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Post by NigelMoore on Dec 26, 2016 14:34:37 GMT
This case is one of which many may be aware of, although I have heard nothing as to the appeal for maybe a year now. It concerned an argument by the boater that the HRA should nullify CaRT’s decision to s.8 his boat, and seemingly the burden of the appeal against a CCJ on the issue, was apparently over the approval of CaRT’s argument, they should be treated in the same way as housing authorities – such that their decisions to s.8 live-aboards should not be subject to scrutiny by the courts as to the proportionality of those decisions. I have only just come across the published judgment of the first appeal [which was the subject of what I think is a still ongoing second appeal]. This very short judgment puts a whole different complexion on the issues, that does not quite gel with the above impression I had formed from the published commentaries to date. What the judgment does make clear though, is the very clever manipulation of case management for which Shoosmiths are renowned experts. Unless the point at issue is directly and very accurately identified, judges get asked to pronounce upon tangential issues that have the opposite effect of what should happen. It was interesting, by the way, to read a newly emergent appellation of the ‘CC Licence’, which has now become the “Continuous Navigation Licence”. What emerges from the appeal judgment [if that is to be considered an accurate appraisal of the facts] is that Mr Jones did NOT argue the application of the HRA as demanding a proportionality test per se; rather he had argued that because of the HRA CaRT ought to have considered his housing needs in reaching their decision to terminate his licence. If that was indeed the burden of his argument – instead of claiming that the proportionality issue in general effect should be addressed – then I have to say I understand the failure on the point. I had not realised that the boater had been so explicit re the housing question; I had thought that it was CaRT’s argument that they should be treated in the same way as housing authorities – i.e that their decisions should not be questioned by County Court judges, who according to a Supreme Court judgment cannot be expected to take time over such questioning. If that had been the burden of the decision, I would have [and have done] objected strenuously, because the proportionality issue is of considerable importance – to the extent that IF CCJ’s cannot be expected to take this into account, then they are improper adjudicators on so important an issue, and s.8 cases should never be brought before them. However this was NOT the case. The judge at appeal declared rather: “ As a public body which is not a housing authority, the trust cannot owe any duty to the Appellant in relation to his housing needs under Article 8. Accordingly any test to be applied to a local authority housing department would not apply . . .” [my bold] Thus far, I would be in complete agreement. However the judge did, in my opinion, start to go off the rails with the content of my ellipsis, which concluded: “. . . no proportionality argument, however it is to be determined, can arise.” This got worse when she went on to say [respecting the CCJ] “ Nonetheless the learned Judge went on to consider whether the Article 8 point might raise a triable issue. In an ex tempore judgment the learned Judge determined that the Trust could not be expected to investigate or deal with the Appellant’s Article 8 rights as the burden imposed would be too great.” She upheld that reasoning. The question, then, is whether in this Appeal judgment, the Judge was upholding the finding that the PARTICULAR reliance on the A.8 point could be dismissed, or whether she was upholding a finding that ANY A.8 defence could be dismissed. Whichever, it is a finding on the A.8 point [re: right to a home] only, NOT on the application of the HRA requirement for universal proportionality of laws offensive to the HRA. It is all too often the case [in fact it is EVERY case thus far to my knowledge – apart the Ravenscroft case] that A.8 is the only HRA issue raised, and so they become vulnerable to the dismissals exampled in the Jones case. This overlooks the equally important issue of Article 1 Protocol 1 of the HRA, to do with protection of property. That avoids the whole vexed question of whether CaRT is or is not a housing authority, and hence whether housing needs ought to be brought to bear in the decision making process. In fact, the whole question of proportionality becomes a very much simplified one; the sole question that need arise in such a context is whether any less draconian remedy for the offence is within the authority’s remit – if so, then the HRA should bite and the alternative applied that does NOT involve breach of the HRA. This is a hasty analysis of the effect of the judgment; I would be interested to hear consider appraisals from others – www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/QB/2015/534.html&query=(British)+AND+(Waterways)+AND+(Board)+AND+(v)+AND+(National)+AND+(Rivers)+AND+(Authority)
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Post by lollygagger on Dec 26, 2016 14:46:54 GMT
Has this come about because the only legal aid available specialises in housing rights and seems to have a self imposed ignorance of everything else?
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Post by NigelMoore on Dec 26, 2016 15:17:12 GMT
Has this come about because the only legal aid available specialises in housing rights and seems to have a self imposed ignorance of everything else? Quite possibly. Mr Jones is, I think, being represented by the Community Law Partnership, and the housing issues are their specialty, for all that they are about the only firm taking on boating cases.
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Post by Deleted on Dec 26, 2016 15:24:21 GMT
The last I heard on this case, it will be dealt with in early 2017, (maybe may time). I know someone close to it, I'll ask for an update.
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Post by NigelMoore on Dec 26, 2016 15:36:54 GMT
Thanks Jenlyn.
I am now rather less concerned over the outcome of this case, providing any decisions are limited to comparative responsibilities respecting housing needs.
The oft-cited Supreme Court decisions on the subject rightly observe the balance of housing obligations the Councils are under; the decision is often whether to grant housing to the undeserving at the expense of the deserving, in circumstances where the housing pool itself is limited. It is right that no such considerations apply to CaRT.
Will the Appeal Court make more sweeping denials of CaRT's responsibilities, in upholding those elements of the High Court judgment? That is the area that remains of concern, because if organisations such as CaRT [with acknowledged powers purporting to usurp individual rights in the name of promoting the interests of society at large], are declared free from any responsibility to measure the proportionality of their actions against those rights, then that would be a dark day.
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Post by Deleted on Dec 26, 2016 15:49:09 GMT
Someone took time to explain it all to me earlier this year. The feeling was, that whichever way the judgement fell, CRT would be the overall loser. I have no idea how this pans out, or what the basis of the remark was, but I have a lot of respect for the person who was explaining it, and have no doubt he knew the score, (even though I couldn't get my head around it).
All the legal innuendo and terms related to it leaves me perplexed. My idea of the law is "right" or "wrong", sadly, there is more to it, ie, how right, how wrong etc.
I still believe the "theatre of court" is not where all this stuff should be played out. A good revolution would be far better suited, and in my view effective.
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Post by kris on Dec 26, 2016 16:27:31 GMT
However this was NOT the case. The judge at appeal declared rather: “ As a public body which is not a housing authority, the trust cannot owe any duty to the Appellant in relation to his housing needs under Article 8. Accordingly any test to be applied to a local authority housing department would not apply . . .” [my bold] I'm a bit confused, didn't I see a filmed interview with Mathew Symonds where when asked a question relating to the HRA. He stated crt isn't a public body so the HRA didn't apply to them? Now what's correct, it seems like crt want it everyway round, to be considered a public body when it suits,a public company when it suits and treated as a charity when that suits its ends
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Post by Deleted on Dec 26, 2016 16:35:20 GMT
I'm a bit confused, didn't I see a filmed interview with Mathew Symonds where when asked a question relating to the HRA. He stated crt isn't a public body so the HRA didn't apply to them? Now what's correct, it seems like crt want it everyday round, to be considered a public body when it suits,a public company when it suits and treated as a charity when that suits its ends. That is similar and along the lines of how I see it. CRT don't even know exactly what they are. I think this is where the remark about crt being the overall loser stems from. They will be told by a judge what they actually are. The silly twunts have maneuvered themselves into a cul de sac. The outcome could well be unfavourable.
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Post by kris on Dec 26, 2016 16:46:59 GMT
I don't see why the outcome will be unfavourable, but then I'm probably not in possession of all the facts.
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Post by NigelMoore on Dec 26, 2016 16:59:29 GMT
I'm a bit confused, didn't I see a filmed interview with Mathew Symonds where when asked a question relating to the HRA. He stated crt isn't a public body so the HRA didn't apply to them? Now what's correct, it seems like crt want it everyway round, to be considered a public body when it suits,a public company when it suits and treated as a charity when that suits its ends I cannot comment on whether you saw/heard what you say, or whether it was said – but if said, it was strictly correct that they are no longer a publice body, but incorrect that they are not subject to the HRA. This is because they are a private body exercising the functions of a public body under statutory authority. The ‘charity’ business is just ghafla.
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Post by kris on Dec 26, 2016 17:22:59 GMT
The clip I remembered is at 16mins or so, although Mathew syymonds doesn't actually say the HRA doesn't apply to crt that's the impression he gives.
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Post by Deleted on Dec 26, 2016 17:25:45 GMT
Matthew Symonds ain't the brightest of sandwiches, so anything he says is questionable.
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Post by kris on Dec 26, 2016 18:02:23 GMT
Matthew Symonds ain't the brightest of sandwiches, so anything he says is questionable. I agree, his appearance on channel 4 news was laughable.
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Post by Deleted on Dec 26, 2016 18:10:53 GMT
Matthew Symonds ain't the brightest of sandwiches, so anything he says is questionable. I agree, his appearance on channel 4 news was laughable. Denise Yelland told him he was a TV star on his fb page at the time. That just about sums up the age mentality of them, pathetic. I screenshot their remarks before Parry told them to make their fb pages private. Even Mike Grimes head of boating joined in. Like I've said previously, a little clique within the organisation, but not in all honesty really qualified for the positions they hold.
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Post by Deleted on Dec 26, 2016 18:19:19 GMT
Ghafla A new word for my vocabulary. Thanks nigelmoore - as always
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