Outside London the licensing of taxi drivers is a matter for local authorities. They must follow the provisions of the Local Government (Miscellaneous Provisions) Act 1976. No person may be licensed as a private hire car (mini-cab) driver or as a hackney carriage driver unless the licensing authority is satisfied that he is a fit and proper person to hold a licence (see sections 51 and 59).
It is in the public interest, and in the interest of the taxi trade, that taxi drivers will not take advantage of their passengers, abuse them or assault them. Many a parent of a teenager out late at night will give the instruction to “Take a taxi”. It would be pointless to do so unless taxis afforded a safe and reliable form of transport. It is thus vital that licensing authorities have power to act when a taxi driver ceases to be a fit and proper person to hold a licence. Section 61 of the Local Government (Miscellaneous Provisions) Act 1976 gives licensing authorities a wide power to revoke, suspend or refuse to renew taxi drivers’ licences. This power arises if the driver has been convicted of one of a range of offences involving dishonesty, indecency, violence, or the conduct of his business as a taxi driver. It also arises for any other reasonable cause.
It is open to a criminal court before whom a taxi driver appears charged with a serious offence to impose bail conditions which would prevent him from acting as a taxi driver, but in the author’s experience not only is this a rare occurrence, it is difficult for licensing authorities to persuade prosecuting authorities to make appropriate applications to the court. Licensing authorities are then left to use their powers under the 1976 Act. The effectiveness of those powers was limited.
A person aggrieved by a decision of a licensing authority to suspend, revoke or refuse to renew his licence could appeal to a Magistrates’ Court (section 61(3) of the 1976 Act), and thereafter to the Crown Court (section 301 Public Health Act 1936). Section 77 of the 1976 Act provides that, so long as the person could have lawfully continued to be a taxi driver but for the decision to revoke, suspend or refuse to renew his licence, he may continue as a taxi driver until his time for appealing has expired, or, if he appeals, his appeal is finally concluded. In practice, this has meant that a taxi driver who continues to hold a driving licence can continue in business for some months after the licensing authority has decided that he should no longer be a taxi driver.
There have been occasions when a licensing authority has been most concerned at the prospect of a taxi driver continuing to drive after it has decided to revoke or suspend his licence. Where the allegation is that the taxi driver has committed a serious criminal offence, the criminal courts may have dealt with the matter by remanding the defendant in custody.
Where, however, the defendant taxi driver was on bail, or where the evidence was insufficient to justify continuing the prosecution, but it was sufficient to justify revoking the taxi driver’s licence, the licensing authority was faced with the prospect of a thoroughly unsuitable person acting as a taxi driver for months to come.
It may have been possible for a local authority to exercise its powers under s. 222 of the Local Government Act 1972 and apply to the High Court for an injunction to restrain the taxi driver from working as a taxi driver. There seems to be no recorded instance of this having happened. The author did once suggest this course of action to prevent a paedophile from continuing to work as a taxi driver after he abducted, and together with another, indecently assaulted a teenage girl who was his passenger. No action was, in the event, begun as the taxi driver felt it wise to give up that occupation.
Parliament has now, by section 52 of the Road Safety Act 2006 (which came into force on 6 April 2007), made provision for a licensing authority to direct that the suspension or revocation of a taxi driver’s licence is to be of immediate effect. The lodging of an appeal will not affect the suspension or revocation of the licence. The licensing authority is limited in its use of this power to occasions when the interests of public safety require it.
Quite why this provision is included in the Road Safety Act 2006, and not a Local Government Bill, is not clear. The Road Safety Act started life as a private member’s bill introduced in the House of Lords. What is now section 52 was introduced by the Secretary of State for Transport when the bill was on its passage through the Commons. Was it felt that there was a pressing need for this provision to become law as soon as possible, or is just another example of making lawyers look in unlikely places to find changes in the law?
Simon Birks
Thursday, 25 October 2007
Dinner Ladies and Equal Pay
Many local authorities are, rightly, concerned about the need for ensuring that their staff are treated fairly as between each other and that those sectors of their work force which are primarily female are not employed on lower pay and less favourable terms than their male colleagues.
Despite these concerns, the 31 March 2007 deadline (agreed 10 years ago) for equal-pay structures to be put in place has come and gone with reports that many local authorities have failed to meet the deadline for agreement. (The Times reported that less than 20 per cent of all councils had complied - some other estimates are even lower.) Anecdotal evidence suggests that larger authorities and councils in the South of England are more likely to have failed to meet the deadline; some are concerned that deals reached with unions might not protect them against claims from employees who do not accept the negotiated deal. Others are concerned that previously agreed deals have been unpicked because the agreements negotiated with the relevant union do not provide adequate compensation for years of unequal pay (such as in the Allen v GMB case where the tribunal found that the union had indirectly discriminated against some female members by failing to properly explain a deal with their council employer on back pay that protected men’s pay and bonuses more than women’s). There is also understandable concern that awards of compensation for years of unequal pay will be substantial.
Notwithstanding these concerns and despite a number of high profile cases, the flood gates of tribunal claims have not yet been opened. However, the potential costs of ensuring equality of pay might be as high as £5 billion (even conservative estimates put this at £3 billion) and the TUC is calling for central government to provide direct funding to help settle all outstanding pay claims in the public sector.
These concerns have been highlighted by the recent decision of the House of Lords in St Helens Metropolitan Borough Council v Derbyshire and others [2007] UKHL 16.
In order to protect themselves against equal-pay claims, often fuelled by no-win-no-fee funding deals by the employees’ solicitors, prudent employers have taken steps to settle potential claims by reaching a global agreement with the unions, before those claims are issued. Normally this is achieved by the payment of compensation and/or by negotiating new terms of employment and is best effected through an appropriate trade union. Unfortunately, not every employee has capitulated and this was the problem that faced St Helens after they received over 500 equal pay claims brought by female catering staff. Although the majority of the claims were settled, about 40 were not.
These claims proceeded to a tribunal hearing but, before the claims were heard, St Helens wrote to all their catering staff warning that if the hearings went ahead redundancies would be inevitable to fund the increased salaries that would be then necessary. The letter went on to urge the remaining claimants to consider settlement.
The claimants argued that the letters amounted to victimisation under section 4 of the Sex Discrimination Act 1975. Their claims succeeded before the tribunal and in the EAT but were dismissed by the Court of Appeal. Now, on a further appeal to the House of Lords, the original decision has been reinstated, the court finding that the letter, written in the course of litigation, amounted to unlawful discrimination.
All of this only serves to make the task of the public sector employer all the more difficult. Prudence suggests that negotiations through a representative body are the best way forward; however, this does not help where employees who are not represented by a union or where they chose to pursue a claim notwithstanding a settlement with their colleagues. What the St Helens decision does tell us, however, is that any communication from an employer should be neutral and the temptation to point out the potential pit falls that a tribunal victory might cause should be avoided.
If this was not enough, claims under age discrimination legislation have already been commenced against the Prison Service and some central government departments. It seems that local authorities and public sector employees may need to brace themselves against possible future discrimination claims.
Adam Swirsky
Despite these concerns, the 31 March 2007 deadline (agreed 10 years ago) for equal-pay structures to be put in place has come and gone with reports that many local authorities have failed to meet the deadline for agreement. (The Times reported that less than 20 per cent of all councils had complied - some other estimates are even lower.) Anecdotal evidence suggests that larger authorities and councils in the South of England are more likely to have failed to meet the deadline; some are concerned that deals reached with unions might not protect them against claims from employees who do not accept the negotiated deal. Others are concerned that previously agreed deals have been unpicked because the agreements negotiated with the relevant union do not provide adequate compensation for years of unequal pay (such as in the Allen v GMB case where the tribunal found that the union had indirectly discriminated against some female members by failing to properly explain a deal with their council employer on back pay that protected men’s pay and bonuses more than women’s). There is also understandable concern that awards of compensation for years of unequal pay will be substantial.
Notwithstanding these concerns and despite a number of high profile cases, the flood gates of tribunal claims have not yet been opened. However, the potential costs of ensuring equality of pay might be as high as £5 billion (even conservative estimates put this at £3 billion) and the TUC is calling for central government to provide direct funding to help settle all outstanding pay claims in the public sector.
These concerns have been highlighted by the recent decision of the House of Lords in St Helens Metropolitan Borough Council v Derbyshire and others [2007] UKHL 16.
In order to protect themselves against equal-pay claims, often fuelled by no-win-no-fee funding deals by the employees’ solicitors, prudent employers have taken steps to settle potential claims by reaching a global agreement with the unions, before those claims are issued. Normally this is achieved by the payment of compensation and/or by negotiating new terms of employment and is best effected through an appropriate trade union. Unfortunately, not every employee has capitulated and this was the problem that faced St Helens after they received over 500 equal pay claims brought by female catering staff. Although the majority of the claims were settled, about 40 were not.
These claims proceeded to a tribunal hearing but, before the claims were heard, St Helens wrote to all their catering staff warning that if the hearings went ahead redundancies would be inevitable to fund the increased salaries that would be then necessary. The letter went on to urge the remaining claimants to consider settlement.
The claimants argued that the letters amounted to victimisation under section 4 of the Sex Discrimination Act 1975. Their claims succeeded before the tribunal and in the EAT but were dismissed by the Court of Appeal. Now, on a further appeal to the House of Lords, the original decision has been reinstated, the court finding that the letter, written in the course of litigation, amounted to unlawful discrimination.
All of this only serves to make the task of the public sector employer all the more difficult. Prudence suggests that negotiations through a representative body are the best way forward; however, this does not help where employees who are not represented by a union or where they chose to pursue a claim notwithstanding a settlement with their colleagues. What the St Helens decision does tell us, however, is that any communication from an employer should be neutral and the temptation to point out the potential pit falls that a tribunal victory might cause should be avoided.
If this was not enough, claims under age discrimination legislation have already been commenced against the Prison Service and some central government departments. It seems that local authorities and public sector employees may need to brace themselves against possible future discrimination claims.
Adam Swirsky
Suspended and Postponed Possession Orders
Are You Ready to Order?
Les Entrées
The purpose of this article is to assist readers to know what to ask for or to know how to reply when a case comes to court which engages the extended discretion in s85(2) of the Housing Act 1985 or s9(2) of the Housing Act 1988.
The said sections may be used by a court on making an initial possession order, to give the defendant an opportunity to mend his ways. Thereafter, the sections may be invoked by a tenant or tolerated trespasser up to execution of the possession order. Unfortunately, forensic analysis of standard court forms has led to confusion as to the meaning of the orders which emanated from courts. Commentary on this history may be found in the White Book[1] or the judgment in Bristol v Hassan[2]: I intend to deal only with the current position.
Les Plats
There are now two standard forms in use: the 1996 N28 and the N28A. These can be used to make three types of orders:
· an outright order (N28),
· a suspended possession order (N28)
and in the case of rent arrears only,
· a postponed order (N28A).
(In the pro-forma used by the Central London Civil Trial Centre and others, these are termed ‘outright’, ‘postponed’ and an ‘order following Bristol v Hassan.’)
An outright order is an order to give up possession without conditions or further process.
A suspended possession order fixes a date for possession but provides that that date shall be postponed for as long as the conditions specified by the judge are complied with. On breach, the landlord is entitled to enforce forthwith: the court does not normally see the case again unless the defendant applies.
A postponed order, or ‘order following Bristol v Hassan’, does not fix a date and introduces a paper procedure by which the landlord must apply for a date once there has been a breach and he has taken steps consistent with the rent arrears protocol.
La Méthode
· it allows the court to refuse an application if the arrears protocol steps (or other conditions the court gave on making the order) have not been complied with
· it introduces an automatic consideration of whether the court should use its s85 or 9 powers again – to which end it might wish to order a hearing. (Formerly, post-breach the onus was on the tenant to seek relief per s85 or 9.) The court’s discretion on the face of the order whether to give a date for possession is in reality whether further to postpone it.
Les Entrées
The purpose of this article is to assist readers to know what to ask for or to know how to reply when a case comes to court which engages the extended discretion in s85(2) of the Housing Act 1985 or s9(2) of the Housing Act 1988.
The said sections may be used by a court on making an initial possession order, to give the defendant an opportunity to mend his ways. Thereafter, the sections may be invoked by a tenant or tolerated trespasser up to execution of the possession order. Unfortunately, forensic analysis of standard court forms has led to confusion as to the meaning of the orders which emanated from courts. Commentary on this history may be found in the White Book[1] or the judgment in Bristol v Hassan[2]: I intend to deal only with the current position.
Les Plats
There are now two standard forms in use: the 1996 N28 and the N28A. These can be used to make three types of orders:
· an outright order (N28),
· a suspended possession order (N28)
and in the case of rent arrears only,
· a postponed order (N28A).
(In the pro-forma used by the Central London Civil Trial Centre and others, these are termed ‘outright’, ‘postponed’ and an ‘order following Bristol v Hassan.’)
An outright order is an order to give up possession without conditions or further process.
A suspended possession order fixes a date for possession but provides that that date shall be postponed for as long as the conditions specified by the judge are complied with. On breach, the landlord is entitled to enforce forthwith: the court does not normally see the case again unless the defendant applies.
A postponed order, or ‘order following Bristol v Hassan’, does not fix a date and introduces a paper procedure by which the landlord must apply for a date once there has been a breach and he has taken steps consistent with the rent arrears protocol.
La Méthode
An outright order will be used with Assured Tenancies where 1988 Act mandatory grounds succeed or with any residential tenancy where the circumstances do not warrant the exercise of the court’s delaying powers under the said ss 9 or 85. I will not discuss it further here.
In non-arrears cases, a suspended possession order aims to effect an immediate improvement in the conduct of the tenant while keeping the tenancy alive with obvious benefits to the tenant and one important one to the landlord: the tenancy conditions remain so can be enforced by further order[3]. The means by which this is done is that until the event specified in the order, the date for possession does not arise so the tenancy does not determine[4]. The reason for this form of order coming into being was to avoid the inadvertent creation of tolerated trespassers in relation to which none of the above advantages applied.
The court will attach conditions to the order (limited only by s85(3)(a), breach of which will lead to the date for possession being fixed. But it may fix any conditions (s85(3)(b)) including it seems to the operation or enforcement of the order. Practitioners might usefully employ their imaginations here, one suggestion being to use the paper procedure borrowed from the N28A form (see below). In my view, the court could do this in non-arrears cases but probably should not unless exceptional elements of the case justify further judicial scrutiny prior to enforcement. Other imaginative suggestions might succeed however.
In arrears cases, postponed orders may be made on form N28A, whereby:
i) there is no date for possession on the order;
ii) in the event of breach the landlord must comply with conditions taken from the rent arrears protocol[5] and then may apply for a date for possession (including on the face of the application confirmation of whether or not there is any outstanding claim by the defendant for Housing Benefit[6]);
iii) the court will normally consider that application on the papers but may order a hearing and;
iv) [making occasional practice standard] the order shall cease to be enforced once the judgment debt (arrears and costs) is satisfied.
The tenancy therefore survives breach and continues until it expires on such date as the court can be persuaded to fix, so again, the status of tolerated trespasser is avoided unless and until the court wishes it to come about.
In most arrears cases a postponed order will normally be made, but it need not be. For instance, where there is evidence of wilful refusal to pay or of the tenant having access to funds which would allow him to pay the arrears off, the court might be persuaded to give a suspended order in order to get the tenant to pay. And in such a case, form N28 can still be used for arrears cases.
In addition to these orders in new proceedings, it will happen that existing tolerated trespassers come before the court (those whose dates for possession have passed by whatever means) asking for further indulgence under s85 or 9. Because of s85(3) the court may: refuse to grant the application; postpone to a fixed date as in the old N28 (...’possession to be given on [date] suspended on condition [XYZ]’...) thereby giving rise to a further tolerated trespass; make a suspended possession order per the current N28 or in arrears cases; use an N28A to make a postponed order. I doubt the second will ever be used so over time I anticipate that tolerated trespass will be limited to those who have yet to invoke s85; those awaiting imminent eviction (because the date for possession has been fixed by conduct or by the court, and subsequently passed) and; those in the extraordinary position of Miss Ansell.
Les Fromages
· it allows the court to refuse an application if the arrears protocol steps (or other conditions the court gave on making the order) have not been complied with
· it introduces an automatic consideration of whether the court should use its s85 or 9 powers again – to which end it might wish to order a hearing. (Formerly, post-breach the onus was on the tenant to seek relief per s85 or 9.) The court’s discretion on the face of the order whether to give a date for possession is in reality whether further to postpone it.
Both these are straightforward business for county courts which need no further elaboration, save to note that the court on such an application is specifically forbidden from considering whether it was reasonable to make the initial order[7]. Irrespective of the benefits to tenants in arrears, in the absence of Parliament indicating its intent I question whether it is right in principle for the s85 procedure to become automatic (hence my putting this in the cheese course). That said, I cannot interpret the development in any other way and practitioners should be alert to it.
[1] 3A-379
[2] [2006] EWCA Civ 656
[3] Manchester v Finn [2002] EWCA Civ 1998
[4] Housing Act 1985, s82(2)
[5] the conditions will be specified in the order: the protocol may be found at White Book C11
[6] Practice Direction 55 paragraph 10.6
[7] Bristol v Hassan and Practice Direction 55 para 10.10
Recent Cases on Tolerated Trespassers
In two recent cases, the Court of Appeal has revisited the legal fiction of the ‘tolerated trespasser’, a much criticised creation of the House of Lords in Burrows v Brent London Borough Council [1996] 1 WLR 1448. Although the tolerated trespasser has lost the benefits of a secure tenancy, the former tenancy is capable of being revived by a further order of a court varying the date of possession under section 85(2) of the Housing Act 1985 (‘the Act’) or the court discharging or rescinding the order of possession under section 85(4) of the Act.
A tenancy does not revive automatically once the arrears have been paid off (Marshall v Bradford Metropolitan District Council [2002] HLR 22, 428). In cases where the entire judgment debt including court costs has been paid off, a court has no power to revive a tenancy under s. 85(2) of the Act, nor can it rescind a possession order under s. 85(4) if the Defendant has not complied with the conditions a court may impose under s. 85(3) of the Act (Swindon Borough Council v Aston [2003] HLR 42, 610). In Bristol City Council v Hassan [2006] 1 WLR 2582 the Court of Appeal responded to unease about tenants being propelled into a state of limbo, sometimes through no fault of their own, by creating the postponed possession order.
In London & Quadrant Housing Trust v Ansell [2007] EWCA Civ 326, which concerned the argument that issuing new possession proceedings amounted to an abuse of process where a previous possession order had been made, the Court of Appeal clarified the implications of Swindon v Aston.
Ms Ansell was granted a secure tenancy on 8 September 1987. On 19 February 2001 a suspended possession order was made against her. The order referred, among other matters, to monies due, the payment terms and the fact that, once Ms Ansell had paid off the entire amount, the order would cease to be enforceable. Ms Ansell breached the terms of the order soon after it was made. Subsequently, due to an unexpectedly early housing benefit payment, she managed to pay off the monies due under the order, including court costs, and on 26 October 2004 her rent account went into credit.
On 10 February 2006 the Housing Trust commenced new possession proceedings against Ms Ansell on the grounds of anti-social behaviour. The Trust started new proceedings because it took the view that the possession order of February 2001 was no longer enforceable. Ms Ansell argued that, because a previous possession order was in existence and still enforceable, it was an abuse of process to issue new possession proceedings. In order to enforce the 2001 possession order, Ms Ansell submitted, a warrant of possession had to be issued and executed. The judge at first instance came to the conclusion that he was entitled to make an order for possession because the February 2001 order had ceased to be enforceable, as all the monies due under the order, including costs, had been paid.
On appeal, it was common ground between the parties that Ms Ansell was a tolerated trespasser. The issue to be determined by the Court was whether it was open to the Trust to commence new proceedings on the basis that Ms Ansell’s occupation as a trespasser was no longer tolerated and that she therefore had no right to remain in occupation. The Court held that if a court’s powers under section 82(2), (3) and (4) of the Act – the extended discretion of a court to postpone a date of possession and to stay or suspend an order for possession – had still been exercisable, the proceedings would indeed amount to an abuse of process. However, Ms Ansell’s case was indistinguishable from Swindon BC v Aston [2003] HLR 42, 610: the powers under s. 85 of the Act were no longer exercisable when the present proceedings were commenced because, in paying off both her arrears and court costs, Ms Ansell had complied with the terms of the February 2001 order, and it had ceased to be enforceable. It followed that the Trust’s new proceedings against Ms Ansell were not misconceived and that the judge had been correct in making an order for possession.
In the course of argument, the court was invited to deal with the Claimant’s contention that she was a permanent tolerated trespasser and that the Trust could take no step to bring her occupation of her property to an end. The Court firmly rejected such an argument, holding this would, in effect, amount to Ms Ansell being irremovable in law. There was no ‘legislative policy’ compelling such a result.
The Court expressed unease that, following Swindon v Aston, Ms Ansell had lost the protection afforded under s. 85(2) of the Act because the whole of her monies due under the February 2001 order were paid off without her concurrence or knowledge by changes in the payment pattern of her housing benefit payments. The Court took the view that Swindon v Aston provided a ‘trap for former tenants and their advisers’ who comply with the order without first making an application to the court to revive the tenancy under s. 85(2) of the Act. This problem was compounded by the fact that unless the former tenant had strictly complied with the terms of the order, s/he could not seek rescission of the order under s. 85(4). Even though the Court accepted that Swindon v Aston provided a route whereby a new tenancy could come into existence, any new tenancy would not be a secure tenancy. Further, even though making a possession order in the terms suggested in Bristol v Hassan could avoid the problems which arose in Ms Ansell’s case, the Court expressed the view that it was desirable for both landlord and the former tenant to revert to the ‘position’ prior to the order being made, or taking effect, and for the court to continue to be able to exercise its discretionary jurisdiction under s. 85.
White v Knowsley Housing Trust [2007] EWCA Civ 404, which falls under the Housing Act 1988, highlighted the increased number of tolerated trespassers resulting from this regime. The Court of Appeal has held that where a possession order is made using the ‘old’ Form N28, the tenancy came to end on the date an assured tenant had to give up possession, even though the order may have been suspended, echoing last year’s decision in Harlow DC v Hall [2006] 1 WLR 2116 relating to secure tenancies.
The Court was alive to the problems that arise when a secure tenant becomes a tolerated trespasser, such as neither the former landlord nor the former tenant being able to enforce the covenants of the former tenancy, even though the occupier remains in a tenant-like condition.
In view of the many criticisms that have been levelled at the tolerated trespasser, and which led to the creation of the postponed possession order in Bristol v Hassan, it is surprising that in this judgment the Court appears to express unease that in Bristol v Hassan the arguments against the tolerated trespasser had been accepted without considering whether there should be situations where a tenant loses the benefit of a secure tenancy. In White the Court emphasised that the arguments do not go all one way. It would be problematic if, despite having defaulted on her obligations as a tenant, Mrs White retained the benefits and privileges of a tenant. Policy did not dictate such an outcome.
White may be seen as indicating that, despite all its shortcomings, the ‘tolerated trespasser’ continues to be seen as an appropriate sanction for breaches of the tenancy agreement. The difficulty is determining the precise scope of this sanction, pending reform or even abolition of a problematical legal fiction.
Barbara Zeitler
Wednesday, 24 October 2007
Denton v LB Southwark [2007] EWCA Civ 623 and Osei v LB Southwark [2007] EWCA Civ 787
In two recent decisions, Denton v LB Southwark [2007] EWCA Civ 623 and Osei v LB Southwark [2007] EWCA Civ 787, the Court of Appeal upheld decisions by the Local Authority that the applicants were ‘intentionally homeless’ within the meaning of s. 191(1) of the Housing Act 1996.
In Denton, the Court considered “intentionality” in the context of a young adult whose mother had asked him to leave the parental home because she could no longer control his bad behaviour.
Southwark took the view that Mr Denton had made himself intentionally homeless and found that it would have been reasonable for him to continue living with this mother. On appeal to the County Court, the judge quashed the decision.
Reinstating the Local Authority’s decision, the Court held that:
(i) all the circumstances of the case had to be considered;
(ii) even though there were significant differences between a family home and rented accommodation, nonetheless people living together had to show each other respect and this necessarily involved complying with any reasonable requests which one person makes to another. It was not unreasonable in the public law sense for Southwark to take into account that Mr Denton’s mother was entitled to expect appropriate behaviour and compliance with reasonable requests;
(iii) referring to R v Hammersmith and Fulham LBC ex p P (1989) 22 HLR 21, ‘reasonableness was to be determined by asking whether it would have been reasonable for the applicant to continue to occupy the accommodation at a point in time before the deliberate acts which led to the loss of the accommodation took place’ (para. 25). What the Local Authority had to do, was to determine whether it was reasonable for the applicant to continue to occupy premises, ignoring the acts and omissions for which the applicant herself or himself was responsible. Thus, in the present case, Mr Denton’s misbehaviour was not to be taken into consideration;
(iv) it was for the Local Authority to decide what inquiries to make and a Court would not intervene unless the decision of the Local Authority not to make further inquiries was perverse. It could not be said that Southwark's approach in this case failed to comply with public law principles.
In Osei, the Court held the Local Authority had been entitled to decide that the applicant was intentionally homeless where he had surrendered overcrowded accommodation in Spain for equally overcrowded accommodation in the United Kingdom.
Mr Osei was a Spanish citizen who had left his family in Madrid to find work in London. He brought his family to live with him in London and applied to Southwark for housing assistance. Southwark found that he was intentionally homeless because he had surrendered accommodation in Madrid that was available and reasonable for him to occupy. Southwark concluded that it was not reasonable for Mr Osei to bring his family to London because he was substituting his family home in Madrid for yet more unsatisfactory premises in London.
The Court held that Southwark had not committed an error of law in coming to this conclusion. Moreover, in considering whether it was reasonable for Mr Osei to continue to occupy accommodation, it was reasonable for Southwark to have regard to the general circumstances prevailing in relation to housing in its district pursuant to s. 177(2) of the Act.
In Denton, the Court considered “intentionality” in the context of a young adult whose mother had asked him to leave the parental home because she could no longer control his bad behaviour.
Southwark took the view that Mr Denton had made himself intentionally homeless and found that it would have been reasonable for him to continue living with this mother. On appeal to the County Court, the judge quashed the decision.
Reinstating the Local Authority’s decision, the Court held that:
(i) all the circumstances of the case had to be considered;
(ii) even though there were significant differences between a family home and rented accommodation, nonetheless people living together had to show each other respect and this necessarily involved complying with any reasonable requests which one person makes to another. It was not unreasonable in the public law sense for Southwark to take into account that Mr Denton’s mother was entitled to expect appropriate behaviour and compliance with reasonable requests;
(iii) referring to R v Hammersmith and Fulham LBC ex p P (1989) 22 HLR 21, ‘reasonableness was to be determined by asking whether it would have been reasonable for the applicant to continue to occupy the accommodation at a point in time before the deliberate acts which led to the loss of the accommodation took place’ (para. 25). What the Local Authority had to do, was to determine whether it was reasonable for the applicant to continue to occupy premises, ignoring the acts and omissions for which the applicant herself or himself was responsible. Thus, in the present case, Mr Denton’s misbehaviour was not to be taken into consideration;
(iv) it was for the Local Authority to decide what inquiries to make and a Court would not intervene unless the decision of the Local Authority not to make further inquiries was perverse. It could not be said that Southwark's approach in this case failed to comply with public law principles.
In Osei, the Court held the Local Authority had been entitled to decide that the applicant was intentionally homeless where he had surrendered overcrowded accommodation in Spain for equally overcrowded accommodation in the United Kingdom.
Mr Osei was a Spanish citizen who had left his family in Madrid to find work in London. He brought his family to live with him in London and applied to Southwark for housing assistance. Southwark found that he was intentionally homeless because he had surrendered accommodation in Madrid that was available and reasonable for him to occupy. Southwark concluded that it was not reasonable for Mr Osei to bring his family to London because he was substituting his family home in Madrid for yet more unsatisfactory premises in London.
The Court held that Southwark had not committed an error of law in coming to this conclusion. Moreover, in considering whether it was reasonable for Mr Osei to continue to occupy accommodation, it was reasonable for Southwark to have regard to the general circumstances prevailing in relation to housing in its district pursuant to s. 177(2) of the Act.
LB Lewisham v Malcolm, Disability Rights Commission intervening [2007] EWCA Civ 763
As Peter Ackroyd said of his magnum opus ‘London: The Biography’, this judgment should not be consumed all at once but taken down from time to time and read in parts. Luckily, Lady Justice Arden’s exemplary signposting of her judgment makes that possible, and I urge anyone who wishes to understand the outcome to take such an approach.
The writer does not agree with the court on all of the conclusions in this very long and complicated judgment but they can be summarised as follows:
The writer does not agree with the court on all of the conclusions in this very long and complicated judgment but they can be summarised as follows:
- the Disability Discrimination Act 1995 (as amended)(“DDA”) can be relied upon by a respondent in circumstances where a court otherwise has no jurisdiction to refuse an application
- the issue of whether a person is disabled for the purpose of the DDA is a matter of fact for the judge
- where an impairment to a relevant function is more than minor or trivial it is ‘substantial’ for the purposes of the DDA
- where a person suffers from an impairment which might be relevant to the treatment he has received, that may be enough by itself to establish that the treatment is ‘related to’ his disability
- a party does not have to be aware of a disability to unlawfully discriminate on the basis of it (Toulson LJ dissenting)
a formal notice (in this case a Notice to Quit) served unlawfully is invalid.
Though she did not give the judgment of the court, I propose only to refer to the structure of Arden LJ’s judgment and the following should be read with that in mind.
Mr Malcolm was a secure tenant who after beginning the process of buying his property but before finishing it, sublet that property thereby losing his security of tenure (irredeemably by reason of s93 of the Housing Act 1985) and therefore his right-to-buy. Having discovered this prior to closing the deal, Lewisham served a Notice to Quit purportedly terminating his tenancy and then sought to evict him.
Mr Malcolm, who suffered from schizophrenia, resisted on the basis that to evict him was unlawful discrimination per the DDA.
HHJ Hallon at first instance found that he did not fall within the class of persons protected by the DDA, that had he been then his eviction would not have been related to that disability and that the lack of knowledge of his illness on the part of the local authority landlord was a relevant factor. She therefore granted possession and he appealed.
The court formulated four questions:
- Can Mr Malcolm rely on s22(3)(c) of the DDA 1995 in answer to Lewisham’s claim given that Lewisham has an immediate right to possession and the court has no discretion to withhold the possession order?
- Was the judge wrong to hold that Mr Malcolm’s mental impairment did not have a substantial adverse effect on [his] ability to carry out normal day-to-day activities for the purposes of the DDA 1995?
- Was the judge wrong not to hold that Lewisham’s reason for starting possession proceedings, namely Mr Malcolm’s subletting, was “related” to his disability for the purposes of s24(1)(a) of the DDA 1995? [note; there is an error in paragraph 37 of the judgment where ‘subletting’ is substituted by ‘disability’]
- Should the judge have concluded that Lewisham’s lack of knowledge of Mr Malcolm’s disability at the time of the alleged discrimination would be relevant to determining whether there was discrimination for the purposes of s24?
1. Can Mr Malcolm rely on s22(3)(c) of the DDA 1995 in answer to Lewisham’s claim given that Lewisham has an immediate right to possession and the court has no discretion to withhold the possession order?
Section 22(3)(c) provides that it is unlawful for a person managing any premises to discriminate against a disabled person by evicting him. The meaning of ‘discriminate’ in that context is found in s24 and is where the discriminator treats a disabled person less favourably than he treats or would treat others for a reason which is “related to” the person’s disability (my emphasis). (It is possible to justify that treatment under the statute but no party in this case sought to argue that.)
In the writer’s view, if a person is disabled for the purposes of the Act and if steps which are taken for the furtherance of his eviction are unlawful because they are “related to” his disability, then any proceedings based on those steps are an abuse of process and the litigation must stop there. I fail to see how any court can properly endorse an unlawful act by allowing an application on such a basis. No doubt greater minds than mine found that that was too simple and straightforward an argument to advance and did not do so.
However the court came close to the idea in paragraphs 61 to 65 inclusive. but reached what was, to the writer’s mind, a bewildering, circular and complicated conclusion: having recited the fundamental principle that a person cannot succeed in litigation by relying on his wrong-doing the court did NOT conclude that a possession order could not follow an unlawfully issued or served Notice to Quit.
Instead it held in the last four lines of paragraph 65 thus:
- the fact that s22(3) makes an eviction or step-towards-eviction unlawful
- supports the interpretation of s22(3) which the court had expressed
- that a public sector landlord cannot escape the application of s22(3) merely because he is relying on loss of security by reason of s93 of the Housing Act 1985
This is a complicated way of saying that as s22(3) is unqualified and not overridden by anything in s93. What it fails to do is to illustrate how a litigant might give effect to his protection under s22(3).
In the writer’s view the answer is plain: it is because the court cannot be used to endorse unlawful acts. Therefore although Parliament seems to have neglected to prevent disabled people losing security of tenure in the circumstances of this case, it does not follow that the right of the landlord to end the resulting contractual tenancy will be given effect. The tenant will remain unless and until his eviction can be justified within the meaning of the DDA (query whether that would require the service of another notice or (as the writer gleans from Romano) not.)
By contrast Arden LJ held – so clearly that it will be difficult to distinguish – that the effect of the unlawfulness of the service of the NTQ is to render that NTQ invalid.
With due deference to the huge forensic and intellectual advantages enjoyed by the court over the writer, the latter struggles to find any basis in law for this finding. After the secure tenancy has ended, it is replaced by a contractual periodic one which may be ended using the prescribed procedure. It seems to the writer that that continues to be the case unless and until statute provides otherwise.
In the DDA, statute has provided that the service of that notice is unlawful; fundamental principles of law dictate that that notice may not be relied upon; but notwithstanding its uselessness, if the notice was in the proper form and properly served then it is valid. And this outcome is self-evidently consistent with Romano wherein the court found that a notice was valid but concerned itself with whether the subsequent steps were lawful.
The practical difference between the abuse of process approach (notice valid but useless) and the court’s approach (notice invalid) is, the writer suggests, the reverse of what the court would have wanted as it is the abuse of process approach which is the better outcome for the tenant. Using the court’s approach the tenant will remain the contractual tenant of the landlord subject to the same terms and conditions but without the extra rights granted by statute to secure tenants. Ergo his landlord would have no reason to grant him a new tenancy.
By contrast, the abuse of process approach would terminate the tenancy and mean that thereafter the landlord would not be able to enforce any of the terms. In those circumstances, the landlord would almost certainly want to grant a tenancy and if the landlord and tenant condition in s79 of the Housing Act 1985 were satisfied, that tenancy would be a secure one.
I see nothing to prevent a tenant’s advocate arguing in favour of the abuse-of-process approach – it was not rejected by the court; simply not mentioned. On the other hand, a landlord’s advocate would be on solid ground positing the apparently self-harming argument that if the court finds that the service of the notice to quit was unlawful then the notice was invalid.
2. Was the judge wrong to hold that Mr Malcolm’s mental impairment did not have a substantial adverse effect on [his] ability to carry out normal day-to-day activities for the purposes of the DDA 1995?
This was a factual matter and Arden LJ made not a single reference to the well-worn principle that an appellate court should be very slow to interfere with findings of fact given the disadvantage it has in not having heard the trial. In addition, the court made no mention whatever of the fact that the burden of proof in this part of the exercise was on the appellant to establish what the level and scope of his impairment was. The judge at first instance plainly had that in mind as the excerpt from her judgment at para 79 shows.
Though it is not obvious, the hook upon which the appellate court hung its judgment was the meaning of the word ‘substantial’ and the failure – the appellate court said – of the first instance judge to set this out. Readers should note that it was common ground before the court that the first instance judge did not need to set out the test. The court said that this failure meant that it could not probably (I think it meant ‘properly’) be assumed that the right test was used (paragraph 91).
And having thus found that the lower court’s judgment could not stand, the appellate court substituted its own view. It is very remarkable, in the writer’s view, that in doing so the appellate fell into a wholly equivalent error by failing to specify the period for which the appellant was impaired. Moreover, the appellate court gave no reasons for ignoring the evidence of the appellant’s family, or for the problems with the appellant’s own evidence highlighted in the court below, did not mention the burden and standard of proof and failed to state whether the length of the impairment satisfied the test in the statute.
Furthermore in such a discursive judgment, it is unfortunate that the court did not discuss the authorities in relation to capacity per CPR21. In the writer’s view, there is scope by parity of reasoning with those authorities to limit the scope of the phrase ‘carry out normal day-to-day activities’.
However, also in the writer’s view the appellate court seemed determined to find in Mr Malcolm’s favour, so further analysis is purposeless.
For reference there is a great deal of rather fruitless discussion of what ‘substantial’ might mean in this context. This is odd given that the word is defined in the guidance issued under the statute as being ‘more than minor or trivial’ (see paragraph 27, heading ‘A1’) and that the appeal was allowed on the basis that the judge did not set the test out, rather than because she got it wrong.
3. Was the judge wrong not to hold that Lewisham’s reason for starting possession proceedings, namely Mr Malcolm’s subletting, was “related” to his disability for the purposes of s24(1)(a) of the DDA 1995?
This is, in the writer’s view, the most difficult part of the appellate judgment to justify. Where it is plainly right is in confirming that this is a matter of fact for the judge to decide on the evidence.
In paragraph 101 the court discusses what the appropriate relationship is between an impairment and a potentially discriminatory action and referred to the decision in Clark v Novacold. In that case Mr Clark had an accident at work which caused him to become disabled within the meaning of the DDA. He was off sick while recuperating and the prognosis was not good. Novacold sacked him and tried to argue that the reason they did so was because he was going to be off work for a long time. Not surprisingly the Court of Appeal took the view that as he was going to be off work for that period because he was disabled so the sacking was ‘related to’ the disability. In that context the company might not even have considered the disability – this was a factual matter, and the sacking and impairment were plainly linked.
Arden LJ said:
‘What followed from the decision in that case is that the disability need neither be the sole cause of any action nor a matter without which the action would not have occurred.’
The first proposition in that sentence is uncontroversial. The second is obscured by a triple negative but in plain English it means that if an action would have been taken anyway, it can still relate to a disability. And that too is right. But as elsewhere in the judgment, Arden LJ asks a question, embarks on learned discourse, finds a technical reason to overturn the judge at first instance and then plumps for an answer which is inadequately supported by the facts.
This time she found that the judge had failed to take into account that applying for job-seeker’s allowance or making other decisions which appeared in the judgment, were ‘different in quality’ from the decision to sublet. Being as generous as one can, it is possible to read into the appellate judgment that that difference in quality is because the subletting had potential negative consequences. On the other hand, so does applying for benefit which, if inaccurate, could lead to imprisonment, confiscation of assets, an inability to borrow money and loss of livelihood.
Unfortunately Arden LJ does not seek to explain what the ‘difference in quality’ is.
There then follows the following in paragraph 107:
‘There is no evidence that Mr Malcolm approved the subletting in a perfectly lucid phase which he was fully able to understand the consequences of the transaction of subletting. In my judgment, the evidence as to the nature of Mr Malcolm’s condition, which involved a susceptibility to distortions of thinking and to concrete, and therefore limited (sic) thinking, is sufficient on the facts of the case to establish the relevant relationship...’
The first sentence here suggests that the court has forgotten where the burden of proof lies and is plainly irrelevant. The latter part contains the kernel of the judgment, which the writer expresses as follows:
the fact that a person is through disability susceptible to distortions of thinking is sufficient for the court to find that any decision contrary to his interests which he takes during the period he is so susceptible is ‘related to’ his disability.
This is, in the writer’s view, carrying the Novacold principles too far. It is right that a person pleading the DDA does not have to establish that he was discriminated against by reason of the fact of his disability; nor does he have to exclude other reasons why what happened might have happened; nor does he have to show that a non-disabled person would have been treated differently; nor does he have to show that his disability caused him to act as he did and occasion a discriminatory reaction (though obviously his case would be stronger if any of those four could be shown more likely than not).
But it is too liberal an approach in the writer’s view to conclude [paragraph 108] ‘the statutory requirement for a relationship between the disability and subletting does not require the court.. to go into the question of whether at the actual moment of subletting he was or was not suffering an actual schizophrenic episode, but simply whether his then current general state of health as a result of the condition from which he suffered rendered him liable at that point in time to suffer relevant difficulties of understanding.’
LJ Toulson seemed to take the writer's view [paragraph 152] and reminded the court of the need expressed in Novacold for there to be a ‘causal link with disability’, but it is Arden LJ’s judgment with which the majority agreed.
4. Should the judge have concluded that Lewisham’s lack of knowledge of Mr Malcolm’s disability at the time of the alleged discrimination would be relevant to determining whether there was discrimination for the purposes of s24?
The court concluded that lack of knowledge was irrelevant. This is consistent with the unqualified wording of the act but also to the factual approach to finding whether the act complained of was related to the disability.
LJ Toulson disagreed, arguing that because the part of the DDA from which ss22 and 24 came established tortious liability, he felt that Parliament would not have intended such liability to arise without knowledge. On this basis (to the writer’s mind wrongly) the noble Lord found that the Notice to Quit was valid as it had been served at a time when the landlord was not aware of the disability.
The writer notes that the court was wrong in paragraph 119 to say that lack of knowledge might be relevant to the issue of justification. It is not as justification under the Act relates to the necessity of the treatment, not the culpability of the treater. It would however be relevant to damages.
CONCLUSION
This is a difficult area and a difficult judgment, the first finding of which – that the DDA applies even where there is apparently no power for a court to refuse an application – is of general effect. Beyond that, for all its appearances it really only assists in the very limited circumstances of a) an eviction and b) where the person’s disability relates to his understanding and mental processes.
The writer anticipates that there will be a few cases where the case will be invoked whereupon the factual battle ground will widen from the traditional approach of considering the loss of security or breach of tenancy to encompass evidence relating to the health, impairment and functioning of the tenant, unlikely ever to be dealt with in a single day.
One important point to remember in identifying the issues for the trial, is that if the eviction sought does not affect any third party, (for instance, for arrears, loss of security through sub-letting, breach of tenancy condition other than anti-social behaviour) justification is not going to be relevant as it cannot be within the restricted definition in s24 of the DDA.
Monday, 1 October 2007
Eisai Limited v National Institute for Health and Clinical Excellence (NICE) [2007] EWHC 1941 (Admin)
This case is of interest to Local Authorities and other public bodies because it assists in the clarification of duties of public authorities under anti-discrimination legislation, specifically the Race Relations Act 1976 and the Disability Discrimination Act 1995.
The Facts
Eisai Limited manufactures a drug called Donepezil (sold as Aricept), an inhibitor drug, used for the treatment of the early stages of Alzheimer’s Disease. Eisai Limited and two interested parties, the Alzheimer’s Society and Shire Pharmaceuticals Limited, brought judicial review proceedings against a decision by the Appeal Panel of NICE not to recommend the use of Aricept for patients in the mild to moderate phases of the disease, which was based on Guidance published in 2006.
The Decision
Whilst the Court rejected the submissions of procedural unfairness and irrationality, it upheld the appeal on the grounds that NICE had acted unlawfully because its Guidance fell foul of anti-discrimination legislation.
Eisai argued that the Guidance was rigid, ambiguous and discriminatory in relation to certain atypical patient groups, specifically those with language difficulties or learning problems, those patients whose first language was not English and those with high IQs. It was submitted that the Guidance breached the Race Relations Act 1976 (RRA) and the Disability Discrimination Act 1995 (DDA). The Alzheimer’s Society relied on the specific obligations placed on public authorities under section 19B of the RRA and sections 21B and D of the DDA (which it make it unlawful for a public authority to discriminate in carrying out its public functions) as well as the section 71 of the RRA and sections 21E and 49A of the DDA (which impose a duty on public authorities to have due regard to the need to eliminate unlawful discrimination and to promote equality of opportunity).
The Court found that NICE’s Appeal Panel had failed to have regard to the legal duties and obligations placed on a public authority, even though as a public body it was required to ensure that its duties were discharged and its Guidance complied with NICE’s obligations under anti-discrimination legislation. Specifically, the Panel had never tested the reason put forward for not including those with language difficulties or those with English as a second language as exceptions. The Court was critical of NICE because ‘[i]nstead of looking at how NICE as a public body could itself promote equal opportunity, having accepted that the Guidance could have a discriminatory effect if applied slavishly, the approach taken was to leave it to the other to sort out in the hope and expectation that they would.’ (para. 94 of the judgment). The Court concluded that the approach of the Appeal Panel was flawed. It was unreasonable and unlawful to have overlooked NICE’s responsibility as a public authority to promote equal opportunities and have due regard to the need to eliminate discrimination. The same was true of the Guidance because there was ‘no evidence that before issuing the Guidance the “due diligence” duties were considered or complied with or that any thought was given to present or imminent obligations under anti-discrimination law.’ (para. 96 of the judgment). The Guidance, therefore, had failed to avoid discrimination against the relevant groups. The Court ordered the Guidance to be reviewed.
Discussion
This case provides a salutary reminder to Local Authorities (and other public bodies) that they must ensure compliance with anti-discrimination legislation in publishing guidance and similar documents, and must always be mindful of the particular obligations placed on public authorities under that legislation. Public authorities must apply careful consideration to their specific obligations under anti-discrimination legislation and consider potential discriminatory effects in extreme and unusual circumstances.
The Facts
Eisai Limited manufactures a drug called Donepezil (sold as Aricept), an inhibitor drug, used for the treatment of the early stages of Alzheimer’s Disease. Eisai Limited and two interested parties, the Alzheimer’s Society and Shire Pharmaceuticals Limited, brought judicial review proceedings against a decision by the Appeal Panel of NICE not to recommend the use of Aricept for patients in the mild to moderate phases of the disease, which was based on Guidance published in 2006.
The Decision
Whilst the Court rejected the submissions of procedural unfairness and irrationality, it upheld the appeal on the grounds that NICE had acted unlawfully because its Guidance fell foul of anti-discrimination legislation.
Eisai argued that the Guidance was rigid, ambiguous and discriminatory in relation to certain atypical patient groups, specifically those with language difficulties or learning problems, those patients whose first language was not English and those with high IQs. It was submitted that the Guidance breached the Race Relations Act 1976 (RRA) and the Disability Discrimination Act 1995 (DDA). The Alzheimer’s Society relied on the specific obligations placed on public authorities under section 19B of the RRA and sections 21B and D of the DDA (which it make it unlawful for a public authority to discriminate in carrying out its public functions) as well as the section 71 of the RRA and sections 21E and 49A of the DDA (which impose a duty on public authorities to have due regard to the need to eliminate unlawful discrimination and to promote equality of opportunity).
The Court found that NICE’s Appeal Panel had failed to have regard to the legal duties and obligations placed on a public authority, even though as a public body it was required to ensure that its duties were discharged and its Guidance complied with NICE’s obligations under anti-discrimination legislation. Specifically, the Panel had never tested the reason put forward for not including those with language difficulties or those with English as a second language as exceptions. The Court was critical of NICE because ‘[i]nstead of looking at how NICE as a public body could itself promote equal opportunity, having accepted that the Guidance could have a discriminatory effect if applied slavishly, the approach taken was to leave it to the other to sort out in the hope and expectation that they would.’ (para. 94 of the judgment). The Court concluded that the approach of the Appeal Panel was flawed. It was unreasonable and unlawful to have overlooked NICE’s responsibility as a public authority to promote equal opportunities and have due regard to the need to eliminate discrimination. The same was true of the Guidance because there was ‘no evidence that before issuing the Guidance the “due diligence” duties were considered or complied with or that any thought was given to present or imminent obligations under anti-discrimination law.’ (para. 96 of the judgment). The Guidance, therefore, had failed to avoid discrimination against the relevant groups. The Court ordered the Guidance to be reviewed.
Discussion
This case provides a salutary reminder to Local Authorities (and other public bodies) that they must ensure compliance with anti-discrimination legislation in publishing guidance and similar documents, and must always be mindful of the particular obligations placed on public authorities under that legislation. Public authorities must apply careful consideration to their specific obligations under anti-discrimination legislation and consider potential discriminatory effects in extreme and unusual circumstances.
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