Monday, 30 June 2008

Something useful for a change

Stumbled upon THIS quite handy link for Court Desk advisers and other housing bods

It's a little old but helpful I reckon.

Are subprime solicitors very stupid?

Every Monday morning I help run our CABx Court Desk scheme.

Every week I seem to have a mortgage possession case in which there is plenty of equity in the property that involves me making an offer of repayment that would clear the arrears in about 3 to 5 years where on average there is about 20 odd years remaining on the term as the defendant would prefer to clear them much sooner than the whole of the term.

However every week having put this reasonable offer to the claimant's representative the rep will call the claimant's Legal Department and some cretin will say the offer is unacceptable as they want the arrears cleared in a year or two. WHY! WHY! WHY do they do this? Have they never ever heard of Cheltenham and Gloucester Building Society v Norgan [1996]. Are they just being deliberately obnoxious and / or stupid or am I missing something?

I've never ever seen a Judge agree with the claimant in respect to the repayment of the arrears so why do claimant's solicitors persist?

Wednesday, 25 June 2008

Gas, we're all doomed

Crapita are furthering world domination with the announcement that they are to replace CORGI from 1st April 2009.

thanks to red40 at LLzone.

Must resist bribery innuendo...

Another Biggy, Lewisham v Malcolm

Looks like Nearly is in for no sleep tonight!

Mayor and Burgesses of the London Borough of Lewisham (Appellants) v Malcolm (Respondent)

Very very briefly as I'm at work and have only read some parts as it's a very lengthy judgement, it appears Lewisham's appeal has been upheld.

Very interesting case I think, having suffered from a disability myself. A lot to read after the footy ;)

Also have to love a case where a Lord (LORD SCOTT OF FOSCOTE) says

'The problem, I repeat, was the dog'

Am pondering whether McCann (if it had been out) could have helped Macolm as he was back living in the property.

Apologies for the editing. I thought I had some grasp of what constitutes indirect discrimination. Now I realise I have none and look forward to reading some sort of an 'idiots guide to discrimination' :)

Until it's published I shall continue to stare at 35 in the hope that I can make sense of it. Perhaps I will dream of blind people having to leave their dogs outside the pub. What happens if he can't leave it outside the pub because it's really cold and the dog will die of hypothermia? Should the blind person tell the pub owner he's blind and needs his dog and that his dog will die of hypothermia if left outside?

Tuesday, 24 June 2008

Oh, oh they are, I think! For now...

R (Weaver) v London & Quadrant Housing Trust
[2008] EWCA 1377 (Admin), 24 June 2008,

Taken from eflash 308 at Arden Chambers.

'The Administrative Court has held that a registered social landlord was a public authority for the purposes of the Human Rights Act 1998 in respect of the management and allocation of its housing stock (including the termination of a tenancy) and accordingly also amenable to judicial review on conventional public law grounds'

Hopefully L and Q might think a bit more and dust off their Housing Corporation's guidance 02/07 before they just throw ground 8's at people.

Am sure Nearly will be busy this evening.

Monday, 23 June 2008

Happy birthday Garden Court bulletins!

Garden Courts 100th Housing bulletins are 100 today. Happy birthday Mr Bulletin.

Lots of interesting stuff (for housing nerds), including more on the are they or aren't they Public bodies and RSLs debate. As seems commonplace in housing law no one really has a clue.

Sunday, 22 June 2008

Website help needed!

I've been thinking about making a little housing resource web page. Just a place with handy links to all sorts of different websites and also a place with links to different court cases which I would find extremely handy when doing reviews etc. It would also be a place where I could 'store' the answers to weird and wonderful problems that some clients seem to have so I can quickly refer to them again if necessary (obviously just the generally gist of the problem not the actual client!)

I've been trawling through website editors and free hosting programmes for about the last 6 hours and it's doing my head in.

I'd like an idiot proof editor where I can make my own page and then easily upload it so that I can view it as a web page. I don't really want a cool web address and I don't mind an advert or two if necessary. I don't mind paying a few pounds a month if I get something that even I can use.

Does anyone have any recommendations?

Pretty please!

Can giving a toss ever cost to much?

Nice to see Mr Flack with another thought provoking post over at on his blog.

It reminded me of an incident last week. I was flicking through the local papers job section as I usually do each week in the vain hope of trying to find a better job. I saw a job as a Homeless Assessment manager at a nearby Local Authority and it got me thinking and that thinking got me rather depresssed.

I believe I'd make a great Homeless Persons Manager.

If I got an interview for the job I'd state that I would make sure every Homelessness officer was fully up to speed on the Homelessness Code of Guidance for Local Authorities. I'd make sure they knew that any homeless prevention should go hand in hand with seeing what duties might be owed to them should the homelessness officer have reason to believe the client might be homeless or threatened with homelessness in 28 days. I would make sure that I took the views of the applicant's GP's and specialists into proper consideration. I'd make sure the Housing department had proper joint assessment protocols in place with Social Services.

Then I snapped back to reality and remembered that I was a homeless officer once. I gave a stuff as William politely put it. I was fair and open minded. I didn't last that long. My manager who was also the reviewing officer used to tell me to find people not to have a priority need where I believed after having come to a reasoned decision that they were.

Why should Local Authority homeless officers and social workers give a stuff? They are actively dissuaded from doing so. When it comes to promotion I would put my money on the Homelessness officer who has 'prevented' applications by any means necessary getting the job over the caring, law abiding officer who then probably quits.

Local Authorities receive money for reducing the number of Homeless cases. Can you blame them therefore in this statistic obsessed society for preventing such cases by any means necessary? If one Local Authority manager starts gatekeeping and thus reducing their departments spend can you really blame the next door Local Authority manager who does the same in order to stop their costs spiralling due to helping all the homeless people who have come from the adjoining LA?

I'm not condoning the actions of any LA's such as Hounslow in X v Hounslow [2008] All ER 337 I'm just wondering how much it would cost if every Council started obeying the spirit and wording of such acts as the Childrens Act 1989 and the Housing Act 1996.

Perhaps every CLS advice worker should spend a year in a Local Authority to see just why they don't seem to give a stuff!

Saturday, 21 June 2008

Is the Pope Catholic?

In a shocking development The Carsberg Review of Residential Property, Standards, Regulations, Redress and Competition in the 21st Century found that Letting Agents and Estate Agents should be better regulated and better trained!

Although if they were then my matter starts would go right down the proverbial toilet.

Wednesday, 11 June 2008

House in Paris for the week

House is off to study the suitability of Parisian Hotels and whether or not it is reasonable to continue to drink large amounts of wine.

Tuesday, 10 June 2008

Question for the day.

Is a joint secure tenant who moves out of their accommodation, leaving the other secure tenant in occupation, into accommodation provided by 188 and then by 193 still considered a secure tenant in respect to the exemptions as set out in sec 159 (5) of the HA 1996 (as ammended)?

Answers on a postcard please :)

Monday, 9 June 2008

Single Parents, work and poverty

'Well if you stop smoking, stop buying any magazines or papers, get rid of your pet, don't go out ever, get rid of your phone and don't ever buy any presents for your children then you might be able to pay your rent'

Going through income and expenditure forms with single parents who are trying to work is an increasingly depressing task.

Today I had 3 single parents who all worked as carers. All needed a car for their job and I wondered why any of them bothered working at all.

Housing benefit can disregard up to £45 of weekly income, over what the law allows you to live on, before it starts knocking off 65p for every £1 you earn from your housing benefit award and also reducing your Council tax award. As it's likely that your paying tax on that £1 then until you get to zero housing benefit your not really actually any better off by working more hours, that is presuming you can work more hours.

All of my clients were paying far more than £45 a week on petrol and on their car (insurance, tax, MOT, maintenance etc, HP etc). In fact their expenses more than consumed all of the working tax credits they got.

So there I was looking at the income and expenditure sheets saying to the client that in fact they should in effect pretend they were on benefits when it came to what they could spend. The fact that I'm even writing that is thoroughly depressing. Should a single parent in these sorts of situations need to have a partner just to make it worth while working?

As a taxpayer supporting all those who don't work I would hope the answer is no, but from my experience it's a yes!

I appreciate that the clients I saw were on low incomes but then it shouldn't really matter should it?

Additionally the rapid increase in petrol prices over the last few years, from 77.9p in 2003 per litre to 103.9 per litre (and rising quickly) in 2008 seriously effect clients such as those I saw today who already have no spare income. A pound a week on fuel is either a pound less on food or a pound more in debt. Can one blame such clients if they decide to give up their car and go back to income support.

Tuesday, 3 June 2008

Adding a Local Authority as a party to costs.

I'm sure many CLS advisers here have trouble with Local Authorities who totally ignore the Code of Guidance and the Housing Act 1996 in advising clients that they must remain in their accommodation till evicted even when issued with section 21 notices to which there is no defence and having been told that the landlord will be taking possession. In such cases the Local Authority won't even consider whether or not it is reasonable for the tenant to continue to occupy the property.

This sort of practice is damaging for so many reasons. To name a few it causes landlords who might otherwise rent to people on Housing benefit (as often it is those on HB that have had to approach the LA having not been able to find alternative privately rented accommodation) to decide they don't want to in the future as understandably they don't want to go through lengthy possession proceedings. In the last month or two I've had 4 or 5 landlords tell me that because of such advice they won't be renting to tenants on Housing benefit again.

Such advice also causes a great deal of stress and uncertainty to both landlord and tenant. It also adds extra burden to already overstretched Courts and clients often then have to be assisted by at yet more public money by people like me.

Whilst the threat of Judicial Review and Judicial review can be very useful there may be another tool that can be used to get the Local Authority to do what the law requires.

With the kind permission of its author Mr Tony Ross at 1 Pump Court Chambers, London EC4Y 7AB 02078427070 I have copied in some advice I received regarding having a Local Authority joined as a party to an order for the costs of the possession proceedings. This is pretty uncharted territory but Pump Court have had success in obtaining such orders but have stated they don't receive many instructions regarding such action (perhaps because it's something new to consider). I ended up not pursuing the action as the client was assisted before it became necessary.

I'm not a solicitor and this is something I would refer out but I think it would be a handy action that could possibly go hand in hand with JR where appropriate.

I look forward to any comments on what uses people think this might or might not have.

I have of course edited the advice where appropriate in order to keep the LA and my client anonymous.

The Facts

Bobtown Council, the local housing authority, apparently have a practice of refusing to accept homelessness applications from Assured Shorthold Tenants until at or very close to the date of eviction, on the basis that the applicants are not homeless. The effect of this "gate keeping" is that the cost of providing s.188 interim accommodation is avoided.

A further consequence, however, is that the tenant has to wait for the landlord to obtain a possession order before he is re-housed. This will usually result in the landlord obtaining a costs order against his tenant.

Those instructing me seek advice on what can be done to prevent the housing authority continuing to act in a manner which is contrary to the policy and express terms of the Housing Act 1996, and the Code of Guidance. It is suggested that a costs order could be obtained in the possession proceedings against the housing authority.

Legal Background:

Homelessness applications and the Housing Act 1996 ("HA")

Whenever a person approaches a local housing authority for accommodation or assistance in obtaining accommodation, and the local housing authority has reason to believe that he may be homeless or threatened with homelessness, then he has made a homelessness application: s.183 HA. Applications for assistance under Part 7 HA 1996 do not need to be in any particular form, nor do they need to be explicitly expressed to be seeking assistance under Part 7: see Paragraph 6.6 of the Code of Guidance.

9. Where a housing authority has reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves whether he is eligible for assistance, and if so, whether any duty, and if so what duty, is owed to him: s.184(1).

10. An early assessment will be vital to determine whether the housing authority has an immediate duty to secure accommodation under s.188. Housing authorities are obliged to begin inquiries as soon as they have reason to believe that an applicant may be homeless or threatened with homelessness and should aim to carry out an initial interview and preliminary assessment on the day the application is received: Para 6.16 Code.

11. On completing their inquiries the authority must notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision: s.184(3) HA.

12. The threshold for the duty of councils to act is a low one since it arises if they have reason to believe the applicant may be homeless or threatened with homelessness: R (Aweys and others) v. Birmingham City Council [2007] EWHC 50, [2007] HLR 27, at para 8.

Reasonable to Continue to Occupy

13. The relevant parts of the Code of Guidance are:

"Tenant given notice 8.14. With certain exceptions, a person who has been occupying accommodation as a tenant and who has received a valid notice to quit, or notice that the landlord requires possession of the accommodation, would have the right to remain in occupation until a warrant for possession was executed (following the granting of an order for possession by the court). The exceptions are tenants with resident landlords and certain other tenants who do not benefit from the Protection from Eviction Act 1977. However, authorities should note that the fact that a tenant has a right to remain in occupation does not necessarily mean that he or she is not homeless. In assessing whether an applicant is homeless in cases where he or she is a tenant who has a right to remain in occupation pending execution of a warrant for possession, the housing authority will also need to consider whether it would be reasonable for him or her to continue to occupy the accommodation in the circumstances (see paragraphs 8.30-8.32 below).

8.15. Some tenants may face having to leave their accommodation because their landlord has defaulted on the mortgage of the property they rent. Where a mortgage lender starts possession proceedings, the lender is obliged to give written notice of the proceedings to the occupiers of the property before an order for possession is granted. The notice must be given after issue of the possession summons and at least 14 days before the court hearing. As for tenants given notice that the landlord requires possession of the accommodation (see paragraph 8.14 above), authorities will need to consider whether it would be reasonable for a tenant to continue to occupy the accommodation after receiving notice of possession proceedings from the lender.

8.30. In cases where the applicant has been occupying accommodation as a tenant and has received a valid notice to quit, or a notice that the landlord intends to recover possession, housing authorities should consider the scope for preventing homelessness through consulting the landlord at an early stage to explore the possibility of the tenancy being allowed to continue or the tenant being allowed to remain for a reasonable period to provide an opportunity for alternative accommodation to be found. If the landlord is not persuaded to agree, the authority will need to consider whether it would be reasonable for the applicant to continue to occupy the accommodation once the valid notice has expired.

8.31. In determining whether it would be reasonable for an applicant to continue to occupy accommodation, the housing authority will need to consider all the factors relevant to the case and decide the weight that individual factors should attract. As well as the factors set out elsewhere in this chapter, other factors which may be relevant include the general cost to the housing authority, the position of the tenant, the position of the landlord, the likelihood that the landlord will actually proceed with possession proceedings, and the burden on the courts of unnecessary proceedings where there is no defence to a possession claim (see paragraphs 8.14 and 8.15 above for guidance on the right to occupy where notice of possession proceedings has been given).

8.32. Each case must be decided on its facts, so housing authorities should not adopt a general policy of accepting – or refusing to accept – applicants as homeless or threatened with homelessness when they are threatened with eviction but a court has not yet made an order for possession or issued a warrant of execution. In any case where a housing authority decides that it would be reasonable for an applicant to continue to occupy their accommodation after a valid notice has expired – and therefore decides that he or she is not yet homeless or threatened with homelessness – that decision will need to be based on sound reasons which should be made clear to the applicant in writing (see Chapter 6 for guidance on housing authorities’ duties to inform applicants of their decisions). The Secretary of State considers that where a person applies for accommodation or assistance in obtaining accommodation, and: (a) the person is an assured shorthold tenant who has received proper notice in accordance with s.21 of the Housing Act 1988; (b) the housing authority is satisfied that the landlord intends to seek possession; and (c) there would be no defence to an application for a possession order; then it is unlikely to be reasonable for the applicant to continue to occupy the accommodation beyond the date given in the s.21 notice, unless the housing authority is taking steps to persuade the landlord to withdraw the notice or allow the tenant to continue to occupy the accommodation for a reasonable period to provide an opportunity for alternative accommodation to be found."

Costs: CPR 48.2 Costs Orders in favour of or against non-parties
14. CPR 48.2 provides:
Costs orders in favour of or against non-parties:
(1) Where the court is considering whether to exercise its power under section 51 of the Supreme Court Act 1981 (costs are in the discretion of the court) to make a costs order in favour of or against a person who is not a party to proceedings—
(a) that person must be added as a party to the proceedings for the purposes of costs only; and
(b) he must be given a reasonable opportunity to attend a hearing at which the court will consider the matter further.
(2) This rule does not apply—
(a) where the court is considering whether to—
(i) make an order against the Legal Services Commission;
(ii) make a wasted costs order (as defined in 48.7); and
(b) in proceedings to which 48.1 applies (pre-commencement disclosure and orders for disclosure against a person who is not a party).

15. Section 51 of the Supreme Court Act 1981 gives the court full power to determine by whom and to what extent costs are to be paid. The Court of Appeal has laid down guidelines for the exercise of this power:

(1) An order for the payment of costs by a non-party would always be exceptional. The judge should treat any application for such an order with considerable caution.

(2) It would be even more exceptional for an order for the payment of costs to be made against a non-party where the applicant had a cause of action against the non-party, and could have joined him as a party to the original proceedings.

(3) Even if the applicant could provide a good reason for not joining the non-party against whom he had a valid cause of action, he should warn the non-party at the earliest opportunity of the possibility that he might seek to apply for costs against him.

(4) An application for payment of costs by a non-party should normally be determined by the trial judge (see Bahai v Rashidian [1985] 1 W.L.R. 1337).

(5) The fact that the trial judge in the course of his judgment had expressed views on the conduct of the non-party, neither constituted bias nor the appearance of bias.

(6) The procedure for the determination of costs is a summary procedure, not necessarily subject to all the rules that would apply in an action. Thus, subject to any relevant statutory exceptions, judicial findings are inadmissible as evidence of the facts upon which they were based in proceedings between one of the parties to the original proceedings and a stranger. Yet in the summary procedure for the determination of the liability of a solicitor to pay the costs of an action to which he was not a party, the judge's findings of fact may be admissible. This departure from basic principles can only be justified if the connection of the non-party with the original proceedings was so close that he will not suffer any injustice by allowing this exception to the general rule.

Per Balcombe L.J. Symphony Group Plc v Hodgson [1993] 4 All E.R. 143, CA

15. It is relevant to the court's exercise of discretion, whether to make an order against a non party, for it to consider whether the non party has received notice before or during the litigation that he may be made subject to an order for costs.

16. The discretion to award costs against non parties may be exercised in a variety of circumstances, such as whether the third party is considered to be the real party interested in the outcome of the litigation; or, where the third party has been responsible for bringing the proceedings and they have been brought in bad faith or for an ulterior purpose, or there is some other conduct that makes it just and reasonable to make an order (see Millett LJ in Metalloy Supplies Ltd (In Liquidation) v MA (UK) Ltd [1997] 1 W.L.R. 1613 at 1619): Barndeal Ltd v Richmond upon Thames LBC (Costs) [2005] EWHC 1377 (QB), [2006] 1 Costs L.R. 47, Newman J.

17. Where a non party is shown to have intervened in litigation so as to take control of the prosecution or defence of a claim, substantially for his own purposes or benefit and the claim or defence fails, there is no requirement that a court, making a non party cost order against a director, should find that the director was guilty of some impropriety in the prosecution by the company of the claim: BE Studios Ltd v Smith and Williamson Ltd [2005] EWHC 2730 (Ch), Evans Lombe J.

Merits & Procedure
18. In my view, there are two possible approaches that might be taken - the first by X with the assistance of those instructing me; the second by those instructing me over a period of time.
(1) Application for a Costs Order under CPR 48.2
19. This application is relatively simple and summary.
20. The keys points to be followed for this to application to work appear to be:

Notice should be provided to the Authority that an application will be made to join the Authority under CPR 48.2 immediately after the hearing of the possession claim in order to seek a costs order from them. The date of the possession hearing should be provided if known.

The grounds for the application should be explained to the District Judge in the County Court, even though they may appear obvious to a housing adviser. The most relevant points appear to be:

The Authority have made the proceedings necessary, by their failure to accept an application and provide interim accommodation.

The circumstances are exceptional, because the Authority have acted unlawfully – and in a high handed and arbitrary manner, by deliberately ignoring the Code of Guidance. This is easily demonstrated by reference to the Code of Guidance, Para 3.32. It will be even easier to demonstrate if they have refused to accommodate in the face of the letter providing them with notice.

The Authority have adopted an unlawful policy or practice, in that they routinely behave in this way.

The motivation for this unlawful behaviour is saving costs. As a result, the Authority should not be permitted to profit from unlawful conduct, but should be required to pay the Defendant’s costs.

The aim of the Authority should be Homelessness Prevention – that is carrying out inquiries at an early stage to ensure that there is little or no time spent in B & B. The policy of the Act considers a more seamless move from one accommodation to another.

21. Anecdotally, this or similar arguments have succeeded when recommended by colleagues in Chambers. In my view, it is unlikely to lead to criticism of X even if it fails.

22. My note of caution would be that the Court must have before them evidence of what steps X took to obtain accommodation ie. when he applied as homeless, with what result, what was said to him, by whom etc. This should be designed to prevent the Authority arguing that "on the facts of this case, costs should not be awarded against them eg. because he did not consult them until proceedings were issue.

So there we are. The second of course of action is not relevant to this post as it relates to an Aweys style challenge.

Monday, 2 June 2008

The CAB, had its cake, now feeling a bit sick

How many times in the last week have you read a document that says something along the lines of 'If you don't understand what x, y or z means you should seek advice from a solicitor, the CAB or Local Law centre'?

In 10 years time I wonder whether the CAB or Local Law Centres will be mentioned so much.

Is the fate of Hull CAB a sign of things to come for the CABx all across the land?

Being in a smaller more rural County our CABx is under threat from the probably inevitable introduction of a CLAN. The difficulties our bureau is having in setting up a local consortium that would be in a position to bid for any CLAN contracts make me wonder how many CABx will survive should the LSC decide to push through their ideas on CLAN's and CLAC's regardless of the opposition.

The trouble with CABx is that that they are all run as independent (independent from each other, not truly independent in terms of advice provision in my opinion) franchises and all have their own Trustee boards. This makes any sort of Consortium extremely hard to run.

If a Consortium is to be successful then I believe that there needs to be a board of trustees or similar that has power over all of its members. If one of the members is failing then someone needs to have the power to take action for the sake of the other members who may all be at risk due to that 1 members failings.

Unsurprisingly this is an extremely difficult task as perhaps understandably the Local Trustee board members don't want to give up their power and Independence. However if said Trustee's don't wake up to the fact that the nature of advice provision is changing and changing quickly then it may be to late.

For many years the CAB has enjoyed a form of monopoly over other advice providers due to the fact it had pretty much guaranteed funding from Local Authorities. In my experience from ten odd years at various CABx this had meant that many CABx have got fat and lazy, to used to their own monopoly. That guaranteed funding is perhaps the CABx Achilles heel. Without it most CABx included my own can't survive.

Therefore do CABx have any choice but to do what the LSC want, ie CLAN's and CLAC's, and get into a position to bid for them as if they do not they may well lose all the Local Authority funding they have enjoyed for so long?

I've been pondering the question and I'm not sure. Perhaps the LSC might back down should the unpopularity that is involved in the closure of Local CABx become to much for politicians and local counsellors to bare.

However If CABx don't want to take this dangerous risk then perhaps the real challenge is whether CABx can rise to the challenge of a new age of advice provision and actually show that they really do do it better than companies such as A4E and Crapita (Blame Private Eye).

Fortunately the CAB seem to be waking up to this new challenge and is pumping money into helping CABx get into a better position to bid for such CLAC, CLAN contracts. Whether the old age way of running CABx can change in order to make such bids successful remains to be seen.

Interesting times