During the passage of the Housing and Regeneration Act 2008, the Government gave a commitment to look again at the use of inter alia, Ground 8 in the social housing sector.

A group of scholars was assembled for this purpose: Pawson, Sosenko, Cowan, Croft, Cole and Hunter and, they have now reported. I suggest everyone reads “rent arrears management practices in the housing assocation sector” because, frankly, it is an impressive piece of work, detailing historic, current (and hinting at future) trends.

The authors surveyed all housing associations in England, with some 70% responding to the questions raised. Six particular housing associations were chosen to provide detailed case studies and 106 individual eviction files were considered. The headlines are:

(a) mean rent arrears have been falling across the sector, down to 5.3% of collectable rent in the three years to 2007-08. Traditional associations tended to have higher rates of arrears than those involving stock transfer;

(b) housing benefit claimants have – generally – benefited from improved efficiencies in HB administration, with the average number of days to process a new HB claim down to 25, from 33. However, more than a quarter of associations admitted to having issued proceedings in order to pressure the local authority to process a claim;

(c) the rate of rent arrears evictions fell to 2007-08, but experienced a slight increase in 2008-09. Eviction rates varied across the country, with the Midlands having the highest rates and London the lowest;

(d) the majority of associations treated rent arrears recovery as a “specialist” area with staff who, well, specialised in recovery of such monies. Almost half of associations also employ specialist in-house welfare benefit advice staff to assist tenants;

(e) around 25% of associations admitted using Ground 8, although more than 50% of associations in London used it. The most common reason for using Ground 8 was the level of the arrears or where a tenant fails to make contact with the association to discuss the situation.

The report concludes that, were Ground 8 to be abolished, it would not have a significant impact on the arrears carried by HAs.

One final point – could it be that the TSA has delayed in publishing this report? Some of the terminology and phraseology suggests to me that this was ready for publication towards the end of 2009.

Rumour has it that there is another appeal in a similar shared ownership case due fairly shortly, so this may well not be the end of the matter.

Chehab was the assured tenant of a flat owned by the appellant. The tenancy had arisen upon the expiry of a long leasehold interest. The rent had been agreed at £17,000 p.a. but, in 2008, the landlord served notice under s.13, Housing Act 1988, seeking to increase the rent to £29,120 p.a. and, in due course, the matter was referred to the Rent Assessment Committee.

Both parties put in evidence from a surveyor and were represented by their surveyors in the hearing. Following the hearing, the surveyor for the tenant submitted an additional report. The report was sent to the RAC but not to the landlord (the tenant apparently thought the RAC would forward a copy which, to be fair, it appears to have done with other, earlier, documents). Based partly on that supplemental report, the RAC set the rent at £22,500 p.a. The landlord appealed.

The appeal was allowed. It was wrong of the RAC to have made a decision based on the supplemental report without allowing the landlord to respond. Although the RAC appeared to have a practice of forwarding documents to the other party, it was advisable for the parties themselves to ensure that their documents were provided to the other side.

In addition, the RAC had erred in not taking into account the additional security of tenure conferred on an assured tenant and should have reflected this security in the rental level. The Judge declined to rule on what would happen if, taking that security into account, the RAC set the rent at more than £25,000 (such that security of tenure would be lost, as the tenancy could no longer be an assured tenancy).

Facts

Imagine, if you will, that you have an assured tenancy for a year from 19^th January. The agreement provides for a monthly rent payable in advance on the 1^st of every month. Upon the expiry of the fixed term, a statutory periodic tenancy arises under s.5, Housing Act 1998.

In that situation, are the monthly periods of the tenancy from the 19^th to the 18^th or from the 1^st to the last?

Why does this matter?

It matters in at least two contexts.

One, obviously, is with regard to the requirement of section 21 (4), Housing Act 1988 that a notice requiring possession served after the end of a fixed term tenancy must require possession after a day which is the last day of one of the periods of the tenancy (although, in practice, one imagines that a notice with a “saving clause” (Lower Street Properties v Jones) would avoid this problem).

The other is in the context of a notice of rent increase under section 13, 1988 Act which is required to propose a new rent with effect from the start of a period of the tenancy starting not less than a minimum period in the future.

This latter situation is more important, since uncertainty in the period could be used to attack (and potentially invalidate) the s.13 notice and lead to an argument that rent has been demanded (and paid) which was not due.

I’ve not provided the reasoning of our correspondent, because I don’t want to influence anyone. I’m sure he’ll join in with comments though.

Mr Justice Beatson dismissed a renewed application for judicial review in R(Husband) v Solihull MBC [2009] EWHC 3673 (Admin).  The claim was pursued on Mr Husband’s behalf by Stephen Cottle, who is described in the transcript by Beatson J as a repeat player.  In Galanter’s classic, it was argued in part that repeat players generally may have the advantage over “one-shotters” partly because they get to know how the trial process works.  Unfortunately for Mr Cottle, the only advantage of his repeat player status was that he retained Beatson J’s clerk’s e-mail address.

The other repeat player is the subject-matter of the application: is the rule in Hammersmith & Fulham LBC v Monk, about which we have written much in the past year or so, compatible with Article 8?  The application was refused on two grounds: first, “it is not, in the state of English law now, arguable that the unqualified right to possession by a landlord is incompatible with Article 8; or indeed, in the light of Sheffield CC v Smart [2002] HLR 34, with Article 1 Protocol 1 of the Convention” (at [8]); second, the claim was not arguable on the facts of the case in which it appeared to the local authority that the property was vacant, and so could not be argued that Solihull had not acted reasonably in acting on the NTQ served by his ex-.

Done and dusted?  I think not.  Rumour has it that Dixon is off to the ECHR; Kay v UK is on the horizon; and then there’s the CA bust-up over gateway b let alone the nine-person SC in Pinnock.  It wouldn’t be surprising if the RCJ is bursting at the seams with appeals and JRs on mandatory possession proceedings.  Maybe 2010 will be the year when we will find out if we are (metaphorically) eating quarter pounders or Royales.

This was a claim for unlawful eviction and a tale worthy of a play by Ben Jonson. There were no less than 5 defendants, and such superfluity necessitates an opening description of the nature and the character of the dramatis personae:

Mrs Islam – a homeless applicant housed by LB Redbridge on a non-secure tenancy and being the Claimant.
Mr Yap – a freeholder of the property, who granted a lease to Finebridge Lettings but appeared somewhat confused about the extent of his title and wished most ardently to sell the property to realise his investment.
LB Redbridge – a local authority under a statutory duty to secure accommodation for Mrs Islam, and which had taken a sub-lease of the property from Finebridge Lettings and and the very same time entered into an agreement whereby Finebridge would manage the letting to Mrs Islam on behalf of itself, thereby avoiding any practical engagement.
Finebridge Consultants Limited – a business, owned by Mr Kamran Nasrim, that does not concern itself with private lettings, deriving its income of £10 million from management fees paid by LB Redbridge. Despite Mr Nasrim having a 49% interest in Reptons, and Finebridge holding 2% interest in Reptons, the Court was satisfied that Finebridge has no knowledge of the unfortunate events of 26 March 2007.
Reptons Limited – being an erstwhile estate agency, now deceased, that shared offices with Finebridge Consultants Limited and which, despite having no sole agency and no instructions, sought most actively through the person of Mr Clark to effect the sale of the property owned by Mr Yap and occupied by Mrs Islam to another party, with vacant possession.
Mr Clark of Reptons – being an agent paid on commission and determined to advance himself. A man variously characterised as being very firm, very confident, bullying and threatening. A man who in hot pursuit of his commission would not fail to stoop to entering a property and refusing to leave until the tenant did, after arranging for the locks to be changed later that date.

So, Mr Yap wished to sell. He had, it seems, confused himself as to whose tenant Mrs Islam actually was, as there were a number of emails between them that seemed to show he thought of himself as her landlord. He wasn’t, of course, having let to Finebridge, who let to LB Redbridge, who let to Mrs Islam. A notice to quit had been served on Mrs Islam by LB Redbridge (actually by Finebridge on their behalf) but no further steps taken. Mrs Islam was actively seeking suitable rehousing for herself and her 11 year old and seven month old children, but without any promise of accommodation having been made. It appears that Mr Yap had convinced himself that Mrs Islam would shortly be leaving the property.

Mr Clark entirely off his own bat found a buyer for the property who wanted possession by 25 March 2007. Mr Clark told Mr Yap of this and Mr Yap agreed to the price offered and gave Mr Clark details of his solicitors.

Mrs Islam did not – could not – leave the property. Mr Clark, worried that his commission was about to vanish, called Mr Yap and said that Mrs Islam was dragging her feet and that he was going to change the locks. Mr Yap responded that this was illegal but that if Mr Clark was to do so, he ‘was not going to pay the cost’, which the Court felt fell so far short of telling Mr Clark to do no such thing as to be an acquiesence, a ‘pregnant acceptance’ that Mr Clark was going to go ahead.

Mr Clark called Mrs Islam, told her that she was a trespasser, he was going to brook no nonsense from her and that she should forget about the police. If she wasn’t out by 26 March 2007, he would come to the property and stay there until she left and that the locks would be changed. Mr Clark invoked the names of Mr Yap and, according to Mrs Islam, Finebridge as authority for what he was saying.

As set out in the dramatis personae, the Court found that there was no involvement by Finebridge, despite the business entanglements. This and subsequent actions were those of Mr Clark, Reptons and with the ‘pregnant acceptance’ of Mr Yap.

On 26 March 2007, Mr Clark went into the property and stayed there – he said for 30 mins, the Court found for a few hours – insisting that Mrs Islam had to leave. Two other people were with him. Mrs Islam had to wait for her eldest child to return from school. At that point she was evicted and the locks were changed. Mrs Islam’s main possessions were still in the house.

Unsurprisingly, the Court found against Mr Clark, Reptons Ltd (deceased) and Mr Yap. Mr Yap made ‘rather unattractive’ submissions that he had better title to the premises than Mrs Islam. In view of Mr Yap’s knowledge of the lease to Finebridge, sub lease to LB Redbridge and their consent to Mrs Islam’s continuing occupation, this was nonsense. Mr Yap had parted with exclusive occupation and had no say in the continuation of Mrs Islam’s occupation.

Damages:

General damages from the date of the eviction to the court hearing at £36 per day, being the rent chargeable for this time.

Aggravated damages against Mr Clark of £3,000.

Exemplary damages – against Mr Yap who let things go ahead and did not intervene. He realised an economic benefit from the eviction. It appears that he bought the property for £130,000 and sold at £164,000. There would be agent’s fees and the like (presumably paid to Mr Clark!) and other costs which would eat up a lot of that (this based on no evidence at all as far as I can see). An award of £5,000 would serve to show that tenants must be protected against this sort of conduct done with an eye to investment advantage.

Special damages – Mrs Islam should have taken portable items such as jewellery and a computer with her, but she was alone with two young children as against Mr Clark and his associates. It was entirely reasonable of her not to return having fled to student accommodation. There was an agreed figure for damages, but the proper figure was £2,000, not £3,000.

Comment
A very unpleasant case, and Mr Clark is clearly a real charmer. However, I’m slightly concerned at the treatment of exemplary damages here. The Court is quite right to consider the advantage sought by the tortfeasor, but this should properly be the measure of damages. Granted there was a lack of evidence before the Court on, for instance, the market value with vacant possession and with a sitting tenant, which would more properly be the measure of damages as the gain Mr Yap sought to realise. This lack is disappointing as, if the evidence was provided and the point argued, it is likely that the award of exemplary damages would have been higher. Even if there has been some evidence as to the probable level of fees and costs incurred by Mr Yap, the measure of the profit sought would be clear – and it would surely have been higher than £5,000.

Further, what the actual gain realised by Mr Yap was is not necessarily key – it is the gain he sought to make through his actions (or here lack of them). There is no requirement that a gain is actually realised for exemplary damages to be awarded, simply that a gain was proveably sought. Whether the tortfeasor’s plans were frustrated does not affect either the intention or the punitive point of exemplary damages.

I rather think that unlawful eviction cases are often brought without due consideration and evidence of the gain sought by the landlord, and without argument on the issue of the proper measure of exemplary damages. I suspect that awards that are rather higher than those now generally awarded could be obtained. But I feel a detailed post on this topic coming on…

The question was whether:

(a) children of EU citizens who have installed themselves in a member state during the exercise by their parents of rights as residence as workers in that state are entitled to reside in the state in order to attend general educational courses;

(b) a parent who is the primary carer of those children – irrespective of his or her nationality – is entitled to reside with the children in order to allow the children to exercise that right. The fact that the parent who is a citizen of the EU is no longer working in that state and has left the state is irrelevant;

Mrs Ibrahim is the wife of a Danish man, who worked for a period in the UK. Following an illness and a period on benefits, Mr I’s right to reside ended and he returned to Denmark. However, Mrs I and their four children, who had joined Mr I, remained in the UK and the children had been in school throughout. Mrs I applied as homeless and Harrow refused her as ineligible.

The Court of Appeal referred the following questions to the European Court:

(1) do the spouse and children only enjoy a right of residence in the United Kingdom if they satisfy the conditions set out in Directive 2004/38 of the European Parliament and of the Council of 29 April 2004?;

OR

(2) (i) do they enjoy a right to reside derived from Article 12 of Regulation (EEC) No 1612/68 of 15 October 1968, as interpreted by the Court of Justice, without being required to satisfy the conditions set out in Directive 2004/38 of the European Parliament and of the Council of 29 April 2004; and

(ii) if so, must they have access to sufficient resources so as not to become a burden on the social assistance system of the host Member State during their proposed period of residence and have comprehensive sickness insurance cover in the host Member State?;

(3) if the answer to question 1 is yes, is the position different in circumstances such as the present case where the children commenced primary education and the EU-national worker ceased working prior to the date by which Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 was to be implemented by the Member States?

On (1) and (2) the European Court found that, following Case C‑413/99 Baumbast and R [2002] ECR I‑7091 and Case C‑7/94 Gaal [1995] ECR I‑1031, it was clear that a child’s right to reside under Art 12 was independent of Articles 10 and 11, regardless whether the parent who is a citizen of the union has ceased to be a migrant worker in the host state. A refusal to allow the parent with care to reside during the children’s education would deprive the children of their right under Art 12. In paragraph 23 of Gaal, the Court expressly stated that Article 12 of Regulation No 1612/68 contains no reference to Articles 10 and 11 of the regulation.

Further

as is apparent from the very wording of Article 12 of Regulation No 1612/68, the right to equal treatment in respect of access to education is not limited to children of migrant workers. It applies also to children of former migrant workers.

The right derived by children from Article 12 of Regulation No 1612/68 is also not dependent on the right of residence of their parents in the host Member State. It is settled case-law that Article 12 requires only that the child has lived with his parents or either one of them in a Member State while at least one of them resided there as a worker (Case 197/86 Brown [1988] ECR 3205, paragraph 30, and Gaal, paragraph 27).

To accept that children of former migrant workers can continue their education in the host Member State although their parents no longer reside there is equivalent to allowing them a right of residence which is independent of that conferred on their parents, such a right being based on Article 12.

Directive 2004/38 did not alter Art 12, as contended by Harrow and the UK. Where that directive amended Art 10 and 11, it did so specifically, and the absence of specific address to Art 12 showed the intention of the European legislature. Indeed, the directive was intended to be consistent with Baumbast. There was no intention to limit Art 12 to a mere right to access to education. Directive 2004/38 has the stated purpose of strengthening the right of free movement, but if it replaced Art 12 in the same way as it did Art 10 and 11, then the Art 12 right would be more restricted that before.

On sufficient resources, there is no requirement in Article 12 for self sufficency and, following Baumbast, the Article must not be rendered ineffective.

The Court, in a case where it had to rule on whether children who were resident in the Member State in which their father, a national of another Member State, had been employed before returning to his State of origin were entitled under Article 12 of Regulation No 1612/68 to State assistance intended to cover the costs of their education, the maintenance of them and their dependants and sickness insurance, held, without ruling on the economic situation of the students in question, that the status of children of a worker who is a national of a Member State within the meaning of Regulation No 1612/68 implies, in particular, that it is recognised in European Union law that such children must be eligible for study assistance from the State in order to make it possible for them to achieve integration in the society of the host Member State, that requirement applying afortiori where the persons covered by the provisions of that regulation are students who arrived in that State even before the age at which they had to attend school (Cases 389/87 and 390/87 Echternach and Moritz [1989] ECR 723, paragraph 35).

Therefore

the answer to the first two questions is that, in circumstances such as those of the main proceedings, the children of a national of a Member State who works or has worked in the host Member State and the parent who is their primary carer can claim a right of residence in the latter State on the sole basis of Article 12 of Regulation No 1612/68, without such a right being conditional on their having sufficient resources and comprehensive sickness insurance cover in that State.

There was accordingly no need to answer the third question.

In short, where the children of a EU worker have entered education in the UK, then there is a continued right to reside for the children and the parent who is their carer (whether an EU citizen themselves or not) for the duration of the course of education, regardless whether the marriage to the EU worker subsists or if the EU worker remains in the UK. This is an independent right belonging to the children. There is no requirement for self-sufficiency on the part of the family or parent with care. The family therefore has a right to reside and eligibility for support, including housing.

Case C‑480/08 Texeira v LB Lambeth (on reference from Teixeira v London Borough of Lambeth [2008] EWCA Civ 1088 (our report here) ) has also been decided. The basic issues on reliance on Art 12 were the same, with the additional questions being:

i) must the child have first entered education at a time when the EU citizen was a worker in order to enjoy a right to reside, or is it sufficient that the EU citizen has been a worker at some time after the child commenced education?;

and

ii) does any right that the EU citizen has to reside, as the primary carer of a child in education, cease when her child attains the age of eighteen?

On i) the European Court found that it is sufficient that the child became installed in the host country at a time when a parent was a worker and there was no requirement that the child must have started education at a time when the parent was a worker.

On ii)

the right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, ends when the child reaches the age of majority, unless the child continues to need the presence and care of that parent in order to be able to pursue and complete his or her education.

Overall, Ibrahim was a big case for Shelter and Nicola Rogers to bring and a significant decision. Naturally the Daily Mail didn’t like the result, apparently on the basis that Mrs Ibrahim has a 36 inch TV and a Playstation, this apparently being sufficient to make the law an ass. I wonder if the practical benefit of the decision for the Mail’s ex pat readership on the fringes of the Med had occurred to them?

Tiexiera was brought by Hanse Palomares, Adrian Berry and R. Gordon QC acting.

This is an appeal from a case in Grimsby County Court which we reported on here. It is also the first Court of Appeal decision to touch on tenancy deposit protection.

Briefly, the case involved a sale and rent back arrangement between UK and F whereby F was granted an Assured Shorthold Tenancy for 10 years. A proportion of the purchase sum was to be held back and would be paid over at the end of the term with a proportional deduction if the tenancy ended earlier than the 10 year point. Ultimately, F fell behind with the rent and was evicted and the sum was withheld.

Three arguments were advanced for F as to why the withheld money should be paid in full:

1. That the final payment was a deposit within the meaning of Chapter 4, part 6 of the Housing Act 2004 and is covered by the protection provisions to be found in that part. It was common ground between the parties that the money had not been dealt with in the manner required by part 6.
2. That the ability to withhold the final payment was a contractual penalty and therefore unenforceable.
3. That the withholding provision is in any event an unfair term under the Unfair Terms in Consumer Contract Regulations 1999

The Court of Appeal rejected all three lines of argument.

The Court held that while the definition of a deposit in Chapter 4 seemed to support F’s case, there was a common thread running through Chapter 4 that talked of the deposit monies being paid to the landlord and repaid tot he tenant. This wording was “simply inapt … to describe a situation in which a tenant pays nothing but is the person to whom money is paid, albeit that he is not to be paid some part of the money representing the purchase price of what was his property until some date in the future.”

F had conceded that the withholding of the final payment was not a penalty in the conventional sense but submitted that the same arguments should be held to apply in relief against forfeiture. So, if a sum was forfeited where that sum was not a genuine pre-estimate of loss relief should be granted. This argument failed on the basis of a line of authorities which state that relief can only be granted on the basis of forfeiture of property which a claimant owns or has right to. Therefore relief could not be granted on the basis of forfeiture of a payment which F was not yet entitled to.

On the unfair terms point it had been held at the previous hearing that F and his legal advisors had been able to consider the terms of the contract in detail before it was signed and had had the opportunity to consider the terms. The Court considered that the Recorder was wrong on this point holding that the “fact that a consumer or his legal representative has had the opportunity of considering the terms of an agreement does not mean that any individual term has been individually negotiated. The supplier must prove that the relevant term was individually negotiated.” This is quite an important and far-reaching point as there has previously been a general assumption that if a consumer takes legal advice on a contract it will generally be regarded as fair. The Court held that the taking of advice was not in itself enough and that the fact that there has been an opportunity to influence the substance of a term will not make it fair, that remains a matter for the supplier to prove. However, this decision did not assist F as the Court declined to hold that the contract created a significant imbalance in the circumstances of the case or that it was contrary to the requirements of good faith.

Accordingly the Court dismissed the appeal.

This case is a little sad in that the FSA recently published CP10/4 which contains there planned rules for the regulation of the sale and rent back sector. These rules would have prohibited the setting up of an agreement which contained a retention provision and would also have prevented UK from taking possession of F’s home in the way they did. Whether this should have altered the Court’s decision is debatable but it is positive that this sequence of events will be prohibited in future.

As before our thanks to Neil Wylie for keeping us informed of the progress of this matter.

A magistrates court may make and ASBO against any person over the age of 10 if it can be proved (to the criminal standard of proof, using the civil rules of evidence) that he has acted in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself and that it is necessary for such an order to be made – s.1(1), Crime and Disorder Act 1998 and R (McCann) v Crown Court at Manchester [2003] 1 AC 787.

At least one incident of ASB in the six months prior to the application must be proved – s.127, Magistrates’ Courts Act 1980. There is, however, no prohibition on the court considering conduct which pre or post-dates the complaint – Chief Constable of West Mercia Constabulary v Boorman [2005] EWHC 2559 (Admin); Stevens v South East Surrey Magistrates’ Court [2005] EWHC 1456 (Admin); Birmingham City Council v Dixon [2009] EWHC 761 (Admin).

Either party may apply for an ASBO to be varied or discharged (s.1(8), 1998 Act), although no order may be discharged during the first two years without the consent of the authority that obtained the ASBO (s.1(9).

The power to vary an ASBO includes a power to extend its duration – Leeds City Council v RG [2007] EWHC 1612; [2007] 1 WLR 3025. Where the variation seeks to impose more stringent obligations (including an extended length) on the defendant, the authority should lead evidence to establish that such an order is necessary – Leeds, above.

Significantly, there is no right of appeal to the Crown Court against a decision of the magistrates’ to vary (or not to vary) an ASBO; one must either seek judicial review or appeal by way of case stated – Langley v Preston Crown Court [2008] EWHC 2623 (Admin).

Birmingham had obtained an ASBO against Mr James in July 2006, to run for a period of 3 years. In December 2008, they applied to vary the ASBO so as to extend the duration, exclusion zone and list of persons that he could not associate with. It adduced evidence of drug related convictions in 2008 in another part of Birmingham. The court was also provided with evidence of convictions for breaches of the ASBO and CCTV footage of Mr James, together with others, hanging around (and obscuring his face) outside of some shops which was said to be further evidence of gang related activity.

The appellant opposed the making of the variation and argued that the authority should (a) apply for a fresh order and (b) prove some further act of ASB within six months of the application for the variation having been made. The DJ rejected both submissions, but stated a case for the High Court. The questions were:

(a) was it correct (on the facts of the case) for him to allow the variation and not require the authority to issue fresh proceedings?

(b) was it correct that an application for a variation did not require proof of further ASB within 6 months of the application being made?

The appeal was dismissed and both questions answered “yes”. There was no requirement to prove further ASB on an application for a variation. The power in s.1(8), 1998 was expressed in very wide terms and did not oblige the court to consider any particular type of evidence.

Some variations would, of necessity, not be predicated on further ASB (i.e. the defendant got a job in the exclusion zone). This was so regardless of the type of variation being sought.

The only question for the court was whether such a variation was necessary in order to properly protect the public. If the existing ASBO was not achieving that end then, in principle, it should be varied.

In deciding whether a variation was necessary, the court would need to have evidence before it to justify each variation and, in most cases, the evidence would be of further ASB, but, as a matter of law, it was not necessary to prove any such acts. S.127, 1980 Act merely required that the application be  made within 6 months of event or circumstance which allegedly rendered the original order inappropriate.

It was entirely proper for the variation to be made. There was no suggestion that the authority was seeking to defeat a right of appeal and the new complaints were closely linked to the ASB which underpinned the original order. It made sense to extend the original order and not require the authority to seek a fresh order.

On the facts of the case, one thing did, however, trouble the court. It appeared that the appellant had been in prison for most or all of the six months leading up to the variation application. If that was true, then any of the allegations against him could not have been true and it may have been that the DJ proceeded on a false factual basis. However, nether party was able to confirm the date of his imprisonment and so the court was unwilling to find that the DJ had erred on this basis.

* Jonathan Manning of Arden Chambers for BCC, Victoria Osler of Arden Chambers for Mr James. My attempt at humour. Sorry.