Blake Lapthorn and Hardwicke Chambers social housing seminar 9 February 2011

Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk

The Human Rights Act 1998 and Pinnock...

What does it mean for Registered Providers & Local Housing Authorities?

Andy Lane & Arthur MooreWednesday 9th February 2011



Programme – Part One

• The Human Rights Act 1998

• Weaver & Public Authorities

• Article 8 & “Gateway A”

• Barber & ASB Policy



Programme – Part Two

• “Gateway B” – original position

• Pinnock & Article 8 proportionality

• Current position & impact on RPs/LHAs



Human Rights Act 1998

• Came into effect in October 2000• Cases about an individual’s human rights can now be

raised in a UK court• Previously complaints about their human rights went to

the European Court of Human Rights in Strasbourg• The rights contained in the Convention are included at

Schedule 1 of the Human Rights Act. For the purposes of the Human Rights Act they are known as ‘the Convention Rights’



Who does the Act apply to?

(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Subsection (1) does not apply to an act if—(a) as the result of one or more provisions of primary legislation,

the authority could not have acted differently; or(b) in the case of one or more provisions of, or made under,

primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.



Are you a Public Authority?

• Definite public authorities – courts, local housing authorities, education authorities, Home Office

• Possible public authorities – housing associations

• Definite non-public authorities – private landlords (though see Ghaidan-v-Godin-Mendoza [2004]: a Rent Act succession case – a court is a public authority: s.6(3)(a) HRA98)



Public Authority (2)

• Poplar HARCA-v-Donoghue [2002]

• R(on the application of Susan Weaver)-v-L&Q Housing Trust [2008]

• Effect of Weaver – in most possession claims a RP will be susceptible to a Gateway A/B or Article 8 challenge



Examples of Convention Rights

• Article 2 Right to life

• Article 3 Prohibition of torture

• Article 6 Right to a fair trial

• Article 9 Freedom of thought, conscience and religion

• Article 12 Right to marry



The European Convention on Human Rights

The ECHR was drafted by the nations of the Council of Europe (including the UK) in the aftermath of World War II. The Council of Europe was founded to defend human rights, parliamentary democracy and the rule of law, and to ensure that the atrocities and cruelties committed during the war would never be repeated.



What are the Convention Rights?

• They number 16 but there are “later additions” referred to as Protocols - such as the right to education & protection of property

• They concern matters of life and death, like freedom from torture and being killed

• They also cover rights in everyday life, such as what a person can say and do, their beliefs, their right to a fair trial and many other similar basic entitlements.



Type of Convention Rights

• Absolute rights – such as the right to protection from torture and inhuman and degrading treatment (Article 3). The state can never withhold or take away these rights.

• Limited rights – such as the right to liberty (Article 5). These rights may be restricted under explicit and finite circumstances.



Type of Convention Rights (2)

• Qualified rights – rights which require a balance between the rights of the individual and the needs of the wider community or state interest. These include: the right to respect for private and family life (Article 8); the right to manifest one’s religion or beliefs (Article 9); freedom of expression (Article 10); freedom of assembly and association (Article 11); the right to peaceful enjoyment of property (Protocol 1, Article 1); and, to some extent, the right to education (Protocol 1, Article 2).



Article 8(1) -Right to Respect for Private and Family life

Everyone has the right to respect for his private and family life, his home and his correspondence.

• This is not a right to a home (see later slide)

• It will be engaged in any possession of residential accommodation

• Even a person who has never been a tenant can rely on Article 8 including trespassers and would-be successors

• This is a qualified right



Pleadings

• No need for L to plead compliance with Art 8 as compliance will initially be assumed: Lord Bingham in Kay (39)

• Confirmed in Pinnock



Mr Justice Collins in Defence Estates-v-JL & SoS for Communities & Local Government

[2009] EWHC 1049 (Admin)

“37. Article 8, of course, does not confer a positive right to be housed, merely a right not to lose housing unless that loss is compliant with Article 8 rights...”



Article 8(2)

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.



Interference with qualified rights is permissible only if...

• There is a clear legal basis for the interference with the qualified right that people can find out about and understand, and

• The action/interference seeks to achieve a legitimate aim.



Legitimate Aims

• Legitimate aims are set out in each article containing a qualified right and they vary from article to article. They include, for example, the interests of national security, the prevention of disorder or crime, and public safety.

• Any interference with one of the rights contained in Articles 8– 11 must fall under one of the permitted aims set out in the relevant article, and

• “The action is necessary in a democratic society”. This means that the action or interference must be in response to ‘a pressing social need’, and must be no greater than that necessary to address the social need.



Kay-v-Lambeth LBC [2006] UKHL 10 – the Gateway A defence

• Article 8(1) engaged and right interfered with by request for a possession order (107)

• Assumption that if Parliament allows it (or does not disallow it) then Article 8(2) satisfied and legitimate aim being pursued (107)

• “Cases where the home was occupied under a tenancy, or some other interest falling short of a tenancy, which has been brought to an end in accordance with the relevant law...will fall into this category. The interests safeguarded by art 8 will be sufficiently protected by the fulfilment of the formal requirements for the eviction laid down by the relevant statute or by the common law” (108)



Gateway A – Attack on the System

42...As I said in para 109 of my opinion in Kay, and again at the outset of para 110, a defence to a possession order which does not challenge the law under which it is sought but is based only on the personal circumstances of the occupier should be struck out. The personal interests safeguarded by article 8 must be taken to have been sufficiently safeguarded by the fulfilment of the requirements for the recovery of possession by the landowner laid down by statute or by the common law...

[Lord Hope in Doherty-v-Birmingham CC [2009] 1 All ER653]



Poplar HARCA-v-Donoghue [2001] 4 All ER 604: attack on s.21 “system”

• Poplar HARCA were a public authority

• Homeless accommodation – IH decision

• Section 21(4) notice requiring possession



Lord Woolf, CJ @ para 72

We are satisfied, that notwithstanding its mandatory terms, s 21(4) of the 1988 Act does not conflict with the defendant’s right to family life. Section 21(4) is certainly necessary in a democratic society in so far as there must be a procedure for recovering possession of property at the end of a tenancy. The question is whether the restricted power of the court is legitimate and proportionate. This is the area of policy where the court should defer to the decision of Parliament. We have come to the conclusion that there was no contravention of art 8 or of art 6.



Gateway A: Previous HRA Decisions

• McLellan – introductory tenancies

• Gallagher – discretionary cases

• Lee – disrepair

• Smart & Mullen – non-secure tenancy



Gateway A Cases (2)

• Adjei & Dixon – joint tenant NTQ

• Gilboy & Pinnock – demoted tenancies

• Austin – reviving a tenancy



Gateway A Conclusion

Exceptional case

Has to be seriously arguable

Challenge to statute/common law

Individual circumstances not relevant (see Kay & Doherty)

Burden of proof on D: Taylor

Not a viable defence/submission in most instances



ASB Policy - since 30 June 2004

The landlord (including LHAs/RPs/HATs) must prepare—

(a) a policy in relation to anti-social behaviour;

(b) procedures for dealing with occurrences of anti-social behaviour.

and publish it[s.218A(2) Housing Act 1996]



Barber-v-Croydon LBC [2010] EWCA Civ 51 – why the ASB policy is important

• Non-secure tenancy

• Threats, abuse & assault on staff member

• Learning difficulties & personality disorder

• NTQ and possession claim issued



Barber (2)

• Failure to refer to IMHS & Social Services

• Failure to interview pre-NTQ

• Possession Order at first instance

• Set aside by Court of Appeal – Gateway B (Wednesbury unreasonable @ 45)



Patten LJ in Barber

[44] Judged by any ordinary standards, the assault on Mr Baah was serious and obviously unacceptable. But the Council's policy on vulnerable people is to explore alternative solutions which may lead to the prevention of ASB in the future...Given the absence of any misbehaviour by Mr Barber prior to 22 May or subsequently, and having regard to Dr Owen's assessment of him, it was, I think, incumbent upon Mr Hunt to consult the other agencies and to take advice as to whether some alternative remedy such as an ABC would solve the problem...[45] What Mr Hunt appears to have done is to treat this as an ordinary category 3 case to which the Council's policies on vulnerable people have no application. I think that approach was wrong in principle and led to a decision by him which no housing authority faced with the facts of this case could reasonably have taken.



Postcript: Waller LJ in Salford City Council-v-Mullen [2010] EWCA Civ 336

67. Where a notice to quit has been served on a non secure tenant occupying accommodation as a homeless person it will take highly exceptional circumstances for there to be a gateway (b) defence. Barber may be an example of such circumstances where it seemed the Local Authority had been unaware when it served a notice to quit of the mental illness of the occupier and of the risk to his life if he were moved. Anything less than that kind of risk would be unlikely to qualify as so exceptional as to provide an arguable gateway (b) defence in the context of the homeless legislation.



Human Rights revisited:

The rise and rise of art.8 after Manchester CC v. Pinnock

Arthur Moore Hardwicke



The way we were pre:Kay v. Lambeth [2006] 2 AC 456

No defence to ‘mandatory’ possession:• Introductory• Non-secure (Part VII)• Starter (s.21)• Demoted• Mandatory grounds 1988 and 1985 Acts• Termination of joint tenancy



The way we were post:Kay v. Lambeth [2006] 2 AC 456

• “a defence which does not challenge the law under which the possession order is sought as being incompatible with article 8 but is based only on the occupier’s personal circumstances should be struck out”.




BUT

• It is open to a Defendant “to challenge the decision of the local authority to recover possession as an improper exercise of its powers at common law”

• “a decision that no reasonable person would consider justified”



Gateway (b) defences:• Attacks the decision not the law

• Decision of a “public authority”

• Judicial review principles°

Illegality

°

Procedural impropriety°

Irrationality

• Exceptionality




Doherty v. Birmingham CC [2009] 1 AC 367

• Luke warm approval of Kay

• Traditional approach to Judicial review would have to be expanded

• Court to make own assessment of relevant facts




What did this all mean?

• Which decision?

• Were personal circumstances relevant or not?

• How were gateway (b) JR principles different from “ordinary” JR?

• What was the effect if a decision was in fact unlawful?



Art 8(2)

“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”



The way we are:Manchester CC v. Pinnock [2010]

UKSC 45• Anti-social behaviour of children, not the tenant

• Demoted tenancy

• No defence at law to claim for possession

• The CA’s view



Pinnock in the Supreme Court

• The problem:

• The growing weight of Strasbourg Jurisprudence

°

Kay v. UK

°

JR not good enough (no fact finding)

°

County Court can find facts, but has no “JR” jurisdiction



Pinnock in the Supreme Court:What is clear?

• Any person at risk of being dispossessed of his house at the suit of a local authority has the right to raise the question of proportionality

• It is the proceedings as a whole which must be considered for art 8. compliance

• The Court will only consider proportionality if the occupier raises it



Pinnock in the Supreme Court:What is clear?

• The question is always whether the eviction is a proportionate means of achieving a legitimate aim



What is “proportionate”?

Not a term found in art 8 or HRA

BUT

• Vindicate ownership rights

• Duties in relation to distribution and management of housing stock

• Need to move vulnerable people into sheltered accommodation

• Need to remove nuisance neighbours



Pinnock in the Supreme Court:What is clear (contd)

“….in virtually every case where a residential occupier has no contractual or statutory protection,….. there will be a very strong case for saying that making an order for possession would be proportionate.”



Pinnock in the Supreme Court:What is unclear

• “Exceptionally” is an outcome not a guide?

• “In accordance with the law” - Separate requirement or part of proportionality?

• Does proportionality differ from reasonableness?

• What does the Court do if a breach of art 8 is found?



Pinnock in the Supreme Court:What is unclear (contd.)

• What is the status of an occupier left in possession with no domestic law rights?



Effect of Pinnock on RPs and LAs

• Likely to be most relevant in cases of mental or physical disability.

• Have a policy and stick to it

• Decision paper trail

• Explicit consideration of art. 8

• Keep decision under review



Effect of Pinnock on RPs and LAscontd.

• Art.8 is likely to be raised in every case where there is no other defence

• Courts should initially deal with it summarily (Pinnock para 61)- be prepared


The Localism Bill and other recent legal developments

9 February 2011Robert Wassall

Partner and Head of Social Housing

023 8085 [email protected]

mailto:[email protected]

What am I going to talk about?

New law– Localism Bill– ASB update

Recent cases– G v E– Octavia Hill Housing Trust v Brumby– Ruza Berrisford v Mexfield Housing Co-operative

Other recent developments– “Running a business from home”

Localism Bill: dealing with…

Tenancy strategiesFlexible tenanciesAffordable tenanciesNew rules about succession (to secure tenancies)Allocations

Localism Bill: not dealing with…

PlanningHomelessnessHousing financeHousing mobilityRegulation

CLG press release: “a new era for people power”

“The Bill will put councils in charge of allocation and tenure of social housing, giving councils the flexibility to use their social housing stock to the maximum effect and reduce waiting lists.”

Tenancy strategies 1/2

Each LA must prepare and publish a “tenancy strategy”Setting out the matters to which RPs in its district are to have regard in formulating policies relating to:– the kinds of tenancies they grant; and– the circumstances in which they will grant a tenancy of

a particular kind; and– where they grant tenancies for a fixed term, the lengths

of the terms; and– the circumstances in which they will grant a further

tenancy on the coming to an end of an existing tenancy

Tenancy strategies: 2/2

Before adopting a tenancy strategy, the authority must:– send a copy of the draft strategy to every RP in its

district, and– give the RP a reasonable opportunity to comment on

those proposals

Affordable Rent tenancies are…

Assured shorthold tenanciesGranted by registered providersFor a fixed term of two years or moreWith rent of up to 80% of local market rent– including service charges?

Tenants will have Right to Acquire

Recovery of possession of Affordable Rent tenancy (on expiry of fixed term)

The court may not make an order for possession of the dwelling-house unless;1. the landlord has given to the tenant not less than six

months’ notice in writing stating that 2. the landlord does not propose to grant another

tenancy on the expiry of the fixed term tenancy, and3. informing the tenant of how to obtain help or advice

about the notice and, in particular, of any obligation of the landlord to provide help or advice.

– But what about Pinnock?

Flexible tenancies

a flexible tenancy is – a secure tenancy; – granted for a fixed term of not less than two years;

and– before it was granted the landlord served a written

notice on the person who became the tenant (stating that the tenancy would be a secure tenancy)

“We would expect social landlords to provide longer tenancies to families with children”

Review of flexible tenancies 1/2

A person on whom a notice (that the tenancy will be flexible tenancy) is served may request a review of the prospective landlord’s decision about the length of the term of the tenancy.The review may only be requested on the basis that the length of the term does not accord with a policy of the prospective landlord as to the length of the terms of the flexible tenancies it grants.

Review of flexible tenancies 2/2

A request for a review must be made;– within 21 days from receipt of notice, or– such longer period as the the prospective landlord may

allowOn a request being duly made to it, the prospective landlord must review its decisionThe Secretary of State may by regulations make provision about the procedure to be followed in connection with a review

Rights of flexible tenants

Right to– exchange– take in lodgers– sub-let part (with consent)– repairs– consultation and information– to buy

No automatic right to– make improvements– be compensated for making improvements

But, such rights can be given

Termination of flexible tenancy (by tenant)

The tenant must serve a notice in writing on the landlord giving four weeks notice The landlord may agree with the tenant to dispense with this requirementThe tenancy is terminated only if, on that date– no arrears of rent are payable under the tenancy, and– “the tenant is not otherwise materially in breach of a

term of the tenancy”

Recovery of possession of flexible tenancy 1/3

On or after the coming to an end of a flexible tenancy a court must make an order for possession if it is satisfied that 1. the flexible tenancy has come to an end; and 2. no further tenancy is in existence; and 3. the landlord has given the tenant

– not less than six months’ notice in writing; and – not less than two months’ notice in writing – stating that the landlord requires possession of the

dwelling-house.

Recovery of possession on expiry of flexible tenancy 2/3

six month notice must state:– the landlord does not propose to grant another

tenancy on the expiry of the flexible tenancy; and– set out the landlord’s reasons for not proposing to

grant another tenancy; and– inform the tenant of the tenant’s right to request a

review of the landlord’s proposal and of the time within which such a request must be made.

two month notice must state:– that the landlord requires possession (may be given

before or on the day on which the tenancy comes to an end).

Recovery of possession on expiry of flexible tenancy 3/3

The court may refuse to grant an order for possession:– if the tenant has requested a review of the landlord’s

proposal not to grant another tenancy; and– the court is satisfied that the landlord has failed to carry

out the review properly; or– that the decision on the review is otherwise wrong in

law

Succession & secure tenancies: new rules

A person will be qualified to succeed if:– he/she occupies the dwelling house as his/her only or

principal home at the time of the tenant’s death, and he/she is the tenant’s spouse/partner/ civil partner.

Any person will be qualified to succeed if– an express term of the tenancy makes provision for

that person to succeedThis will not apply to a tenancy that was entered into before the Localism Act 2011 comes into force

Allocations: now

LAs must operate ‘open’ waiting lists– anyone eligible, to any authority (some exceptions)

LAs must accept applicants onto waiting listWhich means (perception);– anyone will be able to get into social housing, if they

wait long enough

Allocations: the future

LAs can decide which ‘categories’ of applicants should join waiting listLAs should “put in place arrangements which suit the particular needs of their local area”Examples:– Households (not individuals)– Residency criteria– Exclude those with ‘poor tenancy record’

But must include vulnerable

All of which means…

Local authorities and RPs will have the option(“freedom”), to grant fixed term tenancies (‘flexible’and ‘affordable’) for min. two years (but no max.)Fixed term tenants will have (most of) same rights as periodic tenantsLocal authorities will need to publish a policy on tenanciesThere will be new rules on successionAllocation rules may vary by LA area

What do LAs need to do?

Prepare tenancy strategyCreate ‘flexible’ tenancy agreement? Re-consider their allocation policy

What do RPs need to do?

Review existing policiesFormulate new tenure policyCreate ‘affordable’ tenancy agreement

And now, some cases…

G v EOctavia Hill Housing Trust v BrumbyRuza Berrisford v Mexfield Housing Co-operative

G v E: the facts

E, a young adult with profound learning disabilities, had been looked after for many years by FFollowing allegations that F had physically abused E, local authority removed E from the care of F– without consulting with E's nearest relative, (G),– without giving F opportunity to make representations

E given tenancy agreementY (owner of accommodation) signed a tenancy agreement on behalf of E

G v E: the decision

E lacked capacity; E had been deprived of his liberty; That deprivation of liberty amounted to a breach of E's human rights (Article 5 ECHR); The removal of E from F's care and the failure to involve G/F in the decision making process of E's future amounted to a breach of E's human rights (Article 8 ECHR); The purported tenancy agreement was a nullity

G v E: the ‘tenancy’

E had no capacity to enter into any agreementNo-one had any authority to enter into that purported contract on his behalfIn any event the nature of the occupancy precluded a tenancy from coming into existence– because staff of the establishment had unrestricted

access to the room occupied by E

G v E: the care home 1/2

An establishment is a care home if it provides accommodation “together with nursing or personal care”This is a question of fact to be decided in each case – registration as a care home or not as the case may

be, is not, in itself, sufficient to resolve this.This establishment was not registered as a care homeOwner claimed could not be care home because was not providing accommodation (due to tenancy)

G v E: the care home 2/2

But, if no tenancy, then E licensee– which means both care and accommodation provided– so establishment was care home?– If so, then should be registered (under CSA s 3) and– the owners were unlawfully in receipt of housing

benefit and committing a criminal offence.CQC had inspected!Court refused to decide if care home or not!

G v E: the lessons

The removal of someone from his/her carer (by a local authority) will always be a breach of their human rights which may or not be justifiable. The placing of someone in the care of others will be a breach of their human rights unless their carers and/or family are consulted. The legal status of what truly amounts to a "care home" is uncertain. Persons without sufficient mental capacity cannot enter into tenancy agreements In a caring environment, it may be (legally) impossible to truly grant a tenancy.

Octavia Hill HT v Brumby: facts

B, a tenant of the Trust, claimed damages from trust on basis that for nearly four years she had suffered from the Trust's failure to prevent a nuisance to her by visitors to another flat in the block. B alleged that she had made 11 complaints to the Trust, but that it had failed to take any reasonable steps to abate the nuisance caused to her.

Octavia Hill HT v Brumby: decision

The Trust applied to strike the claim out for disclosing no reasonable grounds and applied for summary judgment on the basis that: – it had no real prospect of success; – for there to be a cause of action there had to be more

than the mere existence of anti-social behaviour on the Trust's land and that a mere failure to abate the nuisance was not enough

The High Court decided that a victim of anti-social behaviour might be able to successfully sue their landlord for failing to tackle such behaviour.–

Octavia Hill HT v Brumby: the problem

Octavia were unable to demonstrate to the satisfaction of the court that there existed a decision-making process and ‘audit trail’

Berrisford v Mexfield Housing Co-operative CA 1/3

M was a fully mutual housing associationM had entered into month to month "occupancy agreement" with B under which, by clause 6, it agreed that it could not bring the agreement to an end unless B;– “fell into arrears” or – “committed a breach of the agreement”

M served B with NTQ (but no arrears or breach)


A tenancy agreement serves a dual purpose– it is a contract between the original parties who were

landlord and tenant; and – it creates an interest in land for the tenant (which was

transferable) The commencement of a tenancy and the maximum duration of its term had to be certain, or capable of being rendered certain, before the tenancy took effect.The terms of clause 6 made the maximum term of the tenancy uncertain, therefore the tenancy was invalid.


What this means for social landlords:– clause 6 rendered the maximum term of the tenancy

uncertain and the written tenancy was therefore void – the only tenancy between the parties was an implied

tenancy, from month to month If tenancy agreements state that it is only in certain circumstances that the agreement may be brought to an end, (so that additional circumstances permitted by law are excluded), these should be re-considered in light of this case.

ASB update

Abolition ASBOsIntroduction “gangbos”

Abolition of ASBO (and other ASB news)

Community triggers - local agencies will be compelled to take action if five people from five different residences in the sameneighbourhood have complainedASBOs replaced with ‘criminal behaviour order’Crime Prevention Injunctions - civil burden of proofCommunity Protection Orders - these are place-specific orders, bringing together a number of existing measuresPolice "direction" powers - the ability to direct any individual causing or likely to cause crime or disorder away from a particular place and to confiscate related items

“GangBOs”

Police and local authorities can apply to County court Last up to two years. For adults who have been proven to have engaged in, encouraged or assisted gang-related violenceCould ban gang members from entering certain areas, wearing ‘gang colours’, and going out in public with dangerous dogs. Will not lead to a criminal record if breached.

CIH: "Running a Business From Home",

1/11/10, CIH published guidance about the advantages of encouraging tenants to run a business from home (in order to boost their employment prospects)Grant Shapps: “I want all social tenants with the ambition, drive and vision to set up their own businesses to be given all the help they need to do so. Tenants should have the same opportunities as anyone else… “Sarah Webb: “In reality there are many types of businesses that tenants could run from home without causing any difficulties.

The Localism Bill and other recent legal developments

9 February 2011Robert Wassall

Partner and Head of Social Housing

023 8085 [email protected]

mailto:[email protected]

Blake Lapthorn and Hardwicke Chambers social housing seminar 9 February 2011

Education

Transcript of Blake Lapthorn and Hardwicke Chambers social housing seminar 9 February 2011