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Presentation on theme: "15 th October 2009 HOUSING LAW UPDATE JENNY OSCROFT."— Presentation transcript:


2 SWINDON v REDPATH [2009] EWCA Civ 393 Meaning of housing related conduct for purposes of s.153A Mr R an ST of Swindon. Mr J his owner/occupier neighbour Feb 2003 convicted of various alcohol and driving offences = result of Mr J informing police Campaign of harassment by Mr R vs Mr J July 2005 SPO against Mr R June 2006 SPO > PPO. ASBI granted excluding Mr R from area

3 (…) SWINDON v REDPATH July 2006 Mr R evicted. ASBI breached… ASBI # 2 March 2008 Mr R returned to the area, more trouble…ASBI # 3 LJ Rix: no requirement for Mr R to be a council tenant or his victims council tenants Mr Rs haunting of bus shelter / council garages let to tenants in the area = housing related conduct Piecemeal conduct to be viewed as a whole Approach to legislation should not be artificially restrictive

4 OMBUDSMANS DECISION: COMPLAINT AGAINST CARDIFF CC Council failure to deal with noise nuisance & threatening behaviour from Mr W against Mr D & Miss B 2005 Mr W introductory tenant, serious & persistent complaints received….Secure tenancy confirmed 2006 threatening behaviour, criminal conviction NSP served, no further action 2007 continued nuisance, threats to kill, music 2008 Mr D & Miss B withdrew statements & requested transfers 2008 Mr W transferred to property on same estate

5 (…) OMBUDSMANS DECISION: COMPLAINT AGAINST CARDIFF CC Ombudsman highly critical, identified range of options open to Council: ASBIs, EPA, intro & demoted tenancies, eviction & Councils own ASB policy ASB had been left to pollution control entirely No referral to dedicated ASB unit Officers evidence varied & disjointed Finding of maladministration Ombudsman recommendations: -Ms B to be transferred to suitable location within 3 months -Ms B to be paid £7,500 for 3 yrs complaint -Council to revise ASB policy & further training

6 CIRCLE 33 HOUSING TRUST v KATHIRKMANATHAN [2009] EWCA Civ 921 Appeal of committal for breach of undertaking following complaints of noise nuisance by Mr K, assured tenant of Circle 33...not to, whether by himself or by instructing or encouraging any other person:- 1) engage or threaten to engage in conduct capable of causing a nuisance or annoyance to Ms X & Ms Y […] 2) create excessive noise, such that a reasonable person would consider it anti-social, inside 63 Peel Close […] Appeal on 3 grounds 1) Judge had misconstrued undertaking 2) no evidence Mr K responsible for nuisance and 3) sentence excessive CJ held undertaking meant Mr K responsible for children/others

7 (…) CIRCLE 33 HOUSING TRUST v KATHIRKMANATHAN [2009] EWCA Civ 921 CA disagreed (Ward LJ & Jacob LJ) : -neither allowing nor permitting appeared in the undertaking -breach of injunction a serious matter involving deprivation of liberty -injunctions should be drafted with considerable care -lack of evidence against Mr K personally -no evidence sufficient to identify Mr K as source -on sentencing: primary objective to punish for contempt and to use sanction coercively to prevent recurrence -the right sentence would therefore have been suspended and 4 weeks suggested appropriate

8 MANCHESTER CC v PINNOCK [2009] EWCA Civ 852 Evidence to be taken into account to justify breach of a demoted tenancy at review panel & test of proportionality under Art 8 at CC Mr P had lived at 65 Meldon Rd 30 years with partner and 5 children Children prolific offenders, ASBOs, ASBIs, breaches Demoted tenancy order made including new terms on nuisance and harassment etc. NSP served during demoted term on basis of childrens behaviour, Mr P not implicated personally Mr P sought oral review, panel felt although children not living at property, still returned there and posed a risk on basis of further offences since NSP

9 (…) MANCHESTER CC v PINNOCK [2009] EWCA Civ 852 County Court hearing s.143N HA 1996, DJ held none of matters in possession notice sufficient alone, panel had addressed the childrens residence issue, entitled to rely on matters occurring after NSP Court of Appeal: Whole process from outset needed to be considered in context of article 8 rights Where a demotion order made: the court has found the removal of security a necessary and proportionate response to the conduct of the tenant or those residing with him ….where conduct serious enough to justify Demotion Order at 2 nd stage very little is required to justify the landlords decision to obtain possession

10 (…) MANCHESTER CC v PINNOCK [2009] EWCA Civ 852 Proportionality at the 2 nd stage: is not a high test, and I see no real difference at the second stage between it and the domestic requirement [..] that the landlords decision must not be one that a reasonable person would consider justifiable. If on review the landlord considers for good reason […] that it is necessary or appropriate to obtain possession of a dwelling-house let on a demoted tenancy, and its decision must not be one that no reasonable person would consider justifiable, the requirement of proportionality will be satisfied. Appeal potential to HL on whether review procedure article 6 compliant

11 WANDSWORTH LBC v DIXON [2009] EWHC 27 (Admin) Common law rule in Hammersmith v Monk (1992) 1 AC 478 entitled LA to recover possession following JTs NTQ not invalidated by enactment of HRA 1998 and repossession did not interfere with tenants Article 8 rights Ds application to set aside possession order D had occupied 2 bed flat under JT with sister over 20 years 2005 sister served NTQ, LA offered alternative accommodation Prior to execution of order police found cannabis in flat, LA decided ineligible for re-housing

12 (…) WANDSWORTH LBC v DIXON [2009] EWHC 27 (Admin) Held: (1)clear from Lord Hope in Qazi v Harrow that rule in Monk not a violation of article 8, which meant that possession order inevitable. McCann persuasive and distinguishable (2)whereas Doherty an exceptional case because of discriminatory effect of statutory scheme, Ds case not in any way exceptional as required by Kay, but rather Ds challenge based on his personal circumstances. Kay was binding authority and decision of LA to seek possession could only be challenged on basis that decision one that no reasonable person could consider justifiable. Distinction between LA considering article 8 rights and proportionality and court substituting own view. LAs decision accorded with article 8.

13 MANCHESTER CC v MORAN [2008] EWCA Civ 378 A womans refuge could be described as bricks and mortar accommodation for the purpose of HA 1996 Pt 7 and it could be reasonable for a woman to continue to occupy a refuge Decision to the contrary in R v Ealing ex parte Sidhu inconsistent with HL in R v Brent ex parte Awua and R v Hillingdon ex parte Puhlhofer and was wrong It could be reasonable for a woman to occupy a refuge, particular matters fell to be considered in addition to general matters under s.175(3) or s.191(1)

14 (…) MANCHESTER CC v MORAN [2008] EWCA Civ 378 General matters: size, type & quality of accommodation available, terms of agreement, ability to afford it, location for her & children, facilities for her & children Particular matters: nature of the refuge, scale of support, length or period expected to reside, length of period women generally resided, whether full, evidence that applicants occupation prevented it from being available to another DV victim, reasonableness of conditions attached to occupation, extent of her need, and of her ability to accept such physical and emotional support as it offered.

15 DE-WINTER HEALD & ORS v BRENT COUNCIL [2009] EWCA Civ 930 Appeals by A1, A2, A3 and A4 from decisions of HHJ McDowall, at Willesden CC and from the decisions of HHJ Mitchell at Central London CC. A1 and A3 had requested review of the Councils decision that they were not homeless. A2 and A4 had requested a review of the suitability of temporary accommodation provided by the Council. They contended that it was unlawful for the Council to contract out the carrying out of its reviews making the reviews ultra vires and unlawful. They further contended that P appeared biased and their reviews were unfairly conducted infringing their rights under Article 6 of the ECHR.

16 (…) DE-WINTER HEALD & ORS v BRENT COUNCIL [2009] EWCA Civ 930 Reviews could be contracted out by the terms of Reg 2 of the Allocation of Housing and Homelessness (Review Procedures) Regs A decision by an elected councillor, whose tenure depended on his re- election would be even less independent than an employee & could be even more influenced by the financial implications of an acceptance of a duty to accommodate, making him more likely to be biased. That was consistent with the Homelessness Code of Guidance. The Council was entitled to have the review carried out by P. P's decisions were accepted by the Council and upheld by the local courts because his decision letters addressed the issues raised and the information put before him. The decisions in the present cases were not made by someone who was materially less independent than an officer of the authority itself.

17 WATCH THIS SPACE Birmingham v Qasim off to the Court of Appeal on renegade housing officer handing out tenancies outside allocations scheme Powell v Hounslow off to the Court of Appeal 15th November on whether an Art 8 defence can be made by a non-secure tenant in possession proceedings Ibrahim v Harrow has been heard at the ECJ, A-G opinion to be handed down on 20 th October 2009.

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