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Homelessness – Suitability of Accommodation

Local Authorities are under an obligation, pursuant to s.206 of the Housing Act 1996 to ensure that accommodation offered under homelessness duty is suitable.

There is no definition of suitability. However, under s.210(1) Housing Act 1996, the consideration of suitability must focus on whether or not the accommodation is suitable for the particular person whom the local authority are looking to assist and the family members expected to live with that person. In R v Newham LBC, ex parte Sacupima (2001) 33 HLR 2, the Court of Appeal stated that there was no doubt that the question of whether or not the accommodation is suitable requires an assessment of all the qualities of the accommodation in the light of the needs and requirements of the homeless person and his or her family. It therefore follows that in order to discharge this duty, an authority must first carry out an assessment of the applicant’s requirements. The authority must then secure accommodation to comply with that assessment.

The Homelessness (Suitability of Accommodation) Order 1996 and Homelessness (Suitability of Accommodation) (England) Order 2012 provide that the local authority must also consider the affordability of the accommodation and the financial resources of the appellant, as well as the significance of any disruption which would be caused by the location of the accommodation to the employment, caring responsibilities or education of the person or members of the person’s household.

Although the accommodation can be located anywhere in the country, as long as it is suitable, by virtue of s.208(1) of the Housing Act 1996, “so far as is reasonably practicable” the authority must secure accommodation in its own area.

In Barakate v LB Brent. County Court at Central London on 16 October 2016, the Court found that *“the concept of suitability can be seen to be not an absolute one, but a relative one, depending on the availability of something closer. This relative suitability must, as I see, have a further important consequence. As soon as one allows the test of suitability to include this relative element, it seems to me inescapable that in cases of far away placements, the test should also include some consideration of the timescale within which more suitable accommodation might be found”.

The case of Nzolameso v City of Westminster [2015] UKSC 22 provided guidance on how local authorities should secure accommodation for applicants. The Court suggested that “It may also be acceptable to retain a few units, if it can be predicted that applicants with a particularly pressing need to remain in the borough will come forward in the relatively near future…..Ideally, each local authority should have, and keep up to date, a policy for procuring sufficient units of temporary accommodation to meet the anticipated demand during the coming year.”

Clients should be aware that s.193(5) Housing Act 1996 (as amended) states that, “The local housing authority shall cease to be subject to the duty under this section if – (a) the applicant, having been informed by the authority of the possible consequence of refusal or acceptance and of the right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for the applicant, (b) that offer of accommodation is not an offer of accommodation under Part 6 or a private rented sector offer, and (c) the authority notify the applicant that they regard themselves as ceasing to be subject to the duty under this section.”

It is therefore very important that clients offered accommodation accept the offer so as to avoid the local authority discharging duty. There is an opportunity to seek a review of the suitability the offer, within 21 days of acceptance. This maintains accommodation for the client but allows them to the opportunity to be rehoused should the review be successful.

This blog has been prepared on 17th May 2018 by Ahmar Awan, a Solicitor at MTG Solicitors.

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Immigration Appeal on Human Rights Grounds

The Home Office is known to be very harsh and strict when it comes to judging who is a genuine applicant that satisfies the Immigration Rules and who should be granted a visa. More often than not, an application to the Home Office will have elements of Human Rights claim which the Home Office must take into consideration. If the Home Office refuses an application without due consideration of your Human Rights claim, you will have the possibility to appeal the Home Office decision.

The aim of this blog is to give you an overview of the right to appeal on Human Rights grounds following a Home Office refusal.

Section 82 of the Nationality, Immigration and Asylum Act 2002: Right of Appeal

Where an immigration decision is made in respect of a person he may appeal:

  • the Secretary of State decision to refuse a protection claim;
  • the Secretary of State decision to refuse a human rights claim; or
  • the Secretary of State decision to revoke protection status.

Section 84 of the Nationality, Immigration and Asylum Act 2002: Grounds of Appeal

An appeal under section 82(1) against an immigration decision must be brought on one or more of the grounds set out in the Act. Most importantly, an appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998.

Case Law

Baihinga (r. 22; human rights appeal: requirements) [2018] UKUT 90 (IAC): The appellant in this case attempted to appeal an application refused by an Entry Clearance Officer and sent in a notice of appeal to the tribunal. The appellant also travelled to the UK and entered with temporary admission.

The notice of appeal was accepted by the tribunal and a hearing was listed. However, the tribunal decided that the appellant had not mentioned human rights and had therefore not made a human rights claim. On this basis, the appeal was declared invalid.

The appellant attempted to appeal this decision but the judge refused permission on the basis that, because there was no valid appeal, permission could not be granted. The only available remedy was said to be an application for judicial review.

A further application for permission to appeal directly to the Upper Tribunal was ultimately successful.

On the facts of the case, the Upper Tribunal found that a human rights claim had indeed been made:

29. As we have seen, the appellant was putting forward, as reasons for wishing to return, (a) that she had gone to Sierra Leone in 2004 to look after her grandmother; (b) that her grandmother had died, with the result that the appellant was left without any element of family in Sierra Leone; (c) that she was lonely without her relatives in the United Kingdom; and (d) that she wished to rejoin her father and sister in the United Kingdom.

30. The letter from the appellant’s father asserted (a) that the appellant, despite her qualification as an electrician, had been unable to obtain a permanent job in Sierra Leone; (b) that she was being supported by the father; (c) that she had no close relatives in Sierra Leone to give her emotional support; and (d) that it would be easier to support the appellant if she were living with the family in the United Kingdom.

31. Having regard to the guidance, which in this respect we consider properly accords with the meaning and scope of section 113 of the 2002 Act, the appellant’s application was, we find, a human rights claim.

In conclusion, a human rights claim is made where the facts of the case disclose a human rights claim, whether or not the words “human rights claim” are used and whether or not the application is made under the “human rights claim” paragraphs of the Immigration Rules.

This blog has been prepared on 18th May 2018 by Erald Dedja, a Paralegal at MTG Solicitors.

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Victim and Witness Statements in Criminal Proceedings – What happens where the victim or witness wants to withdraw the statement?

Although victims and witnesses play an important role in the prosecution of a criminal case, many do not understand the processes. This also goes for those who find themselves charged with an offence (defendants) and have to appear in court.

The Criminal Defence department at MTG Solicitors is often asked a lot of questions as to what happens when a victim or witness has withdrawn, or intends to withdraw, their statement.

Please note that we will use the term “victim” and “witness” interchangeably in this article.

Giving a witness statement

When someone witnesses a crime happening and reports it to the police, it is often the case that they will be asked to provide a witness statement. The witness will be asked to explain what they saw, either in writing or on video and they will be asked to sign the statement to say that it is true. If the defendant pleads not guilty and if the statement is not accepted as accurate by the defence the witness may be called to give evidence.

Withdrawing a witness statement

Victims and witnesses may decide to withdraw their support for a prosecution for several different reasons. It could be because they no longer want the defendant to face proceedings, have forgiven them, reconciled with them, due to a fear of reprisals, witness intimidation, anxiety caused by a forthcoming court case or because they lack support and information about an impending court case.

Once a witness has given a statement, it is not a matter for them to decide how the case against the defendant should proceed. In practical terms they cannot make the case worse or more lenient for the defendant as the damage has already been done!

Equally, the withdrawing of support by a victim or witness is not the same as that person saying that they have lied. If a victim or witness admits to lying, they are admitting to making a false statement, which in turn can mean they may be arrested and prosecuted for perverting the course of justice.

If the witness wants to go ahead and withdraw their support for the prosecution, they will have to contact the police or Crown Prosecution Service (CPS) directly and make a request to make a statement of withdrawal. The reasons for wanting to withdraw a statement will be carefully looked at by the police to make sure that there hasn’t been any undue pressure applied on that person.

The statement of withdrawal of support should contain:

  • confirmation of whether the original statement given to the police was correct (if the account given in the original statement has to be amended, an application for this should be included)
  • whether the victim has been put under pressure to withdraw or has been subjected to threats or intimidation
  • nature of the original allegation (if not fully covered in a previous statement)
  • victim’s reasons for withdrawing support for the prosecution
  • with whom the victim has discussed the case, particularly anyone who has advised them (a solicitor, for example)
  • whether any related civil proceedings have been or are likely to be instigated (this is particularly relevant in domestic serious sexual offences)
  • the likely impact on the victim’s life and that of other witnesses or people affected if the case continues. 1

Statements of withdrawal of support can subsequently be used as evidence in current or future criminal proceedings, or as evidence within the family court system. These statements are retained as information that might be relevant to future investigations. 2

In some cases, an application for special measures may provide sufficient reassurance to the victim/witness for them to decide to reconsider and to support a prosecution. 3

However, if after receiving a request from the investigator or prosecutor the witness refuses to cooperate, the prosecutor can consider whether to make an application for a witness summons.

The other option at this stage is that the prosecution may decide not to take it any further and drop the case.

Witness summons

Where the decision has been made to continue the case, the prosecution may apply for a witness summons to compel a witness to give evidence. This can be done before the court hearing or even on the day of the hearing itself, and usually when the prosecution has been made aware that the witness is unwilling to cooperate. If a witness summons is required, it will issued under section 97, Magistrates’ Courts Act 1980.

Once a witness has been summoned, they must attend Court. If the witness decides not to attend, then a warrant for their arrest may be made for them to attend court on the day. This means that the police may attend the witness’s home address, arrest them and use police transportation to convey them to court.

The witness can tell the prosecution lawyer their reasons for not wanting to give evidence and then they will decide whether to call the witness or not. Practically, if the prosecution thinks the witness is likely to be unhelpful to them, they would rather not have them there. Consequently, if the prosecution is of the view that there is insufficient evidence without the witness’s statement, then they may discontinue the case and that will be the end of the matter.

However, this is entirely the prosecutor’s decision to make and the witness will still need to attend court and discuss what will happen on the day. Contrary to popular belief, it is not a matter for the witness to decide whether or not the CPS pursue the case and the case may go on even without the witness’s consent. The case could proceed to court if the police think they have enough evidence to prosecute the defendant without the witness by using, for example, statements from other witnesses, CCTV evidence, 999 recordings and medical evidence.

If you have any questions or need expert assistance at the police station or criminal courts, MTG Solicitors are available 24 hours a day.

1. https://www.app.college.police.uk/app-content/prosecution-and-case-management/victim-and-witness-care

2. As above

3. As above

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The Future of Social Care

Social care has been in the news recently and we suspect it will continue to dominate headlines, at least, for the foreseeable future.

But what does “social care” actually mean? Well, that’s the first obstacle right there. It’s hard to provide a clear cut definition, and certainly not within this blog post. One of the reasons that it’s so difficult to define is that social care is very wide and can encompass a lot of things – from child protection issues to applications to the Court of Protection.
The local government’s social services department has responsibility for administering publicly funded social care as set out by Parliament. They provide information and advice, assess and monitor needs, and provide services where appropriate. However, their ability to do so is determined by funding received from the central government. This often creates an imbalance between legislation and implementation.

In recent years, the Government has overseen significant cuts to local government funding. This has resulted in the social care crisis whereby elderly patients are left stranded in hospital due to chronic delays in sourcing adequate home care as well as vulnerable children and young people who are slipping through the cracks.

With a steady rise in population levels, coupled with an increase in life expectancy, the social care system is becoming crippled under this strain.
One of the ways to address growing concerns has been outlined by the Health and Social Care Secretary, Jeremy Hunt, who has set out the Government’s proposals to reform care and support in the much anticipated green paper due to be published this summer. Although the paper has been met with some criticism from opposition parties and voluntary sector bodies, it presents a golden opportunity for the Government to reform the adult social care system.

Whether they seize this opportunity, only time will tell.

This blog has been prepared on 16th May 2018 by Lizan Ghafoor, a Solicitor at MTG Solicitors.

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Limited Compensation for Road Traffic Accidents!

The planned reforms set to come in by April 2019 will introduce a tariff system for damages in relation to soft tissue injuries, and will increase the small claims limit for road traffic accident related claims from £1,000.00 to £5,000.00. The question that is raised is whether the reform is a positive change that is needed for road traffic accident claims or whether the reform will do more harm than good, to people who suffer road traffic accidents.

The problems with the reform

The reform will mean that people who suffer soft tissue damages and minor physiological damages will struggle to get the compensation they deserve, or they may not be compensated at all. The tariff award has been changed to the following:

Injury Duration (months) 2015 average payment for PSLA (industry data) (£) Judicial College Guidelines (13th edition) (£) New tariff amounts (£)
0-3 1,750 Up to 2,050 225
4-6 2,150 2,050 – 3,630 450
7-9 2,600 2,050 – 3,630 765
10-12 3,100 2,050 – 3,630 1,190
13-15 3,500 3,630 – 6,600 1,820
16-18 3,950 3,630 – 6,600 2,660
19-24 4,500 3,630 – 6,600 3,725

If you have suffered soft tissue damage or have been affected psychologically following a road traffic accident through no fault of your own, you can understand the need people will have to get justice. The reform is just making it harder for people to get the compensation they deserve. As you can see from the above table, there is a major change in the amount you are able to claim dependant on the length of time you have suffered your injury.

The Ministry of Justice have also stated that the judiciary will have the power to reduce a tariff award in instances of contributory negligence and they will also be able to increase a tariff award by up to 20% in the event of exceptional circumstances. They will have discretion to determine what counts as exceptional circumstances to allow the uplift.

This reform will also have an effect on people who try to claim compensation themselves, as it has been seen that layman have found it hard to obtain medical evidence, as most medical agencies are not open for direct access to the public. People will then have no choice but have to go to solicitors no matter how small their injury is or how straightforward their matter is. Claims that will be brought forward by individuals and not solicitors are clearly unfair for individuals, as there is a grave difference in the Defendant insurer’s position and understanding of the law and the individual Claimant. Insurance companies have expert knowledge of the claim process whereas a Claimant will not as it may be their first claim for which they are seeking compensation for. Therefore, this could have an adverse affect on the Claimants, as their claim will be dominated by the insurance company and insurance companies will want to pay the lowest amount possible.

Benefits of the reforms

If we look at the benefits of the reform, would we be persuaded that this reform will be for the best? The aim is to reduce fraudulent claims, which has an affect on the premium of drivers. The reform will mean motorists will be able to save around £35 on their motor premiums. Throughout the years, the number of fraudulent claims is on a rise as courts are cracking down by giving people who make fraudulent claims sentences which could include imprisonment. There is a recent case whereby a husband and wife have been found guilty of contempt of court; a link is attached for full details of their case http://tgchambers.com/news-and-resources/news/husband-wife-guilty-contempt-court/.

Solicitors will also be banned from making, soliciting, and accepting an offer of settlement without first having obtained medical evidence in support of the injury their client has suffered. At MTG Solicitors, we have a firm policy to not accept offers being made without obtaining medical evidence and do advise our clients against it as the valuation of a personal injury claim is determined through obtaining medical evidence, which is the client’s evidence of their accident. So this is a positive step which the reform will be taking.

Conclusion

Now that both the positives and negatives of the reform have been highlighted, it is clear that the negative outweighs the positives, as the reform will mean that people who have suffered an injury through no fault of their own will not be able to obtain the compensation they deserve. This may also hinder people to reach out get compensation, under the belief that their injury falls under the tariff. This will also have an effect on people who try to claim compensation themselves. There should be further checks and thought put into this reform, as individuals will suffer greatly.

We can help you

Should you wish to discuss your personal injury matter in more detail, please do not hesitate to get in touch.

This blog has been prepared by Amrit Kaur Matharoo, a Trainee Solicitor at MTG Solicitors, on 16th April 2018.

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Law

Homelessness Reduction Act 2017

The Homelessness Reduction Act (HRA) 2017 came in to effect last week on 3rd April 2018 with the force of a galactic scaled Easter egg filled with the Government’s hopes of solving the housing crisis. Bob Blackman MP for Harrow East, who introduced the bill, envisaged it would be “a comprehensive change to the law which will shift the emphasis firmly towards preventing homelessness from ever occurring in the first place” (https://bit.ly/2qfjtRt), no big deal then.

With the new Act comes a vacant landscape devoid of any case law concerning the new duties for housing law practitioners to advise their clients from but also the exciting prospect of a blank slate.

The headline grabbing changes are an increase in the period of time local authorities must treat applicants as threatened with homelessness and a complimentary plethora of potential new duties that local authorities could owe applicants.

Threatened with Homelessness: Expanded Definition

Applicants will now be considered threatened with homelessness up to 56 days before they are actually made homeless as opposed to 28 days under the old law. This time period can even be longer in some cases, where a s.21 Notice has been served. This is intended to get Councils involved and to help potentially homeless applicant(s) much sooner than in the past rather than being told to return for help after a Possession Order has been issued. This is positive news and should go some way to avoiding people becoming homeless and on the street.

What are Councils going to be doing now that they have to take homeless applications from people much sooner? Well, local authorities have new duties that could be triggered in the life cycle of an application which entitle applicants to receive new forms of help and assistance. We have a new prevention duty and a relief duty as well as a number of lesser changes. I will not be going in to the lesser changes here except to say that although they are not as ground breaking as the brand new duties discussed below they will give rise to subtle new considerations that we might discuss in a future blog post.

The Prevention Duty

The Prevention Duty is where local authorities must take reasonable steps to help applicants (who it is satisfied are eligible and threatened with homelessness) to secure that accommodation does not cease to become available. This means that local authorities will now have to actively take steps to prevent applicants from losing their existing accommodation. This duty is obviously only meaningfully available to those who have not already lost their accommodation and the duty comes to end if the applicant is able to stay in their existing accommodation.

The duty can also come to an end if the applicant rejects an offer of suitable accommodation or in a number of other prescribed ways so applicants should stay wary of rejecting offers and seek legal advice if they are inclined to reject any offer of accommodation.

The Relief Duty

The Relief Duty applies to those applicants who are eligible and already homeless unless the applicant is referred to another authority. The Relief Duty requires local authorities to take reasonable steps to help applicants to secure suitable accommodation becomes available for their occupation for at least 6 months. This duty lasts for 56 days from the local authority being approached and can also be brought to an end in a variety of ways.

We will be keeping a close eye on how these new duties are applied and develop. As always, we will endeavour to ensure that our client’s needs are being met and local authorities are held to account if they fall short of fulfilling their duties.

This blog has been prepared by Sayim Rezvi, a Paralegal at MTG Solicitors, on 9th April 2018.