Hanoman v Southwark Borough Council (2009)

English Property Law

Hanoman v Southwark Borough Council
Image: ‘Southwark, London’ by Rob Adams

While the ‘right-to-buy’ scheme allows council tenants to purchase their properties for determinable discounts, there are additional safeguards designed to prevent administrative vacillation between the two parties to contract. On this occasion, a local authority found itself on the wrong end of such an agreement, while the tenant was free to enjoy the fruits of an organised purchase.

In the autumn of 1999, a tenant served a right-to-buy notice under s.122 of the Housing Act 1988 for the purchase of his flat for a discounted price of £17,000. Under s.124 of the same Act, a landlord is required to respond in kind so as to allow the process to begin.

For one reason or another, the appellants chose not to acknowledge the respondent’s submission, on grounds that they believed he had withdrawn it, during which time further legislation was enacted so as to penalise landlords delaying the purchase under s.153A(1) (as inserted by the Housing Act 1985) through a ‘notice of delay’.

On 24 March 2003 the respondent issued such a notice, whereupon the appellants again failed to respond with a counter-notice, at which point s.153B of the 1988 Act further allowed a tenant to submit an ‘operative notice of delay’, thereby converting any paid rents into purchase contribution for the period between the notice of delay and the date of the as yet undelivered counter notice.

Following a declaration by the respondent on 22 June 2004 of the appellant’s failure to provide counter-notice, the parties went to court, during which the respondent was finally granted his s.124 counter-notice by the appellants on 2 July 2004, thus bringing to an end the period in which s.153B of the 1988 Act was in effect.

At the point of purchase, the effects of s.153B were left unresolved, at which point the local authority granted the respondent the right to pursue remedy through an appeal. It was thus contended to the Court that during the period between 24 March 2003 and 2 July 2004, sufficient rent had been paid so as to cover the £17,000 owed for the purchase of the flat, therefore no money was owed by the respondent, an argument supported by the Court, and one resulting in the appellants repaying the £17,000 paid with interest.

Taken to the House of Lords, the appellants argued that the respondent had relied upon housing benefits for his rent payments, and that as no money was passed between the respondent and the appellants, there was no evidence that any payment had been made nor received, as under those conditions a reduction in rent constituted the effect of such benefits, as opposed to an actual receipt of funds.

With examination of the Social Security Administration Act 1992, the House established that since its inception, Parliament had provided that under ss.140A to 140G, housing benefit was almost entirely subsidised through central government and not the local authorities, therefore despite any argument to the contrary, some form of payments were in effect, while for contextual purposes, the words of Lord Evershed MR in White v Elmdene Estates Ltd reminded that:

“[T]he word ‘payment’ in itself is one which, in an appropriate context, may cover many ways of discharging obligations.”

It was for this reason that the House upheld that regardless of exactly how the rent was realised, the effects of s.153B of the Housing Act 1988 existed to avoid the very problem the appellants had created, before dismissing the appeal and upholding the judgment of the Court.

R v C (2009)

English Criminal Law

R v C
Image: ‘x_report#30’ by Kim Byungkwan

The right to choose to engage in sexual intercourse, or even a sexual act, relies upon the powers contained under the Sexual Offences Act 2003 as well as art.8 of the ECHR (Right to respect for private and family life). However, when disability fetters that discretion, the court is required to exercise greater consideration of exactly how such a vulnerability intervenes.

In summer of 2006, a 28 year-old woman suffering with schizo-affective disorder and an IQ of 75, found herself confronted by an aggressive man known to be suffering from metal health issues, and coerced into a situation whereby the defendant forced the victim to perform oral sex against her will.

Upon indictment, the defendant argued that while her illness caused fluctuating symptoms, she was at the time of the alleged offence, able to choose whether or not to engage in the act. When directing the jury, the judge remarked that in order to secure a conviction they must agree that the victim:

“[W]ould be unable to refuse if she lacked the capacity to choose whether to agree to the touching…for example, an irrational fear arising from her mental disorder or such confusion of mind arising from her mental disorder, that she felt that she was unable to refuse any request the defendants made for sex.

Alternatively, [she] would be unable to refuse if through her mental disorder she was unable to communicate such a choice to the defendants even though she was physically able to communicate with them.”

With the defendant duly convicted, he immediately appealed, during which the Court of Appeal both acknowledged and supported his original defence through Re MM, in which the court held that:

“Irrational fear that prevents the exercise of choice cannot be equated with lack of capacity to choose.”

However, when presented to the House of Lords under challenge by the Crown, close examination of s.2(1) of the Mental Capacity Act 2005 revealed that:

“[A] person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain.”

While s.30(1)(c)(d) of the Sexual Offences Act 2003 states how a person is guilty of an offence if the victim is unable to refuse:

“(c)…because of or for a reason related to a mental disorder, and

(d) A knows or could reasonably be expected to know that B has a mental disorder and that because of it or for a reason related to it B is likely to be unable to refuse.”

This is further supported by s.30(2) which states that a sexual offence is recognised when:

“(2) B is unable to refuse if –

(a) he lacks the capacity to choose whether to agree to the touching (whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason), or

(b) he is unable to communicate such a choice to A.”

On this occasion, the House held that when placed into such a traumatic and hopeless situation, the victim had been unable to neither decide nor refuse the advances of the defendant, therefore there could be no doubt as to the soundness of the original conviction. It was for these reasons that the appeal was upheld, while the House reminded that had the victim been held to have capacity but been unable to communicate her refusal, the defendant would have been otherwise liable for statutory rape under ss.1 and 75(2)(e) of the 2003 Act.