Gangbos
The Gang Related Violence Injunction (or “Gangbo” as it has been colloquially termed) is the latest weapon in the fight against anti social behaviour in the UK. The Policing and Crime Act 2009, Part 4 sections 34 – 50 and Schedule 5, (“The 2009 Act”) give power to the county court (and the High Court) to grant injunctions to prevent gang related violence. Both the police and/or the local authority as defined in the Act can apply for the injunction against those who are 18 years and older. The new provisions came into force on 31January, 2011 in England and Wales.[1]
The Crime and Security Act 2010 brought in by the coalition government extends the reach of the gang-related violence injunctions to those aged 14 to 17. The 2010 Act also makes amendments to the Policing and Crime Act 2009 to reflect the different procedures and sanctions which are available to the court in respect of minors in respect of the grant and enforcement of an injunction. The new provisions are not yet in force and there is proposed pilot scheme which is due to start sometime in 2011. Statutory Guidance has been published by the Home Office entitled “Statutory Guidance Injunctions to Prevent Gang Related Violence” published December 2010. This will be updated to incorporate the changes which will make the injunctions available against 14 to 17 year olds.
New rules in the CPR have been drafted and are also in force on the same date: see CPR 65 paragraphs 65.42 – 65.49.
2010: The stories so far…
Chambers of Samuel Waritay
Briefing Note on
Manchester CC v Pinnock [2010] UKSC 45
Preamble: I have decided to do a briefing on this very important decision in the form of FAQS for those who are time poor and may not read the entire 36 page judgment. I have therefore removed key excerpts to assist. I welcome any comments.
Why all the excitement over this decision?
First, it is the 4th decision in 7 years from the highest court in the land about the application of ECHR Article 8 right to respect for the home in possession proceedings. The various occupiers have argued that although at law they did not have the right to remain in premises nevertheless an order for possession would infringe their article 8 rights. The previous 3 House of Lords decisions essentially decided that a defence which does not challenge the law under which the possession order is sought as being incompatible with article 8 but is based only on the occupier’s personal circumstances should be struck out. However it would be open to a defendant to challenge the decision of a local authority to recover possession as an improper exercise of its powers at common law on traditional judicial review ground that it was a decision that no reasonable person would consider justifiable.
Second, this case had a panel of nine (9) judges whereas the other cases had 5 judges. In the other HL cases each Law Lord gave a judgment including some strong minority judgements. The majority barely won. In this case there is a single agreed judgment from Lord Neuberger.
Third, in short the previous domestic HL cases have been overturned. It was held, inter alia, that if UK law was to be compatible with art.8, where a court was asked to make an order for possession of a person’s home at the suit of a local authority, the court had to have the power to assess the proportionality of making the order and, in making that assessment, to resolve any relevant factual dispute.
What about other social landlords? Are they affected by this decision?
Yes to the extent that they are “public authorities” under the Human Rights Act 1998. See Para. 3.
What were the precise issues in the case? Para 21 states: This appeal gives rise to four main issues, of increasing specificity. The first is whether the jurisprudence of the European Court of Human Rights (“EurCtHR”) requires that, before making an order for possession of property which consists of a person’s home pursuant to a claim made by a local authority (or other public authority), a domestic court should be able to consider the proportionality of evicting that person from his home under article 8, and, in the process of doing so, to resolve any relevant factual disputes between the parties. We deal with that question in paras 22-54 below and answer it in the affirmative. The second issue (paras 55-64 below) is what this conclusion means in practice in relation to claims for possession, and related claims, in relation to residential property. The third issue (paras 65-107 below) is whether the demoted tenancy regime in the 1985, 1996 and 2003 Acts can properly be interpreted so as to comply with the requirements of article 8, or whether at least some aspects of that regime are incompatible with the occupiers’ article 8 Convention rights. The fourth issue (paras 108-132 below), which requires a fuller consideration of the facts of this case, is how the appeal should be disposed of in the light of the answers on the first three issues.
Did they consider the recent jurisprudence of the ECHR on Article 8? Yes. The court agrees that the ECHR decisions were correct. The judgment states at para 48 -49:
“As Lord Mance pointed out in Doherty v Birmingham [2009] 1 AC 367, para 126, section 2 of the HRA requires our courts to “take into account” EurCtHR decisions, not necessarily to follow them. Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this Court not to follow that line.”
“49. In the present case there is no question of the jurisprudence of the EurCtHR failing to take into account some principle or cutting across our domestic substantive or procedural law in some fundamental way. That is clear from the minority opinions in Harrow v Qazi [2004] 1 AC 983 and Kay v Lambeth [2006] 2 AC 465, and also from the fact that our domestic law was already moving in the direction of the European jurisprudence in Doherty v Birmingham [2009] 1 AC 367. Even before the decision in Kay v UK (App no 37341/06), we would, in any event, have been of the opinion that this Court should now accept and apply the minority view of the House of Lords in those cases. In the light of Kay, that is clearly the right conclusion. Therefore, if our law is to be compatible with article 8, where a court is asked to make an order for possession of a person’s home at the suit of a local authority, the court must have the power to assess the proportionalityof making the order, and, in making that assessment, to resolve any relevant dispute of fact.”
What do the ECHR cases establish according to the Justices of the SC? Para. 45 – “(a) Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end: McCann v UK 47 EHRR 913, para 50; Cosic v Croatia (App no 28261/06), para 22; Zehentner v Austria (App no 20082/02), para 59; Paulic v Croatia (App no 3572/06), para 43, and Kay v UK (App no 37341/06), paras 73-4.
(b) A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (i e, one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues: Connors v UK 40 EHRR 189, para 92; McCann v UK 47 EHRR 913, para 53; Kay v UK (App no 37341/06), paras 72-73.
(c) Where the measure includes proceedings involving more than one stage, it is the proceedings as a whole which must be considered in order to see if article 8 has been complied with: Zehentner v Austria (App no 20082/02), para 54.
(d) If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact that he has no domestic right to remain there, it would be unlawful to evict him so long as the conclusion obtains – for example, for a specified period, or until a specified event occurs, or a particular condition is satisfied.
Although it cannot be described as a point of principle, it seems that the EurCtHR has also franked the view that it will only be in exceptional cases that article 8 proportionality would even arguably give a right to continued possession where the applicant has no right under domestic law to remain: McCann v UK 47 EHRR 913, para 54; Kay v UK (App no 37341/06), para 73.
So what does exceptionality involve?
Para. 51 – “Nevertheless, it seems to us to be both unsafe and unhelpful to invoke exceptionality as a guide.” !!!
“52. We would prefer to express the position slightly differently. The question is always whether the eviction is a proportionate means of achieving a legitimate aim. Where a person has no right in domestic law to remain in occupation of his home, the proportionality of making an order for possession at the suit of the local authority will be supported not merely by the fact that it would serve to vindicate the authority’s ownership rights. It will also, at least normally, be supported by the fact that it would enable the authority to comply with its duties in relation to the distribution and management of its housing stock, including, for example, the fair allocation of its housing, the redevelopment of the site, the refurbishing of substandard accommodation, the need to move people who are in accommodation that now exceeds their needs, and the need to move vulnerable people into sheltered or warden-assisted housing. Furthermore, in many cases (such as this appeal) other cogent reasons, such as the need to remove a source of nuisance to neighbours, may support the proportionality of dispossessing the occupiers.”
How should local authorities deal with proportionality in possession proceedings? Para. 50 “In our view, there is indeed force in the point, which finds support in Lord Bingham’s comment in Kay v Lambeth [2006] 2 AC 465, 491, para 29, that to require the local authority routinely, from the outset, to plead and prove that the possession order sought is justified would, in the overwhelming majority of cases, be burdensome and futile. In other words, the fact that the authority is entitled to possession and should, in the absence of cogent evidence to the contrary, be assumed to be acting in accordance with its duties, will be a strong factor in support of the proportionality of making an order for possession. But, in a particular case, the authority may have what it believes to be particularly strong or unusual reasons for wanting possession – for example, that the property is the only occupied part of a site intended for immediate development for community housing. The authority could rely on that factor, but would have to plead it and adduce evidence to support it.”
How should the court assess proportionality? Para. 56.” Moreover, reasonableness involves the trial judge “tak[ing] into account all the relevant circumstances … in … a broad common-sense way”: Cumming v Danson [1942] 2 All ER 653, 655, per Lord Greene MR. It therefore seems highly unlikely, as a practical matter, that it could be reasonable for a court to make an order for possession in circumstances in which it would be disproportionate to do so under article 8.
Para. 57. “In such a case the court’s obligation under article 8(2), to consider the proportionality of making the order sought, does represent a potential new obstacle to the making of an order for possession. The wide implications of this obligation will have to be worked out. As in many situations, that is best left to the good sense and experience of judges sitting in the County Court.”
Does all this apply to private landowners No. Para. 50 notes that there is at least one ECHR decision which seems to indicate that the point is not settled. “In Belchikova v Russia (App no 2408/06, 25 March 2010), the application was held to be inadmissible, but the EurCtHR (First Section) seems to have considered that article 8 was relevant, even when the person seeking possession was a private sector landowner. Presumably, this was on the basis that the court making the order was itself a public authority. But it is not clear whether the point was in contention.”
Rounding up the general points?
Paras 61 -63.
“61. First, it is only where a person’s “home” is under threat that article 8 comes into play, and there may be cases where it is open to argument whether the premises involved are the defendant’s home (e g where very short-term accommodation has been provided).
Secondly, as a general rule, article 8 need only be considered by the court if it is raised in the proceedings by or on behalf of the residential occupier.
Thirdly, if an article 8 point is raised, the court should initially consider it summarily, and if, as will no doubt often be the case, the court is satisfied that, even if the facts relied on are made out, the point would not succeed, it should be dismissed. Only if the court is satisfied that it could affect the order that the court might make should the point be further entertained.
62. Fourthly, if domestic law justifies an outright order for possession, the effect of article 8 may, albeit in exceptional cases, justify (in ascending order of effect) granting an extended period for possession, suspending the order for possession on the happening of an event, or even refusing an order altogether.
63. Fifthly, the conclusion that the court must have the ability to assess the article 8 proportionality of making a possession order in respect of a person’s home may require certain statutory and procedural provisions to be revisited. For example, section 89 of the 1980 Act limits the period for which a possession order can be postponed to 14 days, or, in cases of “exceptional hardship”, 42 days. And some of the provisions of CPR 55, which appear to mandate a summary procedure in some types of possession claim, may present difficulties in relation to cases where article 8 claims are raised. Again, we say no more on the point, since these aspects were not canvassed on the present appeal to any significant extent, save in relation to the legislation on demoted tenancies which we are about to discuss under the third issue.
64. Sixthly, the suggestions put forward on behalf of the Equality and Human Rights Commission, that proportionality is more likely to be a relevant issue “in respect of occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty”, and that “the issue may also require the local authority to explain why they are not securing alternative accommodation in such cases” seem to us well made.
How does this judgment affect demoted tenancies?
Para. 74. The court can review the facts found by a local authority leading to a decision to issue possession proceedings as well as facts which have arisen since the issue of proceedings. Para. 81. The decision to continue proceedings can itself be impugned. Para. 88. the county court has the power to give effect to any article 8 defence which a defendant raises in possession proceedings.
Are there any other cases waiting in the wings of the SC?
Yes. Para. 59. “The conjoined appeals in Salford City Council v Mullen [2010] EWCA Civ 336, which are due to be heard by this Court later this month, involve possession orders made in different and more common circumstances, namely the introductory tenancy regime (under Chapter 1 of Part V of the 1996 Act) and the homelessness regime (under Part VII of the 1996 Act). Those appeals may therefore provide a more appropriate vehicle for the giving of general guidance. Moreover, in relation to the homelessness regime, this Court will be able to consider whether any guidance can usefully be given to local authorities as to what course to take before seeking possession in cases where there is no provision for the kind of procedure envisaged in sections 143E and 143F of the 1996 Act. In the light of our decision in the present appeal the lawyers preparing for those appeals will have the opportunity to give particular attention to these aspects of the matter.”
My Conclusions
My view is that tenant advisers will now routinely argue article 8. Social landlords will need to prepare for this and to train those making decisions how to deal procedurally with the new landscape. It may no longer be proportionate to evict a demoted tenant on the grounds of rent arrears when evidently the initial reason for demotion was anti social behaviour. It is difficult to predict what the reaction of the county judges will be. My view is that only the strongest cases will pass muster.
Samuel Waritay 5th November 2010
Mortgage Possession Claims
The Law Society on 15th January 2009 issued a Mortgage repossession practice note. It is aimed at all solicitors involved in residential possession claims. The practice note gives advice on the ramifications of the Pre-Action Protocol for Possession Claims based on Mortgage arrears in Respect of Residential Properties which came into force on 17 November 2008. The aim is to encourage early dispute resolution and to force lenders to use possession actions against homes of those facing financial difficulties only as a last resort. Every lender bringing such a claim must comply with the Protocol at the risk of failure of the claim and/or costs sanctions.
Figures released in February 2009 suggest that the Protocol is working. Mortgage repossession claims issued in the courts have dropped by 50 per cent. Repossession claims dropped by 32 per cent to 26,008 in the last quarter of 2008.
It should be noted that the Protocol does not affect the right of a Lender to enforce its security by other means. Lenders can use other contractual rights such as appointing a receiver or exercising their contractual power of sale. In these circumstance once a property is sold a borrower will lose their equity and if they remain in occupation will become a trespasser. See the Law Society
On 3rd February 2009 Parliament received a first reading of the Home Repossession (Protection) Bill (Bill No.52). The bill seeks to amend the Law of Property Act 1925 to require a mortgagee to obtain the court’s permission before exercising the power of sale, where the mortgaged land consists of or includes a dwelling-house. The Bill aims to make certain powers available to the court in actions by mortgagees for possession of a dwelling-house; and for connected purposes. The second reading is scheduled for 26th June 2009.
Mortgage Rescue Scheme
On 16th January 2009 a £200 million mortgage rescue scheme to help vulnerable families at risk of prepossession to stay in their homes was rolled out across England. Those vulnerable households with income of less than £60,000 a year would be entitled to be re-housed under homelessness legislation. The vulnerable are defined as the elderly, disabled or those with children.
Two options will be available to households to help them remain in their homes: Sale of a share in their home to a housing association to reduce mortgage outgoings; sale of the entirety of the home to a housing association whilst remaining as tenants paying a subsidised rent. Legislation has also been introduced to give power to a local authority landlord of long leases to buy a share of the lease in lieu of payment of service charges. This particular provision is not in force as yet.
Changes have also been made to welfare benefits. In early January 2009 the regulations governing Income Support for Mortgage Interest were amended to make it possible for homeowners to receive financial help with the interest payments on their mortgage after 13 weeks rather than 39 weeks.
Lastly the Homeowner Mortgage Support Scheme is being developed by the government jointly with Lenders to allow households who suffer an “income shock” to defer part of their payments for up to two years.
Are Registered Social Landlords Public Authorities?
Later in 2009 the Court of Appeal will give judgment in the appeal of the RSL against a finding by the High Court judge that the RSL was a public authority within the meaning of the Human Rights Act 1998 in the management and allocation of its housing stock. See R(Weaver) v London & Quadrant Housing Trust [2008] EWHC 1377 (Admin).
New Legislation
Housing and Regeneration Act 2008
The Housing and Regeneration Act (“H&RA”) 2008 received royal assent on 22nd July 2008.
Part 1 and Part 2 of the Act respectively creates two new bodies:
The Homes and Communities Agency (HCA): The Office for Tenants and Social Landlords to be known as the Tenant Services Authority (TSA)
The HCA is intended to replace the Urban Regeneration Agency and Commission for New Towns and will take the investment in housing function of the now abolished Housing Corporation.
The TSA will regulate registered providers of social housing in England.
Other significant amendments in the H&RA 2008
The death of the oxymoron “tolerated trespasser” is now official.
The tolerated trespasser is the term given to those former tenants who remain in premises without any contractual or statutory rights. First coined by the House of Lords a little over a decade ago it has caused numerous jurisprudential problems. The combined effect of section 299 and Schedule 11 H&RA 2008 is that as from date as yet unknown (but expected to be April 2009) a tenancy which is secure, demoted or assured or an assured shorthold will only come to an end on the execution of the possession order. By this device there will in future be no tolerated trespassers. See also Knowsley Housing Trust v White; Honeyghan-Green v Islington LBC: Porter v Shepherds Bush Housing Association [2008] UKHL 70 a judgment given on 10th December 2008 where the House of Lords decided that an assured tenancy subject to a suspended possession order did not come to an end until possession was given up. A new “replacement tenancy” will arise on commencement of the Act subject to certain conditions. The court’s discretion to discharge a possession order under section 9(4) Housing Act 1988 and section 85(4) Housing Act 1985 is widened to allow discharge where there has been less than perfect compliance with conditions by the tenant.
Family Intervention Tenancies (FITS)
From 1st January 2009 local housing authorities and registered social landlords are able to enter into FITS. The tenancies are offered for the purposes of providing behavioural support services to tenants who face or are already the subject of possession orders for anti social behaviour. Eviction of such tenants are subject to similar reviews applied to introductory tenants. H&RA 2008 Changes to the Homelessness provisionsSchedule 15 H&RA 2008 makes several amendments to the Homelessness Provisions Part VII Housing Act 1996. The Schedule is not yet in force.
Priority Need
One of the most notable is that the incompatibility noted in R(Morris) v Westminster City Council [2005] EWCA Civ 1184 has been remedied. The court had held that section 185(4) Housing Act 1996 which provided that persons from abroad who not eligible for housing are to be disregarded when determining whether or not an applicant has priority need was incompatible with Article 14. A new category of homeless applicant –“a restricted person”- is created to whom a limited duty is owed. The schedule is not yet in force.
Local Connection
Section 315 H&RA 2008 amends section 199 of the Housing Act 1996. A person in the armed forces will now be able to establish a local connection with a district through residence or employment there in the same way as a civilian. The changes came into force on 1 December 2008.
Disclaimer
Housing Law News is intended to be a note of current news in this area. The above does not constitute legal advice and should not be relied on as such. The author welcomes any queries or comments on this Note.
