32 LegalAction law&practice/housing December 2007

2007. English Partnerships has issued

guidance for the 14 local authorities being

funded to pursue LHC initiatives.4

Local authority performance onhousing mattersThe government has published details of the

new measures it will use to evaluate the

performance of local authority housing

services. From April 2008, the current

measures (such as Best Value Performance

Indicators) will be scrapped and replaced by

new National Indicators (NIs). The NIs for

housing are NI 156 (households in temporary

accommodation), NI 158 (percentage of

decent council homes), NI 160 (tenant

satisfaction with council housing) and NI 181

(time to process housing benefit and council

tax benefit claims): The new performanceframework for local authorities and localauthority partnerships: single set of NationalIndicators (October 2007).5

Regulating social landlordsOn 15 October 2007, the housing minister

announced the establishment of The Office for

Tenants and Social Landlords, which will

become the new regulator in the social housing

sector: Hansard, HC Written Ministerial

Statements col 47WS, 15 October 2007. From

2009, its jurisdiction will extend to housing

associations and from 2011 it will also cover

local authority landlords. It is not yet clear in

what form (if at all) the Housing Corporation,

Audit Commission and the present

Ombudsmen (including the Independent

Housing Ombudsman) will retain their present

functions in policing the social landlord sector.

Housing OmbudsmanThe Housing Ombudsman Service’s Annualreport & accounts for 2007 reveals that

repairs and anti-social behaviour were the

most common subjects of complaints

investigated last year.6 The report contains a

range of case digests summarising

complaints dealt with by the Ombudsman.

Youth homelessnessThe government has established a web-based

resource on measures to address youth

homelessness. It contains downloadable

tools and case studies to help those trying to

tackle homelessness among young people.7

Empty homesThe government has announced that grant aid

to local authorities in housing matters will, in

future, be related to their performance in

bringing empty homes back into use in their

areas and in identifying potential sites for

house-building: CLG news release, 26

October 2007.8

POLITICS AND LEGISLATION

New housing legislationThe Queen’s speech, given on 6 November

2007, set out the government’s legislative

programme for the parliamentary year

2007/2008. It includes two bills dealing with

housing matters.

A Housing and Regeneration Bill will be

introduced with the following main elements:

� Establishment of a new Homes and

Communities Agency;

� Implementation of the recommendations of

Professor Cave’s review of social housing

regulation, Every tenant matters: a review ofsocial housing regulation, published in`

June 2007;

� Implementation of policies responding to

John Hills’s assessment of social housing,

Ends and means: the future roles of socialhousing in England, published in

February 2007; and

� Implementation of a ruling by the European

Court of Human Rights (ECtHR) (Connors v UKApp No 66746/01, 27 August 2004) on

Gypsies and Travellers. On 6 November 2007,

the junior minister, Iain Wright MP, wrote to

stakeholders to indicate that the government

had decided that the provisions of the Mobile

Homes Act (MHA) 1983 will apply both to

Gypsies and Travellers already living on local

authority sites, as well as to those who move

on to them after proposals are implemented.

It will be consulting with stakeholders on how

the provisions of the MHA will apply to those

already living on sites, to minimise confusion

and the administrative burden, and to ensure

a smooth transition.

The Criminal Justice and Immigration Bill

will extend existing crack house closure

powers to premises at the centre of serious

and persistent disorder or nuisance,

regardless of tenure.

The close of the parliamentary year

2006/2007 saw royal assent given to two

more Acts affecting housing.

� The Greater London Authority Act 2007

s28 casts new responsibilities and powers on

the Mayor of London in relation to housing

and will come into force on 23 December

2007. The Mayor will be responsible for a

London housing strategy which must then be

reflected in the strategies of individual

boroughs. A draft has already been issued for

consultation.1 It includes arrangements for a

pan-London housing allocation scheme.

� The Legal Services Act 2007 s191 gives

rights of audience before district judges to

housing staff of Arms Length Management

Organisations in certain county court cases

concerning anti-social behaviour. It does not

apply to rent arrears or other cases not

connected with anti-social behaviour.

Possession claimsThe latest statistics for possession claims in

the county court (third quarter, 2007) indicate

that landlords were granted 26,800

possession orders in the third quarter of

2007, one-third of them were ‘suspended’.2

The government is presently considering

responses to Tolerated trespassers: aconsultation paper (August 2007), on whether

measures should be taken to deal with the

status of ‘tolerated trespassers’. The

response of the Housing Law Practitioners

Association (November 2007) suggests that

legislation (including retrospective legislation)

is needed to protect the interests of an

estimated 750,000 such trespassers.3 The

long title of the Housing and Regeneration Bill

would enable it to include a provision

repealing Housing Act (HA) 1985 s82(2).

Local Housing CompaniesThe government has given renewed

encouragement to local housing authorities to

establish Local Housing Companies (LHCs) to

deliver affordable housing to key workers and

first-time buyers. Each LHC would act as the

master housing developer within a designated

area and would work with other investors and

contractors. The intention is that they would

develop new mixed communities and would

be able to include at least 50 per cent

affordable housing for key workers and first-

time buyers: Communities and Local

Government (CLG) news release, 5 November

Recent developmentsin housing law

Nic Madge and Jan Luba QC continue their monthly series. Theywould like to hear of any cases in the higher or lower courts relevantto housing. Comments from readers are warmly welcomed.

DecemberLA_32_37:FebruaryLA_22-31 21/11/07 14:41 Page 32

December 2007 LegalAction law&practice/housing 33

HUMAN RIGHTS AND HOUSING

Demoted tenancies� R (Gilboy) v Liverpool City Council[2007] EWHC 2335 (Admin),15 October 2007Ms Gilboy was a secure tenant. In June 2006,

Recorder Moran QC granted a demotion order

on the ground that Ms Gilboy’s son had been

responsible for anti-social behaviour while

living at the property and because of his

criminal convictions. Later, the council

received further allegations of anti-social

behaviour, and a decision was made to

terminate the claimant’s demoted tenancy.

Ms Gilboy contested the allegations and

made a request for a review of the decision

to terminate.

At the review hearing, a council official

heard evidence from a solicitor representing

the council and Ms Gilboy who disputed all of

the allegations. After referring to the son’s

conviction for offences of unauthorised taking

of a motor vehicle, breaching an anti-social

behaviour order and using a vehicle without

insurance or a licence and two witness

statements, the official concluded that there

had been further breaches of the tenancy

within the 12-month period of the demoted

tenancy. In December 2006, the council issued

a claim for possession. Ms Gilboy sought

judicial review, challenging the compatibility of

the Demoted Tenancies (Review of Decisions)

(England) Regulations 2004 SI No 1679 with

article 6 of the European Convention on

Human Rights (‘the convention’).

Stanley Burnton J dismissed the claim for

judicial review. Although it was common

ground that the demoted tenancy conferred

civil rights and imposed obligations to which

article 6 applied, Stanley Burnton J

questioned whether the decision of the

reviewing officer engaged article 6, saying:

It seems to me that the decision by thereviewing officer does not determine any rightor liability. It is a decision that the localauthority should exercise its right to apply tothe county court for an order for possession.The determination of the demoted tenant’srights is made by the decision of the countycourt. Unless and until the county courtmakes an order for possession, the tenant’stenancy continues unaffected by thereviewing officer’s decision.

However, in any event, the regulations

relating to demoted tenancies were materially

indistinguishable from the Introductory Tenants

(Review) Regulations 1997 SI No 72 and in

McLellan v Bracknell Forest BC [2001] EWCA

Civ 1510; [2002] QB 1129, the Court of Appeal

decided that the provisions relating to the

internal local authority review of the decision to

seek possession of the property held under the

introductory tenancy, together with the judicial

review jurisdiction, satisfied the requirements of

article 6. The decision of the ECtHR in Tsfayo vUK [2007] ECHR 656 would not have led to a

different conclusion, even if it were binding on

Stanley Burnton J. He concluded that the

contention that the proceedings conducted or

the decision made by the council official

infringed the claimant’s rights under article 6

was ill-founded. Ms Gilboy has lodged an

appeal to the Court of Appeal.

Article 8 � Stanková v SlovakiaApp No 7205/02,9 October 2007Mrs Stanková and her husband held a joint

tenancy of a three-room flat owned by a co-

operative in Poprad. After matrimonial

differences, she and her two children left that

flat and went to live in a two-room flat rented

by her father from the Poprad Municipality. He

suffered from a long-term illness and died in

1994. After his death, Mrs Stanková continued

to live in his flat and paid the rent. She asked

to be registered as residing permanently in the

flat but, in 1995, the Poprad Municipal Office

informed her that the right to use her father’s

flat had not passed to her after his death. In

October 1996, the Poprad District Court

ordered her to move out of the flat within 30

days. It held that she had not become a

tenant of the flat originally used by her father

since, at the time of his death, she had been

registered as a user of the flat in which she

had lived with her former husband.

Enforcement action was taken and she was

evicted. Mrs Stanková complained to the

ECtHR of breaches of article 6 and article 8.

The court found that there had been a

violation of article 8. It was not disputed that

the obligation that Mrs Stanková leave the flat

amounted to an interference with her right to

respect for her home. It was ‘in accordance

with the law’ and pursued the legitimate aim

of protecting the rights of the Poprad

Municipality, which owned the flat. However,

the ECtHR decided that the interference was

not ‘necessary in a democratic society’. The

notion of necessity implies a pressing social

need and any measure employed must be

proportionate to the legitimate aim pursued.

After referring to the margin of appreciation

enjoyed by the national authorities, the ECtHR

accepted the conclusions of the Slovakian

Constitutional Court that the effect of

ordering Mrs Stanková to leave the flat

without being provided with any alternative

accommodation produced effects which were

incompatible with her right to respect for her

private and family life and for her home. The

interference was not necessary in a

democratic society as it had not been based

on relevant and sufficient reasons. The

ECtHR also noted that the Poprad Municipality

was in charge of public housing and was

under an obligation to assist the town’s

citizens in resolving their accommodation

problems. It awarded non-pecuniary damages

of €3,000.

Comment: This decision raises interesting

questions about whether the ECtHR would

now approve the decisions in Harrow LBC vQazi [2003] UKHL 43, [2004] 1 AC 983;

Lambeth LBC v Kay; Leeds City Council vPrice [2006] UKHL 10, [2006] 2 AC 465; and

Michalak v Wandsworth LBC [2002] EWCA Civ

271, [2003] 1 WLR 617. It is arguable that

there is, in principle, little difference between

the nature of Mr Qazi’s defence and that of Mrs

Stanková. Furthermore, there is little difference

between the facts of Stanková and those in

Michalak where the Court of Appeal held that

on a claim for possession against a non-

successor, the county court was not required to

investigate the individual circumstances of the

defendant in order to find the conditions of

article 8 made out. Notwithstanding Stanková,

Qazi, Kay and Michalak remain binding on all

English and Welsh courts, up to and including

the Court of Appeal. It remains to be seen what

the House of Lords will decide when, as it

inevitably will have to, it considers these issues

for a third time.

Article 1 of Protocol No 1� Ilic v Serbia App No 30132/04,9 October 2007Mr Ilic inherited the legal title to a flat owned

by his father before his death. However, he

could not effectively enjoy it because the flat

was subjected to a ‘protected tenancy

regime’ and was physically occupied by other

persons whose rent was controlled by the

public authorities. In January 1993, the

Palilula Housing Department accepted Mr

Ilic’s eviction request and ordered the

Municipality to provide the ‘protected tenant’

with adequate alternative accommodation by

December 1995. In August 2006, the

Municipality of Palilula offered the original

protected tenant’s legal heir specific

alternative accommodation, but the tenant’s

heir said that it was inadequate in terms of

its overall size as well as the number of

rooms available. Mr Ilic sought compensation

for the pecuniary damage sustained due to

his continuing inability to use or lease the

flat. Mr Ilic complained that the non-

enforcement of the final eviction order was a

breach of article 1 of Protocol No 1.

The ECtHR found that there had been a

violation of article 1 of Protocol No 1. Mr Ilic’s

DecemberLA_32_37:FebruaryLA_22-31 19/11/07 16:27 Page 33

34 LegalAction law&practice/housing December 2007

granted leave to appeal. The appeal will

determine whether assured tenants can

become tolerated trespassers. See ‘Tolerated

trespass for assured tenancies’, November

2007 Legal Action 33.

Ground 14: conviction forindictable offence � Raglan Housing Association Ltd vFairclough[2007] EWCA Civ 1087,1 November 2007The defendant was an assured tenant. In May

2004, he was arrested on suspicion of

offences under the Protection of Children Act

1978, but he was not charged with any

offence until January 2006. Meanwhile, in

2005, he ‘transferred’ his tenancy to a

neighbouring property owned by the same

landlord. In March 2006, he pleaded guilty to

15 counts of making indecent photographs of

children by downloading them on his

computer from the internet and a further four

counts of possessing indecent photographs

of children. All the offences had been

committed between May 2001 and May 2004

while he was still living at the former property.

He was sentenced to an extended sentence

of four years’ imprisonment comprising a

custodial period of 12 months and an

extended licence period of three years. His

landlord sought possession under HA 1988

Sch 2 Ground 14 (conviction for indictable

offence in locality). HHJ Burford QC made a

possession order. He rejected a submission

that Ground 14(b)(ii) relates only to offences

committed during the currency of the tenancy

agreement and does not extend to offences

committed before the tenancy began. Mr

Fairclough appealed.

The Court of Appeal dismissed the appeal.

Ground 14 applies to those who have

committed indictable offences in the

neighbourhood where they live. In view of this,

there is no reason to think that parliament

intended to restrict the ground to offences

committed during the currency of the tenancy.

Tenants who are convicted of supplying illegal

drugs or of burgling their neighbours’ houses

pose no less a continuing threat if the

offences were committed before they became

tenants than they would if they had been

committed afterwards. The Court of Appeal

was not agreed about whether the ground

could only be satisfied if the conviction itself

(though not the facts on which it was based)

occurred during the currency of the tenancy,

but did not have to decide that point.

repossession claim was ‘sufficiently

established’ to amount to a ‘possession’

within the meaning of article 1 of Protocol No

1. When the deadline set by the court

expired, the state’s interference was clearly

in breach of the relevant domestic legislation

and, as such, it was incompatible with Mr

Ilic’s right to the peaceful enjoyment of his

possessions. With regard to article 6, the

ECtHR observed that by March 2004 the

proceedings had already been pending for

approximately eight years. By the time of the

hearing in the ECtHR, the proceedings had

still not been concluded. Having regard to the

criteria laid down in Serbian jurisprudence,

the relevant facts of the case, including its

complexity and the conduct of parties, the

court held that the length of the proceedings

failed to satisfy the reasonable time

requirement. There was, accordingly, also a

violation of article 6. The court awarded

€3,700 for the distress suffered.

SECURE TENANCIES

Possession claims:anti-social behaviour� Sandwell MBC v Hensley B5/06/2538, 1 November 2007The defendant was a secure tenant. In 2005,

police officers found an extensive and

sophisticated cannabis cultivation operation

involving the use of hydroponics in his home.

He pleaded guilty to a charge of being

knowingly concerned with the cultivation of

cannabis. Sandwell sought possession on HA

1985 Sch 2 Grounds 1 (breach of an

obligation of the tenancy) and 2 (conviction

for arrestable offence). A judge made a

possession order, but suspended it for two

years, referring to evidence that the

defendant appeared to have ceased his

offending behaviour.

The Court of Appeal allowed Sandwell’s

appeal and substituted an outright order.

Where an individual commits a criminal

offence, a possession order should only be

suspended in exceptional circumstances

where there is cogent evidence to

demonstrate that the offender’s particular

conduct had ceased (Bristol City Council vMousah (1997) 30 HLR 32, CA). The judge’s

reasons for suspending the order did not

stand up to scrutiny since they were sparse

and provided little explanation about which

facts she considered were relevant. It was of

particular concern that the decision was

made without hearing oral evidence from the

defendant. Although the judge made a

passing reference to the defendant’s previous

convictions, she did so without referring to

the impact they had had on her decision. In

the circumstances, the judge had exercised

her discretion poorly, as the defendant had

run a sophisticated operation with complete

disregard for his tenancy agreement and

those around him. Local authorities and

providers of social housing have a duty to

keep areas free of criminal conduct where

possible, and unless a court is provided with

evidence demonstrating real hope that an

individual has changed his or her ways, those

landlords are entitled to an outright

possession order.

Relief from sanctions� Lambeth LBC v OnayomakeB5/07/0154(A); B5/07/0154,19 October 2007,(2007) Times 2 NovemberMr Onayomake’s mother was a secure

tenant. After her death, the council served

notice to quit and commenced possession

proceedings. The defendant filed a defence

and counterclaim to those proceedings,

asserting that he had succeeded to his

mother’s secure tenancy. The council argued

that there was no statutory right to

succession as the mother was a tolerated

trespasser. Neither party complied with case

management directions. The defendant did

not appear and was not represented at a

subsequent case management conference.

The court struck out Mr Onayomake’s

defence and counterclaim and ordered that

the claim be heard undefended.

A district judge hearing the defendant’s

application for relief from sanctions under

Civil Procedure Rule (CPR) 3.9(1)(f) accepted

that striking out was disproportionate, and

that the non-attendance had not been the

fault of the defendant, but of his solicitor.

However, the judge held that, where the

defendant’s solicitors had failed to comply

with directions, the hearing should

nonetheless proceed undefended. An appeal

against that decision was dismissed.

The Court of Appeal allowed the

defendant’s further appeal. The district judge’s

decision to strike out was a disproportionate

response to what had happened. If the

defendant’s solicitor had attended, it was

inconceivable that the judge would have struck

out the defence and counterclaim.

ASSURED TENANCIES

Tolerated trespassers� Knowsley Housing Trust v White[2007] EWCA Civ 404,2 May 2007,June 2007 Legal Action 36On 29 October 2007, the House of Lords

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December 2007 LegalAction law&practice/housing 35

POSSESSION CLAIMS

Public law principles� R (Hargreaves) v Hackney LBC [2007] EWHC 2305 (Admin),6 July 2007In 2000, Hackney granted a one-year lease of

premises to be used by East London Christian

Choir School and as a Christian Centre. The

lease expired by effluxion of time. No further

leases were entered into and no rent paid,

but the claimant, the Christian Centre and the

school remained in the property with the

agreement of the council. In May 2006, after

a series of meetings, the council sought

possession. Mr Hargreaves accepted that the

occupants had no private law right to remain

in the premises, but submitted that, since

Hackney was a public body, it had to act in

accordance with public law principles, which

included the duty to act fairly and not in such

a way as to amount to an abuse of power.

HHJ Mitchell ‘roundly rejected the public law

claims not on the basis of any complicated

analysis of public law principles, but simply

on the facts, saying in effect that there was

no substance in any of the allegations’ and

made a possession order.

Sullivan J dismissed a renewed application

for permission to apply for judicial review of

Hackney’s decision to commence legal

proceedings, stating:

… it is plain that this is a case where apublic body has been bending over backwardsto be fair and accommodating to the claimantin a case where it must have been obvious toeveryone that possession of the propertywould be required in due course … Indeed,far from there being conspicuous unfairness,there has been conspicuous forbearance onthe part of this public authority. Thus, in myjudgment, there is simply no arguable caseon the basis of unfairness.

He concluded:

… the normal route of challenge to anadverse decision by a circuit judge inpossession proceedings would be by way ofan application for permission to appeal to theCourt of Appeal if the learned judge refusedpermission to appeal, as he did in this case,rather than by way of an application forpermission to apply for judicial review. Judicialreview would only be granted in exceptionalcases, where, for example, there was a lackof jurisdiction or such unfairness as tocompletely negate the proceedings.

ANTI-SOCIAL BEHAVIOURINJUNCTIONS

Contempt� Sandwell BC v Preece[2007] EWCA Civ 1009,28 September 2007The defendant had a long-standing

relationship with a vulnerable council tenant

and frequently visited her home. The council

received complaints about his behaviour and

applied for an injunction. An interim anti-

social behaviour injunction was made. The

defendant breached that injunction by

attending at the property and shouting abuse.

He was committed to prison for 28 days, but

the sentence was suspended. After that time

lapsed, he again attended at the property and

banged on the door. A further injunction was

granted, which among other things prohibited

him from entering the area. He again

attended at the address and was committed

to prison for eight weeks. Four months later

he went to the address and banged on the

windows. He was committed to prison for 12

weeks. Some months later, he breached the

injunction by visiting the property again. He

was committed to prison for 16 weeks,

suspended on condition that he complied with

the injunction. One month later he visited the

property. Complaints were received that there

were raised voices. The defendant was

arrested. The judge imposed a sentence of

nine months’ imprisonment, consecutive to

the suspended sentence of 16 weeks which

he activated.

The defendant’s appeal was allowed.

Sentences for contempt have two objectives:

to mark the court’s disapproval of the

disobedience and to seek compliance with

the order in the future. Although the judge

was justified in imposing a consecutive

sentence, he did not refer to the totality of the

sentence in his sentencing remarks. Thirteen

months’ imprisonment was too long and out

of proportion having regard to the mischief

involved, which had not entailed any violence.

The sentence of nine months’ imprisonment

was quashed. A sentence of four months’

imprisonment to run consecutively with the

suspended sentence of 16 weeks’

imprisonment was substituted, making a total

sentence of eight months.

Purging contempt� Poole BC v Hambridge[2007] EWCA Civ 990,25 September 2007The defendant’s partner was an assured

tenant. In 2004, he, his partner and their

children conducted ‘a campaign of anti-social

behaviour’, issuing threats, abuse and

intimidation to other residents who

complained to the council about the conduct

of the family. The council obtained an anti-

social behaviour injunction (HA 1996 s153(A))

with a power of arrest. After a four-day hearing

HHJ Meston QC made an outright possession

order. The judge accepted that there was a

high risk of recurrence of the behaviour and

that the impact on neighbours and those who

had given evidence would be severe. He

continued the injunction. Within a fortnight of

the possession order taking effect, Mr

Hampton was arrested and admitted being in

breach of the injunction by going into the

street from which he was excluded and by

intimidating one of the witnesses by banging

on her door. HHJ Meston QC sentenced him

to eight weeks’ imprisonment, but suspended

it for a period of one year. The following

month Mr Hampton breached the injunction

on four occasions. After stating that the

victims found his behaviour alarming and

upsetting, the judge activated the suspended

sentence, and imposed further consecutive

sentences, so that the overall sentence

became one of 20 weeks’ imprisonment. Five

days later, the defendant sought to purge his

contempt. He wrote to the court stating that

he was truly sorry, wanted to apologise to the

court and all the people involved and stated

that he would ‘make sure that the residents

… can live their lives without having to worry

about me or any of my family’. At the

hearing to purge his contempt, the defendant

appeared in person and did not give

evidence. The judge accepted that the

apology was sincere, that the contempt had

been purged and directed that the defendant

should be released forthwith. The council

sought to appeal.

The Court of Appeal, after considering

CPR 52.3(1) and earlier conflicting authorities,

held that permission to appeal was needed. It

is only the alleged contemnor who can appeal

without permission against a committal order.

An applicant needs permission. With regard to

the judge’s decision on the merits, the Court

of Appeal refused permission. Although

committal, when the judge ordered it, was

appropriate, two weeks had elapsed before

the application to purge contempt was heard

by the court. The judge was entitled to

conclude that 14 days in custody (which, as a

result of Criminal Justice Act 2003 s253,

amounted to a sentence of 28 days) was

sufficient and that the contempt had been

purged. Taken with the five days which had

been served on remand, it was a sufficiently

long period – ‘a sufficient clang of the prison

gates and a sufficient taste of custody’ – to

persuade the defendant to behave himself.

The judge had very considerable knowledge of

the defendant and was in the best position to

assess the effect which custody had had on

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36 LegalAction law&practice/housing December 2007

the evidence of witnesses called by Mr Sava

unreliable. Those findings were not justified

by the evidence. His claim to have acquired

title to the disputed land must, therefore, fail.

HOUSING ALLOCATION

� R (Lin) v Barnet LBC(2007) 29 October,Unreported, HLAn appeal committee of the House of Lords

has refused the claimant’s application for

leave to appeal against the decision of the

Court of Appeal ([2007] EWCA Civ 132; April

2007 Legal Action 21).

Local Government OmbudsmanInvestigations� Havering LBC06/A/10428,31 October 2007A secure tenant applied in September 2000

for a transfer from her council maisonette

which had internal stairs and was reached by

three flights of steps from the street. Her

mother aged 86, who lived with her, had

bronchial asthma and arthritis in all major

joints and was deaf and partially sighted. The

family needed ground-floor accommodation.

Most ground-floor accommodation constituted

properties with gardens and the council’s

allocation policy provided that properties with

gardens should be let to families with children

or with proven medical need for use of a

garden. After a home visit in 2003, a council

officer reported that the complainant’s

mother was ‘practically a prisoner in the

home’. Despite the involvement of an MP, no

transfer offer was made and the application

was not placed in the highest priority band for

the council’s choice-based lettings scheme

until November 2006. The council told the

tenant that she could keep bidding for level

access properties but that her bids ‘would

never be successful’ even though she had the

highest possible banding. Its initial response

to the complainant’s complaint was to offer

£50 compensation for not returning her

telephone calls. By the time the Ombudsman

concluded his investigation, the tenant’s

mother had died.

The Ombudsman found that the council

had failed to consider any flexibility in its

policy by the exercise of discretion. No

consideration was given to the special

circumstances of the tenant’s mother or to

her article 8 rights. Although the council had

known that the mother was effectively

confined to the home (and only parts of it)

that ‘tragic, deplorable and wholly preventable

circumstance’ had not been addressed. The

Ombudsman found that the family had

him, and the significance of the statements

made in the letter.

RENT ACT 1977:RENT REGISTRATION

� R (Gidvani) v London RentAssessment Panel [2007] EWHC 2525 (Admin),18 October 2007Ms Gidvani, a landlady, applied for the

registration of an increased rent, presumably

under Rent Act 1977. A rent officer fixed a

lower rent than that sought. The landlady

appealed. The Rent Assessment Committee

dismissed that appeal.

Sullivan J dismissed a further appeal. The

committee had made no error of law in

preferring the results of its own inspection of

the premises, rather than a surveyor’s report,

or in making a deduction in the rent to take

into account ‘scarcity’.

He also rejected Ms Gidvani’s submission

that there would have been an error of law if

the committee had failed to take into account

a 1993 rent registration. The committee was

entitled to take the 2003 registration as its

starting point.

VARIATION OFRESTRICTIVE COVENANTS

� Lawntown Limited v Camenzuli[2007] EWCA Civ 949,10 October 2007Lawntown, a property development company,

bought a freehold semi-detached house with

a view to converting it into flats. However,

conversion was prohibited by restrictive

covenants to which the property was subject.

Lawntown applied to the county court under

HA 1985 s610 for a variation of the restrictive

covenants so as to permit the conversion into

flats. Section 610 provides that the court may

vary the terms of any lease or other

instrument imposing such prohibition or

restriction, subject to such conditions and on

such terms as the court may think just where

planning permission has been granted and the

conversion is prohibited by a restrictive

covenant. The defendants, who owned the

other half of the semi-detached house,

objected. It was common ground that the

statutory preconditions for the application

were satisfied. What was in issue was the

resulting exercise of the court’s power under

s610. HHJ Marr-Johnson, after referring to the

‘urgent demand for more housing in London’

and noting that there was virtually no evidence

before the court that surrounding house prices

would suffer if the house was converted into

flats, granted the application.

The Court of Appeal dismissed the

neighbours’ appeal. The court had to conduct a

balancing exercise between the interests of the

claimant and the interests of the objectors.

Taking all relevant factors into account, the

balance came down decisively in favour of

granting the variation sought by Lawntown.

There was no reason to interfere with any part

of the judge’s order. He was right to grant

Lawntown’s application under s610 and to

make the order he did. It was not a case where

an order for financial compensation was

appropriate, given in particular the absence of

any cogent evidence that conversion into flats

would result in a diminution in the value of

neighbouring properties.

ADVERSE POSSESSION

� Long and Satow v Sava[2007] EWHC 2087 (Ch),28 September 2007Mr Sava moved on to a piece of land

comprising the whole of land registered under

one title and part of the adjoining land

registered under another title. He claimed to

have constructed limited fencing on the land,

ensured the main gates were locked, and

carried out farming activities including the

grazing of sheep. In 2006, he applied to

change the Land Register in respect of the

titles to the disputed land. He alleged that he

had enjoyed an uninterrupted period of 12

years’ possession before 13 October 2003,

when the Land Registration Act 2002 came

into force. A deputy adjudicator found that he

had possessed the disputed land before 13

October 1991, and so he had acquired the

land by adverse possession by 13 October

2003. He concluded that there had been no

‘meaningful use’ of the land by the company

which had registered title. The company with

registered title appealed.

Peter Leaver QC sitting as a deputy judge

of the High Court allowed the appeal. He

came to the conclusion that the deputy

adjudicator had erred in his assessment of

the evidence in a number of important

respects. Mr Sava was not in factual

possession of the disputed land on 13

October 1991. Nor had he had the requisite

intention to possess. His evidence had fallen

far short of establishing either of those

matters. At best it had been proved that he

had been in occupation of part of the

disputed land from some time in 1990 or

1991. The deputy adjudicator had

characterised the use of the disputed land by

the company between 1990 and the date of

the hearing as not being ‘meaningful’. He had

come to that conclusion because he found

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December 2007 LegalAction law&practice/housing 37

suffered injustice for five years, that the impact

on the mother and the family ‘must have been

terrible’ and that the mother’s quality of life

had been severely affected. He recommended

payment of £10,000 compensation.

� Ealing LBC06/A/11660,22 October 2007The council’s choice-based lettings scheme

(using Locata) provided that before an

allocation could be made an applicant would

have to provide proof of residence for the

past ten years, which would need to have

been verified. The complainant had reached

the top of the bid list but allocation was

refused in the absence of verification.

The Ombudsman found that the council

had acted wrongly in not advising the

complainant, who had applied for housing in

2001, of the need to have her application

verified when she first applied and what this

would entail. When she became entitled to an

allocation but had not supplied verified

details, the council also failed to give

sufficient consideration to her personal

circumstances and the difficulty she might

legitimately have in providing the proof

requested. Had she been told what was

required at the start, it would have been

reasonable to assume that she would have

been able to comply with the council’s

requirements when she was number one on

the shortlist for a property for which she had

placed a bid. She therefore missed securing

permanent accommodation as a result of the

council’s failings. The Ombudsman

recommended that the council should:

� increase her priority until she was able to

secure permanent accommodation;

� pay her £750 compensation for the time she

had spent living in insecure accommodation

since November 2006, and £250 for her time

and trouble in pursuing her complaint;

� send her a written apology for the problems

she experienced; and

� review the process for verifying

applications for housing, including:

– the need to provide proof of residence for

ten years; and

– the way discretion is exercised over those

who are unable to provide the necessary proof.

HOMELESSNESS

Eligibility� R (Couronne) v Crawley BC;R (Bontemps) v Secretary of State[2007] EWCA Civ 1086,2 November 2007The claimants were members of two groups of

British citizens who had left Mauritius to settle

in the UK. They had their origins in the Chagos

Islands from which they and their families had

been unlawfully displaced by the UK

Government. Their applications for

homelessness assistance were refused on

the basis that they were not eligible because

they were not ‘habitually resident’: HA 1996

s185 and the Homelessness (England)

Regulations 2000 SI No 701 reg 4(1)(a). Their

claims for judicial review were unsuccessful.

The Court of Appeal dismissed their

appeals. It held that the fact that their original

displacement had been unlawful did not

require the government to make special

provision for them. They had not been subject

to unlawful discrimination on the ground of

race because any other British citizens from

outside the Common Travel Area would have

been treated in the same way. Articles 8 and

14 of the convention had not been infringed

and article 1 of Protocol No 1 did not apply.

See page 18 of this issue.

Homelessness� Harouki v Kensington andChelsea RLBC[2007] EWCA Civ 1000,17 October 2007A three-bedroom flat was occupied by Ms

Harouki, her husband and their five children. It

was statutorily overcrowded and the tenant

was committing an offence by permitting it to

be overcrowded. She applied to the council for

homelessness assistance under HA 1996

Part 7 on the ground that it was not

‘reasonable … to continue to occupy’ the flat:

s175(3). The council did not consider her to

be homeless and confirmed that decision on

review. A county court judge dismissed an

appeal against that decision.

The Court of Appeal dismissed a second

appeal. It held that in assessing whether it

had been ‘reasonable to continue to occupy’

the flat the council had been entitled to take

account of the fact that there were many

families even more severely overcrowded in its

area: s177(2). It did not automatically follow

that because a home was statutorily

overcrowded, or that an offence was being

committed by remaining in it, that it could not

be reasonable for a tenant to continue in

occupation. Furthermore, and in parallel to

ss175(3) and 177(2), s210 (dealing with

suitability of accommodation) did not provide

that overcrowded accommodation could never

be suitable, simply that the overcrowding

provisions needed to be taken into account by

the housing authority in deciding what to offer.

Comment: The judgment contains the pre-

2006 version of s210. It is also significant

that the applicant had applied to a district

with an acute housing problem. The effect of

s177(2) may have been very different had

she applied to a less pressured authority.

Accommodation pending review� R (Lawer) v Restormel BC [2007] EWHC 2299 (Admin),12 October 2007The claimant fled with her children from

domestic violence in her matrimonial home.

She gave up her secure housing association

tenancy of that home. The council decided

that she had become homeless intentionally.

It notified her by letter, dated 23 August

2007, that it would only provide

accommodation for her until 21 September

2007 in exercise of its duty under HA 1996

s190(2)(a). The claimant applied for a review

and her solicitors asked for accommodation

pending the outcome of that review: s188(3).

The council declined. Accommodation was

withdrawn on 21 September and eventually

the claimant was street homeless. On the

evening of 28 September 2007 her solicitors

obtained a without notice injunction by

telephone from the duty judge in the High

Court requiring the council to accommodate.

On the council’s unopposed application,

Munby J set aside the order. There had

been material non-disclosure to the duty

judge and, in any event, the injunction was

not warranted as the underlying judicial

review claim was without merit. The

judgment gives useful guidance to

practitioners on the making of urgent

injunction applications in s188(3) cases.

1 Available at: www.london.gov.uk/mayor/housing/strategy/index.jsp.

2 See: www.justice.gov.uk/news/021107a.htm.3 See: www.hlpa.org.uk.4 See: www.communities.gov.uk/news/

corporate/534820 for CLG news release.5 See: www.communities.gov.uk/

documents/localgovernment/pdf/505713.6 Available at: www.ihos.org.uk/downloads/

common/HOS_Annual_Report_2007.pdf. 7 See: www.communities.gov.uk/

youthhomelessness/.8 See: www.communities.gov.uk/news/housing/

524533.

Nic Madge is a circuit judge. Jan Luba QC isa barrister at Garden Court Chambers,London, and a recorder. He is Legal AidBarrister of the Year 2007.

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