal enforcement regulations procedures which we follow’. But these are private; that may well give rise in the event of the appropriate complaint to a judicial review because of Article 6 perhaps, I do not know. That is all, thank you.

Chair: It is probably a good opportunity to just let colleagues know that the independent Housing Ombudsman is one of our invited speakers at the conference and that may be a timely question to put to him so come along and book your place now. Are there any other contributions this evening?

Victoria McNally, Brent Community Law Centre: Following on from the comments made earlier on about the choice-based letting scheme, I think there are about five local authorities involved. But certainly from Brent’s point of view it is being done in a very crude ad hoc way at the moment and it is very disturbing because what they are trying to do is shift all allocations through into a choice-based letting scheme. At the moment it is active for one-bedroom properties and they are hoping to go active for all sized properties as from autumn through to the beginning of next year. The way they have done it is to send out a letter saying that people must become part of the locator scheme and if they have not registered to become part of that scheme they are going to be taken off the housing register. We have raised big issues about this. We were involved in an article in the local paper raising concerns about how this is going to hit vulnerable tenants and vulnerable people in general. Because it actually requires them to be entirely assertive throughout this scheme because it is going to be based on a magazine published fortnightly which they are going to have to get hold of and then place their bids. The letter went out in English; Brent is one of the most diverse areas in the whole of the country and according to the council only about 50% responded to that letter. And they are feeling under pressure and saying ‘we’re not sure what we are going to do yet, we are not removing anybody from the Housing Register and we’re not sure how we are going to deal with vulnerable people’. But they just have not thought it through so no there has not been a Human Rights scrutiny of this and no I do not think they have taken legal advice about it because it is a real mess. But I do not know what it is like in the other boroughs.

Chair: Does anyone else have any particular experience or knowledge in another borough of that?

Nik Antoniades, Shelter: Tower Hamlets have introduced a choice-based letting scheme and it is for everybody and it is for all dwellings, as I understand it. The way it works is that there is a free local authority newspaper called East End Life and they advertise everything in East End Life and if you want something in East End Life you will fight for it. And of course, if you cannot read or if you have got mental health problems or if you are an ethnic minority and do not read English, well apparently there is supposed to be some support provided but who knows what is going to be provided. I think there will be opportunities for challenges.

Chair: Thanks very much.

Jan Luba QC, 2 Garden Court Chambers: Following up this item of discussion, in the London Borough of Newham the service has been contracted out to the East London Housing Company. You do not need to pop down to the local neighbourhood office because if you are registered for housing you can log in to the web-site to download the latest selection of properties available in order to put your name forward! Quite seriously, the arrangements in the London Borough of Newham are that every Wednesday fortnight there is a mass distribution to the local libraries, the other well-known home of the homeless people, to publicise those dwellings which are available in both the council stock and in the stock of local RSLs. Simultaneously, those dwellings are posted on the web-site of the East London Housing Company and the idea is that you then register your interest by quoting a particular number that has been given to you because you are on the housing register. The way in which the council claims to comply with the reasonable preference requirement in Part VI of the Housing Act 1996, to which Stephen Knafler referred, is that you are given a particular coding indicating whether you are a statutory preference client or not. If you therefore call up and give the particular numbers that indicate you are a statutory preference client you will be preferred over the other people who have telephoned to express an interest. And there is a

15

way of deciding between all those who have phoned up and quoted their reasonable preference code which of them should get top priority. Of course that begs the question whether this form of self-selection is in compliance with Part VI at all.

Stephen Knafler: It is not giving them a reasonable preference, it is allowing them possibly to take one if they can get to the appropriate web-site.

Jan Luba: I have not seen the publicity about Newham issuing laptop computers to the people in bed and breakfast but no doubt that is to come! The important point on the self-selection not being sufficient to accord reasonable preference is that that was precisely one of the two grounds upon which Lambeth’s current allocation scheme was struck down by the Court of Appeal at the end of the summer in a case called R (Lindsay) v Lambeth where Lambeth had said you could take a reasonable preference for yourself by moving yourself into a lower demand queue or a queue for less desirable housing. The Court of Appeal made it quite clear that you cannot self-select to give yourself reasonable preference: Part VI requires reasonable preference to be given to you.

Chair: Many thanks.

Andrew Dymond, Ardern Chambers: Just following on from what Jan was saying there about the successful challenge to Lambeth’s policy, colleagues in Chambers have kept me updated on how it has been going. Lambeth were ordered to carry out a lawful composite assessment, they failed to do so, they do not intend to do so. And I have written a charming letter, I am sure members here have received it, to various people who regularly act against them in Lambeth and dissuading people from taking the cases against them based on the allocation policy on the basis that that would be a waste of public funds! People here might think differently.

Chair: Many thanks. Well I am going to make a couple of closing comments before we draw the meeting to an end. The first is to remind colleagues that the next meeting, in fact the final meeting of 2002 will be on Wednesday 20 November at this venue and it will be on the perennially exciting topic of disrepair. And just to remind you once again, please book your place on the HLPA conference, it is a new venture for us and we really want to make it work. Thank you very much.

16