And the Polemics…

STOP CHARITY LANDLORDS FROM BULLYING DEFENCELESS PENSIONERS!

Polemic of the Almshouse Residents Action Group

On the licensor/licensee nexus of almshouse charities

March 2014

1. Some forty thousand elderly persons are at risk of bullying by the very people whose job it is to look after them. Those forty thousand elderly are the people who live in almshouses. So what’s an almshouse, we hear you ask…

2. There are some 1,700 estates of almshouses in England & Wales. If you’re an MP there’s probably one in your constituency. Almshouses can be described as private social housing and can be of ancient origin. They were endowed by rich benefactors to provide subsidised retirement housing for people of good character who’ve fallen upon hard times and who qualify by association with, variously, a particular locality, service, trade or profession. Since benefactors don’t live for ever, they will have handed over their bequest to a succession of trustees to run it for posterity. An almshouse trust is a registered charity.

So what’s the problem?

3. It all started with a judgement handed down by the court of appeal in 1998. The case was Gray v Taylor.[i] Gray and Others as trustees wished to evict Dorothy Taylor for alleged misconduct. A lower court had decided that Dorothy was not a tenant but a licensee. In other words just a lodger, outside the protection of the court and therefore evictable on a landlord’s whim. That was it – out she would go. She appealed on that specific. She lost.

4. She had started her case on a presumption that almshouse residents were tenants with a commensurate right of audience in court. Furthermore, parliament had provided that they could only be evicted if suitable alternative accommodation was available to them.[ii] The judgement presumes to oust both the right and that humane proviso. Since when, some trustee bodies find the case a ready stick to poke any aggrieved resident who has the audacity to make a complaint.

“Current arrangements”

5. The injurious effects of Gray v Taylor first came to our notice by way of an ‘idea’ put to the Cabinet Office under the auspices of the Better Regulation Executive [the BRE] website facility.[iii] It was by a beleaguered almshouse resident complaining of unwarranted intimidation by trustees and who petitioned accordingly for defensible tenancies. The government response amounted to a reiteration of the legal status quo as provided by the Charity Commissioners who had cited Gray v Taylor as the governing case law. The ‘idea’ was rejected on the grounds of (a) the adequacy of the consequent “current arrangements”, that is to say, the import of the Gray v Taylor judgement, and (b) the paucity of evidence to the contrary.

6. In April 2011 the then nascent Almshouse Residents Action Group took up the matter[iv], pointing out the legalistic anomalies and iniquities that flowed from the Gray v Taylor judgement and where they conflicted with human rights. Again the case for defensible tenancies was rejected on ground (b) above and a further ground that requiring the trustees of almshouse charities to grant tenancies could compromise their charitable purposes. The Protection from Eviction Act 1977 was cited as an ameliorating instrument for almshouse residents.

7. In August of the same year we weighed in again to the Cabinet Office,[v] deconstructing the response we got and pointing out (rather too forcefully for some sensitivities!) that, other than a 30-day stay of execution, the Protection from Eviction Act offered no protection at all to almshouse evictees. The essence of the Government response was that it had “no evidence that in the vast majority of cases current arrangements do not work well …” The BRE portal is now closed, so we must look elsewhere for remedy – hence this document.

The legalities

8. In fact, the core issue brought before the court in Gray v Taylor, that is, the alleged delinquency of Dorothy Taylor, was never actually tried; she became nonsuited by reason of the court designating her a mere licensee. As to any presumption that almshouse residents were tenants, we can find no evidence that trustees’ ‘charitable purposes’ were ever compromised thereby. Their lordships of appeal seem to have abated a ‘mischief’[6] which never existed in the first place and replaced it with a new ‘mischief’ that has poisoned the trustee/beneficiary nexus ever since.

9. The judgement also presumed to oust the mandatory stipulations of a United Nations Covenant! Of which more later…

10. The Gray v Taylor judgement relegated almshouse residents from objects of charity to objects of grace and favour, thus excluding them from the benign purpose and intent of the historical benefactor and subjugating them to the capricious will of the contemporaneous trustee, a situation clearly untenable in charity law. It also rendered them alieni juris (as infants or mentally incapacitous), dependent for relief upon the parens patriae function of the Attorney General. Succinctly, had this case been allowed to go to the Lords it might well have had a different outcome.

11. Legal academia was quick to distance itself from the Gray v Taylor judgement, opining that there was no doctrinal reason why charitable trusts could not offer secure tenancies.[7] In 2002 the Law Commission proposed as much.[8] In 2006 the Commission reiterated its 2002 proposal.[9]

Mediation services

12. As we know to our cost, almshouses are not immune to the vicissitudes of the normal Landlord & Tenant nexus. When disputes arise, such purporting mediating bodies as the Charity Commission and the Housing Ombudsman Service prove ineffective due to the constraints[10] under which they labour. As for the efficacy of relief via the Attorney General’s reference: this would be dependent upon the AG discerning some esoteric point of law and referring it to a tribunal created under the Charities Act 2011. We would readily trade this arcane and unreachable “remedy” for true equality of arms with our adversaries in the county court. Immediacy is paramount; it’s not easy to fight a rear-guard action from Cardboard City!

13. Paucity of evidence notwithstanding, we think we have adequately demonstrated above that the vaunted “current arrangements” are ill-founded.

The indictment

14. Since the inception of our website several almshouse charities have featured in published media in various circumstances adverse to the interests and/or concerns of their domiciliary beneficiaries. These are (1) The William Woodsend Memorial Homes/Nottingham Community Housing Association, (2) The Lady Margaret Hungerford Almshouses, Corsham, Wilts. (August 2010), (3) Anchor Trust re Hopton’s Almshouses in Bankside, London (July 2011), a case in which Lord Shipley concerned himself, vide Hansard, (4) The Lady Ann Morton Almshouses, Kidlington, (5) Jesus Hospital almshouses, Bray, a case in which Sir Michael Parkinson concerned himself, (6) Tring Charities, (7) The Queen Elizabeth Almshouses, Greenwich,(8) Leighton Buzzard Almshouses, (9) Law Memorial Houses, North Devon, (10) The Thomas White Cottages, Bromsgrove, (11) Coventry’s three estates of almshouses (“your money or your house…”). The relevant links are on our website.

15. The real sticking point is not the paucity of evidence but the paucity of evidence-gathering. It took the advent of our website to open the can of worms that is the entail of Gray v Taylor. Given the IT-averse predisposition of the average pensioner we have to make do with the evidence of those few who make it to our website. Since the Cabinet Office disturbingly abjured natural justice and went instead for the numbers game by adducing a “vast majority” of cases where “current arrangements work well”, by induction from the following examples we’re adducing a significant minority of cases where they don’t work at all well, viz.:

    • Elderly residents being coerced into counter-signing inventive and self-incriminating documents in the guise of ‘formal written warnings’ to be held in evidence against them in the event of future disputes. This intimidatory practice could engage the Protection from Harassment Act 1997 and the prevailing law of defamation.
    • Some trustees are seeking to inveigle beneficiaries into entering into Assured Shorthold Tenancies. These are commercial contracts which are quite unsuitable for retirees (the clue is in the word “shorthold”). We construe this inveiglement as a form of harassment.
    • Some almshouse charities have increased rent (‘service charge’ – howsoever they may choose to call it) to the point where accommodation is being provided at cost. To which we point out that an almshouse divested of alms can no longer be an almshouse.
    • Others seek to impose a professionally determined Equivalent Fair Rent. Here again, we point out that an almshouse divested of alms can no longer be an almshouse.
    • We have an ongoing case wherein central heating is shut down overnight in winter and totally between May and October, leaving nonagenarians to lug a portable electric heater from room to room. We perceive hazard and elder abuse.
    • We have a case wherein trustees trawled the internet for evidence of a resident’s extraneous income which they then opportunistically misinterpreted as grounds for eviction by reason of alleged disqualification.
    • It has also become evident that mediation services, where offered, provide no effective relief for residents in dispute with trustees by reason of the constrictions under which they labour. Here’s an example (we quote one of our correspondents):
    •  “It was only 3 years ago that another resident, an elderly lady in her seventies, was forced to leave by their bullying tactics and she did take them to the ombudsman who  found in her favour and said the trustees should  send a letter of apology”. Addressed to Cardboard City presumably.
    • And to quote another of our correspondents: “I do not know how long this reprieve will last, but I do not think anybody especially a Charity should be allowed to do this to anyone, it is inhumane. When I am feeling better, I will decide what needs to be done, and to see what I am expected to do to remain here! The other lady involved, has contacted Shelter, and I believe she is seeing a solicitor.”
    • And to quote another of our correspondents: “If you don’t like living here you can always leave’ – their stock response to any resident who makes a complaint.”
    • And to quote yet another of our correspondents: “My mother has been living in an almshouse for nearly 3 years. 2 in one area and 1 year in another. I moved her from one place as the ‘clerk’ of the trustees made the residents life a misery.”
    • Many of our correspondents report a general propensity for trustees to address residents in dismissive, patronising or intimidatory terms. This clearly is reflective of the Gray v Taylor judgement having written trustees’ immunity for any kind of mischief.

This is by no means an exhaustive list. For as long as an almshouse license remains a license to intimidate, confidentiality prevents us from making fuller disclosure.

The Housing Health & Safety Rating System

16. Note also that almshouses are specifically exempted from the enforcement powers inherent in the Housing Health & Safety Rating System. This is another corollary of “current arrangements”. The Housing Health & Safety Rating System assesses the potential dangers or hazards that could cause significant physical or mental harm to tenants and enforces repairs accordingly. Excepting that in the case of almshouse licensees it can only ‘advise’.[11] To quote yet another of our correspondents: “I can’t see how what we all pay in a month is spent on maintenance. They wait until things break or fall off before they consider doing any maintenance and then don’t always carry the necessary work out.” Quite. We perceive a disproportionate and potentially dangerous “arrangement” indeed.

Subsequent legal developments

17. Since Gray v Taylor relevant caselaw has developed somewhat, not necessarily to the advantage of hubristic trustees. Those “arrangements” are now complexed by the implications of:

  • Reynolds v United Kingdom [2012] ECtHR 437, March 2012 wherein an automatic strike-out in the domestic county court became invalidated. The precedent thus established could be invoked by almshouse residents.
  • DL v A Local Authority & Others [2012] EWCA Civ 253. The latter case touches upon the concept of the parens patriae jurisdiction of the High Court as opposed to that of the Attorney General. The facilitating lever for almshouse residents would be coercion.
  • Manchester Ship Canal Developments v Persons Unknown [2014] EWHC 645 (Ch). The obiter dictum of HHJ Pelling at para.46 is highly germane to issues between private landlords and ‘trespassers’. In hypothetical context that term would surely – and beneficially – encompass almshouse residents. Malik v Fassenfelt considered (and reinforced!).
  • Malik v Fassenfelt and others [2013] EWCA Civ 798 where the court considered itself bound by human rights in a property dispute between private parties. On the residuary issue of proportionality the precedent mutatis mutandis would appear to favour almshouse residents.
  • Buckland v The United Kingdom (Application No. 48833/07, 2012 in the ECtHR. This judgement gifted licensees who categorise as Gypsies a six month stay of execution whereas almshouse licensees get only a thirty day stay under the Protection from Eviction Act 1977. We perceive discriminative disproportionality.
  • Orliċ v Croatia (Application no. 48833/07) Strasbourg 21 June 2011. Paragraph 54 of the judgment states: “Human Rights caselaw is clear on the point that the concept of ‘home’ within the meaning of Article 8 is not limited to those premises which are lawfully occupied or which have been lawfully established. ‘Home’ is an autonomous concept which does not depend on classification under domestic law.”
  • McLellan v Bracknell Forest [2001] EWCA Civ 1510 at 42]; [2002] 1 All ER 899. Obiter, Waller LJ. In a footnote to a Consultation Paper[12] the Law Commission opined that if Convention rights do indeed arise via horizontal effect, the approach of the courts as described [elsewhere] may mean that procedural space would have to be found at some level for considerations of proportionality in respect of applications by private landlords for possession orders.
  • 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. It can be construed mutatis mutandis that the conclusion in this case adduces and reinforces the rights afforded to almshouse residents under international law by way of the UN International Covenant on Economic, Social and Cultural Rights; specifically the right to adequate housing. Adequacy in this context means legal protection from harassment and forced eviction.
  • Reverting to an historical – and indeed historic – criminal case, ultimately we might invoke Israel James Hussey [1924] 18 Criminal Appeal R 160, in which an ostensive lodger was deemed to have not just a defensible tenancy but a tenancy defensible with lethal force!

Armed with these exemplars, a resolute resident might now drive a coach and horses through the vaunted “current arrangements”. Clearly the situation needs to be rationalised and resolved in fairness to all parties.

The International Covenant on Economic, Social and Cultural Rights

18. Finally, the burden of evidence notwithstanding and irrespective of the exemplars given above; in June of this current year, 2014, the United Kingdom government, via the agency of the Ministry of Justice, is due to render its quintennial progress report on giving effect to the rights inhering in the International Covenant on Economic, Social and Cultural Rights. This Covenant is a multilateral treaty adopted by the United Nations General Assembly and which the UK government ratified on 20 May 1976. Apropos Article 11 (1) of the Covenant, which addresses the right to adequate housing, General Comment No.4 deriving from the 6th Session 1991, section 8(a) thereof, reads as follows [13]:

Legal security of tenure. Tenure takes a variety of forms, including rental (public and private) accommodation, cooperative housing, lease, owner-occupation, emergency housing and informal settlements, including occupation of land or property. 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.

19. This exhortation clearly encompasses almshouse residents. Its import is unequivocal and it pre-dates, countervails, supersedes and is nugatory of the Gray v Taylor judgment. It supervenes the limitations of the badly-drafted Human Rights Act 1998 apropos Article 13 and it brings almshouse residents within the ambit of public law. Accordingly we perceive a clear duty bearing upon HM government to give expeditious effect to the particular condition of legal security of tenure for inter alia some forty thousand almshouse occupants that the Covenant imposes upon it and consequently we should be able to look forward to an express assurance that HM government intends to report that it has implemented, is moving to implement, or will expeditiously move to implement, the said legal security of tenure.

So what’s the solution?

(i) For HM government via the agency of the Ministry of Justice to give immediate effect to the particular condition of legal security of tenure for almshouse residents that Article 11 (1) of the International Covenant on Economic, Social and Cultural Rights imposes upon it.

(ii) For HM Government via the agency of the Attorney General’s office to restore and fix inviolate for posterity the status of almshouse residents by drafting, promulgating and imposing upon all trustees, retrospectively where appropriate, a form of tenancy agreement particular to the condition, aspirations and life prospects of domiciliary almspersons.

(iii) In the interim for HM Government to prevail upon all almshouse trustees via the agency of the Charity Commission to ensure that no almshouse license agreement be entered into without the intending licensee having taken independent legal advice with particular regard to the degraded nature of the tenure on offer. It should be made an offense to inveigle the unwitting into such a nexus.

March, 2014. The Almshouse Residents Action Group is a web presence only and must remain so for as long as an almshouse license remains a license to intimidate. © 2014. This document or selectively its contents may be cited or quoted solely for the purpose of furthering the published objectives of The Almshouse Residents Action Group or otherwise for the purpose of constructive criticism.

References:

[1] Gray v Taylor [1998] 4 All ER 17, [1998] 1 WLR 1093, CA.

[2] Housing Act 1985 Schedule 2 Part II Ground 11. Halsbury’s Laws of England 4th Ed. 2006 Vol.27(2) para 1318

[3] BRE Reference ID131C (Almshouse Residents).

[4] BRE Reference ID138U (Almshouse Residents – again)

[5] BRE Reference ID1398 (Secure Tenancies for Almshouse Residents)

[6] [as per Heydon’s Case 1584]

[7] Warren Barr, Modern Studies in Property Law (edited by Cooke, 2001) Chap.14, Charitable Lettings and the Legal Pitfalls, pp 247-9.

[8] Page 188 paras. 9.99 to 9.100 of the Law Commission’s Consultation Paper No 162.

[9] Renting Homes: the Final Report (Law Com No 297)

[10] R v The Charity Commissioners for England and Wales ex parte Baldwin [2000]

[11] Bromsgrove District Council Scrutiny Board, 23rd March 2010, Agenda Item 7

[12] Law Commission Consultation Paper No.162, 5.43 footnote No.59

[13] General Comment 4 deriving from the 6th Session 1991

 

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