On the 16th September 2014 Haringey Council were ordered to pay the legal costs incurred by Osbornes in protecting an extremely vulnerable tenant from being evicted.
Nearly 3 years ago, Housing and Social Care specialist, Edward Taylor, agreed to assist a helpless Haringey Council tenant who suffers from Paranoid Schizophrenia. At the time of approaching Osbornes with his support worker (in 2011), Haringey had already obtained a possession order, due to rent arrears of just under £1,000.
Mr Taylor immediately had concerns regarding his client’s capacity to conduct legal proceedings, and considered that a litigation friend is likely to be required. He wrote to Haringey on this basis and requested in the circumstances that Osbornes be put on notice if they decide to enforce the possession order by applying for a warrant of eviction.
Mr Taylor investigated the matter and it became apparent that Haringey failed to make the Court aware of the tenant’s mental health problems and vulnerability when they sought the possession order. The Court was also not informed that the tenant has a support worker and community psychiatric nurse, and further that the tenant is likely to lack the requisite capacity to conduct legal proceedings. This was particularly concerning given that the tenant did not attend the possession hearing and was not represented. It also came to light that Haringey failed to consider taking other more proportionate steps rather than seek a possession order, such as take Appointeeship, which would have allowed Social Services to manage the vulnerable tenant’s finances, so in turn the rent arrears could be re-paid.
The client’s support worker then informed Mr Taylor that the tenant had received an eviction notice. It was established that it was due to be executed the very next day! Mr Taylor therefore wrote to Haringey to ask why Osbornes had not been put on notice of the warrant application and to request that the eviction be called off on grounds of oppression.
To our surprise, Haringey refused to withdraw the warrant and put Osbornes in a very difficult position whereby an application had to be made to Court by around 11am the next day to try to prevent the eviction from taking place. Mr Taylor prepared the application that evening and went to his client’s property in the morning to take him to Court so it could be issued.
A hearing was listed that day. Haringey opposed the application, despite the tenant’s obvious vulnerability and the circumstances surrounding the making of the possession order. However, the Judge ordered that the warrant be stayed to allow the tenant’s capacity to be formally assessed and so the Court could consider the validity of the previous orders made, including the possession order.
The tenant was assessed as lacking capacity to conduct legal proceedings, and on this basis Mr Taylor made an application to Court for a further stay. Mr Taylor also arranged for the Official Solicitor to act as his client’s litigation friend. A second hearing was listed, at which Haringey asked that they be allowed to gather their own expert evidence, for which permission was granted. Haringey obtained their own psychiatric report, which accorded with the report of the expert instructed by Osbornes. In fact, Haringey’s expert further assessed the tenant as lacking capacity to manage his financial and property affairs, and recommended that appointeeship be taken by Social Services.
At a further hearing the Judge ordered that Social Services should carry out a needs assessment, which they did. However, it was clear that the tenant had been asked leading questions, so at a further hearing it was ordered that a fresh assessment should be conducted.
Astonishingly, rather than conduct the assessment, and without reference to Osbornes, Haringey arranged for the tenant to sign a surrender giving up his tenancy and move to alternative accommodation. They took these steps despite the fact that the tenant lacked capacity, both to conduct proceedings and manage his property affairs, regardless of the appointment of the Official Solicitor as litigation friend and notwithstanding the real dispute about whether it would be in the tenant’s best interests to be moved.
Fortunately, the alternative accommodation proved to be suitable for the tenant. However, Mr Taylor considered Haringey’s actions and conduct generally to be entirely unacceptable, and so an application was made to Court for Haringey to be ordered to pay the legal costs incurred by Osbornes, rather than those costs being paid by the Legal Aid Agency.
Haringey opposed the application, and maintained their pre-application position that they should not be liable for the tenant’s legal costs on the basis that he was not the “successful party”. The Judge did not accept this and ruled that had Osbornes not acted for the tenant, he would have been evicted. It follows that he was the successful party. The Judge also found that Haringey:
Should have taken or at least considered other more proportionate steps rather than commence the possession proceedings;
Should have made the Court aware of the tenant’s mental health problems, the fact that he has a support worker and community psychiatric nurse and is likely to lack capacity to conduct legal proceedings;
Should have called of the eviction rather than insist on an application being made to suspend the warrant;
Should not have moved the tenant without consultation and agreement with Osbornes and the Official Solicitor, and without assessing the tenant’s capacity to surrender and enter into a new tenancy.
As a result, Haringey were ordered to pay Osbornes legal costs. It is hoped that this is a warning to other local authorities. Indeed, many vulnerable tenants do not seek legal advice and would be left high and dry if local authorities are allowed to abuse their power in this way.
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