This case is a vivid illustration of the difficulties of challenging a Local Authority’s apparent homelessness gatekeeping practices, or alternatively, if you are a Local Authority, a clear example of tactical defences to such a challenge.

The problem is that a claim for judicial review seeking to address, in part, the lawfulness of a policy, rests pretty much entirely on the impact of the policy on the individual claimant. Thus the astute Council settles the effect on the Claimant, leaving the broader policy issue as academic and pretty much impossible to pursue.

In this case, Mr Raw (incidentally a veteran of the Kay v Lambeth short-life housing battles and still in the same property despite an order for possession being made) had applied as homeless to Lambeth. Lambeth had referred him to Lettings First – a deposit scheme for private accommodation run by Lambeth, and it became clear that they were not going to proceed with making s.184 inquiries once the referral had been made. Once judicial review proceedings were underway, Lambeth restarted inquiries under s.184, eventually accepting the full duty, but removed Mr Raw from the Lettings First scheme until the decision that the full duty was owed was made. it then re-instated Mr Raw on the Lettings First scheme as well as allowing him to bid under Lambeth’s CBL scheme.

Mr Raw’s JR claim included a claim for a declaration that failing to make inquiries under s.184 was unlawful, and that a referral to Lettings First was not a basis to stop the s.184 process. By the time the matter came to hearing, then, this part of the claim was wholly academic (as was the rest).

Mr Raw sought to persuade the court that this was an iossue of broader public interest, given that at least 100 and probably more homeless applicants each year were referred to Lettings First and, as the conditions appeared to be standard, would have their homeless applications abandoned, or at least frozen. This looked like gatekeeping.

Mr Watkinson who appeared on behalf of the claimant invited me to exercise my discretion to entertain the application for a general declaration and to adjudicate upon it. In doing so he relied on two points. The first to which I refer in more detail below was that it is to be inferred that there are many other people in a similar position to that in which the claimant found himself before the Council agreed both to continue its inquiries and to allow him to participate in the rent deposit scheme, so that the court would have to determine the issue raised in this case sooner or later in another case if I declined to do so in this case.

Mr Watkinson’s second ground was that the operation of the Council’s policy, as he submitted, has the effect that claims for judicial review brought by people in the position of the claimant are always likely to result in offers being made by the Council similar to those made in this case before the claim gets to court with the result that unless the court is prepared to adjudicate on the legality of the Council’s policy in a case which no longer has any practical effect on the particular person who has brought a claim there will never be a mechanism for subjecting the alleged illegality of the Council’s policy to judicial scrutiny.

The Court considered R (on the application of Zoolife International Limited) v Secretary of State for Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin) on the issue of hearing academic cases. Silber J stated

In my view these statements show clearly that academic issues cannot and should not be determined by courts unless there are exceptional circumstances such as where two conditions are satisfied in the type of application now before the courts. The first condition is in the words of Lord Slynn in Salem (supra) that “a large number of similar cases exist or anticipated” or at least other similar cases exist or are anticipated and the second condition is that the decision in the academic case will not be fact-sensitive. If the courts entertained academic disputes in the type of application now before the court but which did not satisfy each of these two conditions, the consequences would be a regrettable waste of valuable court time and the incurring by one or more parties of unnecessary costs.

Here, although the claimant had sought evidence on the existence of other claims on this topic, there was not sufficient evidence that a large number of claims would be brought in the future, or had been settled in the past. And, while

In principle in a hypothetical case in which a claimant was able to identify an unlawful policy implemented by a local authority which could never be challenged by a person adversely affected by it because the nature of the illegality was so transient or short lived that it would always cease before it could be brought to court or where the local authority deliberately disapplied the policy so as to render all claims academic before the court could decide on them, I could imagine that there might be a good reason in the public interest for the court to entertain an academic claim for a declaration that the policy was unlawful.
this did not appear to be such a case.

Further

There was no evidence before the court of other cases in which the Council’s allegedly unlawful policy was initially applied but subsequently disapplied, let alone disapplied by the Council after proceedings for judicial review had been issued with the motive of preventing the court from adjudicating upon the legality or illegality of the alleged policy.

And, although Lambeth’s account of its Letting First scheme and referral policy left questions unanswered, there was some force in Lambeth’s argument that any individual challenge to it would be fact sensitive, depending on how the scheme affected that person.

The Court declined to adjudicate on the ‘academic’ declaration.

However, as a coda, Mr Justice Stadlen provided Lambeth with a homily on the immediate nature of the duty to make inquiries under s.184 (and provide interim accommodation under s.188) and offered his view that the apparent operation of the Letting First scheme gave rise to serious concern:

Thus if for example while waiting for a property to become available under the rent deposit scheme a person to whom the 7 January 2009 document or its equivalent was addressed was in a position where had the council continued its inquiries it would have had reason to believe that he might be homeless, eligible for assistance and have a priority need there is nothing in the document to tell him either that he may be forfeiting a right to interim accommodation which he might otherwise have had or alternatively that the council would consider itself bound to secure interim accommodation whether under section 188 or voluntarily.

and

it might well be that a blanket policy of ceasing inquiries in all cases where a Part VII applicant has been referred to the rent deposit scheme could be construed as such an avoidance of statutory obligation. In short the benefits of the rent deposit scheme, great though they may be, are not equivalent to and may not be an adequate substitute for at any rate the benefits to a Part VII applicant of the duty to provide interim accommodation under section 188, which benefits may in practice be diminished or undermined in the event of the Council not completing its section 184 inquiries.

But. of course, these are merely observations on what might have been the finding had the Court decided to hear the case on the facts and Lambeth’s Letting First scheme was not found to be unlawful.

To recap: the claimant lives in a caravan on land to the North of road which is a part of the public highway, even though it is not itself metaled. He claims that, by adverse possession, he is entitled to have his title to the land registered.

My view was that this was bound to fail because: (i) a highway cannot be extinguished by adverse possession (the “once a highway, always a highway” point); and (ii) section 263 of the Highways Act 1980 vests the surface of any highway maintainable at public expense (as this one was) in the local authority. The same analysis was applied by Elias LJ and Mummery LJ in the Court of Appeal. Orthodoxy, in my view anyway, is restored.

I had also doubted whether a statement by Mummery LJ in the earlier case of London Borough of Bromley v. Morritt [1999] EWCA Civ 1631 that property could not be acquired by adverse possession over land subject to a public right of way could be correct. Mummery LJ helpfully clear this up:

In the court below, counsel for the Land Registry cited a passage from London Borough of Bromley v. Morritt [1999] EWCA Civ 1631 in which, without any display of law, I said-

“As a matter of law, an adverse possession or squatter’s title cannot be acquired to land over which a public right of way exists.”

In that case the court had not had the benefit of clear legal submissions on the point — in particular the appellant was a litigant in person —. I think that “without any display of law” is a very neat and gracious way of the judge to put it.

My last post on this subject generated a lot of feedback – ranging from those who equated adverse possession with theft, to those who felt the court ought to have made the doctrine more expansive. I should make it clear that I am not unsympathetic to Mr Smith’s plight. Successive governments have passed laws making it increasingly difficult for people, especially Romani Gypsies, to exist in England and Wales lawfully, without providing them with any alternatives. That, on any analysis, seems irrational (since the alternative may be to house them using public funds which as readers know is not in generous supply) and unfair.

What seems to be the problem here is s.263 of the Highways Act 1980. Earlier acts, up to section 29 of the Local Government Act 1929, vested not the whole highway but the “road” in the local authority. While “road” did include the footway beside the road, it did not include roadside wastes such as Mr Smith inhabits (Curtis v Kesteven County Council (1890) 45 Ch D 504) and it might be useful — for legal certainty if nothing else — if that were still the situation. For some reason the drafters of the 1980 Act decided to extend the vesting to the whole of the highway beyond merely the road.

The court did not consider the “illegality” argument which had been put forward by the Council at first instance, namely that because Mr Smith’s occupation of his property was illegal, he could not thereby gain adverse possession of it.

This was a second appeal to the Court of Appeal of a first instance decision that Mr Henley’s claim for disrepair against his former landlord, Ms Bloom was an abuse of process, the first appeal to a Circuit judge having been dismissed.

The brief facts: Mr H was the tenant of a basement flat since about 1986. Ms B was the landlord from about 2001, when she acquired the freehold of the property, later just retaining a lease of the basement flat.

In October 2002, Brighton Council served notices stating that it was minded to serve formal notice requiring repairs, including defective pipes, brickwork and plaster, windows and doors on Mrs B. In November 2002 formal notice was served. In February 2003 Mrs B obtained a builders survey which highlighted penetrative damp and defective plaster work. No works were done. In September 2006, Mrs B obtained another builder’s survey, showing similar problems.

Meanwhile, in August 2006, Mrs B had begun possession proceedings against Mr H on the grounds that the tenancy was an AST which had been duly terminated.

Mr H defended on the basis that he was a regulated tenant under the Rent Act 1977 and there were no grounds for possession under that Act. Alternatively, it was a shorthold tenancy, no notice had been served under s.52 Housing Act 1980, and it was not just and equitable to dispense with notice.

The claim was settled in January 2007 on terms that Mr H would vacate by 1 June 2007 and Mrs B would pay him £16,000 and £4,000 costs. In the recital to the consent order it stated that this was full and final settlement of any claim Mr H might have arising out of improvements he had carried out at the flat, and that Mr H was to leave the flat in a good and tenentable condition when he vacated.

Mr H left on 1 May 2007, but before he did, he obtained an expert report from an environmental health officer on the condition of the property, showing extensive disrepair.

Mrs B refurbished the flat in July 2007, receiving a report from the builders on damp penetration and other issues.

Soon afterwards, Mr H raised his disrepair claim with Mrs B. There was some skirmishing on liability, causation and the extent to which Mr H had contributed to the defects. The claim was issued in November 2008.

Mrs B defended on the basis that the claim was an abuse of process and that a fair trial was impossible. Mrs B applied for a strike out on that basis. She also counterclaimed for untenant-like behaviour and breach of the agreement to deliver up in tenantable condition.

The first instance DJ granted the strike out. He held:

that there was no good reason for Mr Henley not having raised the disrepair claim during the course of the possession claim and that he “was not putting his cards on the table” during the negotiations which settled that claim. He said that the disrepair claim “ought to have been brought in the earlier proceedings”, and was “eminently capable of being settled in those proceedings”. Accordingly, he concluded, the claim was an abuse of process. He also concluded that it would be impossible to have a fair trial as Mrs Bloom was “now in a position in which she cannot instruct an expert to inspect the alleged defects in the flat.

Mr H appealed to the Circuit Judge. The CJ dismissed the appeal, for rather narrower reasons.

He relied on the fact that “the state of the property was raised in the possession proceedings and in the negotiations that led to the consent order”, and also on the fact that “the tenant agreed that he would deliver up the property in good condition”. Accordingly, as the condition of the flat was raised both in the argument contained in the pleadings and in the agreed terms contained in the consent order, he concluded that it was an abuse of process to raise a subsequent claim for damages for disrepair of the flat. As to the fair trial issue, Judge Simpkiss said that Mrs Bloom “would be fighting the case with one hand behind her back” and that the unfairness “had been caused entirely” by Mr Henley.

On a second appeal, the case came to the Court of Appeal.

After reviewing the precedent cases (Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1, Stuart v Goldberg Linde (a firm) [2008] 1 WLR 823 ) and noting that it would be “wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive” (Lord Bingham in Johnson), and the Art 6 entitlement to access to justice for an arguable case, the Court of Appeal found that Mr H’s disrepair claim was not an abuse of process.

Mr H could indeed have raised the claim in the possession proceedings (held against his own argument), but the issue was whether he should have. On that:

i) the possession proceedings did not involve the question of whether the flat was out of repair. The provisions in the consent order related solely to Mr H’s improvements to the flat and/or his obligation on the condition of the flat at the end of the tenancy. it did not touch on Mrs B’s obligations.

ii) If the possession claim had gone to trial, whether Mrs B had won or lost, there would be no question that a subsequent disrepair claim by Mr H would not have been an abuse of process. It was therefore only the ‘integrity of the consent order’ that was at issue. But that order was clear on its terms and it was, of course, open to Mrs B to introduce terms on disrepair at that time. Given the factual history it could not be said that she was unaware of the possibility of such a claim and it was as much up to her to raise it in the possession proceedings as Mr H.

The bringing of the claim was not an abuse of process. If at trial the court was unhappy about the manner in which the claim had been brought, it was open to deal with that in costs.

On the fair trial issue, it was clearly possible for there to be a fair trial. While Mrs B could no longer obtain an expert report on the condition of the property at the relevant time, she had an abundance of material relating to the condition of the property between 2001 when she purchased it to July 2007 when the builders conducting the refurbishment reported to her.

It is not unusual for one party in litigation to be better informed or better advised than the other, for one party to have first hand evidence of important events which is not available to the other, or for one party to have stronger expert evidence than the other. Such inequalities normally cannot possibly justify a conclusion that the trial cannot be fair, even where the advantaged party can be said to be in some way to be responsible for the inequality. Of course, if the inequality is very substantial and very prejudicial, and especially if it is attributable to the actual wrongdoing of the advantaged party, the court might conclude that a fair trial cannot be achieved. But this is not such a case.

In addition, Mrs B could cross examine Mr H’s expert.

Mrs B failed by a significant margin to establish a fair trial was not possible.

Appeal allowed on both points. Mr H may have been underhand in keeping the disrepair claim up his sleeve, but it was not abuse to do so.

Comment
Thank heavens for that. The idea that all possible litigable issues arising out of a tenancy should be stuffed into a possession proceeding or risk being struck out as an abuse of process is bonkers. While a disrepair counterclaim may well be both relevant and necessarily raised in a possession claim based on rent arrears, in a claim such as this, based on notice and terms of termination of the tenancy alone, it is hard to see how a disrepair claim could be considered relevant, let alone necessarily have to have been included. And it may well be that the time scale of the possession proceedings would prejudice the disrepair claim, where time for expert evidence and relevant disclosure is important.

Showing abuse of process must surely be a high hurdle to surmount. The first instance and first appeal decisions in this case appear to have been extremely generous to the landlord, to put it mildly, largely on the basis that Mr H hadn’t behaved particularly sportingly.

Mr Ashcroft purchased a property with the aid of a mortgage from Bradford & Bingley in 1990. He failed to make a single payment and an SPO was obtained in April 1991. He breached the terms of the suspension and the property was subsequently sold by the building society in 1992. The proceeds of sale left a shortfall of c.£30,000.

In 1995 (i.e. 3 years later), the society wrote to Mr Ashcroft to ask how he proposed to pay the shortfall. Mr Ashcroft responded with “indignation at the time it had taken the building society to make the demand” but – in Oct 2000 -  and at the suggestion of the society, agreed to make payments of £10 pcm. These stopped in 2004.

In 2008, the society issued proceedings. Mr Ashcroft contended that they were statute barred. He argued that, by s.20, Limitation Act 1980, the society had 12 years to recover the mortgage loan. On any view, the claim was issued more than 12 years after the right to recover the monies arose. However (argued the society), by s.29(5), time starts to run again from the date when the debtor acknowledges the claim.

The Recorder held that the claim was not statute barred, but granted permission to appeal. The appeal was dismissed. The problem for Mr Ashcroft was that he had made the £10 payments, the effect of which was to bring him within the scope of s.29(5), 1980 Act, and start time running all over again.

I’m not sure if the suggestion by the society that Mr Ashcroft pay £10 pcm was a stroke of genius or not. On the one hand, by acknowledging the debt, it got them out of a potentially tricky limitation period. On the other (as Sedley LJ points out in his judgment), they were potentially giving rise to a binding compromise that would leave Mr Ashcroft paying the debt until 2402 (!) but with a defence to any proceedings (such as the present) so long as he made his payments.

(1) Where any premises have been let as a dwelling under a tenancy which is [neither a statutorily protected tenancy nor an excluded tenancy] and—(a) the tenancy (in this section referred to as the former tenancy) has come to an end, but (b) the occupier continues to reside in the premises or part of them, it shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises.

Mr Coombes had lived in the property for around 54 years with his parents.  On their death, the LA served an NTQ on him.  He claims to have a secure tenancy and that he should have been dealt with through the allocation scheme.  Those claims were stayed pending a hearing in the High Court of his counterclaim on Articles 8 and 6.  On Article 8, the claim was based on his inability to bring his personal circumstances into account in the section 3 proceedings; on Article 6, that section 3 does not allow a determination of his civil rights before a fair and impartial tribunal.  The former point seems strong to me, the latter less so.

Cranston J found against Mr Coombes on both grounds but also granted leave to appeal (although not a leapfrog to the SC).  Cranston J seems to have suggested that an Article 8 defence could be raised in the county court and “The requirement to seek a possession order, rather than to recover possession without any supervision by the court, could not be incompatible with art 8. Coupled with other legislation, s 3 did not fall within the exceptional category of cases which were beyond the boundary of democratic solutions to the problem of allocating scarce public housing.” On the Article 6 point, the note is not exactly full but suggests that Cranston J suggested that the occupier has full access to the court for the determination of his claim.

More to follow on receipt of the transcript…

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.