by Emma Lant, Generalist Solicitor

It does not seem long ago that I was writing my blog as a new starter with North West Leicestershire District Council (NWL Legal), but the time has flown by, and I have now been with NWL Legal for two months, in the role of Generalist Solicitor. It is always important to reflect on how the job is going, especially in a role which is as wide-ranging as this one.

During my first few weeks, I have taken on a wide range of tasks, including assisting with the annual review of the Council’s constitution, which has included a read-through of the full document and creating a table of points to be raised for discussion, reviewing Council policies, picking up ad-hoc enquiries which come in daily to the Legal inbox, and undertaking legal research. I have also assisted with creating and delivering a training session for colleagues in the Housing team, which helped me to expand my knowledge of the topic as well. Another highlight of my employment so far has been meeting with Councillors within a Working Group to discuss potential changes to an existing Council document. I enjoyed presenting the information to the Councillors, and hearing their views on how they wished to proceed. I also liked being able to follow this process from initial drafts through to meetings with Councillors, and it will be interesting to be involved with the next stages as the document goes on to be discussed at a Committee meeting.

It is always daunting to start a new job, especially one where I can potentially be involved in so many different areas of law. However, the team at NWL Legal have been incredibly supportive and it has been great to learn from their experience. This has set me up well to be able to build on this in my next few months with the team, and I am looking forward to taking on new challenges as my time at NWL Legal continues.

If you would like to instruct a member of the Legal Team, please email legal@nwleicestershire.gov.uk.

by Emma Lant, Generalist Solicitor

I am delighted to have recently accepted my offer of employment with North West Leicestershire District Council (NWL Legal), and am already nearly a week into my new career! I am undertaking the newly created role of Generalist Solicitor, where I will be providing assistance to the Legal Team on a range of matters, working across the various legal sectors and services provided by NWL Legal. I will be involved with matters such as reviewing the Council’s Constitution to ensure compliance with its terms, researching legal topics as and when required, providing advice on a wide range of local government law and governance, as well as assisting with planning applications, reviewing contracts, property transactions, and more. My role will see me undertake work for both in-house services across the Council, and external clients (including other local authorities).

This will be a varied role which I am eager to settle into, and develop my skills and knowledge. I have previously worked in a legal department of the Civil Service, and in private practice, and I hope the experience of working in these quite different areas will set me up well for this very wide-ranging new chapter.

My first impressions are that this is an enthusiastic team with a wealth of knowledge of their chosen subject areas, and I will certainly benefit from learning from the vast experience of the team. I am looking forward to getting to know my colleagues in the coming weeks and months; I have already been fortunate to attend some team meetings, both in person and on MS Teams, which have been great to see how the team operates, and I have received a warm welcome from everyone.

If you would like to instruct a member of the Legal Team, please email legal@nwleicestershire.gov.uk, or would like to find out any more about the services which are offered, please use the link here.

by Kerrie Culverwell, Senior Property Solicitor

A Charging Order can be sought to secure a charge in favour of a Creditor over the Debtor’s property. This method is most effective where there is substantial equity in the land or property and where the Debtor is the sole owner. This is because a charging order takes effect subject to other charges, such as mortgages on the property.

An Order for Sale is a method of enforcing a Charging Order. If the court grants an Order for Sale the property can be sold by the Creditor who is then able to recover their debt from the sale proceeds. When making the Order the court will determine what value the property should be sold for and the method by which the property should be sold.

The Steps involved are briefly summarised as follows:-

1. Evidence Gathering – the Creditor must take all reasonable steps to obtain the evidence to be submitted with the claim form. Practice Direction 73.4.3 sets out the evidence required.
2. Make the Application – Using a Part 8 claim form and usually at the court that made the Charging Order. The claim form should include the evidence gathered at point 1, or if not separate written evidence should also be submitted.
3. Court gives Directions and Fixes a Date for a Hearing
4. Service of Claim Form on the Debtor and any other interested parties. Follow any other directions given by the Court at stage 3.
5. Hearing – the Court will exercise their discretion as to whether an order is made. If an order is made it will give the Debtor one last chance to pay, after which the order will specify the date by which the Creditor should get possession of the property in order to facilitate the sale.
6. The Order will specify the value the property should be sold for, the method by which the property should be sold and how legal title will be transferred to the purchaser.
7. Sale Proceeds – if the property is sold successfully the proceeds will be applied in the following order:-

• Costs and charges of sale.
• Charges with priority (i.e. any mortgage/s).
• If the property is jointly owned, the co-owner receives their share.
• Creditor with Charging Order.
• Any balance goes to the Debtor.

If, for whatever reason, an Order for Sale is not successful nothing will happen to the Charging Order – the charge will remain on the property and interest will continue to accrue.

Should you need any advice on Charging Orders or Orders for Sale, please get in touch with the team at legal@nwleicestershire.gov.uk.

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.