The Legal Update: CIH Eastern Region Jan Luba QC Housing Team Garden Court Chambers

Transcription

1 The Legal Update: CIH Eastern Region 2015 Jan Luba QC Housing Team Garden Court Chambers

2 Agenda Homelessness cases Allocation of social housing Social landlord possession claims

3 Homelessness

4 The Homelessness Cases of 2014/2015 A personal selection By topic For the past legal year October October 2015 (Don t forget you can watch how the Supreme Court ones were argued!)

5 Applications & Interim A dependent child s application can be determined in same way as his/her parents: SD v Oxford CC Admin Court: 28 May 2015 Interim accommodation duty can end by refusal of suitable interim accommodation: Brooks v Islington LBC Admin Court: 22 September 2015

6 13 August 2015 Report Lancashire County Council Local Government Ombudsman, Dr Jane Martin, said: Placing homeless young people in bed and breakfast accommodation even in an emergency breaches statutory guidance, which exists to ensure vulnerable young people are not left to cope unsupported, alone and at risk of exploitation. We shared our findings on councils inappropriate use of B&B accommodation to house families and children in a national report in 2013, and it is troubling that I am still reporting on individual cases like this.

7 Is the applicant Homeless? Tenant experiencing anti-social behaviour and harassment from neighbour: Hussain v London Borough of Waltham Forest Court of Appeal: 20 January 2015

8 Who is Vulnerable? Section 189(1)(c) & PN (England)Order Nearly 40 years on, two key questions answered: Do you need a comparator? (If so, compared to whom?) What if the applicant can manage with help? Johnson v Solihull MBC Hotak v Southwark LBC Kanu v Southwark LBC Supreme Court: 13 May 2015

9 Eligibility Council considered a homeless, Austrian national ineligible for housing assistance in the UK on the basis that he was not a "qualified person" because he was not in work at the time he applied to the council as homeless and his continuing inability to work due to illness was not temporary. Samin v Westminster CC Supreme Court: heard 9 & 10 March 2015

10 Intentional Homelessness Your housing benefit was less than your rent. You should have met the shortfall using your other benefit income? Samuels v Birmingham CC Court of Appeal: 27 October 2015

11 Intentional Homelessness You withheld the rent: but was that the deliberate act that got you evicted? Najim v London Borough of Enfield Court of Appeal: 4 March 2015

12 Intentional Homelessness What if you would have been homeless today anyway, even if you had not left prematurely? Haile v Waltham Forest LBC Supreme Court: 20 May 2015

13 Local connection The usual rules: Got a connection with us? If no, got a connection elsewhere? If yes, can we refer? If we can, shall we refer? The applicant who will not go back? Johnston v City of Westminster Court of Appeal: 2 June 2015

14 Main housing duty Suitability of an offer under s193(5) outside the council s own area: Nzolameso v Westminster CC Supreme Court: 2 April 2015 Suitability of an offer that reminds the applicant of her prison cell: Poshteh v Royal Borough of Kensington And Chelsea Court of Appeal: 8 July 2015

15 Main housing duty (2) Refusal of a s193(5) ends the duty (if its terms complied-with) even if there is a pending review/appeal Faizi v Brent LBC Administrative Court: 17 June 2015 No duty to inspect under Housing Act 2004 (for hazards) before making offer in most cases Firoozmand v Lambeth LBC Court of Appeal: 3 September 2015

16 Repossessing temp accom? What about the interests of the children? Mohamoud v Royal Borough of Kensington and Chelsea Court of Appeal: 21 July 2015 What about a Possession Order? ZH and CN v London Boroughs of Newham & Lewisham Supreme Court: 12 November 2014

17 Reviews & Appeals Our system of fact-based review and scrutiny of decisions by judges for errors of law is good enough to meet the fair trial provisions of Human Rights Act Schedule 1 Article 6 Ali v UK European Court of Human Rights 20 October 2015

18 Putting the cases in context Get the latest textbook(s)

19 ALLOCATIONS

20 Who qualifies The power of HA 1996 section 160ZA(6) and (7) to set qualifying classes The December 2013 Code Describe those classes who qualify? Or just those classes who do not? Clear and careful drafting needed Different rules for different types of stock? What categories to adopt? When to check for qualification: (1) on application or (2) pre-let or (3) both?

21 Do we need residual discretion? Qualifying rules are for classes so can they be hard-edged, to precisely define who is in the class or not. Do we need sub-classes, excepted from the main class? What about the one-off case? Hillsden v Epping Forest DC (appeal pending)

22 What went wrong in the Ealing case? Auto-generated decision failed to consider personal circumstances Non-qualifying class excluded those in the RP categories Discrimination against women Breach of Children Act 2004 section 11 HA v Ealing LBC Admin Court: 7 August 2015 (appeal pending)

23 Giving a reasonable preference Cannot mean suspending a class of persons in the reasonable preference category from bidding for a fixed initial period: Alemi v Westminster CC Admin Court: 22 June 2015

24 Possession Claims

25 Possession claims (1) Please dismiss the claim because the claimant is acting unlawfully. The public law defence The private law defence When disability discrimination provide a defence Aster Communities v A-L in Supreme Court on 10 December

26 Possession claims The significance of the new protocol E.g. Article 8 defences Success, at trial, at last? Southend on Sea v Armour River Clyde Homes v Woods Art 8 at warrant stage? Lawal v Circle 33

27 The essential text The Book The online updates The new edition