Public Interest Law Centre

public law | human rights | legal action

5May 2022

Southwark overcrowding case in court today

5th May 2022|

On Thursday 5th May we are in court for the hearing in our client’s judicial review challenge to Southwark council’s housing allocations policy.

Our client, Milton, lives with his wife, son and daughter in a privately rented studio apartment in Southwark. They are severely overcrowded and have endured extremely cramped housing conditions for almost five years. The family applied to join Southwark’s housing register in April 2018. However, Southwark has refused to prioritise the family’s application for housing. The council claims that the family’s overcrowding is the result of a ‘deliberate act’.

However, Milton and his family had no choice but to move into their current accommodation.  As Milton explains with the help of his daughter Rebecca: ‘I had to move to this flat. When we looked at other places the agencies asked us for many months’ rent in advance. I couldn’t rent a bigger house because it was too expensive.’

As Housing Action Southwark and Lambeth (HASL) have highlighted this week, Southwark council have spent a large amount of money and resources defending this case – money that could have been spent on tackling exploitative landlords and supporting Southwark residents. HASL are running an email campaign demanding that Southwark remove the ‘deliberate act’ provision and stop blaming families for their poor living conditions.

We will provide a legal update on the outcome of this case over the next few weeks.

10Aug 2021

New PILC briefing on Domestic Abuse Act

10th August 2021|

We have today published a briefing on the Domestic Abuse Act 2021, many of whose provisions are now in force. Our explainer focuses on the six main changes in the act that relate to housing. We hope the briefing will be of use to advisors, frontline workers and survivors.

One major concern regarding the Domestic Abuse Act is that it does not cover survivors of abuse who have No Recourse to Public Funds (NRPF). Such survivors find it very difficult to access housing support and may be forced to remain in abusive homes.

We will be publishing a further briefing on NRPF, DV and access to housing in the near future.

1Jul 2021

PILC launches EU homeless rights report

1st July 2021|

UPDATE (12/07/21): The full recording of our online launch event for this report is now available, with speakers including: Mihai Calin Bica from Roma Support Group; Polina Manolova from the University of Tübingen; PILC’s research and communications coordinator Benjamin Morgan; and Agnieszka Radziwinowiczówna from the University of Warsaw.

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On Jul 1 2021 PILC published a research report on the key rights and social-justice issues faced by homeless and otherwise marginalised EU citizens living in the UK. The report, entitled Still Here: Defending the rights of homeless EU citizens after Brexit and Covid-19, is based on research, casework and litigation undertaken through our EU homeless rights project (2018-21).

Our report finds that EU citizens living in the UK experienced large-scale destitution and rights violations well before Brexit. Homeless EU citizens were especially at risk of not having their rights upheld by statutory agencies, while the legal exclusion or ‘differential inclusion’ of EU citizens with respect to social assistance was a major cause of destitution, including rough sleeping.

We identify three overlapping groups of EU citizens who were particularly exposed to poverty, hyper exploitation and rights violations before Brexit : working-class EU citizens from the ‘A8’ and ‘A2’ countries of Central and Eastern Europe; EU citizens or qualifying non-EU family members who may identify or be racialised as non-white; and survivors of domestic abuse.

Our advocacy report proceeds via an analysis of six key rights areas (access to housing; support for domestic-abuse survivors; access to welfare benefits; employment rights; access to NHS care; and access to community care), illustrated with examples from PILC’s casework and litigation.

We then discuss issues relating to EU citizens’ right to remain after Brexit, showing that the UK’s departure from the EU is likely to exacerbate the rights issues faced by marginalised Europeans. This section of our report looks at current and historic policies aimed at deporting homeless EU citizens and the shortcomings of the EU Settlement Scheme (EUSS). We also analyse the experiences of destitute EU citizens during Covid-19, an issue first covered in detail in a 2020 report co-authored by PILC.

The final section of the report examines the homelessness sector’s work with EU citizens. We argue that the sector in the shape of local authorities and commissioned services is failing marginalised Europeans, and non-UK nationals more broadly. We suggest that a culture change is urgently needed, and that the sector must assert the right to shelter, welfare assistance and to remain of all EU citizens in the UK.

28Jun 2021

Rough sleeping rule challenge: update

28th June 2021|

On 1 December 2020 the government amended the Immigration Rules to make rough sleeping a ground for cancelling or refusing permission to stay in the UK.

On 2 December 2020 PILC, instructed by the Refugee and Migrant Forum of Essex and London (RAMFEL), formally wrote to the Secretary of State for the Home Department (SSHD) to request that the new rough sleeping rule be repealed. We argued that the rule was unlawful, disproportionate, discriminatory and violated the UK’s international obligations in respect of victims of trafficking. PILC also sent the SSHD a detailed report evidencing the potential effect of the new rule on non-UK nationals sleeping rough.

On 6 April 2021 the rough sleeping rule was amended so that permission may only be refused or cancelled where a rough sleeper has also:

  • repeatedly refused suitable offers of support; and
  • engaged in persistent anti-social behaviour (ASB)

On 20 April 2021 the Home Office published guidance on the interpretation of the rough sleeping rule. This guidance significantly limits the scope of the rule.

There is little doubt that these changes have come about as a direct result of our legal action and strong opposition from the voluntary sector, local authorities and trade unions.

In light of the recent changes to the rough sleeping rule, we have updated our factsheet for homeless non-UK nationals and those supporting them.

What does this mean for PILC’s legal challenge?

Although the latest guidance appears to have significantly limited the scope of the rough sleeping rule, a number of concerns remain:

  1. The rule may result in people who find it hard to engage with services as a result of mental health difficulties, lack of mental capacity or substance-misuse issues being targeted for immigration enforcement. The behaviour of such individuals may be interpreted as ‘anti-social behaviour’.
  2. The rule presents a significant risk to Roma people whose needs have historically not been met by support services and who have been disproportionately targeted for local-authority and immigration enforcement in recent years.
  3. The ‘available support’ listed in the Home Office guidance is largely applicable to non-UK nationals with recourse to public funds. Little effective support to leave the streets is available to the group most likely to be affected by the rule: non-UK national rough sleepers with no recourse to public funds (NRPF).
  4. We are concerned that the rule may be used coercively, with rough sleepers being offered ‘voluntary’ return and threatened with deportation if they refuse. It remains unclear who will decide whether ‘voluntary return’ is a ‘suitable’ support option. Although the Home Office guidance suggests ‘voluntary return’ as an option for those ‘who want to go home’, ‘voluntary return’ (or ‘reconnection’) has historically been offered to rough sleepers as a ‘single service offer’.
  5. Anti-social behaviour powers raise significant issues around proportionality, due process and accountability. Rough sleepers are commonly targeted by ASB enforcement measures—often just for rough sleeping. The evidence threshold for the issuing of Community Protection Notices (CPNs) is significantly lower than for older ASB orders.
  6. The rough sleeping rule lends itself to misuse or abuse by empowering individual local authorities to advise Immigration Enforcement around support available/refused and target individuals/groups with ASB orders or notices.

We remain committed to:

  • Pressuring the government to scrap the rough sleeping rule altogether.
  • Monitoring how the rule is being implemented on the ground and challenging the government in cases where it is being abused or misapplied

We will continue to provide updates about our legal challenge in this area.

What can I do?

If you or someone you know is affected by the rule, or if you believe the local authority in which you live or work may be planning to co-operate with the rough sleeping rule, please contact office@pilc.org.uk

You can also support one or both of two active campaigns opposing the rough sleeping rule:

1Jun 2021

Elephant JR fails, but campaigners hail concessions as victory

1st June 2021|

The Court of Appeal has upheld a High Court decision allowing developers Delancey to proceed with the demolition and redevelopment of the Elephant and Castle Shopping Centre.

The Court found that there were no grounds for reversing the High Court’s decision.

The legal challenge was mounted as part of a hard-fought four-year campaign which brought together housing campaigners, students, tenants’ groups, local councillors and trade unionists in the fight for more socially rented housing and a better deal for traders displaced by the proposed development.

The decision will allow the mixed-use development of new shops and homes to proceed. with Out of 979 new homes 116 will be social rent units.

In the course of the legal battle Southwark Council conceded that a change was needed in its legal agreement with Delancey in order to secure socially rented housing.

Improvements won by the campaign

Despite this legal defeat, the Up the Elephant Campaign secured many improvements to the original redevelopment proposals:

  • Increase in socially rented housing from 33 units of social-rent equivalent owned and managed by developer to 116 proper social rent units owned and managed by the council or housing association
  • Provision of affordable retail space
  • An established traders’ panel
  • Temporary traders’ premises on Castle Square
  • Trader relocation and assistance fund of £634,700 and £200,000
  • 15-year affordable retail lease (rents to be held at 75% market Yr 6-15)

These are all improvements against the baseline of the original application made in October 2016

Jerry Flynn of Up the Elephant said:

 ‘We are naturally disappointed that the court has not found in our favour, but we can be pleased with the victories we have had in our fight with Delancey and Southwark.  There was zero proper social rented housing to begin with and it is only by the efforts of local people that we have the 116 homes now promised.

But this socially rented housing still has to be delivered and Delancey’s track record shows that it is practised in passing these costs back to the public purse.  We will continue to campaign to make sure that we get the promised 116 social rent units and that Southwark does not have to pay for them.’

There have also been gains for the traders – many now have somewhere to move to. [But there is] not enough space for everyone who needs it and traders are still in negotiation with Southwark for a new market space.  We will continue the fight to get them a better deal, alongside the Latin American community who have made the Elephant their home.

We also got together a great legal team and are very grateful for the part that they have played in this battle, which has shone a light on the advantages our planning system affords big developers like Delancey, even when they fail to meet their affordable housing obligations.  We will continue the fight to change this.

Tanya Murat of Southwark Defend Council Housing, which supported the campaign, said

‘We lost the legal fight, which was always the most likely outcome as planning law protects developer profits.

But Southwark Council could have stopped the Elephant and Castle scheme by refusing to take up CPO powers. Instead they sided with developer Delancey, a firm who partner with the Qatari government, have taken millions in taxpayer funded loans and are implicated in the ongoing cladding scandal. We won’t forget that.

This has been an inspiring campaign which has proved that if you fight for more you can get it.  There was no affordable retail space, trader’s panel or trader’s relocation fund before we began our campaign. We won all these concessions from Delancey, although sadly many traders will still be left out in the cold.

It is a tragedy that we have lost the opportunity to rehouse more people who rely on council housing for a decent home.  Southwark has a policy that should have got us at least another 55 socially rented homes and even that would have meant less than 200 out of nearly a thousand new homes.  Southwark must stop caving in to developers like Delancey if we are ever going to solve the housing crisis.’

Paul Heron of PILC, solicitors for the claimant Jerry Flynn, said:

‘Southwark Council should now be on notice that local people expect the maximum amount of affordable and social rented housing from major developments and will challenge any that do not provide it.  While we have lost this case, we have demonstrated we have the capacity to hold Southwark and big developers to account and we will not hesitate to mount more challenges where we think it is justified.’

Sally Causer of Southwark Law Centre, which also supported the campaign, said:

We applaud all the people who have fought so hard to save the Elephant and Castle community. Although the result is disappointing, we can’t imagine how much worse the situation for traders and the community would have been without the campaign. The work goes on. The campaign has secured a commitment to an over-300% increase in social rent units. Southwark Law Centre will continue to support traders to make sure they get the best deal and work with campaigners to ensure that the commitment to social rented housing is honoured. We hope that Southwark Council will also apply proper scrutiny to the development’.

The legal challenge

The appeal was heard by Sir Keith Lindblom, Lord Justice Baker and Lord Justice Lewis at a remote hearing on 16 and 17 March 2021.  The judgement (Case No: C1/2020/0447) can be found here.  The appellant was Jerry Flynn, a member of the 35% Campaign and the Up the Elephant campaign. The defendants were Southwark Council and Elephant and Castle Properties Ltd.

Jerry Flynn was represented by barristers Sarah Sackman of the Francis Taylor Building and David Wolfe QC, of Matrix Chambers, instructed by the Public Interest Law CentreSouthwark Law Centre also assisted with the challenge.

The appeal was against a High Court decision upholding Southwark Council’s approval of plans to redevelop the shopping centre. The original case was heard at the Royal Courts of Justice on 22-23 October 2019.

The challenge focused on socially rented housing in the mixed-use scheme.  Developer and shopping-centre owner Delancey have permission to build nearly a thousand new homes, but only 116 will be socially rented and these will not be provided for nearly ten years.  The challenge argued that there could be, and should be, more social housing and that there was doubt that even the 116 social rent units promised will be provided.

The demolition of the centre will displace independent traders, half of whom have been allocated no space in Delancey and Southwark’s relocation plans.  Many of the traders are from Black and Minority Ethnic backgrounds. The Elephant’s Latin American community fear that the development will destroy a vital social hub:  http://35percent.org/2019-03-30-no-room-for-traders-in-the-new-elephant/

The hearing was a ‘rolled-up’ hearing, meaning that both the decision on permission to apply for a judicial review and the case itself were dealt with together.

The order for the hearing noted that the application was “…one of those exceptional cases where the public interest in the issue which the claimant raises is such that if permission is refused this should occur after a hearing.”

The barristers for the challenge were Sarah Sackman of Francis Taylor Building and David Wolfe QC of Matrix Chambers.

Background

The Up the Elephant Campaign is a coalition of local people and groups fighting for a fairer regeneration at the Elephant and Castle have made a legal application to overturn the planning approval for the redevelopment of the Elephant and Castle shopping centre.  Over £11,000 was raised through crowdfunding to support the case:

https://www.crowdjustice.com/case/stop-the-elephant-shopping-centre-destruction/

https://www.crowdjustice.com/case/save-the-elephants-diverse-com-appeal/

Planning approval for the demolition and redevelopment of the shopping centre was granted to its owners Delancey on 10 July 2018, two years after a planning application was submitted in Oct 2016 (ref 16/AP/4458).  The application generated over a thousand objections and was deferred on three occasions.

The mixed-use development is being undertaken in partnership with the University of the Arts London. It will occupy two sites, including the sites of the current London College of Communication aand the Elephant shopping centre, both of which are to be demolished.  The LCC will get a new campus and there will be a new Northern Line tube entrance.

There will be 979 new Build-to-Rent homes of which 330 will be “affordable”, but only 116 will be social rent units.  There will be about the same amount of retail floorspace as at present.