Adult Care

 R (De Almeida) v Kensington & Chelsea RLBC [2012] EWHC 1082 Admin (Lang J): the refusal of the defendant local authority to make arrangements for the claimant, a Portuguese national no longer exercising free movement rights and living with HIV/AIDS, under section 21 of the National Assistance Act 1948, was unlawful as contrary to Article 3 and Article 8 of the European Convention. Click here for the transcript.

R(T) v Commissioner of Police for the Metropolis [2012] EWHC 1115 Admin (Eady J): the claimant lived in a block of flats let by a housing association. She made several complaints to the association about the alleged anti-social behaviour of a neighbour. On one occasion she had an exchange with a friend of that neighbour. He alleged that she had made a homophobic comment and reported the matter to the police. Three months later, the police wrote to the claimant warning her that the allegation was one of harassment and that the letter would be retained as proof that the police had spoken to her about the allegation. The claimant challenged the decision to issue the letter and to retain it on police records. She asserted that it breached data protection principles and her human rights. The High Court dismissed the claim. There had been no illegality in the conduct of the police. Click here for the transcript.

Sedge v Prime (25 April 2012)(John Leighton Williams QC): the court authorised an interim payment of £150,000 in order to enable the severely disabled victim of a road traffic accident to move out of his residential care home and try a period of care in the community pending trial on quantum. (Extempore judgment: currently on Lawtel only).

Oxborrow v West Suffolk Hospitals NHS Trust [2012] EWHC 1010 QB (Tugendhat J): an interim payment sufficient for a young, severely disabled applicant to cover the costs of his special accommodation needs was appropriate where it could be said to a high degree of confidence that the trial judge would award a lump sum for the purchase and alteration of suitable accommodation, rather than rental property. Click here for the transcript.

R (Okil) v Southwarl LBC (20 April 2012)(Underhill J): a local authority's decision that an individual was not in need of "care and attention" within the meaning of the National Assistance Act 1948 s.21(1)(a) was rational and legitimate as his problems were not ones that care and monitoring could address. (Extempore judgment: currently on Lawtel only).

R (Bevan & Clarke LLP and others) v Neath Port Talbot CBC [2012] EWHC 236 Admin (Beatson J): the Commissioning Guidance issued by the Welsh Ministers under section 7 of LASSA 1970 (Fulfilled Lives, Supportive Communities: Commissioning Framework, Guidance and Good Practice, August 2010) meant that whilst the Council was less closely regulated than a social landlord it did not have the freedom that a private individual would have to use its bargaining power to drive down the price as far as possible; accordingly, its decision as to what fees to pay care home providers was amenable to judicial review. However, the judicial review application failed because, overall, the Council’s decision had been rational and, in particular, it had been rational for the Council to (i) take into account its own figures derived from applying the Laing & Buisson “toolkit” as well as those provided by Care Forum Wales, (ii) use a lower rate of return on capital than the 12% suggested in the “toolkit” and (iii) taking into account its lack of resources, set a rate for fees less than both its own and Care Forum Wales’ assessment of the costs of care. Click here for the transcript.

R (NM) v Islington LBC [2012] EWHC 414 Admin (Sales J): it had been lawful for the Council to decline to assess the claimant’s community care needs, under section 47 of the National Health Service and Community Care Act 1990, because the claimant was in prison and, whilst his case was about to be considered by the Parole Board, it could not be said that it was reasonably clear that he was about to be in need of community care services: his potential need was conditional on the Parole Board directing his release from prison and, before the Parole Board could properly direct the claimant’s release on he basis that he was to live in Islington, multi-agency public protection arrangements would have to be operated, and that had not been done:  before the Parole Board could direct the claimant’s release on the basis that he was to live in Islington: “the connection between the proposed consideration of the Claimant's case by the Parole Board as things stand on the case before the Board and the release of the Claimant to go to Islington is too conditional and speculative to fall within the narrow class of future provision cases covered by section 47(1). Nor can it be properly said that the Claimant is "about to be in need" or "may reasonably be considered to be liable" to have an order for release made in his favour”. Click here for the transcript. 

Children

R (AS) v LB of Croydon[2012] EWHC 356 (Admin) (Lang J): The local authority’s assessment of the Claimant’s age was correct and upon hearing evidence from the parties, the Court concluded that the Claimant was likely to be the age assessed, not claimed. A declaration was made to that effect.

Other matters:

UKBA announced on 28^th March 2012 that it would pilot a trial with the London Borough of Croydon to use dental x-rays to resolve age disputes in circumstances where a young person has been assessed to be an adult but is still claiming to be a child.

This has sparked significant and vocal opposition to the proposed scheme, with all four Children’s Commissioners speaking out against it. See the UKBA's letter and the responses from the Children's Commissioners and ILPA (immigration Law Practitioners' Association) here. 

By way of background, UKBA had once consulted on this a few years ago and when consultation on dental x-ray was carried out, it was met with opposition not only from children’s rights groups and the commissioners but also from the British Dental Association and the British Medical Association. That proposal was never followed through then.

This decision to do this pilot was made without notice to any of the stakeholders who attend regular meetings with the UKBA. There has been no consultation in advance of the decision to introduce the trial. The logistics of how the trial will work remains unclear.

See also a helpful article on this issue here.

Incapacity

DL v A Local Authority & others [2012] EWCA Civ 253 CA (Maurice Kay LJ, McFarlane LJ and Davis LJ): Mr and Mrs L were the elderly parents of DL, who was in his 50s. Mrs L was physically disabled. The Local Authority was concerned about DL's alleged conduct towards his parents, said to be aggressive, controlling and on occasions involving physical violence. An application to the Court of Protection was not available because none of the individuals lacked capacity. The Local Authority sought an order under the High Court's inherent jurisdiction for an injunction restraining DL from certain behaviour towards his parents. The issue was whether the High Court had that inherent jurisdiction. DL argued that the Mental Capacity Act had established a comprehensive scheme and had displaced the inherent jurisdiction. At first-instance Theis J had rejected that submission and held that the inherent jurisdiction to protect adults had survived the passing of the MCA. The Court of Appeal upheld her judgement and dismissed DL's appeal. The MCA only related to adults who lack capacity. The inherent jurisdiction is a safety net aimed in part at enhancing or liberating the autonomy of a vulnerable adult whose autonomy has been compromised by reason other than mental incapacity, because he or she is under constraint, subject to coercion or undue influence or for some other reason deprived of the ability to make a free choice or express real and genuine consent. Click here for the judgment.

Seaton & others v Seddon & others [2012] EWHC 735 (Ch) (Roth J): the five Claimants had been members of a band called Musical Youth who had had some commercial successes in the early 1980s when they were all aged under 18. The claim, issued in 2010, was against solicitors, music producers and others and alleged various breaches of trust and copyright infringements arising from events in the early 1980s. The issue of limitation arose. The fourth Claimant lacked capacity to conduct the proceedings. The issue was whether the limitation period expired six years after his eighteenth birthday or whether, if he was under a disability by reason of lacking capacity at the date of his eighteenth birthday, time would not start to run on that date. The Judge held that if, on a person's eighteenth birthday, he or she is still under a disability, albeit a different disability from that which applied when the cause of action accrued, it would be inconsistent with the statutory purpose for the running of the limitation period to commence nonetheless. He also held that the relevant definition of disability for the purpose of limitation should be determined under the law as it stood when the proceedings were commenced, so that the fourth Claimant would have to show that he was of unsound mind, rather than the MCA test of lacking capacity. On the facts, the fourth Claimant did not have a sufficiently arguable case that he met the statutory criteria for disability by reason of unsound mind on his eighteenth birthday. The Judge added that even if he was wrong on that point, the fourth Claimant would then have to show that he remained under a disability continuously until a date six years before the issue of the claim and the evidence was wholly inadequate to support that conclusion. Click here for the judgment.

ZH (a protected party by GH his litigation friend) v Commissioner of Police for the Metropolis [2012] EWHC 604 (QB) (Sir Robert Nelson): ZH was a 19-year old who was severely autistic and epileptic. Whilst on a school visit to a swimming pool, he became fixated with the water and would not move from the edge of the pool. The police were called. When an officer touched him on his back he jumped into the water, fully clothed. The police had him taken out of the pool, restrained him and he was placed in handcuffs and leg restraints, soaking wet, in the back of a police van. It was agreed that he suffered consequential psychological trauma and an exacerbation of his epileptic seizures. He brought proceedings against the police for damages for assault and battery, false imprisonment, disability discrimination, and breaches of Article 3, 5 and 8 ECHR. The Judge held that the MCA applied to the police's dealings with him. Some of the police officers were aware of the MCA and others not. It was not necessary for them to have in mind the specific sections or even the Act itself. The MCA applied if they believed that the Claimant lacked capacity to deal with and make decisions about his safety, that when they carried out the acts that they did, they believed that he so lacked capacity and that they believed that it was in his best interests for them to act as they did. A belief that the situation created a need for them to act in order to protect his safety and prevent him from severely injuring himself would be sufficient to satisfy the MCA, provided that the belief was reasonable and a proportionate response. They were also required to have considered whether there might be a less restrictive way of dealing with the matter and, if practicable and appropriate, to consult the Claimant's carers. The Judge also held that where the provisions of the MCA apply, the common law defence of justification has no application. On the facts, the police could not establish that the police had complied with the MCA. Claimant's claim for damages was allowed and total damages assessed at £28,250. Click here for the judgment.

A Local Authority v H (by her litigation friend the Official Solicitor)[2012] EWHC 49 (COP) (Hedley J): H was a 29-year old woman who had been admitted to psychiatric hospital since August 2009 and, at the date of the hearing, lived in supervised accommodation which she was not permitted to leave unless supervised. She had mild learning difficulty and atypical autism with a low IQ and lacked capacity to litigate, to determine her residence, her care and support arrangements, contact with her family and her finances. She was highly sexualised and vulnerable. Before she was admitted to hospital, at least one man had been convicted of an attempted rape against her. She had given her psychiatrist an account of sexual activity that amounted to rape in one respect and could be seen as exploitative of her. The Judge considered s.3(1) MCA when deciding whether she had the capacity to consent to sexual relations. He found that, for a person to understand the relevant information, a fairly rudimentary knowledge was all that was required; it was sufficient to understand that sexual relations may lead to significant ill-health and that those risks can be reduced by precautions like a condom. It was no part of the test that a person might understand the moral aspects of human sexual relationships. It was also necessary for a person to understand that he or she has a choice and can refuse sexual relationships. The test as to whether a person is capable of using and weighing the information meant, in this context, whether he or she was able to deploy the general knowledge of sexual relations into a specific decision-making act. Having applied those tests, the Judge found that H did understand that she had a choice, albeit that she had difficulty in saying no to sexual relations, but did not appreciate the health issues arising and could not deploy the information that she had effectively into the decision-making process. Accordingly she lacked capacity to consent to sexual relations. Although H showed no immediate disposition to marry, it followed that a person who lacked capacity to consent to sexual relations must also lack capacity (although he declined to make a formal declaration to that effect). There was to be a review of her best capacity and best interests in September 2012. Click here for the judgment.

Official Solicitor Note (21 February 2012): the Official Solicitor has notified the Court of Protection of his current general position when invited to act as litigation friend in Court of Protection healthcare and welfare cases. He reaffirms that his long-standing acceptance criteria are:

§ That there is evidence or the Court has made a finding that the party or intended party lacks capacity to conduct proceedings or is a child or, in Court of Protection proceedings, there is evidence or a finding with regard to the person’s lack of relevant decision-making capacity;

§ There is no one else suitable and willing to act as litigation friend; and

§ There is security for the costs of legal representation unless the case falls in one of the classes in which he exceptionally funds the litigation in accordance with long-standing practice.

Due to having reached the limit of the OS’s staff resources, the OS can only accept invitations to act in the most urgent cases namely serious medical treatment and s.21A MCA 2005 appeals. All other cases which meet the acceptance criteria are being placed on a waiting list and accepted when a case manager becomes available in chronological order. If the Court is of the view that a case should be considered as most urgent or should be expedited for other reason, it should inform the Senior Lawyers in the OS’s CoP Healthcare and Welfare teams of the court’s reasons. Click here for the full note. 

Education

R (on the application of Lambeth LBC) v Lambeth Independent Appeals Panel (2012) extempore, 23^rd March 2012 (John Howell Q.C).: Successful judicial review brought by the Local Authority against a decision of an IAP to allow an appeal against the local authority’s decision not to admit a child to the reception class of a primary school in September 2011. The child’s mother suffered from thyroid problems and was unable to walk long distances. She applied for the child to joint a school a short walk from her home. After the date for school applications had closed, the mother discovered that the primary school of her choice was moving to a location further away. She made a late application for a different primary school but failed to include details of her medical condition. The admissions criteria stated that medication reasons could be a basis for higher priority for admission. Then the priority is determined on the basis of distance between the child’s school and home. The child fell outside the distance criterion for the new school. The local authority had a policy of dealing with late applications only after in-time applications had been dealt with. By then the school of the mother’s choice was full. The mother appealed against the refusal of admission and the panel stated that if the policy was applied correctly, the child would have been admitted on medical grounds. The challenge against the panel’s decision succeeded on grounds that the panel was wrong to find that the child would have been offered a place had the policy been applied properly. The child’s mother had not raised the medical issues so that was not for the local authority to decide on that basis.

A Borough Council v S and Ors [2012] EWCA Civ 346 (Lord Neuberger (MR), Richards LJ, Davis LJ): The Court of Appeal upheld a decision of the First-Tier Tribunal to consider transport costs involved in sending a child with special educational needs to his parents’ preferred school and to conclude that specifying the name of the parents’ preferred school in the statement of special educational needs would not constitute an inefficient use of resources (see s9 Education Act 1996). The local authority had stated to the parents that they would name the preferred school if the parents provided the transport. The Court of Appeal held that this was not a dispute over transport costs and there was no continuing issue as to placement. The Appellate Court found that there was a continuing issue as to placement and that remained so notwithstanding that both schools were assessed by the Tribunal as suitable: see paras 37-39. It was difficult to see a principled basis, as a matter of statutory interpretation, for saying that a dual-worded placement contained in Pt 4 of a statement of the kind used in this case was or was not a matter of educational provision, depending on whether the parents were able to pay the transport costs or otherwise arrange the transport. The Tribunal steps into the shoes of the local authority on appeal to consider whether the parents’ preferred school should be named. The local authority’s policy was to consider efficient use of resources and the Tribunal duly applied that policy. 

Other matters:

See Children's Commissioner for England's Report on school exclusions: They Never Give Up on You. It finds most schools work hard to cater for troubled students.  However, for the first time on record, schools have admitted illegally excluding children.Click here for the report.

Welfare Benefits

Cuts to Working tax credit

Under rules introduced on 6 April 2012, the couples working hours requirement for working tax credit has increased to 24 hours.  According to new figures placed in the House of Commons library on 2 May 2012, HMRC says that, on 1 April 2012, 203,000 families with 449,000 children were working between 16 and 24 hours per week.  The HMRC figures also show that less than 5% of the 212,000 couples with children who were affected by the change have been able to find additional hours of work, or alternative employment with longer hours, so as to avoid the cut to working tax credit.  This means the April 2012 increase in the tax credit working hours requirement will affect more than 200,000 families.  For comment see the Union of Shop, Distributive and Allied Worker’s website – “More than 200,000 working couples with children plunged into poverty by tax credit cuts” (click here for link).

Cuts to contributory-based ESA

On 1 May 2012 new rules introduced by the Welfare Reform Act 2012 mean that entitlement to contributory Employment and Support Allowance (‘ESA’) for claimants who are not assessed to be in the “support group” will be limited to a period of no more than 365 days.  The time-limit applies retrospectively which means that those who have already been in receipt of the benefit for a year will lose their entitlement with immediate effect.  By 2015/2016 the DWP estimates that the change will impact on 700,000 people.  For comment see the Disability Rights UK’s press release ‘Disabled people living in poverty to rise as Government time limits support’ (click here for link ).

From 1 May 2012 the Welfare Reform Act 2012a lso prevents any new claims for contributory ESA on the grounds of youth. 

Case law

In Burnip v Birmingham City Council & Anor [2012] EWCA Civ 629 (Maurice Kay, Hooper LJJ and Henderson J) (click here for transcript), the Court of Appeal declared that ‘the size criteria’ which prescribes the number of bedrooms that a claimant can qualify for when a claim for Housing Benefit is made in the private rented sector was discriminatory on the grounds of disability as it did not make any allowance for the essential housing needs of severely disabled people, and that the Secretary of State had failed to establish any objective and reasonable justification for the discriminatory effect.

The issue arose from Mr Burnip's appeal against the decision of Upper Tribunal Judge Howell QC (IB v SSWP [211] UKUT 23 (AAC)).  This was followed by Judge Jacobs in Trengove [2011] UKUT 172 (AAC) and by  Judge Turnbull, [2011] UKUT 198 (AAC) in Gorry – who became joined as appellants in the Court of Appeal.  Two of the appellants (Mr Burnip and the late Lucy Trengove) were so severely disabled that they were assessed as needing the presence of full-time carers overnight.  In the case of the third appellant (Mr Gorry), two of his children were disabled, one by Down’s syndrome and the other by Spina Bifida, and so it was inappropriate for them to share a bedroom.  All three appellants suffered a shortfall in the amount of housing benefit paid because of the application of the size criteria to their claims, which meant that the additional room they needed due to their disability could not be taken into account. 

The appellants relied on Thlimmenos v Greece (2001) 31 EHRR 15 to argue that there was a positive obligation on the State to make provision to cater for the significant difference (here, between a severely disabled person and an able bodied person) and relied on AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634 to show that such a positive obligation was in play in relation to the disabled.  The Secretary of State primary submission was that this type of challenge could not succeed, as there was no example of the courts applying Thlimmenos so as to require a state to take positive steps to allocate a greater share of public resources to a particular group or person.  Maurice Kay LJ said: 

“Whilst it is true that there has been a conspicuous lack of cases post- Thlimmenos in which a positive obligation to allocate resources has been established, I am not persuaded that it is because of a legal no-go area. I accept that it is incumbent upon a court to approach such an issue with caution and to consider with care any explanation which is proffered by the public authority for the discrimination. However, this arises more at the stage of justification than at the earlier stage of considering whether discrimination has been established. I can see no warrant for imposing a prior limitation on the Thlimmenos principle. To do so would be to depart from the emphasis in Article 14 cases which, as Baroness Hale demonstrated in AL (Serbia) (at paragraph 25), is "to concentrate on the reasons for the difference in treatment and whether they amount to an objective and reasonable justification". I would apply the same approach to a Thlimmenos failure to treat differently persons whose situations are significantly different” (para 18)

On the question of justification, the Upper Tribunal had relied on the list of seven factors given by Elias LJ in AM (Somalia) when dismissing AM’s discrimination claim.  Henderson J dealing with aspect of the case in Burnip said there were important differences between AM (Somalia)and the present appeals:

“Furthermore, there are in my judgment important differences between the circumstances of the present appeals and the position in AM (Somalia). First, these are not cases of immigration control, where as Elias LJ noted the courts are particularly reluctant to interfere in matters of policy. On the contrary, we are here concerned with a benefit (HB) the purpose of which is to help people to meet their basic human need for accommodation of an acceptable standard. Secondly, there is no question of a general exception from the normal bedroom test for disabled people of all kinds. The exception is sought for only a very limited category of claimants, namely those whose disability is so severe that an extra bedroom is needed for a carer to sleep in (or, in cases like that of Mr Gorry, where separate bedrooms are needed for children who, in the absence of disability, could reasonably be expected to share a single room). Thirdly, such cases are by their very nature likely to be relatively few in number, easy to recognise, not open to abuse, and unlikely to undergo change or need regular monitoring. The cost and human resource implications of accommodating them should therefore be modest, quite apart from the point that in some cases the effect of refusing the claim could well be to force the claimant into full-time residential care at much greater expense to the public purse. Fourth, for the reasons which I have already given, the extra assistance which can be provided by discretionary housing payments, valuable though it can be, falls far short of being an adequate solution to the problem. Finally, the fact that Parliament has now seen fit to legislate for cases like those of Mr Burnip and Ms Trengove, and to do so at a time of general economic hardship, may in my view reasonably be taken as recognising both the justice of such claims and the proportionate cost and nature of the remedy.

For all these reasons, I am satisfied that maintenance of the single bedroom rule is not a fair or proportionate response to the discrimination which has been established in cases of the present type, and that the defence of justification therefore fails. As to the relief which it would be appropriate to grant, I am in full agreement with the views expressed by Maurice Kay LJ.” (At paras [64]-[65]).

This is only the third case in which it has been held that a welfare benefit rule breached Article 14 – the previous cases being Francis v Secretary of State for Work and Pensions[2005] EWCA Civ 1303 (reported as R(IS) 6/06) – on the rules governing Sure Start Maternity Grants – whether exclusion of person caring for child under residence order was discrimination contrary to Article 14 of the Convention – (click here for link) and CJSA/2663/2006 – on the rules providing an exemption for students during the long summer break – whether references to partner was compliant with ECHR (click here for link).  Desmond Rutledge acted as the junior for the second appellant. 

For media interest in the case see: Inside Housing – 'Judgement to force changes to benefit rules' (click here). The Independent – 'Health News Families win housing benefit ruling over disabled needs' (click here) The Herald Scotland – ''Government loses benefits court battle' (click here).

Migrants

HK (Afghanistan) and Others (by their Solicitor & Litigation Friend Kamaljit Sandhu) v Secretary of State for the Home Department [2012] EWCA Civ 315 (Pill, Rimer, Elias, LJJ): Although the Upper Tribunal had been entitled to draw an adverse inference from the failure of Afghan minors to seek contact with their families, when concluding that there was a sufficiency of protection available to them and dismissing their claims for protection and for asylum on Refugee Convention and Humanitarian Protection grounds, the Tribunal had nonetheless fallen into error by failing to have regard to the duty of the Secretary of State to have regard to the need to safeguard and promote the welfare of children (Borders, Citizenship and Immigration Act 2009, s 55) and to the Secretary of State’s obligation to trace members of the families of those minors (Asylum Seekers (Reception Conditions) Regulations 2005, reg 6, Directive 2003/9/EC, art 19); both of which could not be separated from the asylum application. Click here for transcript. 

Equality

R (on the application of Child Poverty Action Group) v Secretary of State for Work and Pensions) [2011] EWHC 2616 (Admin) The claim, that in making the introduction of a cap on local housing allowance rates  and other connected changes the Secretary of State had failed to fulfil general equality duties in relation to race discrimination and sex discrimination was dismissed. Click here for transcript.

R(on the application of Shelley Maxwell) v The Office for the Independent Adjudicator for Higher Education [2011] EWCA Civ 1236 The Independent Adjudicator was not required to determine whether disability discrimination had occurred when considering a complaint. Click here for transcript.

Health Care

R (on the application of Royal Brompton & Harefiled NHS Foundation Trust) v Joint Committee of PCTs & anor [2012] EWCA Civ 472 (Arden LJ, Richards LJ, Sir Stephen Sedley): The appellant appealed against a decision ([2011] EWHC 2986 (Admin)) that it had failed to meet a legitimate expectation in its consultation process which affected the respondent NHS foundation trust and that that process had to be quashed. On allowing the appeal the Court held there had been no bias when an advisory committee to a medical body had included in its composition consultants from medical centres which were being considered by the medical body. The question was whether an observer, knowing the composition and remit of both the advisory body and the deciding body, would perceive a real possibility both of bias in the advice and of its infecting the decision (click here for transcript).

Department of Health v (1) Information Commissioner (2) John Healey MP (3) Nicholas Cecil [2012] FTT (GRC) (Judge John Angel , Richard Enderby, Darryl Stephenson): The appellant appealed against a decision of the first respondent Information Commissioner that it was obliged to disclose two risk registers to the second and third respondents (R2 and R3). The appellant argued that a requirement to disclose the risk registers would have a "chilling effect" on the future behaviour of civil servants. The First-tier Tribunal found that the Department of Health should have acceded to a request under the Freedom of Information Act 2000 for disclosure of a transition risk register which set out the risks of implementing the government's proposed reforms of the NHS. (click here for transcript). 

Mental Health

DD v (1) Durham County Council (2) Middlesbrough City Council [2012] EWHC 1053 (QB)(Eady J): An application for permission to issue a claim under the s 139 of the Mental Health Act 1983 for false imprisonment and for breach of human rights was refused where there was no real prospect of establishing liability against the relevant approved mental health practitioners (AMHP). The court held the purpose of s 145 of the Mental Health Act 1983  was to ensure there would be a local authority available to stand in the shoes of any AMHP against whom a claim was made and there was nothing in s 145(1AC) to suggest that an AMHP practitioner could act only on behalf of a local authority by which he was employed.(click here for transcript).

R (on the application of HA (Nigeria)) v Secretary of State for the Home Department [2012] EWHC 979 (Admin) (Singh J): The claimant applied for judicial review of Secretary of State's decisions to continue authorising his detention and of the conditions of that detention given that the claimant was now suffering from a mental illness. On granting the application the court held the Secretary of State's decision to authorise the Claimant's continued detention was flawed from when she had the opportunity to consider the matter more fully, and in particular to digest the implications of the psychiatrist's report and the r.35 notice. The Court held that a change to the wording of a policy of the Secretary of State for the Home Department about the suitability for detention of mentally ill persons had effected a change to the policy and had been unlawful for failure to comply with public sector equality duties. The court decided obiter that the power to transfer a detained person to hospital under s 48 of Mental Health Act 1983 did not apply to those detained under the UK Borders Act 2007 (click here for transcript).

The claimant was represented by Stephanie Harrison.  

Housing

Sheridan & others v Basildon Borough Council (Formerly Basildon DC) [2012] EWCA Civ 335 (Sir Andrew Morritt (Chancellor), Patten LJ, Pitchford LJ): The Court of Appeal held there was no error of law in decisions of a local authority review panel which determined that offers of accommodation made to Irish travellers ,  who had been removed from an unlawful site, were suitable. Parliament could not have  intended that a review under the Housing Act 1996 s.202 should encompass an inquiry into strategic questions about the adequacy of site provision. Following the clearing of an unauthorised site the Claimants were deemed eligible for housing assistance under the Housing Act 1996. The local authority's offers of accommodation were rejected as unsuitable. The Claimants sought a review on the basis that they each had  an aversion to bricks and mortar accommodation. The review panel was provided with psychiatric reports  which stated that if they were forced to live in bricks and mortar accommodation there was a risk of him suffering psychiatric harm. The report stated that if Sheridan was forced to live in bricks  and mortar accommodation she was likely to become depressed and possibly harm herself. The review panel also had a report on the local authority's failure to find sites for gypsies and travellers since the last    grant of planning permission in 1999. The review panel concluded that the accommodation was suitable as there were no available sites in the district for the Claimant’s caravans. That decision was upheld on appeal and the Court of Appeal dismissed the appeal (click here fro transcript).

Byrne v Poplar Housing and Regeneration and Regeneration Community Association Ltd [2012] EWCA Civ 335 (Etherton LJ, Black LJ, Sir Robin Jacob): In dismissing the appeal the Court held there was no error in a judge's decision refusing relief from sanctions and ordering outright possession against tenants who had not complied with a court order in possession proceedings, which had been brought as a result of their antisocial behaviour (no free transcript available).

The appellant was represented by Michael Paget

Joanne Harripaul v Lewisham LBC [2012] EWCA Civ 266 (Rimer LJ): The Court held that where, following the granting of permission to appeal, a local authority had withdrawn a decision of a review officer and ordered a fresh review, the appellant was entitled  to her costs of the appeal. If the local authority had come to the view that the issue of the soundness of the review officer's decision did not merit the incurring of legal costs in arguing about it, it could have come to that decision earlier. It was difficult to assess the likely outcome of the appeal if it had been fully argued, however, whilst it was not a case where it was obvious that appellant would have won, she did have a good arguable case and should be regarded as the successful party and the starting point was that she was entitled to her costs. There were no factors that justified a departure from that general rule (click here for transcript).

Corby Borough Council v Nicholle Scott: West Kent Housing Association v Jack Haycraft [2012] EWCA Civ 276 (Lord Neuberger (MR), Richards LJ, Davis LJ): This case concerned the issue of determining the threshold of when to allow a challnege on proportionality under the European Convention on Human Rights 1950 article .8 was arguable. If it was a case that could not succeed, it should not be allowed to take up further court time and to delay the landlord's right to possession (click here for transcript).

Riverside Group Ltd v Sharon Thomas [2012] EWHC 169 (QB) (Ryder J) The Court held that on the basis of the anti-social behaviour of a tenant, who had been granted a starter tenancy, it was appropriate to grant the social housing provider possession of the property on a summary basis as there was no proper basis to conclude that the threshold for a detailed consideration of a proportionality defence had been passed (no free transcript available).

(1) George Maloney (2) Bruce Mackay (in their capacity as receivers of Bernard McFeely (3) Graham Busby (4) Matthew Haw (in their capacity as receivers of Conal Derek McFeely v (1) Filtons Ltd, (2) Filtons Leasing (London) Ltd (2012) Ch D (Judge Mackie QC): The court held, when the applicant receivers applied for interim injunctive relief against the respondent property management companies  to gain access to property sub-leased by the second respondent lessee, receivers of charged residential property were entitled to interim injunctive relief granting unrestricted access to the property and relevant documents in circumstances where their access had been obstructed by a purported lessee, who had possibly acted unlawfully in collecting substantial amounts of rent as a result of granting sub-tenancies (no transcript available). 

Dixon v United Kingdom [2012] ECHR 424 The applicant and his sister were joint secure tenants of a council property with Wandsworth Borough Council. The applicants sister gave notice to quit which brought the tenancy to an end. In 2006 the Wandsworth obtained a possession order on the basis that the applicant had become a trespasser. In 2009 the High Court refused to set aside the possession order because, on the law as it then stood (pre-Pinnock and Powell), and Mr Dixon could not raise an Article 8 defence to the claim. Mr Dixon applied to the European Court of Human Rights and the Government accepted that there had been a procedural breach of Article 8 because the proportionality of the eviction had not been considered and paid the applicant 3000 euros in compensation (click here for transcript). 

Allocating social housing – Government guidance falls short

Garden Court Chambers Housing Team has responded to the Government's consultation on the Draft Code of Guidance for the Allocation of Social Housing under the Localism Act 2011. The housing barristers conclude that the draft guidance falls well short of providing the real help local authorities need to get the process right. They call for more detailed and practical guidance, so that there is clarity for councils drawing up their allocation schemes, and for applicants for social housing who want to know how their application will be dealt with. To read the response in full (click here).

The response was written by Jan Luba QC, Liz Daviesand Tim Baldwinon behalf of the Housing Team.