HOUSING LAW PRACTITIONERS’ ASSOCIATION

Minutes of Meeting held on 20 March 2002

Abbey Community Association

Annual General MeetingHuman Right Update

Chair: Andrew Brookes, Anthony Gold Solicitors

Speaker: Jan Luba QC, 2 Garden Court Chambers

Chair: Welcome to the ninth Annual General Meeting of HLPA. My name is Andrew Brookes and I am the Chair. Sitting next to me is Jan Luba who is the Vice-Chair and who will also be giving the evening’s talk after the business of the AGM is finished, being an update on the Human Rights Act and housing.

I am going to proceed with the business of the AGM first. As I said we have got Jan’s talk coming up afterwards so I do hope that we can proceed through the business of the AGM reasonably swiftly. I should say that you would have received voting cards when you came in this evening. The reason for that is if your organisation joined HLPA as a group then you have two votes, so even if five of you turned up from that organisation you have two votes. So one person will have got the voting cards. If you are an individual member then you have one voting card and I think we probably will need to take a vote on some of the issues raised at the AGM. Before we proceed with the AGM are there are any corrections to the Minutes of the last meeting? I would now like to ask you to turn to the papers you received with the mailing, which are the Income and Expenditure of the Association for the year 2001 and a Memorandum and Articles of Association of the new incorporated Association, should the meeting decide to go down that route.

I would like to give a report on the year’s business and where we have got up to because in the general meeting of the AGM last year we endorsed the Strategic Plan that the Executive had prepared. And remember that included substantially increased subscriptions and charging for meetings; so quite major changes. As you can see from the Income and Expenditure, I believe we have done very well. Our membership has remained broadly steady and the increase of income from subscription fees has meant that our income has almost doubled from £27,000 last year to £50,000 this year. And although we have charged for meetings for the first time this year for those of you not in the not-for-profit sector, attendance at main meetings has been higher than ever with an average of over one hundred. I think we had over one hundred and thirty at one of the meetings and I am very pleased with that continued attendance. One of the main things that HLPA has done during this year is to employ our Development Co-ordinator, Chandra Rao. She has been employed since November and that process has taken up considerable time this year but Chandra has proceeded with her work at great speed. We have launched a major membership drive and in particular we want to try and increase membership outside of Greater London. And indeed Jan and Chandra have also been to visit regional groups. They have been to Birmingham today to do that and I am not going to report on that in detail today but in the next meeting we certainly will. We have also introduced other elements of the Strategic Plan. We have started seminars as opposed to the main meetings, we had two last year and we have got another six this year. They have all been over-subscribed and I hope have been a success. The sub-groups that HLPA has dealing with various issues have been very active this year. In particular, the Law Reform Sub-Group for the Homelessness Bill and the mentions that HLPA had in Hansard are a tribute to the impact that sub-group has made. So your membership and your organisation has made a direct impact on the progress of the Homelessness Bill. A number of the amendments suggested by HLPA, amongst other organisations, were adopted. For

example, enabling local authorities to secure accommodation pending review or appeal when it had not done so before. And we have responded to other consultations, to the Duty Solicitor Pilot Scheme for housing possession days, to the Housing Disrepair Protocol and to the Judicial Review Protocol amongst others. We have tried to keep up the profile of housing law in the legal press and there was an article in The Gazette, for example, on housing law during the course of the year. And members of the Association, both executive and non-executive members, have kept up links with other organisations: the Law Society, the Civil Justice Council and the Law Commission, for example. The Law Commission, as you know, is carrying out a major review of housing law at the moment.

So that was this year. For the year ahead we hope to carry on and proceed. We are not a profit-making organisation so the money that we have raised we are going to use to enable the objects of HLPA, for example we are going to proceed with the website and the membership and try and make HLPA a truly national organisation. We are going to have further seminars. I hope you have all seen that there are not any subscription fee increases this year and so I hope that the outlook for the organisation over the next year is very positive. At this point I think I should thank Rosemary McMahon, our Administrator from Professional Briefings, and Chandra Rao, our Development Co-ordinator and the members of the Executive. So that is just a brief run-down of what the organisation has done this year. You have got the Accounts, I do not know if there are any questions on them or generally at this point? Could I ask if someone could propose that the Accounts be agreed and someone to second that? Thank you, those are agreed.

I will move on now to the results of the election to the Executive. You have already had this but as this is the AGM just to say that myself and Jan Luba agreed to stand again as Chair and Vice-Chair and we were re-elected unopposed for a further two years. And also Nik Antoniades, David Foster and Vivien Gambling were elected for a three-year term from January 2002.

I would now like to go on to the special business of the AGM which, in a way, is to call a halt to old HLPA and to start new HLPA. I just wanted to explain, again, to people what exactly we are trying to do. The organisation at present is an unincorporated association and the proposal is to change it to a company limited by guarantee, a non-profit making company. The reason for doing that is that a company limited by guarantee is a much better vehicle for carrying out the aims of HLPA now that HLPA is generating significant income. And as far as the membership is concerned, we also have an employee and obviously we want to limit the members' liability rather than having unlimited liability as is the case with the unincorporated association. So that is the reason why the Executive are recommending that we transform HLPA from an unincorporated association to a company limited by guarantee. The Executive has approved the purchase of a company limited by guarantee and that company is also called HLPA. At present only the Executive are members and at the next Executive meeting on 11 April we want to agree that all of the current members of the unincorporated association become members of the incorporated association and also agree that the assets and liabilities of the unincorporated association are transferred. The reason that I am telling you all this is that you, the members, have to and should approve in the General Meeting to proceed further along this line. And in the mailing you should have got the draft Memorandum and Articles of the new incorporated association. There are four resolutions under the heading of Special Business, which are the formalities of transferring the membership and the assets and liabilities.

The first is that the members approve the Memorandum and Articles as the constitution of HLPA Limited. What we have tried to do is replicate the existing structure of unincorporated HLPA into the company limited by guarantee. And in particular, the objects clause of HLPA in relation to acting mainly for tenants, for example, is transported into the Memorandum exactly as it is now. And also provisions as to the running of the association in terms of the Executive, the Chair and Vice-Chair, etc, again we have tried to keep them the same. The Executive members will now be called Trustees and they will be the directors of the company limited by guarantee. I hope you have had a chance to look at that and it may be that there are not any points but if there are any technical questions I might refer them to my colleague from my firm Anthony Gold, who is an expert on Company Law and has kindly agreed to come along this evening to answer those. So, this is the Resolution 4.1 that we approve the draft Memorandum and Articles. I do not know if anyone does have any questions or wants to raise any points about that? In that case I think we probably do need to take a vote but in that no-one has asked any questions specifically, could I put it to a vote perhaps first whether anyone disagrees with the Resolution 4.1? And if you agree with the resolution? Thank you.

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I will now go on to 4.2, which is to ask you, the existing members of the association, to become members of the incorporated association and as I said, the idea was that the incorporated association will agree to you joining at an EGM. That was going to be today but will now be at the next Executive meeting on 11 April. So from the Resolution that you have got in your mailing, I have changed it very slightly and I am just going to read it out. The Resolution that is put to the meeting is this; that the existing members of HLPA agree to become members of incorporated HLPA, and this is the new part, within twenty-eight days or as soon as possible thereafter. That is just to allow the incorporated association to bring you in as members. Again, I do not know if anyone has any questions on that? If not, again I think for the record we need to ask you to raise your hands if you approve the Resolution. And if you disagree? Thank you.

Thirdly, we need to transfer the assets and liabilities of the unincorporated association to the incorporated association and that is done in two stages which is 4.3 and 4.4 on your Agenda for your General Meeting. The Resolution at 4.3 needs to be slightly amended just because the incorporated association is not having its meeting today and I am going to read out that. And that is that the Executive Committee of HLPA enter into an agreement to transfer all the assets and liabilities of HLPA into the incorporated HLPA within twenty-eight days or as soon as practicable thereafter. So again, if anyone has any questions on that? Again, if you agree with the Resolution could you raise your hand please? And if you disagree? Thank you.

Finally, the last Resolution is to ask you to agree to dissolve the unincorporated association and transfer the assets to the incorporated association. For the same reason as above, the Resolution as printed in the mailing is slightly changed so I am going to read out the amended version again. The amended version is that HLPA be dissolved and that pursuant to Article 8 of the Constitution all the assets and liabilities of HLPA be transferred to the incorporated HLPA. And this is the new part, the dissolution to take effect immediately after the transfer of assets and liabilities and after incorporated HLPA has accepted the members of HLPA. Again, any questions on that? If you are in favour of that Resolution, could you raise your hands? And if you are opposed? Thank you.

Before we close the AGM there is one further item that I would like to discuss with you. That relates to the Law Society’s reform of the Law Society’s Council which I think, if you remember, I mentioned at previous meetings. What the Law Society has done is reformed its Council which is its policy decision-making body and designated seats on that Council for different specialisms; so for family lawyers, personal injury lawyers. Now there was not one for housing lawyers but after lobbying from HLPA a seat for housing law was designated in December. We tried to get it specifically for HLPA but because the Society thought that the organisation was still based in London rather than generally, which makes our drive to make it a national organisation all the more important, the Law Society did not agree to that. Nevertheless there is now a seat for housing law on the Law Society’s Council. With a piece of slightly bad timing, the date for nominations for that seat closes today, 20 March. We tried to get them to extend it so we could raise the matter before you the membership tonight but the Law Society refused. The Executive therefore managed to find a candidate in David Foster, who is a member of the Executive, to stand on a HLPA platform. And if I could ask David perhaps just to say a few words about that?

David Foster, Fisher Meredith Solicitors: As Andrew explained, this has very much happened at the last minute and the deadline was, unfortunately, today and I was asked to put my name forward to be the candidate for the Council place at the Law Society. You may all feel what relevance does the Law Society have to housing law practitioners? Well, many members here will be solicitors. All solicitors pay a practising fee to the Law Society, the Law Society has got a lot of money, it has got large premises in London. I think it is probably about time that the Law Society started to do something to forward the interests of the client groups that we represent as members. I would see my platform as basically being the objects of the association or of the incorporated body as it now is. So I think it is important that we have someone representing HLPA at the Law Society. The other point is that over the years HLPA has had a presence at the Law Society to the extent that we have attended regularly special interest groups where the Law Society consults with groups of practitioners who specialise in particular areas. And we have had a regular presence there for two or three years and I have been involved in that and I think that was one of the reasons I was approached to try and have some continuity in this context. The sort of issues that have come up in that context where we have been able to contribute are that the Legal Services Commission only has a statutory duty to consult on various issues with the Law Society and therefore there is a mechanism to get into a consultation process with the Legal Services Commission.

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This has got particular relevance every year in relation to what is called the Legal Aid Pay Round or what used to be called the Legal Aid Pay Round. In the past we have had some success by lobbying for increases in rates of payment for solicitor practitioners. In particular in relation to Legal Help rates which were increased, admittedly only slightly, but to some extent recently. I would also see it as my role in this position to try and improve the working conditions of solicitor practitioners and in particular to try and get an increase in the rates of payment for Legal Aid work.

I would also see it as important to try and increase the profile nationally of housing work. It is only a few years back that there was a Green Paper that suggested that housing work was not done by solicitors in private practice and could be left to the voluntary sector. I think we can see tonight that that is not correct and that in fact housing work is done both by the voluntary sector and by solicitors in private practice. And it was part of the lobbying role with the Law Society to convince people nationally that there were solicitors both in the voluntary sector and in the private sector doing housing work. I would also see it as my role to try and maintain that high profile and I think that it will only help in that context for there to be a housing law seat on the Council where we have got someone.

In terms of what is involved, my understanding is that there is a requirement to attend six meetings a year. In terms of accountability, I think it is important that I should be accountable in this role. I will be accountable as I am on the Executive Committee and I will have to report to Executive Committee meetings on what is happening to the Council. It will also be possible for me to report to general meetings if necessary and if members have particular issues that they want to raise through the Law Society. It is something that we have had to do at the last minute, I think it is the correct decision to go for it. In terms of the post, unfortunately it is a post that goes on to 2005. It would then come up for election. I would then hope that it would go out for election in the normal way as other officers’ posts in the association and that there would be a chance possibly then to get another candidate into the post who had been elected in the usual way that we elect people. It is just that we have had such short notice in this situation that we thought the best thing to do was to get a candidate in. The position at the moment is in fact, apparently I am the only candidate at present. There could be another candidate or candidates up to 12 o’clock tonight by e-mail or fax but the latest position at 5.30pm was that I am the only candidate. So that is how it is at the moment. If anybody has got any questions I will try and answer them.

Chair: Thanks David. Unless there is any other business members which to raise, I propose to close the AGM and to thank you for sitting through what was perhaps was not the most exciting part of the evening. And to pass you over to Jan Luba QC who is now going to talk to us on the Human Rights Act and housing.

Jan Luba QC: Thank you very much Andrew. Colleagues, I prepared a very short handout for this evening’s meeting. I hope you collected one as you arrived at the reception this evening. I am going to be speaking about the Human Rights Act 1998 and its impact in relation to housing. I am going to be looking back, necessarily therefore, at the period from 2 October 2000 when the Act came into force until today, eighteen months. The very fact that I have three sides of material to speak to is a tribute to the people in this room who have spent the last eighteen months deploying the Human Rights Act to see where it can be of assistance to the client group we serve. I am going to be, necessarily, selective in looking at the impact of the Act on housing law over the last eighteen months. I am going to say nothing at all about the impact on the private sector, I am going to say nothing at all about the impact on housing benefit, renovation grants and the like. I am going to particularly focus on the impact on the provision of and access to social housing; housing provided by local authorities and housing associations. I am not sure you will forgive me for confining it in that way but I think it is a sensible way to deal with the material. But I will happily take questions on any other aspects of the impact of the Act on housing at the end of my contribution.

I am going to be, obviously, primarily concerned with the impact of those parts of Schedule 1 to the Housing Act 1998 which set out the Convention Rights made enforceable in our domestic law which are of most direct relevance to housing practitioners. And they are, as this audience well knows, Article 8.1 and in particular therein the right to respect for a home, Article 6 the right to a fair and independent and impartial determination of disputes and Article 14 the prohibition on discrimination in the enjoyment of Convention Rights. Those are the three I am going to be focussing on; I have not reproduced them for you. I hope everybody in this room is now reasonably familiar with those provisions even if it will be

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another month or two before we can all recite them parrot fashion in the way we can some key provisions of other housing legislation.

My notes take the process of the allocation management provision of social housing from its beginning, the allocation point through the life of a tenancy to the end game, possession and homelessness. In what we familiarly know as the great cycle of housing, others will know it as the great cycle of life, from the allocation of a social home to our clients to its inevitable loss and consequent homelessness and then the restarting of the cycle again. Obviously, our important role in all this is to intervene as often as possible with as much public funding as possible in order to ensure that we keep our work.

Let us look at the first part of the process, the allocation of social housing, and see what there might have been the impact of the Human Rights Act 1998. My notes, rather surprisingly, start with something rather obscure. And this is the facet of the new scene where we are looking back at some historic unlawful discrimination that those of you who started in housing as long ago as I did will remember the widespread sex discrimination that took place in the allocation of social and public housing. If a married couple were accepted as eligible for the grant of a tenancy, the tenancy would inevitably be granted in the sole name of the man. Such a thing would be unheard of nowadays and in particular in the post-1975 Sex Discrimination Act era. But what about the fact that there are still some people living in the housing stock who were victims of that discrimination many, many years ago. A discrimination which would now undoubtedly infringe Article 14 of the Convention read with Article 8, the right to respect for a home. Well, you might well think that these clients will have long since passed out of the system. But I am sure that those of you who have particularly elderly or long-standing social housing clients will be familiar with occasionally coming across, in particular, the woman who finds after all these years of living in council housing that she has no rights in the property at all. It was all in the secure tenancy that was all in the name of her husband. And that can lead to some circumstances in which a claim for possession is brought against the woman in those circumstances where it would not have been brought against her were the tenancy originally granted in her name. That sort of client is going to want to deploy in her defence discrimination which occurred to her some 25+ years ago. And I know that some of you, certainly, have had these cases already. One of you, referring to one barrister and one solicitor, has recently been engaged in exactly this sort of issue in Central London County Court and would perhaps say something a bit more about it later on in the course of the meeting. But that point, that very small and very narrow point, allows me to focus on that very important provision in Section 22, sub-section 4 of the Human Rights Act 1998. We can deploy the Convention in a defence whenever the Convention Rights were breached, however long ago historically something happened to our clients which was a breach of Convention Rights, we can deploy that in their defence. We cannot deploy it if they make a claim because, as you know, the Human Rights Act Section 22 only allows Convention Rights breached to be complained of in a claim if the breach occurred within a year prior to the claim being made. But Section 22 sub-section 4 makes it clear that where the person raising Convention Rights breaches the defendant, then they can raise a breach that may have occurred many, many years ago. So it is a very small, very narrow point about the application of Human Rights Act in relation to allocation which indicates the reach of the Statute back through time to previous breaches of the Convention Rights.

The next point on my notes deals with developments in relation to the allocation of tenancies in the social and public sector field which give rise to less than full security of tenure. As you will recall, we were expecting that those local authorities and housing action trusts which had elected to operate the introductory tenancy scheme might be the first victims of claims brought by their tenants of discrimination or breach of Article 8 on the basis that they had been granted something less than full security of tenure. And you will know that the Bracknell Forest case, which has reached the level of the Court of Appeal, has so far decided that the introductory tenancy scheme does not represent any breach of Convention Rights. I apologise, of course, for the typographical error in reference to the case there; it is of course [2002] 1 All ER, not 2001 as may appear in the printed material, I apologise for that.

Once you are through the door, over the threshold, you are into your new home. And, if it is being provided by a public or social sector landlord, it will, of course, be in pristine, delightful and in fact wonderful condition. Rather remarkably, there are occasions when people get something less than a delightful and wonderful home from public and social landlords and they come and see us and they say ‘what can we do about it? It is terrible, the conditions are dreadful. There are cockroaches, there are ants, there are rats, there is mould’ and we were all listening out for the key disrepair and it did not arrive. There are loads of bad conditions with the property but the place is not in disrepair. If it were, we know

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Section 11 don’t we, word-perfect of the Landlord and Tenant Act 1985. We know what to do when a property is in disrepair. But what about bad housing conditions which are not disrepair? Inevitably, people have thought ‘well what about Article 8 of the European Convention of Human Rights, the right to respect for a home? How dare a public or social landlord let a home in appalling condition or prone to fall into appalling condition? Surely that must be a breach of the European Convention on Human Rights even if it no breach of the obligation to repair?’ That issue was canvassed before the Court of Appeal in two joined appeals, I have just given you the name of one Lee v Leeds City Council, of course, and I have given you the reference there, decided in February of this year. Lee v Leeds was an opportunity to take into the Court of Appeal a whole number of issues. It was argued that a very important earlier case called Quick v Taff Ely, very familiar to everybody in this room, it was argued that that case had been wrongly decided. No it had not, said the Court of Appeal, that was a case decided by the Court of Appeal, how could it have been wrongly decided? So Quick v Taff Ely, the traditional view of our repairing law: before there has been a breach of repairing obligation there must be disrepair was upheld by the Court of Appeal. That was pretty straightforward. What Mrs Lee and the other appellant were complaining about was the fact that their property was prone to acute condensation dampness. Condensation on the window glazing, mould on the walls, decoration peeling, everything stinks. We say ’well what about those conditions?’ The Court of Appeal agreed that there would be a severity of condition of property which would infringe Article 8 of the European Convention on Human Rights. It would be the case that a landlord might let a property in such bad condition or allow it to become in such bad condition that that would infringe Article 8 of the European Convention on Human Rights. However, both the trial judges in the County Court had decided that the conditions in the properties in question were not so bad as to represent an infringement with the right to respect for a home. You might wonder at that result. You might think it a bit unusual that it is thought fit in Britain that people should breathe in mould spores and so on and so forth but there we are. The Court of Appeal has left it open for a serious case of non-disrepair to be run as a breach of Article 8 of the European Convention. And I am sure in your case files back at work you can think of one or two cases which are really appalling conditions but do not for one reason or another fall within the covenant to repair. It may be possible of using some of the passages in Lee v Leeds to take those cases forward. In relation to that and all the other points I am briefly making, I would be very happy to take questions after my contribution.

Let me move on to the next heading, a very topical subject which I call Noise and Neighbour Nuisance and everybody else in Britain calls anti-social behaviour and they get their meetings packed out as a result and nobody comes to listen to me talk about noise and neighbour nuisance. Anti-social behaviour; neighbours from hell. Well, what has all this got to do with the European Convention on Human Rights? The answer is that Article 8.1 of the European Convention casts upon the State an obligation to respect an individual’s home. That means to use the State’s power to prevent disruption and incursion on an individual’s home. I recently had this tested in a rather homely way, forgive the pun, in Hatton v UK. Mr Hatton could not sleep at night. It was not because he was a busy legal aid housing lawyer, it was because he lived near the runway of Heathrow airport and the airline authorities and the airport controlling authorities had allowed night flights, late at night and early in the morning, over his home into Heathrow. He could not sleep nights; his enjoyment of his home was being disrupted. He claimed that this was a breach of Article 8.1 of the European Convention on Human Rights, his home was being interfered with by noise preventing him sleeping at night. The interesting dimension here is that he did not sue the airlines who were flying over his home, he did not even sue the airport authority who ran the airport, he sued the Government because the Government had the power to stop or control the night flights. He said, you the United Kingdom Government have the power to stop my home being interfered with and you are not respecting my home because you are not exercising your power. And he won in the European Court of Human Rights in the case of Hatton v UK briefly reported in The Times and now in the European Court case reports, Butterworths and the rest. Very interestingly, Chair, the United Kingdom Government has written to the Council of Ministers, which is the supreme governing body of the Council of Europe, asking if they would mind awfully if the United Kingdom Government did not comply with the judgements of the European Court in Hatton v UK because it might be a little bit too troublesome if we did. However, that is an aside. Colleagues, well the next time you are working for somebody who is affected by night flights at Heathrow, that case will be of general application.

But when else is it going to be of general application? When is it going to be of more application in our work? Well, it does not take much to extrapolate from that to our client who says ‘I have come to see you because I can’t get no relief, I can’t sleep at night. It’s not night flights over the top, it’s the noisy party downstairs, it’s her next door with the loud screaming at night, it’s the people on the other side with all the

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noise and disturbance and coming and going and swearing. And do you know what? I went down and told my public authority landlord about all this going on and do you know what they did? They gave me a pile of diary sheets about this thick. And do you know what I did? I filled in half of them, took them down the office and they said well when you have filled in another half we might think about doing something about this situation. And that is not good enough, I want respect for my right to enjoy my home peacefully’. And that, colleagues, is what you will use; Article 8.1 of the European Convention on Human Rights. You will bring an action against the public authority landlord for failing to respect the right of your client to the peaceful enjoyment of their home and you will win, just like Hatton won. Unless the public authority can show, for the purposes of Article 8.2, that they have considered what they could do to exercise their power and how they could properly respect the right of your client from interference. It is, if you like, a duty on those who have the power to think carefully about using it to protect the rights of the individual who is the victim of noise, nuisance, anti-social behaviour or whatever else. It is very saddening for me, colleagues, in this review to reach the first success in our list of cases and to do it in the context of a successful homeowner. Would it not be wonderful if just once a homeless person had won something? Anyway, here we have Mr Marcic. Mr Marcic who is, as far as I can see from the law reports, the first winner of damages for breach of the Human Rights Act 1998 under Article 8.1 of the European Convention on Human Rights. Mr Marcic bought a house, he looked very carefully at where he should buy, he saw lots of TV shows about location, location, location but he was obviously watching the Japanese version because he bought the house at the bottom of a hill. This was a very bad idea in the context of Britain recently having suffered very severe rainfall because the sewer at the bottom of the hill in the road outside his home could not cope with all the water and sewage being generated up at the top of the hill. And, in periods of heavy rain, all the rainwater and sewage flooded out of the sewer into his garden and after it had fertilised his garden, into his house. Mr Marcic did not think this was a very nice thing so he asked the relevant public authority, Thames Water Utilities Limited, who owned the sewer …

Tape change

… so many bureaucracies in Britain today. Obviously, Mr Marcic was a bit stroppy because he asked where he was on the list for urgent remedial work and when it transpired that he was at number 18,296 he thought that that was going to take a bit too long to wait. So, on 2 October, he could not do anything before 2 October, on 2 October he began his claim for damages for breach of Article 8.1 of the European Convention on Human Rights. ‘You are the public authority, you own the sewer, you explain to me how you are respecting my right to enjoy my home when you are flooding it every so often with sewerage and foul water?’ You might think he had a strong case. So did the judge who tried his case. This was a plain breach of Article 8.1 of the European Convention on Human Rights. Thames Water Utilities, not surprisingly, deployed Article 8.2. Just a minute, Article 8.1 is a qualified right, under Article 8.2 we are allowed to balance Mr Marcic’s right against the general rights of the community. Why should Mr Marcic jump to the top of the 18,000 God-knows how many other people we have got waiting on our list for works? But unfortunately for them, this was a trial judge who was awake and asked the rather perceptive question ‘you have got these 18,000 people, why are you waiting?’ ‘Oh, because we haven’t got the money to do the work’. ‘But I thought you were now a private capital company, what profit did you make last year?’ And when the defendant revealed that last year’s profits were £415 million that sort of slightly took the edge of their defence that to do Mr Marcic’s work would significantly disrupt the way in which they organised their affairs. However, they did have enough money to appeal to the Court of Appeal who thought this was all terribly interesting. But nevertheless the trial judge was right and they upheld the award of damages under the Human Rights Act 1998 Section 7 to Mr Marcic for breach of his Article 8.1 Convention Rights. Although it would probably only cost a third of the costs of appealing to the House of Lords for them actually to expand the sewer outside Mr Marcic’s home, you should no doubt watch this space to see whether Thames Water Utilities decide to take that further. Now why should I spend time on night flights at Heathrow and sewers outside homeowners’ houses? Answer; because our clients day in day out find that their enjoyment of their homes are being frustrated by people causing nuisance, anti-social behaviour, trouble and all the rest of it. And over the last decade public authorities have been armed, chocked to the gunwales with powers to control all this. Anti-social behaviour orders, strong grounds of possession, introductory tenancies, you like it, troublemakers will be chucked out. Well, excuse me, why do you not chuck out the troublemaker who is causing trouble to me and thus respect my Article 8.1 rights? Do not worry about infringing the rights of the troublemaker because they will be able to go to a HLPA member and get top class representation to ensure that they are not evicted from their home. But the Article 8.1 rights of the victim are absolutely essential in this context and Marcic is the passport case, if you like, to us advancing those cases.

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Let us move on to the next instalment in the life of a public sector or secure housing tenancy and that is that the tenant might die, probably while awaiting for their Legal Aid application to be considered. And at point 6 on my notes, this audience will be familiar with the fact that our succession schemes and all our different statutes are different. There is a different arrangement as to who can succeed assured tenancies, different for protected tenancies, different for secure and so on and so forth. What does one do about the fact that a person who is a member of the family of the deceased could succeed under one statute but cannot under another? Well, as far as the landlord is concerned, this is not the landlord’s problem. The problem is in the statute itself; the statute decides who can succeed and who cannot. So any challenge would have to be on the basis that the statute itself was in breach of Convention Rights. I will say something more about that in a moment. But down on the ground the issue for the landlord is what should we do about the person in possession? They have not succeeded under the relevant statutory scheme for one reason or another, what shall we do? Shall we grant them a fresh tenancy, once we have ended the tenancy of the deceased by serving notice to quit or shall we seek possession and clear them out and let the property to somebody else? We know that the decision that the public body makes could be challenged on traditional grounds by judicial review. But can the person who failed to succeed raise this point in their defence in any subsequent possession proceedings? That was the point at issue in Wandsworth LBC v Michalak, paragraph 8 of my notes, which decided recently in the Court of Appeal. Mr Michalak had been living for thirteen years with a council secure tenant in Wandsworth. When the tenant died, not surprisingly, he wished to stay on in the property and Wandsworth did not like that and claimed possession against him. Mr Michalak’s first line of defence was ‘I have, in fact, succeeded because the list of potential successors set out in the Housing Act 1985 is not a closed list of prescribed relatives. It is simply an indicative list and although I am not on the indicative list I am a different sort of relation’. The Court of Appeal decided unanimously that the Housing Act 1985 contains a closed list of successors, you are either in or you are out. In are nephews; out are cousins, that type of difference. Mr Michalak’s second point then was to say ‘well hang on a minute, under the Rent Act if my deceased tenant had been a Rent Act tenant, I could have succeeded if I was a member of his family without going through a limited or fixed check list. This is discrimination. The Housing Act discriminates against me because if the Rent Act test applied I might possibly have succeeded’. So he claimed that the statutory scheme for succession under the Housing Act was discriminatory, contrary to Article 14 of the European Convention on Human Rights because had he been living in the home of a Rent Act tenant he would have succeeded: a very interesting treatment of that issue. The Court of Appeal decided that the right of a tenant to pass on the tenancy by succession was within the ambit of Article 8 of the Convention. Article 8 being the right to respect for a home. And therefore if there was discrimination in the right to pass on the tenancy by succession, then Article 14 of the Convention was triggered, potentially, and the burden fell on the State to justify the discrimination. However, Mr Michalak lost on the basis that he could not show that the Rent Act system of tenancies and protection was sufficiently similar to the secure tenancy system to provide him with a true comparator. So he lost on that attempt to strike down the Housing Act. That did not stop him because his next attempt was to say ‘well, alright, you might be able to justify discrimination as between me and people under the Rent Act. But how do you justify the discrimination between me and the people who could succeed under the Housing Act, like the nephew or the step-nephew or the step-half-nephew or the step-half-nephew-in-law?’ And around about step-half-nephew-in-law you have got close to the sort of relationship that Mr Michalak had had with the deceased tenant. So he said ‘well, look this is discrimination. There is a closed class of people, I am not in it, this must be discrimination’. The Court of Appeal decided that Article 8 was engaged, Article 14 was therefore triggered and other potential successors under the Housing Act, like nephews, were reasonable comparators. Therefore the burden fell on the Government to justify objectively why, for example nephews could succeed but not cousins and why Mr Michalak could not succeed. The Court of Appeal decided there was an objective justification and that was that this was social housing administered by ordinary housing officers at the neighbourhood housing office. If they actually had to think about who should succeed and what sort of relation they were with the deceased this would add far too much complexity. It was therefore objectively justifiable to have a closed tick list of relations so they could simply go down the list and say ‘are you son, daughter, grandparent, etc, down to nephew?’ If the answer was no then you have not succeeded. The cause of certainty was sufficient objective justification to justify the discrimination against Mr Michalak under Article 14. In those circumstances the Court upheld the discriminatory provisions in relation to succession. That left Mr Michalak as a pure trespasser, somebody with no right to succeed, somebody with no right to stay in the property. The next question, why should Wandsworth be able to throw him out? It had been his home for thirteen and a half years. Article 8.1 was satisfied; evicting him would interfere with his Convention Rights. The Court of Appeal decided that a

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County Court judge dealing with that point did not have to look at Mr Michalak or his circumstances, a County Court judge was entitled to say Parliament has already decided who gets and who does not get the tenancy in these circumstances. That decision has already been made, the die has been cast, Article 8.2 is satisfied, possession granted. And I hope either Zia Nabi, Counsel in that case or Chris Morris will say something more about Mr Michalak’s case. You will see how important it is and whether it is going further in due course.

Let me move from the rather sombre topic of death to the much more exciting topic of possession. After all, this is our cut and thrust work day in and day out in the County Court, particularly those of us who have been lucky enough to land a Duty Scheme contract from the Legal Services Commission. What are the Human Rights Act issues that have been raised in possession proceedings over the course of the last eighteen months where the landlord is a public or social landlord? Well colleagues, those of you down at the County Court will know that the vast majority of claims for possession in the public and social sector are brought against tenants who enjoy full security of tenure, either as secure tenants, local authority tenants, or as assured tenants in the RSL housing association sector. What need have those people of Convention Rights? Just think of the landlord’s problem of trying to get rid of one of those people. You need a Notice, you need a Ground for possession, you need reasonableness and then there will be a soft judge who will suspend the Order. And even if you get a bloody Order and issue a warrant there will be umpteen lawyers down there suspending it, staying it, setting it aside and God knows what. From a public landlord’s point of view, it is very hard to get rid of a tenant who enjoys security of tenure. In fact that is the whole point, colleagues, do you not agree? It is very hard to get rid of a tenant with full security of tenure so what need have those people of buggering about with the Article 8 of the European Convention on Human Rights? They have got the full deployed resources. But, nevertheless, when for example there is no merit as there often is, you may have to turn to the European Convention on Human Rights to bolster what might otherwise be a weak case. And when you client does indeed owe £5,500 rent arrears what are you going to say other than ‘this is their home, Your Honour or Sir or Madam. Article 8.1 of the European Convention on Human Rights they are entitled to respect for their home’. And indeed, as these three cases indicate, Howard, Gallagher and Hopkins at each stage of the process of recovery and possession from the secure or assured tenant the judge must take into account the fact that this is the person’s home. Article 8.1 is engaged and there must be, to put it shortly, a damn good reason for evicting them. And having carefully considered that and found that there is a damn good reason then they can go straight ahead and evict them as they intended to do in the first place. But there is an important thinking stage at each step: is Article 8 of the Convention and its qualifying conditions satisfied? We were not expecting Article 8 to have anything big to say for that client group. They have got plenty of rights under domestic law. Where we were expecting the European Convention to have some impact is with people with less security. And I deal with them next.

In paragraph 10 we have the people whose security has been taken away in advance because they are holding their tenancies under less than full protection. They are introductory tenants, they are assured short-hold tenants and they are really vulnerable because when they are faced with possession proceedings the statute says the court ‘must’ grant possession. In those cases, colleagues, there could be no breach of Convention Rights because Section 6 of the Human Rights Act 1998 says that when a public authority is doing what it must do by domestic statute, then there can be no breach of Convention Rights. So in Donoghue the County Court judge had no choice but to evict the assured short-hold tenant because the statute said that if you serve a Section 21 notice the judge must grant possession. Likewise in the McClellan case, the introductory tenancy regime, if the notice has been served then the judge must grant possession, subject to adjourning for any possible application by way of judicial review. Rather surprisingly, I am missing a reference there, really, which is for the client group who are faced with possession proceedings under mandatory Ground 8. The mandatory Ground for rent arrears in the social landlord letting sector, the RSLs and the housing associations. There is a classic case where the statute says to the judge you shall grant possession but a prior issue arises. Should the landlord be proceeding on this Ground at all? And we were rather expecting some challenges to materialise up, at least by now, to the level of the Court of Appeal with people suggesting that for an RSL or a housing association to proceed on Ground 8 was a discriminatory interference with Article 8 of the Convention because those landlords do have available two other non-mandatory grounds for rent arrears. But, again, it may be that other people in the room have dealt with those cases and can add to my contribution on that point.

Where we were hoping for most from the Human Rights Act 1998 I think, colleagues, in the housing field was for those people who do not have any protection under our domestic housing law at all. Those are

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the people where we thought the right to respect for a home might kick in best. And we have two excellent examples in my notes at paragraph 11: not excellent notes but excellent examples. First Mr Qazi. Mr Qazi and his wife were joint secure council tenants; Mrs Qazi gave notice to quit as she is entitled to do. That ended the whole joint tenancy; Mr Qazi said to Harrow ‘will you now please give me a sole tenancy of this place in my own name’ and they said ‘not likely, sunshine, here is a claim for possession. You are a trespasser’. And that was right. Mrs Qazi’s notice had ended his joint tenancy; he was a trespasser in the property. His only possible defence, and indeed the one he pleaded, was Article 8 of the European Convention on Human Rights to grant possession of my home would infringe my right to respect for my home. The Recorder trying that case decided that Article 8 did not apply at all because Mr Qazi’’s home was not his home. The Recorder decided that a home only counted for the purposes of Article 8 if it was a place which you had the legal right to occupy and since Mr Qazi had lost his joint tenancy by virtue of his wife’s notice, he had no legal right. The Court of Appeal decided on appeal that that was quite wrong and that the European Convention on Human Rights does not require a legal right to occupy a home before it is a person’s home. It is a pure question of fact. And on the fact Mr Qazi had been living there many years and it was his home. That proposition was derived from much recent European Court jurisprudence and seemed to be the inevitable result. However, last week the House of Lords indicated that they were prepared to entertain Harrow’s permission application for leave to appeal to the House of Lords and they have invited representations on the basis that the Court of Appeal may be wrong.

The other category of person who we thought would get most assistance from Article 8 is our dear friend the tolerated trespasser. You will remember them, they used to be called council tenants before we had a thing called security of tenure which led to tens of thousands of suspended possession orders which took away all their rights. And now these people live in the public and social housing sector with no rights at all as tolerated trespassers. All those people, on the basis of Qazi’’s case are entitled to Article 8.1 respect for their home and not to lose their home other than in the circumstances prescribed by Article 8.2. This is going to cause some difficulty for Southwark London Borough Council as a result of Mrs Bempoa’s case. And if you feel the sense of outrage boiling up in your work day to day and you think ‘what a dreadful case this I am dealing with today’ do just lift off your shelf a copy of the transcript of Bempoa, read that and realise how bad things are elsewhere so your case is not so bad. In Bempoa Mrs Bempoa was a tolerated trespasser, the council had obtained an order for possession of her property and at any moment could execute the warrant by calling in the bailiffs. Mrs Bempoa applied for judicial review on the basis that the council had not assessed her community care needs. As is usual in these cases, Southwark undertook to assess her community care needs and not to evict her until the judicial review concluded. Having done that, they then applied for the bailiffs’ warrant, the bailiffs attended at the property with the council’s housing officers and evicted Mrs Bempoa in breach of the undertaking that the council had given to the court in judicial review proceedings. To any other audience in this country that would have caused gasps of outrage but, of course, for this audience that is water off a duck’s back. Mrs Bempoa had access to a telephone and rang her solicitor who rang the council’s legal department and said ‘did you know your housing officers are down at the property evicting in breach of the undertaking?’ And the legal department, not surprisingly, said ‘no, how awful’ and phoned the housing department and said ‘are you really evicting Mrs Bempoa?’ and they said ‘oh yes, too right!’ And the legal department said ‘hey you can’t do that, it’s in breach of an undertaking’. ‘Oh can’t we, we just boarded it up’. ‘Well, you had better let her back in’. ‘No, not going to do that, we’ll see if the asylum team can help her out’. And they would not let her back in, even though they knew it was an outright breach of the injunction. On the subsequent application for committal to prison for contempt, there was some embarrassment in the London Borough of Southwark. And in the course of a very interesting and illuminating judgement Mr Justice Mumby, although somewhat troubled about whether you could award damages for contempt of court, had no hesitation in finding a route to damages for Mrs Bempoa which was breach of her Article 8.1 Convention Rights in her unlawful eviction from her home, contrary to Article 8 of the Convention. So when you see the next six figure sum on the television, it is not the lottery win, it is Mrs Bempoa’s award for damages being reported on the news.

I will finish my treatment of possession cases by just dealing with a final category of person who enjoys no legal protection. And that is the people who are expressly taken out of security of tenure by some statute. This is paragraph 12. In the case of Sheffield City Council v Smart, Mrs Smart was being housed as a homeless person pursuant to the two-year duty in ordinary council stock. Parliament had prescribed that in those circumstances she did not enjoy a secure tenancy. Then, when Sheffield served her with notice to quit and claimed possession she invoked her rights under Article 8 of the Convention. She said ‘you

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cannot evict me without meeting the justifications set out in Article 8.2’. The Court of Appeal decided that where there is in place already a Parliamentary scheme disqualifying a particular type of defendant from the protection of security of tenure, then the existence of that scheme itself met the terms of Article 8.2. And the judge did not have to enquire into the particular circumstances of the defendant. The application for permission to appeal to the House of Lords in that case has already been lodged by the tenant concerned.

I will wrap up quickly by dealing with two final points; possession procedure and homelessness. It is, of course, the procedure of claiming possession that invokes Article 6 of the Convention entitling a person to a determination by an impartial and fair tribunal within a reasonable time. Which you can paraphrase as meaning your local County Court, that great dispenser of justice within a reasonable time by an independent and impartial tribunal. Article 6 can be infringed by possession proceedings and other proceedings taking too long. But Article 6 can also be infringed where possession proceedings are taken too quickly, as they were taken in the case of Bates v Croydon London Borough Council, an anti-social behaviour case. There the district judge, the County Court, leaning over backwards to assist the social landlord was abridging all sorts of time limits, getting the matter on for trial in circumstances where, by the time it came to the crunch, Mrs Bates had not had a chance to instruct a lawyer, had not a chance to get legal aid and was facing having to cross-examine witnesses on her own. The Court of Appeal said that not only was that an infringement of our domestic law principles for a fair trial but it would have been an infringement of Article 6 of the Convention. So if you are faced with a case that the landlord is trying to get on with too quickly for you to prepare, Article 6 may give you some assistance.

Paragraph 14 of my notes deals with whether possession hearings should be in public or private. Mr Pelling was one of the large group, numerous group of members of the public who do desperately wish to sit in and hear the possession list at the local County Court so that they can see justice being exercised. Unfortunately Mr Pelling tipped up at the Bow County Court where it was explained that eventually, when several doors were unlocked, he might be able to get in to see the possession case, Mr Pelling thought that was an infringement of Article 6 possession cases not being heard in public. You will be pleased to know that the Divisional Court thought that there were very good reasons why the majority of possession cases should be heard in private. The bit of the procedure for possession that we thought was most vulnerable to challenge under the Convention was the procedure for obtaining warrants after a landlord had recovered a possession order. As you will know, in the High Court in order to obtain a warrant to execute a possession order, it is necessary to make an application, to give notice; there is usually a hearing. In the County Court the landlord simply needs to fill in a form, the N325 to arrange a bailiff’s appointment and that is it, no notice to the occupier necessarily and certainly no pre-fixed hearing. Paragraph 15 of my notes, St Brice v Southwark. You will know that Mr St Brice contended that that procedure in the County Court was breach of his rights to respect for a home, Article 8. Was breach of the right to a fair and independent and impartial determination of his rights, Article 6 and was also discriminatory because had the possession claim been brought in a High Court he would have got better protection. And all three judges of the Court in turn said ‘no, no and no’ and Mr St Brice lost against Southwark in his contention that the process of recovering possession by warrant was a breach of the Convention. Mr St Brice, too, has petitioned the House of Lords for permission to appeal.

Let us finish with homelessness. These are the clients who did not get to you until after the bailiff had come to visit them, the homeless people. What impact, if any, has the European Convention on Human Rights had on homelessness? I just want to say something about two aspects. First paragraphs 16 to 18 in my notes which deal with reviews and appeals and then something new about people outside of Part VII. Let us think first about Part VII, the statutory provisions for the homeless in the Housing Act 1996. How, if at all, could the European Convention have any impact there? Well, one of the issues, not surprisingly to come up quite quickly was the question whether the review and appeal process in Sections 202 to 204 of the Act was Convention compliant? Because as you know, the procedure is that a person who applies to a local authority has the decision on their case made by the local authority. If they do not like it they may apply for a review to the local authority and there is only access to an independent court or tribunal on a point of law. The question of whether that procedure was compliant with, in particular Article 6 was first raised in the case of Adan v Newham London Borough Council which is now reported, as you see at [2002] 1 All ER reports. In Adan v Newham the Court of Appeal decided that in cases where the dispute was a pure dispute of fact which could never reach the County Court judge on a point of law therefore, Article 6 was not complied with because all disputes as to fact were determined by the local authority itself, both at first instance and on review. This would mean, for example, that if it were a pure

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fact dispute the local authority could only comply with Article 6 by getting somebody from outside the local authority to do the Section 202 review. And in London in particular, that the idea was canvassed that an entirely independent and impartial player should be brought into the scene, known as the review officer from the neighbouring borough who could be, obviously, guaranteed to take an independent and impartial perspective. However, when it was realised that this might cause some system failure it was decided to run a test case on the basis that Adan v Newham was wrongly decided. And with some success Tower Hamlets have established exactly that proposition and in Tower Hamlets London Borough Council v Begum a differently constituted Court of Appeal presided over by the Master of the Rolls has decided that Adan v Newham was wrongly decided and that there is no infringement of Article 6 of the European Convention on Human Rights by the process of appeal and review. You would be gasping if it was not 8.30pm because you were brought up with the idea that Court of Appeal decisions were binding on differently constituted divisions of the Court of Appeal but that was the old days, now they do what they like. Anyway, in Tower Hamlets LBC v Begum the Court of Appeal decided that firstly Article 6 was engaged, this is quite important. Article 6 was engaged because the determination of a homelessness application was the determination of a civil right or obligation, so that is a quite important finding. That had been conceded in Newham v Adan but it was expressly found in favour of the applicant in Tower Hamlets LBC v Begum. Secondly, the Court of Appeal decided that Section 202, the review procedure, did infringe Article 6 because it did not provide for an independent, impartial determination at the review stage. But, it decided, the fact that you could go to the County Court on appeal meant that the whole process was Article 6 compliant because it did, ultimately, lead to an independent and impartial tribunal. But you think, as I think, what about those cases which were pure fact disputes? Lord Justice Laws in giving the judgement in Tower Hamlets LBC v Begum explains that that bracket of cases can be dealt with by the new, robust, enlarged and bold approach of the County Court judiciary to Section 204 appeals. Right, well let us move swiftly on. That is the present position in relation to homelessness. You might find, colleagues, that the existence of two completely contradictory decisions of the Court of Appeal within the matter of a few weeks would lead to the sort of thing that would go on the fast-track to the House of Lords so we only have to wait until 2005 to wait for the answer to that question.

Let me look finally at people outside of the Housing Act 1996, people who cannot even access the statutory scheme for homeless. Surely the European Convention on Human Rights is engaged when people are really homeless, literally homeless and cannot even get assistance under the 1996 Act because, for example they are intentionally homeless or, worse still they have come from outside the United Kingdom and so on. What about those people who cannot access the system? Well, there are two senses in which those peoples’ situations engaged the European Convention. First there are the applicants with children, the intentionally homeless in particular. Where the consequence for them of non-provision of accommodation is the removal of the child into care, that must be an infringement of Article 8, the right to respect for family life. Second category, what about the individual without children who will be destitute, on the streets sleeping rough if they are not accommodated? Surely that is a breach of Article 3 of the European Convention, the Convention against inhuman and degrading treatment? Both of those issues have been very recently considered and I am sorry not to have put them in my notes. First, the disenfranchised from Part VII: homeless family with children. Well there is going to be an infringement of Article 8 if their kids are removed into care. That, rather remarkably, was agreed by the claimant, the local authority and the Government in a case called Inree J ‘J’ being the initial of the child in question, the date of that judgement being 4 March 2002. It was agreed before the High Court that there would be an infringement of Article 8 if the only reason for the child’s removal into care was that the mother was homeless; she was a perfectly good mother. Well, what then? The argument for the claimant was that the Children Act 1989 provided the statutory wherewithal to provide either accommodation for the child or at least money for the mother to get accommodation in the private sector for herself and the child. Mr Justice Elias in Inree J decided that he was bound by the Court of Appeal’s decision in A v Lambeth LBC to hold that the Children Act could not permit either the provision of money to obtain accommodation or the provision of accommodation itself. And therefore our statutory scheme of assistance for homeless families was Article 8 non-compliant. That might have led him to make declarations of incompatibility and the like had not the Government intervened in the proceedings and drawn attention to the provision we all knew about called Section 2 of the Local Government Act 2000. And you go, oh yes of course, why didn’t I think about that? Section 2 of the Local Government Act 2000 you will remember, gives a local authority an unfettered power to expend money for individuals, groups and so on where that is for the social advantage of their neighbourhood. The High Court was therefore persuaded in Inree J by the Government that any local authority could fund any expenditure to any person in their borough if to do so would enhance the social wellbeing of a resident or more than one resident in that borough. Accordingly,

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the British scheme of social welfare did not infringe Article 8 of the European Convention on Human Rights because there was always power for a council to provide money to a homeless person to get a home of their own. Now, that is the law, as declared by Mr Justice Elias on 4 March 2002. Of course the premise of Imree J is that the Children Act 1989 cannot be used to provide money or accommodation for families with children. Most people in this room have thought that the Court of Appeal’s decision to that effect in A v Lambeth LBC was a bit suspect but it is a decision of the Court of Appeal. Therefore what you need is a differently constituted division of the Court of Appeal to upset it. And a different constituted division of the Court of Appeal is going to consider this very point in a case called Walker v Lambeth LBC next week, I think it is next week somebody will correct me if it is the week after. In Walker v Lambeth LBC it is going to be argued that A v Lambeth LBC was wrongly decided and that Section 17 of the Children Act does give the power to both fund accommodation and provide accommodation for homeless people.

That leaves me with the breach of Article 3 of the Convention for the destitute individual person who has not got children, who cannot rely on Article 8. Is it a breach of Article 3 of the Convention to say to a person in our country ‘you are not going to be provided with any form of subsistence and you are not going to be provided with any form of accommodation’? In Husain v Asylum Support Adjudicator Mr Justice Stanley Burnton decided that if that were the law in this country that there were some people who could be disqualified from all status systems and all accommodation who would literally live on the streets then that was potentially a breach of Article 3 of the Convention as inhuman and degrading treatment. The good news for Mr Husain was that he did not have to worry about that because the judge quashed the decision of the Asylum Support Adjudicator in his case on other grounds.

Colleagues, let me finish by saying haven’t you done well? It has taken me about forty minutes to recite the extent to which you and other colleagues who are not here this evening have been probing this legislation for the past eighteen months. Well done, thank you.

Chair: Thank you. This is your chance to ask Jan Luba questions on housing and the Human Rights Act. I

Helen Holdsworth, Campaign for Fairer Fair Rents: What is the impact of Convention Rights on private sector landlords and private sector tenants?

Jan Luba QC: The difficulty in relation to private landlords is that the Convention operates not in relation to the impacters between landlord and the tenant but in relation to the impact on the organs of the State; leasehold valuation tribunals, rent assessment committees and County Courts and the requirement for those bodies to respect Convention Rights. And what we are starting to see is some cases in which people are complaining that those bodies are not giving fair and independent impartial hearings within a reasonable time in breach of Article 6. And making decisions which infringe Article 8 without justification and are in some cases applying discriminatory legal approaches. But I am sorry; I could not really do justice to the whole of that area in the course of this evening.

?: How much (inaudible) housing associations are public bodies?

Jan Luba QC: In the Poplar HARCA case which you mention which is in my notes right down in paragraph 10, the Court of Appeal indicated that they were going to decide the general question, whether all housing associations and registered social landlords were or were not public authorities for the purposes of Section 6 of the Human Rights Act. So they were inundated with material to help them answer that question, indeed material so detailed, so extensive and so lengthy that the sensible way of dealing with the case was not to decide the point at all. So the Court of Appeal decided in that case that it was not possible to say as a generic class that all registered social landlords or housing associations were public authorities. And that the important questions would be, is the nature of the function that they are discharging in the relevant case a public function or not? It decided in the Poplar HARCA case that what that association was doing was a public function, it was so similar to what a local authority would be doing that it was therefore caught by the statute. As far as the Court of Appeal has been concerned, the only subsequent engagement they have had with the issue is in the Leonard Cheshire Homes case. Leonard Cheshire Homes are, as everyone in the room knows, a social housing provider largely for the elderly and vulnerable. And the issue is whether they are discharging a public function in the provision of residential accommodation in particular for the elderly. Mr Justice Stanley Burnton at first instance following the

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Poplar HARCA decided that they were not. There was going to be a leapfrog appeal, I think, to the House of Lords but in the event it has gone to the Court of Appeal. I do not know what has happened to it. It may well be that it is a reserved judgement, somebody in the room may know. But that is the only other instance I know of a social landlord case going on the question of whether they are a public authority. Anybody know what has happened to Leonard Cheshire?

Chair: Any other questions?

Hilary Grindrod, Pierce Glynn: If you could just clarify something you said earlier when you were talking about Ground 8 and mandatory grounds for possession. I think you said something about Section 6, if a local authority or the public authority is doing what it must do by law there is no breach of Article 8 rights. I did not quite understand that. Ground 8, I would have thought, there was room for argument there that where a landlord takes proceedings under Ground 8 it is disproportionate to the aim pursued which is, presumably, to collect rent arrears. If you could just clarify that, thanks.

Jan Luba QC: Yes, I am sorry if I was not clear. In a Ground 8 case, if the court is satisfied on the evidence that Ground 8 is made out, ie that a notice seeking possession citing Ground 8 has been served and that there are the requisite period of rent arrears both at the date of notice and at the date of hearing, then the statute requires that the court must grant possession. The question that arises is whether the court prior to determining or hearing that issue can decide a preliminary question. Whether the landlord is acting unlawfully in proceeding to claim possession under Ground 8? And whether or not, as your question so aptly suggests, the very taking of the possession proceedings on Ground 8 is itself an infringement of Convention Rights which is unlawful in terms of Section 6.1 of the Act? The point I was making is that any breach of the European Convention would not be a breach by the judge who granted possession because if the judge sees that the Ground 8 case is made out, he or she has to grant possession. The question is whether the bringing of proceedings by the public landlord itself a breach of the European Convention? And if it is, where do you adjudicate that point? Can you raise it by way of defence in the County Court or do you have to adjourn the County Court possession proceedings and go by way of judicial review against the RSL? The point I was making was that I am rather surprised that that issue has not been decided in eighteen months. One would rather think it would have been.

David Foster, Fisher Meredith: Well, can I just lead on from that point then. Although it has not been decided, I can assure you that it is coming up in practice all the time, certainly in Lambeth. Registered social landlords are bringing possession proceedings on Ground 8 and despite the latest edition of defending possession proceedings saying that it is rare, it is certainly is not in Lambeth. So, tactically what should we do in that situation? Should we be pleading the Human Rights Act Ground in the defence or …

Tape change

Jan Luba QC: … you have got to do both because one may fail and the other may be the correct process. I am interested to hear what you say about the experience in Lambeth because certainly in my Chambers when we have been drafting defences in Lambeth which plead Article 8 as the defence, we then find that the RSLs are junking Ground 8 and are abandoning their claim on that basis and then proceeding only on 10 and 11. We rather suspect that this means that RSLs have got themselves sufficiently organised to realise when it is appropriate to jump Ground 8 and when it is not because they do not want to be the RSL that ends up in the test case. That may be to attribute too much sophistication but that is certainly my experience. But others in the room will have other experiences.

Nik Antoniades, TV Edwards: I think the problem that many of us are experiencing is that we come across the case as duty solicitor at the County Court and the line that I am sure many of us are taking is ‘please judge, can you adjourn this claim for issues to be dealt with’ without really even going down the Article 6 or Article 8 route. That seems to have been successful in a large number of cases.

Chair: Any other points or experiences on that or any other Human Rights Act?

William Flack, Flack & Co: I have got a question that I wondered if you, Jan, or anybody else in the room has got any experience in dealing with this Section 2 of the Local Government Act 2000 which you mentioned in relation to the Enfield case. On looking at that Section it seems that it provides everything

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for everybody and takes us back to the situation we were in when we first looked at the Children Act. As long as you had children anything that would impair their wellbeing seemed to impose a duty on the local authority to assist you. I wondered if anybody had any experience of that Section in action other than in this case and whether there were any cautionary aspects of it limiting its apparently wonderful provision?

Jan Luba QC: Well, I am afraid I cannot respond from experience in my practice but since I have realised that the provision says ‘every local authority are to have the power to do anything which they consider is likely to achieve one or more of the following (b) the promotion or improvement of the social wellbeing of their area’ I have written a very long letter to my own local authority about all the ways I think they could spend money on me and my family to improve the social wellbeing of the area! There are numerous advantages in relation to parking outside my house! But no, quite seriously this was advanced by the Government as the answer to the proposition that the withdrawal of the safety net of the National Assistance Act and the Children Act would mean that people were sleeping on the streets. Poor old Enfield went to court saying ‘yes we know, isn’t it terrible. People will be sleeping on the streets, it is all the Government’s fault not us the local authority’ and not surprisingly the Government came up with this wheeze, you know Section 2.1(b) you can spend money on anything. So you the local authority can pick up the tab. But anyway, that is my facetious answer, let us see what people have really got out Section 2 of the Local Government Act.

Claire Sephton, North Kensington Law Centre: Not on that but going back to the Ground 8 point, presumably we can also use, not on Ground 8 cases but cases for example where you have got somebody or a family being housed by for example a housing association as temporary accommodation for the homeless persons unit, you can also employ those arguments to stop a possession order?

Jan Luba QC: I beg to differ. If the housing association are providing accommodation pursuant to duties arising under Part VII then they cannot grant any form of assured tenancy other than an assured short-hold and if it is an assured short-hold you are back to Poplar HARCA v Donoghue. The statute is predetermined for the court that there is no defence.

Chair: Unless there are any other points I would once again like to thank Jan Luba for his talk. We will then move to the final part of the meeting which is the Information Exchange, perhaps moving away from the Human Rights Act are there any points of information, recent cases, questions that anyone has?

Anne McMurdie, Anthony Gold Solicitors: I would like to report back from the HLPA Law Reform Working Group that the Homelessness Act received Royal Assent on 27 February. Section 8 had immediate effect which is to deal with the Alghile point so that it is now possible for someone being made an offer to both accept the offer and also to request a review as to its suitability and there is also a duty on the local authority to notify somebody that they have a right to request a review as to suitability. So that is already in effect. The rest of the provisions of the Homelessness Act will come into force, we understand, sometime later in the summer although I think there is no date fixed for that. David Watkinson asked me to report back on this.

Tom Dunn, Southwark Law Centre: At the Law Centre we continue to come across a lot of cases in which Southwark Council deals appallingly with homeless people. In particular they seem to be routinely point-black refusing to accept applications from homeless people on the grounds that they have not provided sufficient evidence either that they are homeless or that they are in priority need. And they also seem routinely to be refusing to provide interim accommodation. We would be very interested to hear from any other practitioners who have experience of such cases. We hope to be able to show that Southwark is, in effect, operating a policy along these lines and then to try and do something about that policy. So if you do have any experience along those lines I would be very grateful if you could contact me at the Law Centre.

Nik Antoniades, TV Edwards: Can I, through the Chair, suggest that an appropriate form for that might be the HLPA newsletter. I am not sure if Chandra has e-mailed everybody in the organisation but she is asking for items for the newsletter. That might be as good a place as any to collate that information with a view to using it in some sort of challenge or some sort of complaint or whatever.

Chair: Yes, I think that is a good idea. But of course anyone here can contact Tom or anyone at Southwark Law Centre about that as well.

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There are a couple of additional matters that I would like to raise at this point. First of all, the Association has received an email from the Law Commission. You may remember that the Law Commission is currently undertaking a review of housing law in general and the email says that in April the Law Commission will be publishing a consultation paper called Renting Homes. Which they say will be of great interest to HLPA, which I think is an understatement because it may underpin legislative changes to housing law over a number of years directly on our area. What they emailed us to ask was how can they disseminate the information contained in that consultation paper and how they can organise discussion and consultation on it? Clearly that is something which I am sure you would all want HLPA to be involved in doing and they ask for suggestions as to how they can stimulate as much discussion as possible. I do not know whether members have any particular ideas on how we should approach the Law Commission and, for example, whether we should have a special additional seventh meeting of the Association during the course of the year to decide that. If anyone has any ideas now then please do speak up or come and speak to me afterwards. I do not know whether you wanted to say anything else on that Jan?

Jan Luba QC: I think, Chair, the difficulty for the Association is that in terms of our general meetings we work on a year ahead plan so you have all your bi-monthly meetings planned out now to the end of the year, including in May the exceptionally important meeting on homelessness and allocations in the light of the Homelessness Act 2002. And here we have in the middle of that time scale and that rather nicely organised plan this massive piece of work coming from the Law Commission which will change the law in relation to almost everything we do. And the question for the Association and its membership is well, how best ought we to deal with that? Should we have a special meeting of the membership in addition to our six? Should we take up the Commission’s invitation to send a speaker to take us through their proposals or should we do, as HLPA has rather traditionally done, leave it to half a dozen people to put some thoughts together as best they can to respond on behalf of the Association?

Chair: Certainly this paper comes out in April which is before the next main meeting. I would be very grateful if anyone wanted to come forward and would be interested in being on a sub-group to look at the paper when it comes in and perhaps decide an agenda of how to respond. I would urge anyone who is interested, whether you have been involved in HLPA sub-committees before or not, this is a great opportunity I think to influence housing law and, hopefully, legislation. If you are interested, then you can come and see me afterwards and give me your name or you can email me or you can speak to Chandra. You should have Chandra’s email address. If you do not it is Chandra_Rao@shelter,org.uk because I do think this is terribly important and that we need to mobilise to become fully engaged in discussions.

The other thing I wanted to mention was to pass on some information from James Bowen who is HLPA’s representative on the Administrative Court Users Group. He says that there is a meeting of the Administrative Court Users Group and if anyone has any specific issues which you would like him to raise, could you contact James Bowen at jb103law@aol.com. I

Jan Luba QC: Can I just add something to that? James carries a very weighty responsibility at those meetings on behalf of the Association to represent us at the Administrative Court Users Group meeting and we are the people who take up a good deal of the Administrative Courts’ work apart from immigration practitioners. And we have really got to feed back on how we have been doing with the recent changes to the Emergency Application Procedure, the Advocates Form, the new Practice Direction in relation to judicial review. If you are having problems procedurally, protocol-wise or with the new arrangements please do speak to James Bowen, either at 6 King’s Bench Walk which is his chambers or at the email address which Andrew has given so that he can really speak about the concerns of members. It is no good grumbling amongst ourselves when we have such an excellent channel of communication. If you have not seen the new arrangements which the Administrative Court is operating, please do look at the annual report of Mr Justice Scott-Baker, the lead judge in the Administrative Court, which was published a fortnight ago in the All England Law Reports. It is his annual statement of work in the Administrative Court and it contains, as an appendix, the new pro-forma to be used by claimants’ advocates in seeking an urgent application for an injunction or oral hearing. So we really do want to know how you are doing with those new arrangements and, in particular, how you are doing with the judicial review protocol which is now of course in force. So please do feed back to James Bowen on those points.

Chair: I would now like to draw the meeting to a close and thank you all for attending. The next meeting is on 15 May on Allocations and Homelessness.

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