Circle 33 acted unlawfully in warden case
A housing association broke the law by removing a live-in warden service from a sheltered housing scheme without consulting tenants first.
A High Court ruling, handed down on Monday, said Circle 33 Housing Trust, had acted unlawfully because the tenancy agreement suggested the landlord would provide a warden but would consult tenants about changes to services.
However, the judge, Lord Justice Munby, said there was no advantage in allowing the tenant, Joan Garbet, to get Circle 33s’ decision quashed using public law over private law, for example, challenging it as a breach of contract.
He decided not to say whether she had a claim in public law, so did not address the issue of whether housing associations are public bodies.
Several lawyers had expected the issue to be raised following the ruling in a case involving housing association L&Q earlier this year, which found that housing associations are public bodies in certain circumstances.
In court, Jacqueline Airey, a director at Circle 33 Housing Trust, said the organisation had not consulted residents before the warden service ended because some were friendly with the warden in the post at the time and this might have influenced their replies.
She said: ‘Had the consultation exercise been carried out whilst [the warden] was still employed at the properties, there was a real danger that the consultation exercise would not have been genuinely about the services being provided to the tenants but about [the warden] personally, with those tenants who did not wish to see her retire, unduly influencing the outcome of the consultation.’
She argued that the housing association had provided ‘equivalent services’ since the live-in warden service ended, including support from visiting staff.
Circle 33 Housing Trust said it had since carried out a consultation with residents. It said most residents had voted for visiting support staff, but a number were strongly in favour of a resident warden, so the visiting support service would be run as a one-year pilot.
The case is one of a series involving the removal of resident wardens being brought by solicitor Yvonne Hossack.
We would like to make clear that contrary to an earlier version of the story, the defendant in the case was Circle 33 Housing Trust and not Eastbourne Homes.
Related Files
Garbet v Circle 33 judgement
Word
, size 0.12 Mb
Have your say
You must sign in to make a comment
Readers' comments (10)
Joe Halewood | 11/12/2009 1:12 pm
In the absence of the transcript, that should hopefully answer many of the legal points that will apply to all other cases, I will restrict my comments to the above article and comments on that.
It appears Circle 33 cannot read or they went to court on a wing and a prayer. If the tenancy contract says (a) tenants are entitled to a warden and (b) tenants have to be consulted – matters they admit in the above comments why did they go to court?
[And yes all other tenants will be funding this legal claim indirectly out of their rents.]
The answer is in what has happened. The landlord has got its way as it didn’t order that a replacement resident warden be put in place. And for the judge to say there is “no advantage” to the tenants in ordering a new warden is a joke. [There may be no ‘legal’ advantage but there clearly is an operational and practical advantage to the wronged tenant Joan Garbet and her fellow tenants.]
The landlord knew the warden was retiring. Yet they must have also decided that they were not going to replace the resident warden with another and must have had plans for the visiting support service to take the wardens place. The landlord disingenuously argued that they didn’t consult because the consultation would be ‘skewed’ because of personal feelings tenants may have had to the incumbent warden. They didn’t consult even though they knew they had a legal obligation to consult with tenants!!
When, after the fact, they did consult, who is to say that the landlord didn’t say something like you can have a new warden but it will cost you ten times as much? Who knows whether the majority of sheltered tenants were self-payers or not as this would clearly have influenced any decision too?
Or who is to say that the landlord didn’t promise 24 hour visiting support for thruppence a year in the eventual after the fact consultation. Landlords or anyone wanting their predetermined way can easily skew, more easily skew a consultation cant they?
However, while we await the transcript, one simple question remains. If as is fact the landlord acted unlawfully and lost in the court then what is the benefit or remedy to the tenants? It appears to be none whatsoever except the remote chance of compensation for damages for breach of contract – correction deliberate and knowing breach of contract by the landlord! That is why the law in such cases is a joke and an ass.
If you are wronged and go to court surely (a) you should get remedy and (b) the wrongdoer is sanctioned in some way? This has not happened and that at the expense of vulnerable people is shameful and outrageous.
Unsuitable or offensive? Report this comment
Joe Halewood | 11/12/2009 3:13 pm
Having read the transcript a few times my comments on the incredulity of the landlords arguments expressed by Airey here are confirmed.
Critically, the transcript of the judgment does say that tenants had a legal right through the wording of the tenancy contract to a resident warden.
Yet curiously no order has been made to that effect.
So, is it not the case that the landlord is still breaching the contract in not providing a resident warden?
The incredulity of the landlords arguments and actions is also highlighted on a number of occasions in the transcript including them misleading (euphemism!) tenants at every turn in their erroneous letters to them and other correspondence.
But again I sign off with this. If the landlord has clearly acted unlawfully and the tenant who took the case (and all other tenants there) are still being penalised and victimised by the lack of a resident warden, what is the point of the law in terms of administering any remedy here for tenants or sanction to the landlord?
Unsuitable or offensive? Report this comment
Jim Paton | 11/12/2009 6:24 pm
A judicial cop-out from the "public body" issue determined in Weaver. I haven't yet caught up with the transcript, but it appears at the moment that the cop-out from public law was the reason Circle 33's decision was not quashed, and the issue left to contractual considerations.
More to come, I think.
Unsuitable or offensive? Report this comment
vernony | 11/12/2009 9:56 pm
Did not consult with the residents because some of them knew and liked the Warden. Well its worth a laugh
Consultation is also written into the Housing Act 1985 ( Can't recall it word for word, but I am sure I would have noticed that consultations could be ignored if the residents knew and liked a warden !)
Absolute piffle. The truth is that housing providers in the UK seem to assume that they own the contract and can manipulate it as they see fit. Wrong, the contract is owned by all parties to it. Either can enforce it if the other is in default
Vernon J Yarker
Chairman
The Sheltered Housing UK Association
www.shelteredhousinguk.com
Unsuitable or offensive? Report this comment
vernony | 11/12/2009 10:11 pm
Oh dear I missed the piece about residents having their opinions influenced I would have thought that being influenced is a natural part of forming an opinion. In this case 'what we had is what we wish to continue'. Is that not their legal right to form opinions based upon experience and anticipation ? If I were an unkind person I would perhaps say that the, influence, in this case, was perhaps not an influence which suited Circle 33's business plan ? That does not make the residents wrong, it illustrates that they are free to make choices. Humans can be so awkward !
Finally I think this would be better served by public law because hopefully this will nail it down for good
vernony
Chairman
The Sheltered Housing UK Association
Unsuitable or offensive? Report this comment
Joe Halewood | 14/12/2009 12:08 pm
The transcript is only of the judgment and not of the points that were argued during the case.
Yet it is clear that the judge thought that the landlords choice to consult only after the warden had left was disingenuous. Surely he saw the obvious that the landlord did not wish to continue with a resident warden service else they would have consulted before and indeed well before the warden was due to retire.
This is especially the case when the transcript reveals the amount of service charge levied on each of the 50 residents there meaning that the landlord was raking in in excess of £1000 per week for the service - even after allowing a 10% void provision.
So, as is the case here, the landlord was receiving about 50% more than the typical costs of a warden service nationally, and as such the service was free standing and cost effective to the landlord. Hence it MUST have been the landlords policy to not replace the warden regardless of any consultation as a matter of principle and policy and not of cost.
So many sheltered landlords remove resident wardens, or have little financial choice but to remove them given the economics of SP and the numbers of residents. Yet this wasnt the case here as the figures set out in the transcript proves.
This makes the lack of remedy to the tenant(s) even worse. They have a tenancy right to a resident warden as the judge ruled and the finances stack up to afford a resident warden service and more. Yet the tenants are still receiving the much lesser service of the visiting support service.
This is a clear case of a landlord being immune and showing impunity for the law and the tenancy contract rights of their 'customers' as the landlord has ridden roughshod over tenant rights as the law has no effective remedy.
Despite the uncertainty of the Weaver case and public law surely the judge must recognise that the only just remedy here was to make the errant and unlawful landlord put in place a resident warden.
Unsuitable or offensive? Report this comment
Joe Halewood | 15/12/2009 1:10 pm
I am surprised and a little dismayed at the lack of comments this article is bringing here. It contains all the ‘usual’ issues that are frequently commented upon by those who think landlords have gotten too big for their boots and landlords who undermine tenants. This site has many discussions on perhaps isolated cases of this or potential / disputed cases of such actions, yet here we have one that is legally proven....but is not commented upon. A strange phenomenon.
To review:
(a) The judge found that tenants have a right to a resident warden which the landlord took away despite the tenancy agreement being explicit: So tenants legal rights have been denied and they receive an inferior service that they still pay the same for!
(b) The landlord failed deliberately and overtly to consult despite knowing it had a legal duty to do: - So the landlord deliberately and admittedly denied yet another tenancy and contractual right to the tenant.
(c) The legal ruling still means the vulnerable tenants continue to receive this lesser service: Hence the tenant is still being denied their legal contractual right on a daily basis
(d) The landlord has not been sanctioned in any way at all for this: Why we may ask can a court find someone guilty but deliver no sanction or punishment?
(e) The landlord is breaking the law every day as it still has not even served a notice as it has to do under housing law and it continues to provide the tenants with a lesser service.
(f) The tenant(s) have received no relief, remedy or recompense for this wrong: The judge found clearly in the tenants favour but gave them absolutely nothing for this (apart from in a new case they must take!)
The transcript also reveals the likelihood that tenants have been overcharged for this inferior service too, as I comment above that the landlord charging tenants well over £1000 per week is far in excess of a typical charge anywhere else in the country for a resident warden service.
So, in summary, the landlord has shafted the tenants been found guilty in court for this and ....nothing changes. Oh and by the by its likely tenants have been overcharging for this as well.
The silence is deafening.
Unsuitable or offensive? Report this comment
James | 16/12/2009 2:03 pm
The Barnet & Portsmouth case has been published now. It also deals with the removal of resident wardens, although it focusses on DDA duties rather than legitimate expectation. Another victory for residents, mainly down to inadequate consultation.
I agree with Joe to some extent, it is surprising that issues that are so relevant to thousands of vulnerable residents of social landlords merits little more than a footnote, and gets so few responses.
The Supporting People grant has been reduced every year since 2003, with no apparent regard for the level of need. Our supported housing schemes are dying a death by a thousand cuts. These cases will be the first of many, with the legal teams being the only real beneficiaries.
Unsuitable or offensive? Report this comment
Joe Halewood | 16/12/2009 3:18 pm
James - Im trawling through the transcript judgment of Barnet and Portsmouth and the conclusion does deal with 'legitimate expectation' - and explains legal concepts such as 'due regard' - both of which have very subtle legal nuances that require mush re-reading even though im used to reading legal judgments.
A clear point of interest here is that IH has not reported these cases! This is especially so as the judge did direct a quashing order and 'reinstate' the resident wardens.
A few very distinct issues with the Garbet case. Firstly, in Barnet and Portsmouth the defendants were both de facto public bodies being councils as opposed to an RSL in the Garbet case. Secondly, the Barnet / Portsmouth case did produce relief and remedy and not need a further case to decide this. Thirdly, and ironically, lack of SP funding was stated as defence in the Barnet / Portsmouth cases and rejected; whereas the Garbet case didnt discuss SP or other finances and the scheme in question there was clearly cost-effective with SP and self-paying income amounting to significantly more than the RSL needed to deliver the resident warden service.
The Barnet decision raises one question. It was argued on the basis that disbility discimination was not given due regard by the council and that many sheltered residents 'suffer' from disabilities. Hence, if the Garbet case had been argued using DDA would the same (non) result have been decided or would a quashing order have been directed and the resident warden replaced?
Unsuitable or offensive? Report this comment
kass | 31/12/2009 1:47 pm
It is laughable that housing professionals are surprised at the fact that social landlords are getting away with murder, like in this case. This is what social landlords have been doing for decades and the fact is that there is no way social tenants can fight for their rights in the courts and come out winners, even if they win their case. Anytime these social landlords say through their staff or pubblicity that they have any respect for their residents are just blurting out sickening lies.
Unsuitable or offensive? Report this comment