The News Page

Watch this space for the latest news, developments and hostile machinations! You can also send us your news and views via the Contact form provided. Nothing will be published here without your express permission.

The content of this page is cumulative; therefore you should go to the pagefoot for latest additions.

Not a news item in itself but an apposite quote from A Christmas Carol by Charles Dickens; he had it about right when he wrote:

In almshouse, hospital, and jail, in misery’s every refuge, where vain man in his little brief authority had not made fast the door and barred the Spirit (of Christmas Present) out, he left his blessing, and taught Scrooge his precepts.”

Quite. And, to quote something that has become a bit of a mantra: “…the world of charity is essentially private…” (Rix LJ, Weaver v London & Quadrant Housing, CA, 2009). Maybe; but by reason that in matters of housing, an almshouse resident disensconced on whatever ground would almost certainly become a charge on the state, for that reason alone, the proceedings of trustees should be subject to judicial scrutiny, would you not agree? Here’s yet another dispute that’s crept out of the woodwork:

http://www.justanswer.com/uk-property-law/52hqq-alms-house-run-trust-trust.html

We hung on to our three quid but would hope that, after asking all the wrong questions, ‘UK-Justice’ finally got round to telling this almshouse resident that he/she was probably on a bummer. The first question we would have asked would have been whether the landlord was an RSL.

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MARCH 2012: Our website has hardly been up’n’running for five minutes (and we haven’t SEO’d it yet!) before two further cases came rushing out of the woodwork. For as long as an almshouse license remains a license to intimidate we cannot disclose full details, but: The first case hinted at intimidation by both staff and trustees. We further gather that the trustees are seeking to impose new conditions on established residents. The second case hinged principally upon delapidations and the significant costs incurred by residents arising from the trustees’ failure to deal properly with those delapidations. We’ve included these latest additions on the Disputes page. We’ll keep you posted.

LATEST, MARCH 31st 2012: Courtesy of the UK Human Rights Blog written by members of 1 Crown Office Row barristers’ chambers, we have a report of a case, Reynolds v United Kingdom [2012] ECHR 437, March 2012, in the European Court of Human Rights. We think this case could indicate a significant amelioration of the almshouse resident’s predicament at law. It involved a fatality but, given some shift of legal axes, it should readily translate to housing law. In Reynolds v UK  two barristers, experienced in clinical negligence, human rights cases and Inquest law, had advised the applicant that an appeal from a decision at county court level had no realistic prospect of success. One of these opinions was submitted to the Legal Services Commission which withdrew legal aid in August 2007. Labouring against these daunting adversities the applicant persisted and eventually succeeded! The report, which links to the judgement and includes our comment, can be found at:

http://ukhumanrightsblog.com/2012/03/30/from-county-court-strike-out-to-strasbourg-success/comment-page-1/#comment-10619

What you read there should be considered in conjunction with the arguments made on our Human Rights page and elsewhere on our website. The significance of Reynolds v UK could mean that an almshouse resident’s challenge to a Possession Order can no longer be arbitrarily struck out in the county court. There’s more. A hypothetical almshouse resident’s case conjoining Articles 6, 8, Protocol 1, Article 1 and Article 13, provided of course it otherwise has perceptible merit, should now, in the light of Reynolds v UK, circumvent rule 3.4 in the county court and thereafter leapfrog the decidely sticky domestic law impediments to justice and be fast-tracked to the European Court! It should be remembered that the applicant (in actuality her successor) did not come away from the ECtHR totally recompensed. She was decidedly short-changed on costs and damages, being only awarded approximately 0.42 of the total claimed. It is not clear how the shortfall was funded; legal aid, pro bono or personal resources. Of course the primary issue for us would be the roof over the applicant’s head, compensation a secondary issue. It should also be remembered that the timescale was of the order of five years – but this was a ground-breaking case and the lead time should significantly shorten should it become necessary to initiate later cases on similar premises. What is more likely to be the outcome is that the example of Reynolds v UK and the prospect of defending a case modelled upon it should stay the hand of the intemperate trustee well short of the courtroom door. Accordingly, we would advise a beleaguered resident to instruct a solicitor and uninhibitedly point him/her in the direction of our website for the requisite foreknowledge. They’ll probably feel a bit miffed at your presumption but it might shave costs somewhat. The legal aid position is not clear as we write but with Reynolds v UK as a precedent we feel that an Article 13 challenge in and from the county court would be publicly funded.

UPDATE: Hopton’s Almshouses, Southwark It seems that in September last year Lord Shipley tabled an amendment to the Localism Bill which would have given almshouse licensees a say in any proposed transfer of the roofs over their heads. However the amendment was withdrawn after the Government ‘promised to continue to work to resolve the issue’. Earl Attlee, replying for the Government, closed the issue by saying: “I fully understand the reasoning behind the proposed amendment [but] we are concerned that the amendment seems to require an increase in bureaucracy and potential state interference in the proper exercise of charity trustees’ discretion.” Where have we heard that stuff before? Mind you, they had discussed it with, among others, the Charity Commission and the Almshouse Association. Little wonder therefore it was kicked into the long grass. Had the amendment gone through it would have given almshouse residents limited recourse to natural justice on the narrow issue of property transfers. It would not however have solved the more toxic and ongoing problem of the intimidation of residents by cavalier trustees. Our advice would have been that the residents should have opted for whichever landlord was an RSL and therefore the more constrained by Human Rights. We hope they made the right decision. Resident Alison Holsgrove reversed her previous misgivings with the following words: “I feel that the fear and trepidation have been lifted. I look forward to sunshine and roses.” Not yet Alison we fear. The battle is not yet won. It was purely the light of publicity that got a result on this occasion. Almshouse residents remain victims of an atavistic relegation. We still have no day in court. The fight goes on.

As of May 22nd 2012 we’ve tweaked the Wikipedia article on almshouses (look it up), introducing a necessary degree of verisimilitude to the matter of tenure. We’ve also added a link to this website. All in the hope that it might dissuade an aspiring resident from signing one of those inveigling ‘letters of appointment’ in ignorance of the dire implications of so doing.

On June 15th 2012 we augmented our arguments in the ‘Flawed Judgement’ page, particularly with regard to the statutory provision that an almshouse tenant (sic) should not be evicted without suitable alternative accommodation being made available. It might make the page somewhat unwieldly but the point is critical to our predicament post Gray v Taylor.

On July 7th 2012 we further augmented our above arguments in respect of the housing benefit rules as misinterpreted by Sir John Vinelott.

Monday 6th August: our first hyperlink has been broken – and on our home page too. Not that we’re overly bothered; the target document was merely confirmatory of our position – and we have a copy in our archive anyway. We doubt this will be the last link to go down when some used to hunting with the hounds find themselves running with the hare. Watch this space…

31st August 2012:  new squatting law should not criminalize almshouse evictees. Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 creates a new offence of squatting in a residential building, which will apply throughout England and Wales. It comes into force at midnight tonight. The implications for almshouse licensees are as follows: notwithstanding your license to occupy has been revoked, no criminality will ensue if you remain in the property. Even if you re-enter the property, as long as you have had an arrangement to occupy (in our case, a license) you can only be touched by the civil law. As we know to our cost, trustees can throw us out with impunity (it’s a rubber stamp process in the county court) but the police will only become involved if a breach of the peace seems imminent when the bailiffs arrive to enforce the eviction order. The following link gives the full information on the new law:

http://www.justice.gov.uk/downloads/legislation/bills-acts/circulars/squatting-circular.pdf

Again, as we know to our cost, since 1998 trustees no longer have to find ‘suitable alternative accommodation’ for their evictees and this can mean you having to look for a place to squat in. In which case, if you wish to avoid being criminalised make sure your target property is not a house or flat. Make for such as a derelict shop, office or warehouse. Human rights? Other squatters may have them but because Article 13 (the right to have your issue tried before an independent tribunal) was never written into the UK Human Rights Act you don’t have any.

September 19, 2012: this website sets out our arguments against the licensor/licensee nexus in favour of that of landlord & tenant; in particular the point that Schedule 1, s.12 (Almshouses) of the Housing Act 1985 predates and negates the presumptuous judgment in Gray v Taylor and why authority should act to lift the legalistic fatwa inherent in that judgment. Since floating the website the legalistic ground has shifted somewhat, not necessarily to the advantage of vexatious trustees. Notwithstanding everything is still ‘up in the air’, recent developments are conspiring to curb the excesses of such trustees and possibly making them think twice before acting precipitously. We have had the example of Reynolds v United Kingdom [2012] ECHR 437, (commented on above) casting doubt on the arbitrary powers of the county court; and now we have taken under consideration DL v A Local Authority & Others [2012] EWCA Civ 253. The latter case touches upon the concept of the parens patriae (“parent of the nation”) jurisdiction of the High Court. In this connection it might so be that almshouse residents don’t have to be mentally incapacated to merit the protection of the High Court (albeit it might help!). We refer to the judgment in DL v A Local Authority & Others [2012] EWCA Civ 253 wherein it was maintained that this parens patriae jurisdiction of the High Court held good in relation to vulnerable albeit mentally capacitous adults. In particular, that this supervening jurisdiction is not interdicted by such as the Mental Capacity Act 2005. The judgment cited Re: SA (Vulnerable adult with capacity: marriage) [2005] EWHC 2942 (Fam) in which Munby J postulated as follows:

[Parens patriae] can be invoked wherever a vulnerable adult is, or is reasonably believed to be, for some reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent. The cause may be, but is not for this purpose limited to, mental disorder or mental illness. A vulnerable adult who does not suffer from any kind of mental incapacity may nonetheless be entitled to the protection of the inherent jurisdiction if he is, or is reasonably believed to be, incapacitated from making the relevant decision by reason of such things as constraint, coercion, undue influence or other vitiating factors.

The principal operative word in our case being ‘coercion’. Of course we can hardly fail to reiterate that the High Court famously abnegated its parens patriae duty when its appeal process formulated the adverse judgment in Gray v Taylor and cast us into the legal limbo in which we currently languish. But then experience has shown that inconsistency has long been a failing of the English legal system. Its ultimate failing crystallises when in those in current authority fail to act to remove such inconsistencies. In terms of Human Rights it was also held that the use of parens patriae in this context is compatible with Article 8 (the right to respect for one’s private and family life, home and correspondence) in just the same manner as the Mental Capacity Act 2005 is held to be compatible. In both instances any orders made by the European court in a particular case must be only those which are necessary and proportionate to the facts of that case. Reassuringly it was also asserted that “it is… of the essence of humanity that adults are entitled to be eccentric, entitled to be unorthodox, entitled to be obstinate, entitled to be irrational. Many are”. There is an inferred obligation to exhaust the domestic jurisdiction’s non-judicial remedies before petitioning the European court (ombudsmen and that sort of thing). In our case surely it cannot seriously be suggested that we should go down the fruitless route of invoking the Charity Commission’s ‘visitatorial powers’. As we have well demonstrated on this website, ex Parte Baldwin has scotched that! The cumulative effect of these later judgments is to conflate and compound the current almshouse licensor/licensee nexus. Whatever else, one conclusion that is inescapable is that the current nexus is becoming a legal minefield for the all parties. For that reason alone the iniquitous licensor/licensee nexus cries out to be rationalised to that of landlord & tenant.

25 September 2012  “In a quaint caravan there’s a lady they call the gypsy…” ♫ Where’s this one going, we hear you say. Well, it transpires that there are licenses and then again there are licenses. First class licenses for gypsies and second class licenses for almshouse residents. Gypsies get access to the European court whereas almshouse residents remain outlawed. For this alleviation gypsies have to thank, variously, the Caravan Sites Act 1968, the Housing Act 2004 and the Mobile Homes Act 1983. The lady in question is Mrs Buckland in the case of Buckland v The United Kingdom (Application no. 40060/08), 2012 in the ECtHR. She complained under Article 8 of the Convention that the Court of Appeal’s decision to uphold a possession order constituted an unjustified breach of her right to respect for her home and her family life. She also complained that the making of the possession order constituted a violation of her rights under Article 14. Article 14 provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

http://www.bailii.org/eu/cases/ECHR/2012/1710.html

According to the judgement, on 18 January 2005 amendments to section 4 of the Caravan Sites Act 1968 came into force which introduced the possibility for possession orders to be suspended by a court on the application of the occupier for up to twelve months at a time. Even better, section 2(1) and paragraph 4 of Schedule 1 to the Mobile Homes Act provide that the owner of a relevant site is entitled to terminate a licence only if (i) he satisfies the court that the occupier has breached a term of the licence agreement and has failed to comply with a notice to remedy the breach; and (ii) the court considers it reasonable for the agreement to be terminated. Thus are gypsies  brought within the protection of the domestic courts and, failing that, unimpeded access to the European court to resolve disputes. Almshouse residents on the other hand are left languishing in their legalistic lacuna where at best the function of courts is ‘purely mechanistic’ – in other words, they simply rubber-stamp orders for possession. In the present case the complaints were consolidated and upheld by the court. Perhaps mercenary trustees should be advised to determine whether applicants for almshouses have gypsy blood in their veins before confirming appointments. Perhaps applicants, for their part, should conceal any such, against some future contingency. We regard these iniquitous anomalies as yet another complication heaped onto the ramifications of Gray v Taylor. In the interests of all parties the licensor/licensee nexus yet again cries out to be rationalised to that of landlord/tenant. On a related matter: notwithstanding our arguments elsewhere against the doctrine that ‘the world of charity is essentially private’, if officialdom via the courts is to assume that almshouse rent (‘service charge’ or whatever else trustees may care to call it) is universally reimbursed via housing benefit (which in fact is not the case!), it follows that almshouse charities are rendered private entities in receipt of public funds (see Judge De Gaetano’s digression). This factor should automatically bring almshouse residents under the protection of the ECtHR. Or are we playing both ends against the middle here?

October 13th 2012: New Housing Minister: Now that the conference season has come to an end and MPs are back in their parliamentary benches, it is time to revivify our campaign in the corridors of power. We have a new housing minister in the form of Mark Prisk, former minister for business and enterprise. A chartered surveyor by profession, he has a background in property and economic development. In 2001 he was elected MP for Hertford and Stortford. Let us hope he is less impervious than his predecessor to our ineluctable logic and arguments; namely that ‘current arrangements’ (see our BRE page) are inevitably suppressing all evidence of disputes; and that charity law, as currently constituted, is relegating some 36,000 UK residents to the status of third class citizens in that it excludes them from the protection of both domestic law and human rights. Watch this space.

Quite. As of October 2013 junior minister Kris Hopkins will replace Mark Prisk with the housing brief. We comment further below.

November 2012: A statue at Sir William Turner’s almshouses (founded 1676) at Kirkleatham near Redcar,Yorkshire has recently been returned to the site after refurbishment. Its theme? JUSTITIA. How ironic, would you not agree. Let’s hope (we speak generally) the concept is soon to follow the artefact; don’t hold your breath. Mind you, the charity is a Registered Social Landlord which is half the battle.

January 2013 –  HOUSING BENEFIT: It has been brought to our notice that some almshouse residents have been short-changed on Housing Benefit. Succinctly, all qualifiedly impecunious almshouse residents are eligible for Housing Benefit and Council Tax Benefit. Although, strictly speaking, the issue is beyond our remit (that of returning almshouse residents to the protection of the courts re tenure) we shall shortly be publishing a new page dedicated to this issue of Housing Benefit. Update February 1st 2013 – the page is now up’n’running.

THE COMMISSION ON A PROPOSED BILL OF RIGHTS: this process seems to have run its course, the outcome being equivocal for our interests. We will be augmenting the relevant page with our assessment shortly.

The Almshouse Residents Action Group is rapidly becoming an ‘agony aunt’ for aggrieved almshouse licensees (no surprises there). Here’s a sample of the latest ‘incoming’ (January 18th 2013):-

“I stumbled across your website – with great joy – when searching for anything about the duties and responsibilities of trustees. I’m in the ___ year of residence at [almshouse charity]  in [location], and for many of them have been raising (usually fruitlessly) issues of concern with the Chairman of the Trustees (when available) and the [two officials]; the latter has input to the former but little influence. During the years I’ve been here many changes have been made, with no consultation or consideration of the effects on residents. We are treated in a cavalier and patronising fashion. Unfortunately there is no support from other residents, who complain vociferously behind closed doors but either are too nervous about the consequences of speaking out, or lacking in gumption. Reading the information on your website has encouraged me and I will be approaching my MP, who is very hands-on and particularly sympathetic to housing issues. If I’d known __ years ago what I do now about almshouses (well, some of them anyway) I’d have run a mile in spite of being imminently homeless! Good luck and more power to all of our elbows.”

Quite. We advise as best we can, subject to our legal reservations. We have other ‘incomings’ which show that our case apropos intimidation is well made. When we have advised these correspondents we shall publish their cases – meticulously anonymised of course – on this News page. We’ll shortly be making representations to the new housing minister.

This is proving to be a moving target, viz.: 8th October 2013 “A spokesperson for the Communities and Local Government department has confirmed today that Kris Hopkins will replace Mark Prisk with the housing brief.

As noted elsewhere on this website, a predecessor Grant Shapps was complacently satisfied that “current arrangements were working well” – as indeed they will do for trustees when all beneficiaries are silenced by the intimidation inherent in those arrangements! Notwithstanding the problem is nation-wide, your local MP will consider him/herself constrained by constituency boundaries. Consequently it is imperative that all almshouse residents – whether in current dispute or not – petition their local MP if we are to sap the ivory tower that the trustee body has become since Gray v Taylor. You can use the draft letter on our Petition Your MP page.

February 27th 2013: this website is under constant revision. We have recently augmented the following pages: A Flawed Judgment and Petition Your MP, which see. 11th March 2013. Yet more plaintive incoming.We quote: “I have informed the trust of the problems and one of the trustees called and bullied and belittled me.” Yes folks, it’s yet another example of how trustees carry on when they know they don’t have to make a case. We are supporting our correspondent as best we can and will publish more detail in due course. Suffice to say it involves delapidations and if you read our ‘Outlawed Again’ page you will get the broad picture.

20th March 2013 update. (1) We now learn of a purporting almshouse charity that has let trust property on an Assured Shorthold Tenancy basis – a case of out of the frying pan and into the fire for anybody who is qualifiedly an almsperson. (2) Another purporting almshouse charity  is proposing to charge licensees a market rent for their homes, thus extinguishing any discernible charitable input! It is a truism to say that an almshouse divested of alms can no longer be an almshouse.

27th March: now we have another decidedly intimidatory outfit harassing two of its beneficiaries; trusty trustees frightening little old ladies with spurious and defamatory ‘formal written warnings’. Clearly we need to publish a new page on this topic. We’re working on it – go to Formal Written Warnings.

20th May 2013: Housing Benefit. We are pleased to report that one of our correspondents has successfully pursued a claim for Housing Benefit in accordance with our advisories and has inspired five other almshouse residents to pursue similar claims. These go back as far as 18 years and collectively amount to some £26,000.

15th July 2013: Malik v Fassenfelt and others [2013] EWCA Civ 798. A BREAK-THROUGH EGAD! Hitherto we have had to rely on public caselaw such as Manchester City Council v Pinnock [2011] UKSC 6, [2011] 2 A.C. 104 and Hounslow LBC v Powell  [2011] 2 A.C. 186. These were actions against public bodies and Human Rights were thereby automatically engaged. We could only infer Human Rights between private parties and as we know to our cost “the world of charity is essentially private” (Rix LJ in Weaver v London & Quadrant Housing, CA, 2009). Now we have this case between two private parties wherein the court considered itself bound by Human Rights. We can therefore cite it as an ameliorating precedent. We ‘lost’ by proxy but this was due to the peculiar circumstances of the case and on the residual issue of proportionality the precedent would be in our favour. The ivory tower of trustee infallibility is thus further and irrevocably sapped!

August 10th  2013: now we have yet another venerable charity coercing or inveigling its almshouse licensees into signing Assured Shorthold Tenancy agreements (AST’s) along with extinguishing all charitable input. It is a truism to say that an almshouse divested of alms can no longer be an almshouse. The AST is a bum deal because it contains the ready seeds of its own demise and expressly abnegates the protection of the court whereas the almshouse license, at least impliedly, endures for the natural life of the licensee (albeit absent incapacitance or allegations of delinquency). In other words, the AST is out of the frying pan and into the fire for the almshouse resident. We’ll comment further on this case as it develops.

December 2013: it became apparent during the year that some almshouse charities giving rise to issues may have been influenced by the fact that they are in financial difficulties. So, if circumstances really do compel you towards accepting an almshouse license at least make sure that your intended licensor is at least healthy in terms of funding finance.

Our March 2014 Initiative

We’ve opened a new page. It is significant to our case. We recommend you read it. It ought to be the final nail in the coffin of Gray v Taylor. Here’s the link.

And now we have Manchester Ship Canal Developments v Persons Unknown [2014] EWHC 645 (Ch). The High Court has ruled that Convention rights may be engaged in disputes between private landowners and trespassers, thereby making it incumbent on the court under Section 6 of the Human Rights Act to balance the trespassers’ rights under Article 8 against the landowner’s rights under Article 1 Protocol 1. The obiter dictum of HHJ Pelling at para.46 is highly germane to issues between private landlords and ‘trespassers’. In some hypothetical context that term would undoubtedly encompass almshouse residents. Malik v Fassenfelt considered (and reinforced!). Another nail in the coffin of Gray v Taylor.

June 2014. On the ‘Flawed Judgement’ page we wax rather expansively on the landmark criminal case of R v Hussey [1924], our point being that he who would be deemed a lodger today was deemed a tenant in 1924 and that on the ground that the greater (exclusive occupation) includes the lesser (shared with landlord), this would apply to almshouse residents prior to Gray v Taylor. Succinctly, it furnishes the almshouse resident carte blanche to shoot the bailiffs!

On the Human Rights page we’ve added a significant item headed FACTORTAME. It’s about a rather prolonged lawsuit that compromises the integrity of the Human Rights Act itself. It seems to give back almshouse residents their day in court. Check it out…

November 1st 2014: We are now able to cite the text of a letter dated 24 September from Brandon Lewis MP, Minister of State for Housing and Planning at the Department for Communities and Local Government, addressed to the member of parliament of one of our correspondents:-

QUOTE/ Thank you for your further letter of 6 August to the Department enclosing one from your constituent …, which also enclosed a copy of a letter from the Almshouse Residents Action Group to UN Special Rapporteur on adequate housing about the status of residents of Almshouses.

My officials have now had helpful discussions with the Charity Commission and the National Almshouse Association and are currently exploring possible options for resolving the issues raised by [your constituent] in his/her correspondence. /UNQUOTE

Given the ineluctability of our argument re the UN criteria for the adequacy of any system of housing, the only possible ‘option’ that would return the UK to a state of grace would be the restoration of defensible tenancies for almshouse occupants. However, given the propensity for prevarication on the part of HMG it remains to be seen how ‘helpful’ these discussions will prove to be.

As it is, we are waiting for our correspondent to advise us; we do not consider it would be fruitful at this stage for us to approach the Minister direct. We are however in direct communication with the UN Special Rapporteur on adequate housing seeking an assurance that HMG is to be taxed with the issue of almshouse tenure on her next visit to the United Kingdom or is to be called to account by way of correspondence in early course. We’ll keep you advised.

January 5th 2015: Happy New Year! We’ve learned of a possible eviction somewhere in the Midlands but have no details as we write. We have another case developing which we are monitoring closely and will post further information as it arises, subject of course to confidentialities.

June 2015: Here’s a funny thing. An outfit calling itself One Housing Group is intending to ‘decant’ its tenants in order to ‘develop’ its real estate in burgeoning Islington. As a precursor to this evolution it aspired to transmute the residents from tenants to licensees by means of a less than ingenious ruse.  As the reporter wryly observes:

The reason the communes’ members pay “tuppence” is because in 2009 a previous incarnation of OHG froze their rent, refusing to recognise those living in the properties as tenants in an attempt to force them out.

Instant almshouses! Welcome to the concomitant insecurity…

So, wherever you are, if you’re in social housing and your landlord freezes your rent look out! He’s not an aspiring benefactor; just a property developer with an eye to the not so distant future. Here’s the link:

http://www.theguardian.com/society/2015/jun/06/commune-members-face-eviction?CMP=new_1194&CMP

Does OHG – in any incarnation – realise that the ruse it reached for rendered itself a purveyor of inadequate housing?

14th July 2015: A FURTHER BREAKTHROUGH EGAD!

We’ve recently argued that, irrespective of the human rights accruing under the European Convention, we have rights deriving from the historical – and historic – United Nations Convention. It’s now nice to see the UK Supreme Court agreeing with us. Apparently the key is discrimination.

The relevant case is Cameron Mathieson, a deceased child (by his father Craig Mathieson) (Appellant) v Secretary of State for Work and Pensions (Respondent) Trinity Term [2015] UKSC 47. On appeal from: [2014] EWCA Civ 286.

Succinctly, this case reaches beyond the remit of the European Convention on Human Rights and the later Treaty on the Working of the European Union, in that it gathers in those historic rights accruing to us under the United Nations Conventions. As such, it reinforces the Group’s position as stated in the closing paragraphs of our Polemic (see “Our March 2014 Initiative”).

Cameron Mathieson was born on 19 June 2007 and sadly passed away on 12 October 2012. He was diagnosed with cystic fibrosis and Duchenne muscular dystrophy soon after he was born, and his parents went to great lengths to meet his exceptional and complex care needs during his short life. The principal issue was the state benefit known as Disability Living Allowance (“DLA”). Upon his being hospitalized in July 2010 his DLA was stopped on the assumption that his commensurate care needs would now be met by the NHS in hospital rather than by the attentions of his dedicated parents in the home.

However, due to the progressive falling away of NHS care capability, this assumption no longer holds good. Instead his care needs ended up being provided by his dedicated parents in contingency attendance at the hospital. This burdened them with greater expense than hitherto. Among other things they now had to contend with travelling expenses, for the hospital is some 25 miles away from home.

Cameron’s father argued accordingly, citing among other things discrimination as per Article 14 of the European Convention on Human Rights This Article reads as follows:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status.”

After having been rebuffed in the lower tribunals and courts, Cameron’s father took his case to the UK Supreme Court where he invoked the Human Rights Act and adduced “…other status”.

Now here’s a link for you:

http://rightsinfo.org/how-we-used-the-human-rights-act-to-win-for-disabled-children-everywhere/

The writer of the destination article is Stephen Broach who is a barrister at Moncton Chambers and whom we quote verbatim:-

“The Human Rights Act was vital to the success in the Supreme Court in Mathieson. Not only does it bring the prohibition on discrimination in Article 14 ECHR into English law, it also provided the gateway for the court to consider the other relevant human rights treaties – the UN disability and children’s conventions. By contrast to the lower courts these treaties were central to the approach of Lord Wilson, who gave the leading judgment in the Supreme Court. This is a further sign that the rights contained in the wider human rights treaties are now being taken seriously by the highest court.”

He goes on to say “…that the rights contained in the UN conventions can be made real when read through the lens of the Human Rights Act.”

Quite. If we stretch the judgment somewhat and shift the axis away from childcare and towards elderly persons in almshouses, we can adduce “association with property” as per the aforesaid Article 14.

To quote the corresponding Press Summary: “[t]his conclusion is in harmony with the rights afforded to Cameron under international law by the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities.”

Again quite. In our case we can paraphrase the above paragraph as follows: [t]his conclusion is in harmony with the rights afforded to almshouse residents under international law by the UN International Covenant on Economic, Social and Cultural Rights; specifically the right to adequate housing.

The aforesaid Covenant is a multilateral treaty adopted by the United Nations General Assembly and which the UK government ratified on 20 May 1976. Article 11 (1) of the Covenant, section 8(a) thereof, which addresses the right to adequate housing, reads in part as follows:

Legal security of tenure. …Notwithstanding the type of tenure, all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats. States parties should consequently take immediate measures aimed at conferring legal security of tenure upon those persons and households currently lacking such protection, in genuine consultation with affected persons and groups. (the wording of General Comment 4 deriving from the 6th Session 1991.)

It follows therefore that, for the time being, under the UN criteria all almshouse charities in England and Wales are purveyors of inadequate housing. We cannot conclude other than that the remedy resides within the judgment in Mathieson which, mutatis mutandis, appears to supersede and strike down the judgment in Gray v Taylor. Mathieson allied with Reynolds v United Kingdom [2012] ECHR 437 (see earlier on this page) should now be enough to see off Gray v Taylor and in addition, render the statutory deficit of Article 13 (right to an effective legal remedy) thankfully redundant.

We would further opine that, if the currently imperilled Human Rights Act was to succumb to the machinations of the present government, the longstop UN protections would endure, either by default or via any prospective Bill of Rights.

August 3rd 2015: it get’s better! Now R v The Charity Commissioners for England & Wales ex parte Baldwin falls from grace!

https://dub125.mail.live.com/?tid=cmU7GgCNQ35RGa49idZ18lnA2&fid=flinbox

What’s Irish horse racing got to do with English almshouse charities? If we may quote the analytical comment of the UK Human Rights Blog:

“O’Connell & another v the Turf Club [2015] IESC 57 – This recent judgment of the Irish Supreme Court addressed the issue of whether the decisions of a sport’s organising body should be amenable to judicial review. This is an issue of some vintage and vexation in this (that is to say the English) jurisdiction’s legal debate that provides a useful backdrop against which to ask what exactly it is that makes a decision-making duty or power ‘public’.”

The judgment intimated that, on balance, the regulatory body (the Turf Club) was indeed amenable. However, the philosophy in related English cases had gone against this. That is, until R v Panel on Take-overs and Mergers, ex parte Datafin [1987] Q.B. 815. If we may further quote (and considerably condense) the UK Human Rights Blog:

“…the Court of Appeal held that the body which administers the City Code is amenable to judicial review, in spite of its being a privately organised self-regulatory body that originated independently of central government. This was as a result of (among other things): [i]ndications in the case law that the source of a power is not the only relevant factor in determining whether it is public; regard must be had also to the nature of the function in question (Lloyd LJ at 847).”

In ex parte Baldwin it was determined that a decision of the Charity Commissioners not to intervene in an almshouse eviction process was not amenable to judicial review. It is our view that this determination can no longer endure in the light of Datafin. A material feature of both cases was absence of contract. Otherwise, the nature of the respective functions of the Charity Commissioners and the bodies they presume to regulate – in our case the providers of (inadequate) housing – are, having regard to the gravitas of those functions, sufficiently analogous to the nature of the functions of the body that administers the City Code, that they now fall within the orbit of judicial review. That is, unless our justiciary elects to be schizoid!

January 2016: At last! A relevant Barrister’s Opinion!

Originally published in The Conveyancer & Property Lawyer some time ago, it has since become available via City Research Online. You can download it via Foxit Reader from the site. The URL is http://openaccess.city.ac.uk/6643/ (paste it into your search box). Don’t forget to observe any copyright advisories.

Three things to note: (1) we haven’t fully digested it yet (it runs to 18 pages!); and (2) it hasn’t been tested in court because the cause of action was overtaken by events (the lady moved out!); and (3) it might be somewhat out of date.

We’ll be reverting to this item when time allows.

Right to Buy?

March 2016: There has been some ‘static’ on ‘right to buy’ apropos almshouses. In our considered opinion any such aspiration fails on two counts. Firstly, it is self evident that RTB would progressively erode an almshouse estate to the extent that the will of the historical benefactor(s) would be frustrated and the trustees are mandated to protect that will. Secondly, it would also be self evident that a person occupying an almshouse who evidenced that he/she had become able to buy it, would, in prior consideration, have become disqualified as an almsperson and liable to summary eviction therefor. The statutory proviso regarding “suitable alternative accommodation” would be a non sequitur by reason of the occupant’s new-found wealth.

December 2016: now we have to contend with Watts v Stewart in the court of appeal, December 2016. Janet Watts apparently contested a possession order at Guildford County Court in May sought by Ashtead United Charity on grounds of her anti-social behaviour.

This was presumably a ‘test case’, otherwise, why could it not expeditiously have been disposed of in the lower court? Given the accumulated evidence of the appellant’s palpable delinquency, her counsel was attempting to defend the indefensible! The resulting judgement is merely a re-run of Gray v Taylor with the latter-day issue of human rights thrown in apparently for determination. Do we detect legalistic legerdemain? Round up the usual suspects …

March 2017. We’ve added a new page on this case, to which you are referred.

 

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