Accomodating 16 - and 17 - year olds, Intentional homelessness, Tolerated tresspassers
R (M) v Hammersmith & Fulham LBC [2008] UKHL 14, [2008] All ER (D) 390 (Feb) makes plain the crucial need for local authority housing and social services departments to compile joint protocols for assessing the needs of homeless 16- and 17-year-olds, to ensure that the appropriate agency takes responsibility, that adequate care is provided and ultimately to prevent them from being passed from pillar to post.
M, the claimant, stopped going to school when she was 14; she did not return following a period of exclusion. By the time she reached her mid-teens she faced a number of criminal charges and proceedings. In February 2005, just before her 17th birthday, she applied to the defendants’ housing authority for accommodation because her relationship with her mother had broken down. Her mother explained in a letter to the authority that M could no longer live with her because she had “broken every rule laid down”. Despite completing an initial application form, M returned home.
A couple of months later in April 2005, M attended at the housing department for a second time with another letter from her mother which stated that her mother was going into hospital the following day for an operation and which also referred to imminent criminal proceedings. M was sent home with a letter from the housing department which advised that her mother had to give 28 days notice to quit. Her mother stated that this had already been provided and refused to provide accommodation. The following day M had to attend court on a criminal matter; a bail address was required. Her solicitor managed to persuade the local housing authority to provide M with temporary accommodation under Pt 7 of the Housing Act 1996 (HA 1996).
Later, in January 2006, M received a fourmonth detention and training order. Before this expired she discovered that she was pregnant. Prior to her release from custody, judicial review proceedings were commenced in an attempt to obtain an order requiring the authority to provide M with accommodation. It was contended that M was a “former relevant child” for the purposes of Pt 3 of the Children Act 1989 (ChA 1989) because she had previously been “looked after” by the social services in the exercise of their functions under ChA 1989.
The House of Lords rejected this contention and dismissed the claim. The claim could not be decided on the basis of what ought to have happened but on what did happen. The accommodation and assistance with which M had been provided in 2005 had been provided by the housing authority pursuant to their duties under HA 1996. M had not applied to social services for assistance and had not been referred to them. Even though she should have been referred, this did not mean that the accommodation that had been provided in 2005 fell to be treated as though it had been provided in discharge of duties under ChA 1989; M could not, therefore, be considered a “looked after child”.
REASONABLENESS FACTORS
Even if a homeless applicant has accommodation that is available for his occupation, he may still be considered homeless if it would not be reasonable for him to continue to occupy that accommodation: HA 1996, s 175(3). In Begum v Tower Hamlets London Borough Council [2000] 1 WLR 306, [1999] All ER (D) 1189 it was said that this provision only applied if the applicant was already occupying the accommodation in question.
This view was not followed by the Court of Appeal in Maloba v Waltham Forest LBC [2007] EWCA Civ 1281, [2007] All ER (D) 32 (Dec). The applicant had moved from to the in 1989. His wife and child followed in 2004. In March 2005 the applicant applied as homeless. The authority concluded that he and his family were not homeless because they had accommodation available to them in . It was contended that, because they were not occupying this property, there was no requirement that it had to be reasonable for them to occupy it.
Alternatively, it was argued that in considering reasonableness, only matters of size and facilities fell to be considered whereas location did not. These arguments were rejected: “reasonable to continue to occupy” in s 175(3) meant “reasonable for him to continue to occupy for a continuing period in the future”. In considering reasonableness factors such as the upheaval involved also had to be considered.
UNINTENTIONAL HOMELESSNESS
In R (on the application of Aweys) v Birmingham City Council and other applications [2007] EWHC 52 (Admin), [2007] All ER (D) 230 (Jan) the Court of Appeal dismissed the authority’s appeal and held that, upon finding a homeless person to be unintentionally homeless, eligible and in priority need, the “main housing duty” under HA 1996, s 193(2) arose immediately and that the discharge of this duty could not be met by leaving the applicants in their existing homes: “the homeless at home”, which the authority considered no longer reasonable for them to occupy, while waiting for an offer of permanent accommodation under the allocation scheme.
The decision that the scheme was unlawful was also upheld; applicants that were street homeless and provided with temporary suitable accommodation fell into band A while the homeless at home fell into band B. This was considered to be irrational because, while the same duty was owed to both types of applicants, the street homeless, who were provided with suitable temporary accommodation, had a higher priority in the scheme than the homeless at home who were left to wait for a permanent allocation of accommodation in their unsuitable existing homes.
POSSESSION ORDERS
Where a homeless applicant has been evicted from his previous accommodation following a possession order, a housing officer is not required to “go behind” the order if there is no basis for saying it is clearly wrong.
In Green and another v Borough of Croydon [2007] EWHC 1367, a possession order had been made against the applicants on the basis of rent arrears. The possession proceedings had not been opposed despite the fact that the applicants believed that that arrears figure relied on was based entirely on an unlawful rent increase. Before being evicted they applied as homeless. The authority concluded that they were intentionally homeless, which decision was upheld on review. On appeal it was argued that the authority should have investigated the lawfulness of the rent increase which had resulted in the arrears. Both the appeal and the second appeal were dismissed: there was no obligation on the review officer to go behind the possession order. The Court of Appeal, however, refused to hold that a review officer should never go behind such an order.
In R (Casey) v Restormel BC [2007] EWHC 2544 (admin), [2007] All ER (D) 96 (Nov) the claimant sought judicial review of the authority’s decision not to review its decision of intentional homelessness on the basis that the request for the review had been made out of time. The claimant explained that she had not received notification of the authority’s initial decision. It was contended successfully that the question of whether or not the request was made in time was one of “precedent fact” and therefore a matter for the determination of the court; permission to proceed with the claim was granted.
At the outset of the claim the claimant obtained a without notice injunction for interim accommodation which the authority applied to have discharged. Their application was not dealt with expeditiously—it was initially given a hearing date three months after it had been made. Consequently, the court gave guidance as to how urgent applications should be dealt with.
TOLERATED TRESPASSERS
Following the judgment in Helena Housing Limited v Mower and Molyneux, Liverpool County Court on 28 November 2007, it appears that there may be a way of avoiding the status of “entrenched” tolerated trespass in some circumstances. Possession orders were made against Mrs Molyneux and Mr Mower. They were suspended on terms that the tenants each continue to pay their current rent plus a sum off the arrears every week.
In both cases the respective orders contained the phrase “when you have paid off the total amount mentioned, the plaintiff will not be able to take any steps to evict you.” Neither tenant initially complied with the terms of the order but eventually did and managed to pay off their arrears. Mrs Molyneux sought to exercise her right to buy which was resisted by the association on the basis that she had become an “entrenched tolerated trespasser”. Mr Mower fell into subsequent arrears but sought to resist the enforcement of the possession order.
The circuit judge held that because the landlord could not evict if the amount owed under the order was paid off; in effect this rendered the order discharged.
In doing so he accepted an argument that Marshall v Bradford MDC [2001] EWCA Civ 594, [2001] All ER (D) 211 (Apr); Swindon BC v Aston [2002] EWCA Civ 1850, [2002] All ER (D) 325 (Dec); and London & Quadrant Housing Trust v Ansell [2007] EWCA Civ 326, [2007] All ER (D) 149 (Apr) were wrongly decided because the Court of Appeal had not had its attention directed to the decision in Payne v Cooper [1958] 1 QB 174, a Rent Acts case where the court’s discretion was similar to that conferred by the Housing Act 1985 and in which it was said that the effect of such term was to discharge the order.
NUISANCE
In Raglan Housing Association Ltd v Fairclough [2007] EWCA Civ 1087, [2007] All ER (D) 16 (Nov) the Court of Appeal upheld the first instance decision that the landlord could, in claiming possession on the basis of ground 14 of Sch 2 to the Housing Act 1988 (HA 1988), rely on offences committed by the tenant in the locality of the dwelling-house even if though those offences occurred before the commencement of the tenancy. In Sandwell MBC v Hensley [2007] EWCA Civ 1425, [2008] All ER (D) 34 (Jan) the Court of Appeal allowed the authority’s appeal against the suspension of a possession order based on nuisance. In 2005 the defendant’s home was searched by the police. It was discovered that he was cultivating large quantities of cannabis using a sophisticated hydrophonics system. He pleaded guilty to the consequential charges. The authority sought possession of the property.
The county court made a possession order but suspended it because the defendant had ceased cultivating cannabis. In reversing the suspension the Court of Appeal stated that when possession proceedings are brought because the defendant tenant had committed a serious criminal offence the possession order should only be suspended if there is cogent evidence that the conduct complained of has ceased.
Discretion
Section 9 of HA 1998 confers wide discretion on courts dealing with possession claims, which is sufficient to permit adjournments of claims in appropriate circumstances. In Hastoe Housing Association v Ellis [2007] All ER (D) 241 (Nov), the district judge dismissed the association’s claim for possession. Prior to hearing the parties had agreed that the claim would be adjourned for two years, subject to undertakings and that if it was not restored within this period it would stand dismissed. The judge refused to permit the adjournment, stating that he did not have discretion to do so. Instead he required the association to prove its claim which it was not in a position to do, having previously agreed to the adjournment. The claim was, therefore, dismissed. The association’s appeal was allowed; the judge had failed to recognise that the request for the adjournment was because the parties had reached agreement on the substance of the claim.
SUITABLE ALTERNATIVE ACCOMMODATION
In Wandsworth LBC v Randall [2007] EWCA Civ 1126, [2007] All ER (D) 98 (Nov) the defendant became a secure tenant of a four-bedroom house when he succeeded to the tenancy, following the death of his grandfather on 31 December 2004. In July 2005 the authority served a notice seeking possession on the basis that the property was under-occupied, that suitable alternative accommodation was available and that it was reasonable to order possession. The authority offered the defendant a one-bedroom flat. In August 2005 the defendant’s mother and half-sister came to live with him.
The claim for possession was heard in July 2006. The authority argued that the date at which the question of occupancy was to be assessed (for the purposes of deciding whether the property was under-occupied and whether the alternative accommodation offered was suitable) was the date of succession. The defendant argued that it was the date of trial.
The authority succeeded at first instance but this was reversed on appeal to the circuit judge. A second appeal was dismissed: the question of occupancy should be decided at the date of trial. An offer of alternative accommodation did not have to be made prior to trial, however; it was sufficient for it to be available upon the possession order taking effect. This meant that the evidence of occupancy and whether or not the occupants intended to remain in the household could be tested at trial. The claim was remitted back to the district judge for further hearing.
