When are a Local Authority’s resources relevant to carrying out a statutory duty?

by Kerryn Woollett, Senior Solicitor

Rex (Imam) v Croydon London Borough Council [2023] UKSC 45

The Appellant was a full-time wheelchair user. Since September 2014, Croydon London Borough Council provided her with temporary accommodation under Part 7 of the Housing Act 1996. The accommodation consisted of a two-storey property with a through floor lift. The Appellant’s bedroom was on the top floor while the bathroom was on the bottom floor. Should the need arise during the night, it would not have been easy for the Appellant to use the bathroom. The Council, therefore, accepted that the property was not suitable accommodation, having regard to her disability and that it was in breach of s.193(2) of the Housing Act 1996 by not offering her suitable alternative accommodation.

In 2020, the Appellant brought a claim for judicial review seeking, amongst other things, a mandatory order compelling the Council to secure her suitable accommodation under Part 7.

The judge in the Administrative Court dismissed the claim, refusing to make a mandatory order.

On appeal, the Court of Appeal set aside the judge’s order dismissing her claim for a mandatory order.

The Supreme Court considered the circumstances in which the Administrative Court could refuse to make a mandatory order compelling a public authority to act in compliance with a statutory duty and the extent to which the limits of a public authority’s resources are relevant to whether a mandatory order should be made.

The Supreme Court’s decision is of great importance, not only to housing law, but to public law generally.

Lord Sales gave the only judgment and started with the general proposition that resources were irrelevant to compliance with a statutory duty, however, Lord Sales then set out matters that might militate against the granting of a mandatory order.

The ordinary position, if one is successful in establishing their claim, is that relief should be granted. However, it is well established in public law proceedings that remedies are discretionary, that is, simply establishing a claim does not automatically lead to a conclusion that an order should be made, or relief granted. In fact, no order should be made if it isn’t reasonably possible to comply with it.

The court should not refuse relief routinely and should “proceed cautiously” when it was considering whether to do so. In particular, the court was required to bear in mind that Parliament imposed the duty on the authority and that the effect of the court making a mandatory order was to transpose this role onto the court rather than the authority, with the court then effectively supervising the authority’s compliance with what it termed a “super added duty”.

Another matter, which might militate against making an order, was the risk of detriment to good administration, for example, cases in which decisions were made or actions were taken on reliance of matters being finalised, only for the court to then upset the balance previously achieved, by granting relief. If is for this reason that judicial review claims must be brought within limited time frames, so that public authorities are not frozen through the passage of time by the risk of litigation.

Another matter that might militate against the grant of any order was the hardship or prejudice that might be caused to third parties, that is, the litigious should not be able to jump the queue above those whose claims might be more meritorious.

And finally, on resources, the court found that impossibilities does not mean literal impossibility but it does require the authority to show that it has taken all reasonable steps to comply with the duty. What all reasonable steps might be must be looked at in the context of the authority’s existing plans for the allocation of its resources which should not be disrupted.

Where a breach of duty is found or admitted, it is for the authority to explain why no order should be made by providing detailed evidence. It is not for the applicant to show why an order should be made.

When defending an Imam claim there are five comments authorities are expected to address:

  1. Does it have a contingency fund and if it does, has it considered employing it to assist the relevant applicant;
  2. Has there been a history of non-compliance with the duty;
  3. Are the applicant’s circumstance particularly dire;
  4. To what extend has the authority complied with the requirement to take all reasonable steps – the better its attempts the less likely an order will be made; and
  5. Caution should be paid to promoting the litigious above those whose claims are more meritorious.

If local authority can’t perform a statutory duty the Supreme Court was quite clear that it does not have to divert resources from other service areas or borrow more in order to comply with the duty. Generally, the courts won’t look behind budget decisions that have already been taken as the courts recognise that they lack the democratic authority and institutional competence to do so. That means a local authority isn’t required to reallocate funds from other service areas or from other budget heads once its annual budget has been set. However, the Supreme Court was quite clear that local authorities should have regard to using contingency funds. If a local authority has some form of contingency within its budget either within the service or for the full council, the court may expect it to dip into that contingency to provide a property (or in the wider context, comply with a statutory duty).

Where a local authority has failed to provide a suitable property (or comply with another statutory duty) for a considerable period, the court may enquire as to why the budget has not been updated to consider/include this case.

Procurement Guidance Documents

by Kate Hiller, Legal Team Manager

On 26 March 2024, the Cabinet Office published a number of guidance documents to accompany the Procurement Act 2023 and the Public Procurement Regulations 2024 that were laid before Parliament the day before.

At first glance, they do appear quite helpful.  It is appealing that they are all relatively short in length (most of them 5-7 pages but some a little longer).  The content also appears quite focussed on what you need to know rather than padding it out with unnecessary background information, which is helpful.

What is notable is that the majority of the guidance notes published are aimed at explaining the new terminology that the Act and the new Regulations have adopted.  It becomes almost a dictionary of definitions as we move from familiar terminology to the new expressions adopted in relation to similar to concepts.

So far, the guidance includes the following:

  • Contracting Authority definition
  • Covered Procurement definition
  • Valuation of Contracts
  • Mixed Procurement
  • Exempted Contracts
  • Thresholds.

The Cabinet Office note that there are more batches of guidance to follow, with the intention of all guidance documents published by the end of June (some light summer reading for procurement enthusiasts!)

The guidance documents are worth checking out – Procurement Act 2023 guidance documents – GOV.UK (www.gov.uk) – and sharing with your procurement officers in preparation for when the provisions start taking effect.

Applications for Adverse Possession

by Kerrie Culverwell, Senior Property Solicitor

Following from Helen’s article concerning encroachments onto Council Owned Land. I thought it would be helpful to discuss adverse possession – which Helen notes as being a potential consequence of encroachments that are left unchallenged.

Often referred to as “squatters rights” adverse possession is the act of occupying another’s land without permission of the lawful owner. Worryingly for a landowner, if that occupation is not challenged for a period of time (usually 10-12 years) the occupier can make an application for adverse possession of the land, which, if successful will result in possessory title to the land being granted.

This principle is governed by the Limitation Act 1980 and the Land Registration Act 2002. The Land Registry sets out the following criteria for an adverse possession application: –

  • factual possession of the land
  • intention to possess the land
  • possession is without the owner’s consent

if all of the above are satisfied, for a period of 12 years, then an application for adverse possession can be made.

Taking each of the three above points in turn:-

Factual Possession was discussed in the case of In Powell v McFarlane (1977) 38 P & CR 452 which provided that factual possession signifies a degree of physical control. Possession must be exclusive, as the owner and the intruder cannot both be in possession of the land at the same time.

Fencing, that is enclosing the area to the exclusion of other people (including the owner) is strong evidence of factual possession.

Intention to Possess

Usually, factual possession will demonstrate intention. The intention does not need to be to own the land but to possess it. It is worth noting that where the land is used for access, it is unlikely to amount to adverse possession but more likely a prescriptive easement.

Without Consent

The possession of the land must be without the owner’s consent. If the land is used with the owner’s permission by way of a licence (whether formally made or not) there cannot be adverse possession.

If the above criteria are satisfied and sufficient evidence provided (set out in a statement of truth) to the Land Registry, a successful application will result in possessory title being granted.

It is also worth noting that possession by a predecessor can be included in the application. The applicant is not required to have personally been in adverse possession for the entire duration if they are the successor in possession.

If an application is successful and possessory title is granted, it is possible that after a further period of 12 years title can be upgraded to title absolute. Which is the highest class of title and means that the title cannot be claimed against.

The above points really illustrate why an encroachment of land should not be ignored, as there is a potential to lose title to the property.

Encroachments onto Council Owned Land

by Helen Lisney, Legal Officer

Encroachments onto Local authority owned land are surprisingly common – e.g. some people whose houses back onto parks, open space, or fields owned by councils seem to think it is perfectly acceptable to increase the size of their gardens by moving their fences to incorporate the extra land. It is important that such matters are dealt with in a timely manner. Some encroachments remain undetected and can result in adverse possession being claimed.

Once you are made aware of an encroachment, the first step should be to talk to the occupier of the neighbouring property. It may a completely innocent mistake that can be resolved amicably either by the encroacher reinstating the original boundary, or if you have no current need for the land you may wish to enter into a licence agreement allowing the continued use but protecting the land for any future use and preventing an adverse possession claim.

If a simple chat cannot resolve the issue, I would suggest writing a polite letter to the encroacher, advising them that they have encroached onto your land and requesting that they remove the new boundary features and any of their property from your land and, if applicable, reinstate the former boundary, giving them a reasonable amount to time to do so.

If this does not work you should collate evidence of the encroachments and speak to your legal department/advisor who will review the evidence and decide on the best action to take moving forward.

The evidence your legal advisor will look at all of the evidence and in particular: –

-the title deeds to the Council’s land, together with those of the neighbouring land.

-Any previous documents available relating to ownership of the land

-Old photographs showing the previous boundary and use of the land in question

-Any evidence produced by the neighbouring property that they may be entitled to adverse possession.

The following relevant factors will also be considered when determining the appropriate course of action:-

-The degree of encroachment and the amount of land involved.

-The importance of the land being encroached upon – e.g. does the encroachment have wider implications on the future use/development of the land.

If there are areas of dispute that are ambiguous, you may wish to try and resolve the issues with the help of a mediator.  It that is deemed inappropriate due to the extent of the encroachment or the attitude of your neighbour, a legal letter should be sent to the neighbours advising them as follows:-

-They are in unlawful possession of council owned land (and providing the evidence to support the claim);

-They have a specified time (which should be reasonable in the specific purposes of the case) to remove their boundary structures and any other property from the Council’s land;

-Failure to carry out the specified reinstatement within the requisite timescales will result in legal action being taken against them;

-Any legal action would result in significant costs which would be payable by the defendant if the Council’s legal action were successful.

Past experience shows that in the vast majority of cases a legal letter will result in the encroachment being removed but if this is not the case then legal proceedings could be considered.