‘Homelessness’ and a child’s right to education.

     

    Feature I | Feature II | Cases | FYI


    Feature I

    Homelessness—the meaning of the terms ‘homelessness’ and ‘threatened homelessness’

    Where a local housing authority (LHA) believes that a person is homeless or may be threatened with homelessness, it has a duty to make inquiries into their eligibility for homelessness assistance and into what housing duty (if any) is owed to them under the Housing Act 1996 (HA 1996). This article considers the definitions of the terms 'homeless' and 'threatened with homelessness’ as set out in HA 1996, s 175.

    Changes as a result of the Homelessness Reduction Act 2017

    The Homelessness Reduction Act 2017 (HRA 2017) received Royal Assent on 27 April 2017 and will introduce changes to HA 1996, Pt VII and the Homelessness (Suitability of Accommodation) (England) Order 2012, SI 2012/2601. These changes will include the requirement for an LHA to intervene at an earlier stage in order to prevent homelessness, and to provide some new homelessness services, and it is expected that they will be brought into force by way of statutory instrument(s). This Practice Note refers to the law as it currently stands. However, the changes introduced by the HRA 2017 will be reflected in this Practice Note as and when they occur. For more, see News Analysis: The Homelessness Reduction Act 2017—a step in the right direction?

    The LHA’s duty

    Under HA 1996, s 184 an LHA has a duty to make inquiries into a person’s circumstances in order to determine whether they are eligible for assistance and, if so, to determine what homelessness duty (if any) they are owed by the LHA. That duty only arises where the person concerned is either homeless or threatened with homelessness, as defined by HA 1996, s 175.

    The meaning of homelessness

    HA 1996, s 175(1) provides that a person is considered to be homeless if they have no accommodation available for their occupation in the UK or elsewhere which they:

    • are entitled to occupy by virtue of an interest in it or by virtue of a court order, eg via a tenancy of a property
    • have an express or implied licence to occupy, eg the spouse of a tenant is considered to have an implied licence to occupy the same property, or
    • occupy as a residence by virtue of any enactment or rule of law giving them the right to remain in occupation or restricting the right of another person to recover possession of that occupation. For example, under section 3 of the Protection from Eviction Act 1977 (PEA 1977) a former tenant or licensee whose right to occupy has been terminated cannot be evicted other than by court proceedings except in the case of certain excluded tenants and licensees. Therefore, a former tenant or licensee is considered to have accommodation available for their occupation up until they are evicted by a bailiff’s warrant

    References:

    Hemans & Anr v Royal Borough of Windsor & Maidenhead [2011] EWCA Civ 374

    Hanniff v Robinson [1993] QB 419

    HA 1996, s 175(2) provides that a person is also considered to be homeless if they:

    • have accommodation, but they cannot secure entry to it, eg a person who has been unlawfully evicted from their accommodation, or
    • have accommodation which consists of a moveable structure, vehicle or vessel which is designed or adapted for human habitation, but there is no place where they are entitled or permitted to place it and reside in it, eg a mobile home or houseboat which has nowhere to be parked or moored

    HA 1996, s 175(3) provides that a person shall not be treated as having accommodation available for their occupation unless it is accommodation which it would be reasonable for them to continue to occupy.

    The various elements of homelessness are considered below.

    Accommodation in the UK or elsewhere

    Prior to HA 1996, a person was considered homeless if they had no accommodation in England, Scotland or Wales. This was explicitly stated in the Housing Act 1985 (HA 1985).
    However, pursuant to HA 1996, s 175(1), a person will not be considered to be homeless if they have accommodation which is available for their occupation in any country in the world.

    The type of accommodation

    Not every type of property amounts to ‘accommodation’ within the meaning of HA 1996, s 175.
    The word accommodation means a place which can fairly be described as accommodation. For instance, a night shelter would not fit that description.

    References:

    R v Brent London Borough Council, ex parte AWUA [1996] AC 55

    Further, the accommodation in question must be ‘habitable’.

    References:

    Gloucester City Council v Miles [1985] FLR 1043

    A person who is occupying temporary accommodation provided by an LHA acting under its homelessness obligations under HA 1996, Part VII is considered to be homeless notwithstanding the fact that they have been provided with some accommodation. That has to be the case, since otherwise it would lead to the perverse outcome that once a homeless person is given interim accommodation, they would cease to be considered homeless and therefore would cease to qualify for assistance.

    References:

    R (on the application of Alam) v Mayor and Burgesses of the London Borough of Tower Hamlets [2009] EWHC 44 (Admin)

    HA 1996, s 188

    Available for occupation

    Accommodation is only considered to be available for a person’s occupation if it is available for their occupation, together with:

    • any other person who normally resides with them as a member of their family, or
    • any other person who might reasonably be expected to reside with them

    This does not mean that a household necessarily has to be occupying one single unit of accommodation. It may be spread out into different units, but still be capable of being a single household.

    References:

    Sharif v London Borough of Camden [2013] UKSC 10

    The provisions of HA 1996, s 176 are elaborated upon in the Homelessness Code of Guidance for Local Authorities (July 2006 (the English Code)). Chapter 8.5 of the English Code states that, in terms of the first group of people in HA 1996, s 176, a member of the family includes people in close blood or marital relationships and cohabiting partners, including same-sex partners.

    The second group covering ‘any other person’ includes those whom it would be reasonable to expect to live with the homeless applicant, even if they were not living as part of the household at the time the application is made. This might include a companion for a disabled or elderly person, or children being fostered by either the applicant or a member of their family.

    However, a child who has not yet been born is not classed as a person who normally resides with the mother.

    References:

    R v Newham London Borough Council, ex parte Dada [1995] 2 All ER 522

    Under section 314 and schedule 15 of the Housing and Regeneration Act 2008 (HRA 2008), if a person is subject to immigration control (eg they have refugee status) and they make a homeless application, any members of their family who are ineligible for homeless assistance by virtue of their own nationality and immigration status must be disregarded when the LHA is deciding whether there is accommodation available for their occupation. However, if the applicant themselves is not subject to immigration control, other household members can be taken into account, regardless of their own eligibility for homeless assistance. In other words, it is the status of the applicant which dictates whether other members of the family, who may themselves be ineligible for homelessness assistance, can be taken into account.

    The LHA’s decision as to whether a person falls within the definitions set out in HA 1996, s 176 may only be challenged on traditional public law grounds—ie there is no statutory right of appeal against an LHA’s decision. (See: R v Lambeth LBC ex parte Ly [1986] 19 HLR 51 (not reported by LexisNexis®))

    Reasonableness of occupation

    Where a person has accommodation, but it is not reasonable for them to continue to occupy it, they will be classified as homeless under HA 1996, s 175

    Reasonableness generally

    In terms of general reasonableness, the principles are the same as those applied in relation to whether accommodation offered by an LHA is suitable. See Practice Note: Homelessness suitability of accommodation.

    References:

    Harouki v Royal Borough of Kensington and Chelsea [2007] EWCA Civ 1000

    However, in terms of when the question of reasonableness is determined, this is with reference to the time before the deliberate act or omission which led to the applicant losing that accommodation, and the fact that an applicant’s existing accommodation is not permanent is not relevant to the question of whether or not it is reasonable for them to continue to occupy it.

    References:

    Denton v Southwark London Borough Council [2007] EWCA Civ 623
    Accommodation will generally have to be in a very poor physical condition before it is classified as no longer reasonable for the applicant to occupy it (except in particular circumstances, such as where the applicant has a disability which means that the accommodation’s physical condition is unsuitable for them).

    The fact that existing accommodation is overcrowded as defined in HA 1985, ss 325 and 326 is a relevant factor for an LHA to take into account when considering if it is reasonable to continue to occupy. However, the fact that it may be overcrowded does not necessarily mean that it is no longer reasonable to occupy it.

    References:

    Harouki v Royal Borough of Kensington and Chelsea [2007] EWCA Civ 1000

    R v Eastleigh Borough Council ex parte Beattie [1984] Lexis Citation 619

    When an LHA is considering whether it is reasonable for a person to continue to occupy particular accommodation, it may have regard to the general housing circumstances in its district. However, regardless of where the applicant’s current accommodation is located, the LHA may only have regard to the general housing circumstances in its own district.

    References:

    HA 1996, s 177(2)

    R v Tower Hamlets LBC ex parte Monaf (1988) Times, 28 April

    The English Code Ch 8.14 stipulates that where an assured shorthold tenant has been served with a possession notice requiring possession under section 21 of the Housing Act 1988 (HA 1988) and they have no defence to any impending possession claim, it is unlikely to be reasonable for that tenant to occupy their accommodation beyond the date for possession stated in the notice.

    However, in R v City of Bradford, ex parte Parveen the court upheld the LHA's decision that an applicant was not homeless where they had moved into a property pursuant to an oral agreement that they would vacate it upon the landlord's family returning to the country and had subsequently been asked to move out upon that event occurring. In that case, the landlord had not served the requisite notice and, as a consequence, the LHA had been entitled to rely upon the fact that it did not believe that the landlord would have had a certain prospect of success in any subsequent possession proceedings and therefore, it was entitled to conclude that the applicant was not homeless.
    When considering reasonableness in the context of a tenant who has been asked to vacate a property, each case will therefore need to be decided on its own facts, and whether or not a landlord has complied with their legal obligations to serve notice is likely to be of key importance. When in force, the HRA 2017 will also remove any doubt about reasonableness where a tenant has been served with a notice under HA 1988, s 21 as it expressly provides that such an applicant will be considered to be threatened with homelessness provided that the notice expires within a 56-day period.

    Reasonableness—factors that must be taken into account

    There are certain factors which must be taken into account when considering reasonableness.
    It is not reasonable for a person to continue to occupy accommodation if it is probable that their doing so will lead to domestic or other violence against:

    References:

    HA 1996, s 177

    • them personally
    • a person who normally resides with them as a member of their family, or
    • another person who might reasonably be expected to reside with them

    In this context, the violence or threats do not need to emanate from the homeless applicant’s partner (hence the inclusion of the phrase ‘or other violence’) and it encompasses physical violence, as well as intimidating behaviour and other non-physical forms of abuse.

    References:

    Yemshaw v Hounslow London Borough Council [2011] UKSC 3

    Hussain v London Borough of Waltham Forest [2015] EWCA Civ 14

    It does not matter if an applicant has failed to take any measures to prevent the violence, for example by failing to either report the matter to the police, or issue legal proceedings.

    References:

    Bond v Leicester City Council [2001] EWCA Civ 1544

    Affordability of existing accommodation must also be taken into account in terms of both the financial resources available to the applicant and the costs of the accommodation. If the existing accommodation is not affordable, it would not be reasonable for the applicant to continue to occupy it, meaning they would be classified as homeless.

    References:

    Homelessness (Suitability of Accommodation) Order 1996, SI 1996/3204, reg 2

    The English Code Ch 17.39 provides guidance on the amount of money a person needs to live on, which should be at least the equivalent amount of welfare benefit to which the applicant would be entitled. Further, the amount of money needed to live on relates not just to rent, but also to food and other necessary expenses.

    References:

    R v Islington London Borough Council, ex parte Bibi [1996] Lexis Citation 1759

    Threatened with homelessness

    As stated earlier in this Practice Note, an LHA’s duty to make inquiries into what duty (if any) is owed to a person under HA 1996 arises not just when that person is actually homeless, but also to when that person is threatened with homelessness. When an LHA is making inquiries in respect of a person who is threatened with homelessness as opposed to actually homeless, all of the guidance described above in respect of persons who are homeless applies just the same; the fact that the person is not yet homeless does not affect the inquiries which should be made, or the legal issues which arise for the LHA in making those inquiries.

    References:

    HA 1996, s 184

    HA 1996, s 175(4) provides that a person is considered to be threatened with homelessness if it is likely that they will become homeless within 28 days. This will be amended to 56 days when HRA 2017 comes into force.

    The period of 28 days was originally the usual period which the courts specified in possession orders before the defendant would have to give up possession of the property concerned. However, since the coming into force of section 89 of the Housing Act 1980, the period in which possession must be given is 14 days, with the courts having the power to grant up to six weeks in total in the event of exceptional hardship. However, in cases where the court has a discretion to suspend possession, a longer period can be specified.

    Where a tenant remains in a property after the date on which a possession order required them to leave, they do not become homeless until they are forced to leave by the enforcement of a warrant for possession by the bailiff. During the time in between the date for possession to be given and the date of eviction by a court bailiff, that person will, of course, be classed as threatened with homelessness if the eviction date is within 28 days.

    References:

    R v Newham London Borough Council, ex parte Sacupima [2001] 1 WLR 563

    It is not unusual for LHAs to advise tenants in respect of whose home a possession order has been made to remain in the property until the last possible moment when they have to leave ie the date of eviction by a court bailiff. It would, however, be unlawful for an LHA to decline to carry out any inquiries under HA 1996, Pt VII until the person concerned is actually homeless rather than merely threatened with homelessness.

    References:

    R v Newham London Borough Council, ex parte Khan (2000) Times, 9 May

    HA 1996, s 184 provides that once a person is threatened with homelessness, an LHA has a duty to make inquiries as to whether they are eligible for homelessness assistance and, if so, what duty (if any) the LHA has towards them. If the LHA carries out any inquiries more than 28 days before the person is likely to become homeless, such inquiries are non-statutory. (See:R v Rugby Borough Council, ex parte Hunt (1992) 26 HLR 1 (not reported by LexisNexis®)).

    References:

    R v Newham London Borough Council, ex parte Khan (2000) Times, 9 May

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    Feature II

    Right to education and domestic application of ECHR (R (on the application of E) v London Borough of Islington)

    A local authority’s breach of a child’s right to education was the subject of an Administrative Court decision involving ‘a number of complex and novel points of law’. Michael Armitage, of Monckton Chambers, explores the judgment in R (on the application of E) v London Borough of Islington.

    Original news

    R (on the application of E) v London Borough of Islington [2017] EWHC 1440 (Admin), [2017] All ER (D) 16 (Jul)

    The Administrative Court held that the defendant local authority had been in dereliction of its duties in having failed to provide for the education of the claimant, who was a vulnerable child, and had invalidly assessed whether she had been a child in need and also a young carer.

    What was the background to the case?

    The claimant is a nine-year-old child. She and her mother and siblings fled from Southwark to Islington in May 2015, having suffered domestic violence at the hands of her father. The family thus became homeless, and the claimant fell out of full-time education. Her mother is profoundly deaf, has no speech, is almost completely illiterate, and suffers from post-traumatic stress disorder and depression. The family was originally provided with accommodation and assistance by a women’s charity, which notified the defendant on 12 June 2015 that the claimant required a school place. Despite that, it was not until 4 September 2015 that the claimant was re-admitted to full-time education at an Islington school.

    On 21 October 2015, the defendant belatedly accepted that the mother was eligible for assistance, non-intentionally homeless and in priority need for the purposes of the Housing Act 1996 (HA 1996), such that it owed her and her family the ‘full housing duty’ under HA 1996, s 193(2). However, the defendant exercised that duty by accommodating the family in temporary homeless accommodation in the borough of Hammersmith and Fulham. As a result, the claimant fell out of education again in early November 2015. She started at a Hammersmith school in January 2016, but at the end of April 2016, the family had to move to temporary accommodation back in Islington. Yet again, the move resulted in the claimant’s falling out of education, a situation that was not remedied until 14 June 2016. In sum, therefore, she was out of education for a total of 20 term-time weeks (and nine weeks of school holiday) between June 2015 and June 2016, comprising more than half of the relevant school year.

    In the meantime, the defendant had conducted assessments of the mother’s care needs under section 9 of the Care Act 2015, as well as assessments of the needs of the claimant and her siblings under the Children Act 1989 (ChA 1989). The key conclusions of those assessments were that:

    • the mother did not have any eligible needs for care and support under the applicable legislation
    • neither the claimant nor her siblings were ‘children in need’ under ChA 1989, s 17, and
    • the claimant was not a ‘young carer’, within the meaning of ChA 1989, s 17ZA

    What issues arose for the court’s consideration?

    The first ground of judicial review concerned the claimant’s absences from education. She contended that:

    • the defendant was responsible for each of her three periods of absence from education (including the period in which the family was accommodated in Hammersmith and Fulham), in circumstances that amounted to a denial of her right to education under Article 2 of the First Protocol (A2P1) of the European Convention on Human Rights (ECHR)
    • further or alternatively, the defendant’s acts and omissions amounted to unlawful discrimination against her, contrary to Article 14 ECHR read with A2P1 ECHR

    The second ground of judicial review concerned the various assessments conducted by the defendant in respect of the needs of the family. In broad outline, the claimant contended that each of those assessments (and the conclusions reached as a result of them) were irrational.

    What did the court decide, and why?

    On the first ground of judicial review, the court held that, in the circumstances, the claimant’s absences from school involved a denial of her right to education in breach of A2P1 ECHR, and that the defendant bore primary responsibility for the breach notwithstanding that, for one period of absence, she was residing in a different London borough. (In light of its finding on the ‘standalone’ A2P1 ECHR claim, the court did not consider it necessary to determine the alternative claim based on discrimination under Article 14 ECHR). Moreover, the defendant was liable to compensate the claimant in damages by way of just satisfaction for the breach of A2P1 ECHR (with quantum left to be determined on a later occasion).

    As to the second ground of judicial review, the court accepted that the defendant’s assessment of the claimant’s needs was vitiated by ‘incomprehensible or misjudged reasoning’ of the kind described by Lord Neuberger in Holmes-Moorhouse v Richmond-upon-Thames London Borough Council [2009] UKHL 7, [2009] All ER (D) 36 (Feb). For example, the assessing social worker had wrongly relied on the mother’s views as determinative of an assessment of the claimant’s needs. The court was not, however, satisfied that flaws in the assessment of the family were sufficient to cross the threshold of irrationality, and therefore dismissed those aspects of the second ground of judicial review.

    To what extent is the judgment helpful in clarifying the law in this area? Are there still any unresolved issues practitioners will need to watch out for?

    The second ground of judicial review raised questions that were highly fact-specific. However, as the court recognised, the first ground, concerning the claimant’s right to education, raised ‘a number of complex and novel points of law’. The judgment has clarified some important issues, and will therefore be of significant wider interest to practitioners in this area.

    First, the court distilled a clear analytical framework, by reference to the two Supreme Court authorities on A2P1 ECHR (Ali v Head Teacher and Governors of Lord Grey School [2006] UKHL 14, [2006] All ER (D) 332 (Mar) and A v Essex County Council [2010] UKSC 33, [2010] All ER (D) 140 (Jul)) for the purposes of claims based on an alleged breach of the right to education.

    The court made clear that it was necessary to ‘examine the cumulative impact of any unjustified absences from education…in order to determine whether, taken together, they amounted to a denial of the right to education’. At this stage of the analysis, the court must ‘view the overall situation through a wide-angled lens, aggregating the acts and omissions attributable to all public authorities involved in the case’. Uniquely among the qualified ECHR rights, it is not necessary to determine, in relation to the right to education, whether the conduct of those public authorities was lawful as a matter of domestic law. Rather, the court must decide for itself whether, ‘in light of all the prevailing circumstances’, the ‘overall treatment’ of the child amounted to a denial of the right. The court accordingly disagreed with the defendant’s approach, which was to argue that the borough of Hammersmith and Fulham was responsible for the second period of absence from education, and that, with that period falling out of account, the first and third periods were not sufficient to constitute a denial of the right to education under A2P1 ECHR. Questions of which authority bore responsibility for the denial of the right to education are relevant only at the second, and not the first, stage of the analysis.

    In cases where more than one public authority is potentially implicated in the breach, the court must go on to determine ‘which authority bore the primary duty for securing the Convention right’. This involves an examination of ‘the distribution of responsibilities under domestic law and practice’, not in order to decide whether domestic law has been breached, but to assist in identifying the public authority that bore the primary duty to secure the right to education. In this regard, the court engaged in a detailed consideration of relevant domestic legislation and statutory guidance in order to assess which local authority bore primary responsibility for the claimant’s education during the period in which she was accommodated, by the defendant, in Hammersmith and Fulham. The court ultimately concluded that the defendant was the public authority with ‘primary (and continuing) responsibility for ensuring [the claimant’s] right to education during the second period of absence’.

    Second, the court refrained from formulating a precise threshold test for a denial of education. Rather, in line with Lord Bingham’s reference to a ‘highly pragmatic’ test in the Lord Grey School case, the court approached the matter by reference to all the circumstances of the case. In so doing, however, it gave helpful (although expressly non-exhaustive) guidance as to the approach to be taken to the first stage of the A2P1 ECHR, and in particular the factors to be taken into account in determining whether there has been a denial of the right to education. These include:

    • ‘the age of the child and the stage of education they have reached
    • their educational history
    • the duration of the absence of educational provision
    • any alternative provision made
    • any special resource implications particular to the case, and
    • any circumstances particular to the child or its family that aggravate or mitigate the impact of the child’s absence from school’

    Third, and in connection with the second stage of the analysis, the court engaged in a detailed consideration of the various applicable statutory provisions in order to ascertain whether the defendant or Hammersmith and Fulham bore primary responsibility for the claimant’s second period of absence from education. The court placed particular reliance on section 11(2) of the Children Act 2004, which obliges relevant public authorities to make arrangements for ensuring that their functions are discharged having regard to the need to safeguard and promote the welfare of children, and to ensure that, where services are delegated to another public authority, those services are provided having regard to that need: see below.

    Fourth, the court also provided a detailed analysis of the approach to be taken to the question of just satisfaction and, specifically, whether the breach of A2P1 ECHR in this case demanded an award of damages. Notably, the court rejected the defendant’s submission that a declaration was sufficient to achieve just satisfaction, noting the obligation under section 8(4) of the Human Rights Act 1998 to consider the approach of the Strasbourg court in deciding whether an award of damages was necessary, and observing that the Strasbourg court’s practice had been to award damages for breaches of A2P1 ECHR (eg Timishev v Russia (No 3) (App no 18465/05) (2007) 44 EHRR 37). The court also rejected the defendant’s contention that damages were unnecessary because the claimant had been reinstated in school, and because the defendant had subsequently improved its procedure: neither factor amounted to compensation for the breach of the claimant’s ECHR right to education.

    The court’s approach to procedural issues, including costs and the determination of quantum, is also of note. In particular, the defendant sought to contend that—despite the claimant’s substantial success in the proceedings—there should be no order as to costs. The defendant relied on the Court of Appeal’s judgment in Anufrijeva v Southwark London Borough Council [2003] EWCA Civ 1406, [2004] 1 All ER 833 as establishing that the costs incurred as a result of the claimant’s bringing the claim were so disproportionate to any likely award of damages that the claim ought not to have been brought at all. The court emphatically rejected that submission as ‘utterly irreconcilable with the expressed intention of Parliament in enacting the [Human Rights Act 1998]’. Rather, ‘the vindication of the claimant’s Convention right is sufficient justification in itself for incurring the costs of litigation’. Anufrijeva was concerned only with the proportionality of the costs associated with determining the quantum of a human rights damages claim, and not the issue of breach. In any event, such concerns could be addressed by laying down an economical process for the resolution of quantum in the claimant’s case, as the court did.

    The judgment is a model of clarity and provides detailed guidance on a number of important issues that will likely arise in other education cases. However, it is important to note the court’s emphasis on the ‘grave and exceptional’ circumstances of the claimant’s case (not least the history of domestic violence, and her mother’s physical and mental disabilities). The court expressly did not decide whether ‘the same result would follow in a case in which similar periods of absence were suffered by a child that had a settled family background and a primary caring parent who did not suffer from serious disabilities (or whether the local authority had offered or attempted to make alternative provision)’. The battleground in future cases may therefore focus on the extent to which the principles in this case can be applied to less ‘grave and exceptional’ cases, in which there has nevertheless been a substantial period of absence from education.

    What are the implications for practitioners? What will they need to be mindful of when advising in this area?

    As well as the court’s general approach to damages claims based on A2P1 ECHR, one especially significant aspect of the judgment for public lawyers (in particular those practising in the housing field) is the court’s approach to the respective duties of the defendant and Hammersmith and Fulham. Relying on the Supreme Court’s judgment in Nzolameso v Westminster City Council [2015] UKSC 22, [2015] All ER (D) 35 (Apr), the court held that the defendant was under a duty to inform Hammersmith and Fulham ‘clearly, and well in advance of the transfer’ that it was intending to delegate its subsisting educational duties in respect of the claimant as an ‘inevitable consequence of the move’, and a ‘corresponding duty to satisfy [itself] that Hammersmith and Fulham had made, or would promptly make, the necessary educational arrangements’. The defendant was also under a duty ‘to record [its] reasoning on these two questions so that [it] could be in a position to adduce evidence of it in court, should the need arise’. Merely sending a statutory notice to Hammersmith and Fulham under HA 1996, s 208 was not sufficient to discharge these responsibilities. Given that it is the practice of many local authorities to accommodate homeless individuals and families in other local authority districts, this part of the judgment has important and far-reaching consequences for the approach that must be taken by local authorities when considering such transfers.

    What are the trends in this area? Do you have any predictions for the future?

    Domestic law on the ECHR right to education is relatively undeveloped. Indeed, to the author’s knowledge, this case is the first example of a successful damages claim based on A2P1 ECHR in this jurisdiction. Accordingly, the judgment is likely to be a trend-setter rather than being part of an existing trend. After claims for damages based on alleged breaches of A2P1 ECHR were unsuccessful at Supreme Court level in the Lord Grey School and A v Essex cases, the existence of a powerfully-reasoned judgment in a claimant’s favour is likely to spark fresh interest in claims of this nature.

    Viewed from the perspective of public authorities’ obligations to safeguard and promote the welfare of children, however, this judgment can be seen as part of a trend whereby the courts have become more and more robust about the nature and scope of such obligations. As well as the Nzolameso case in the Supreme Court, there have been several High Court decisions in the housing context in which the duty under HA 1996, s 11 has been successfully relied upon by claimants to challenge local authorities’ decision-making processes in respect of the allocation of social housing. For example, R (on the application of H and others) v Ealing London Borough Council [2016] EWHC 841 (Admin), [2016] All ER (D) 114 (Apr), is a case that is currently awaiting judgment from the Court of Appeal, following the claimant’s success at first instance. What is quite clear is that HA 1996, s 11 is not a tick-box exercise, but rather an obligation with which local authorities must conscientiously engage when discharging their functions. Further, as the instant case makes clear, that obligation subsists when functions are delegated.

    Michael Armitage appeared with Ian Wise QC for the claimant in this case.

    The views expressed by our legal analysis interviewees are not necessarily those of the proprietor.

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    Cases

    Tenants’ receipt of housing benefits affects assessment of unlawful sub-letting profits

    Poplar Housing Association Ltd v Begum [2017] EWHC 2040 (QB), [2017] All ER (D) 28 (Aug).

    Mr. Justice Turner overturned a Recorder’s decision to suspend a possession order and to refuse an Unlawful Profit Order (UPO) in favour of the appellant Housing Association. Turner J made the possession order outright, and made the UPO sought requiring the tenants to return the profit they had made from unlawfully sub-letting one of the Housing Association’s flats. Turner J held that the Recorder had fallen into error when he wrongly found that the tenants had not made a profit from the sub-let because he failed to take into account that their rent to the Housing Association had been paid by Housing Benefit.

    Allocation policy discriminatory but justified

    R (on the application of H and others) v Ealing London Borough Council (Equality and Human Rights Commission intervening) [2017] EWCA Civ 112

    Ealing has two housing allocation policies which set aside 20% of its total housing stock for working tenants (15%) and model tenants (5%). The policies were designed to keep people in work and off benefits, and to encourage good tenant behaviour (ie no rent arrears or anti-social behaviour.) Two families (a disabled single mother and an older married disabled couple together with their children) that Ealing owed a duty to house, brought judicial review proceedings seeking to quash the policies as discriminating against the elderly, women, and disabled people. The High Court (HHJ Waksman) found the policies discriminatory, unjustified, and quashed them. The Court of Appeal upheld the finding of discrimination (partly conceded before the Court of Appeal by Ealing) but found the policies to be justified and refused to quash them.

    Housing allocations schemes must be clear and detailed

    R (on the application of C) v London Borough of Islington [2017] EWHC 1288 (Admin)

    The Administrative Court decided that the term 'settled accommodation' in HA 1996, Part VI encompassed social housing but that it was not limited to such accommodation; the Court held that temporary accommodation which was provided to a homeless person under HA 1996, Part VII could constitute 'settled accommodation' and that Islington LBC, when deciding whether accommodation amounted to 'settled accommodation', were entitled to have regard to the time which the claimant had already lived there and the likelihood of her remaining there for the foreseeable future.

    The Court held that the allocations scheme treated the claimant differently from existing social housing applicants who had a priority above other applicants like the claimant. The Court therefore had to consider whether this difference in treatment could be justified. The Court held that the allocations scheme should be looked at as a whole and significant weight should be attached to Islington LBC’s assessment of how its finites resources should be allocated. The Court noted that people other than existing social housing tenants could still apply to join the allocations scheme and that Islington LBC continued to monitor the scheme for any discriminatory effect. For these reasons, the scheme struck a fair balance and any discrimination was therefore proportionate and justified.

    Moreover the Court held that Islington had given sufficiently thorough consideration to the public sector equality duty and to its duties under section 11 of the Children Act 2004.

    The Court found for the claimant on one ground: it held that the housing allocations scheme contained nothing which set out the criteria which would be used for making direct offers (as opposed to the normal process of applicants bidding for properties using the choice-based lettings process). The Court held that there was nothing in the scheme to enable an applicant to know whether an application made under the direct offers system would be likely to succeed, why their application had been refused and to know whether that refusal had been unlawful. The scheme was therefore not compliant with the requirements of HA 1996, Part VI .

    High Court defines ‘dwelling’ in Protection from Eviction Act 1977

    Dacorum Borough Council v Bucknall (formerly known as Acheampong) [2017] EWHC 2094 (QB)

    The High Court had to consider the definition of the term ‘dwelling’ for the purposes of the Protection From Eviction Act 1977 (PEA 1977). If a premises is let ‘as a dwelling’, any notice to quit which is served must include certain prescribed information. In the case under consideration, Ms Bucknall had been provided with interim homeless accommodation under section 188 of the Housing Act 1996 (HA 1996). When Dacorum Council decided that it owed her the full housing duty, it allowed her to remain in that accommodation until a longer-term solution could be found. The council later served Ms Bucknall with a notice to quit which omitted the prescribed information. The High Court decided that the accommodation did constitute a ‘dwelling’, therefore the omission of the prescribed information invalidated the notice to quit.

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    FYI

    Theresa May confirms the official start of the Grenfell Tower inquiry

    The Prime Minister has confirmed that 15 August 2017 is the official start date of the Grenfell Tower inquiry in her response to Sir Martin Moore-Bick’s terms of reference.

    Sir Martin set out his intention to hold a preliminary hearing on 14 September 2017 with an initial report dealing with the cause of the fire and the means with which it spread to the whole building by Easter 2018. In addition to specifying the terms of reference, Sir Martin also identified broader questions on social housing policy, which after careful reflection he has concluded should not be within the scope of the inquiry itself.

     Sir Martin consulted widely ahead of setting out his terms of reference, including with former residents of Grenfell Tower and the families of those who died. The consultation received more than 550 written responses and Sir Martin held meetings with local residents to discuss their views.

    Source: Correspondence: Grenfell Tower Inquiry terms of reference published

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