The Defence Estates v Livingstone and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses |
| Judgment Date | 25 January 2010 |
| Neutral Citation | [2010] EWCA Civ 432 |
| Date | 25 January 2010 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2009/2534 & C1/2009/1250 |
[2010] EWCA Civ 432
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEENS BENCH DIVISION, ADMINISTRATIVE COURT
(Mr Justice Walker and Mr Justice Collins)
Before: Lord Justice Moses
Case No: C1/2009/2534 & C1/2009/1250
Mr S Cottle (instructed by Messrs Davies Gore Lomax) appeared on behalf of the Appellant.
Miss H Stout (instructed by Eversheds LLP) appeared on behalf of the Respondent.
Lord Justice Moses:
1. This is an application for permission to appeal in two cases, one from a decision of Wilkie J in which it is alleged he was wrong as a management decision to refuse permission to obtain expert evidence and it really does not seem to me that any expert evidence would possibly be needed at this stage and I am going to refuse permission to appeal in that case.
2. There remains, however, the application for permission to appeal against Collins J's decision. That is in [2009] EWHC 1049 and that is case number 11085/2007, his decision of 5 May 2009.
3. The case that is advanced against his decision is that the judge failed properly to deal with the impact of Section 49A of the Disabilities Act in the decisions of the Defence Estates to seek possession of the property. That challenge has to be seen in the context of a recognition recorded explicitly by the judge that the claimant cannot stay in this property forever and cannot have security. In those circumstances it seems to me completely academic and idle to challenge the decision of Defence Estates to try to obtain repossession of this army property by identifying a failure to have regard to the well understood obligations under the Disability Act.
4. What this case is now really about is the interim period and what obligations remain upon the local authority, Leeds, under its homelessness duty under Part VII of the Housing Act and its relationship with Defence Estates, who at the moment still have this family on their property. It seems to me that the difficulty with the decision of Collins J arises out of what he said both at paragraph 23 and at paragraph 53. At paragraph 23 he says in relation to the Section 49A of the 1995 Act:
“The ministry recognises that she [the defendant/appellant] is disabled and has recognised at all material times that they must assist, so far as they are able,...
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R Attfield v London Borough of Barnet
...the local authority to be relevant. 8 The provisions have been considered by this court in the case of Djanogly v City of Westminster [2010] EWCA Civ 432, where Pitchford LJ said at paragraph 12: "I am content, as were the parties (save in one respect for the defendant), to follow McCulloug......