FOI and empty homes - Camden case highlights latest position

A new decision by the Information Tribunal re-inforces the Bexley decision that lists of empty homes owned by "non-individuals" should be released to the public under Freedom of Information legislation.

As with the Tower Hamlets case in 2010, the Council successfully argued before the Information Commissioner that releasing this information would be prejudicial to the prevention of crime. Unlike the Tower Hamlets case, however, the complainant decided to appeal to the Information Rights Tribunal: the Tribunal reversed the decision of the Information Commissioner.

Interestingly, the Appellant in this case - a Mr Yiannis Voyias - was heavily involved in squatting, being described by the Tribunal in the following terms:

The Appellant has been a member of the Advisory Service for Squatters (ASS) since 2008 during which time he has come into contact with thousands of squatters, visited more than a hundred occupied squats and been involved in the process of entering and securing around 20-30 premises. He is a contributor to a number of squatting publications

The nub of the case was that, whilst the Tribunal agreed that releasing the information would prejudice the prevention of crime, thus meeting one of the exemption criteria laid down in Section 31 of the Freedom of Information Act, this was outweighed by the "public interest" justification for releasing the information.

Confidentiality of complaints

There were all sorts of other interesting aspects of to this case. Some related to Data Protection and Freedom of Information. For example the Council brought forward evidence in the form of complaints from neighbours of squatted properties, which was to be withheld from the Appellant because of its sensitivity. The Appellant asked for the complaints to be released with some of the information redacted to disguise identities, but in this case the Tribunal sided with the Council:

The Tribunal is satisfied that this additional disclosure even in redacted form is not in the interests of justice because: (a) the nature of the complaints, and (b) the Appellant’s detailed knowledge of squatting in Camden, would make it likely that he would recognise the properties being complained of and be able to identify the neighbours concerned.

Reliability of Council Tax data

Also of interest was the Council's contention that

recent Council street surveys have found that almost a third of properties recorded as void appear in fact to be occupied

An important consequence of this was the the Tribunal held that the request for infomation could not be met by providing information from Council tax lists:

the Tribunal is satisfied that the wording of the request should be construed as meaning “actually empty” at the date of the request, and the Council tax list is not an accurate representation of this.

The Tribunal distinguisehd betwen this information and that available to the Council in respect of its own homes where its operational control of the properties should reasonably guarantee accurate information.

Rules of Evidence

A further interesting procedural point - one that might have swung the case the other way had it played out differently - was that whilst the Information Commissioner in the original LB of Camden decision took into account detailed information supplied by LB of Tower Hamlets about issues caused by "organised squatting" of Tower Hamlets council homes, the same detailed information was not supplied to the Information Rights Tribunal. The Tribunal decided

Whilst the Commissioner was entitled to take that evidence into consideration (on the basis that he has seen it and had the opportunity to evaluate it) the same evidence was not submitted to the Tribunal at this hearing and the Tribunal does not therefore adopt any findings of fact that are based upon material it has not seen.

An email of a more general nature sent by Tower Hamlets to the Tribunal was thus effectively discounted. It described:

“organised squatting which has resulted in criminal damage to Council property. Damage of sanitary fittings has led to flooding with genuine health and safety issues.”

Squatting and criminality

In a central section of the hearing the Tribunal accepted that the lists of long-term empties would at best be of interest to organised squatters and not to the kinds of squatters who cause most anti-social behaviour and would be most associated with criminality. The latter were considered to work opportunistically and would be too chaotic to make use of the lists.

Quite rightly, the Tribunal was concerned to draw direct links between the disclosure of information about voids and criminality. It was not sufficient that some empty homes might be the focus of considerable criminal activity: the question was whether this would be likely to occur as the result of a list of voids being made public. In essence it concluded that most crime associated with empties would be opportunistic or based on local knowledge rather than being associated with lists published by the Council.

The Tribunal did nevertheless accept that there might be more squatting (even if no more squatters) because organised squatters could move to more desirable properties chosen from the list or decide to share homes with fewer people. It did also accept the rather obvious fact - agreed by the Appellant - that most squatting involves criminal damage through forced entry. And it did accept that lists of empty homes might facilitate organised "stripping" of properties. In summary the Tribunal decided that as far as prejudicing the prevention or detection of of crime:

The level of prejudice is real, actual and of substance.

Balancing Exercise

Nevertheless, in its balancing exercise, the Tribunal treated the impact of crime as being relatively trivial and therefore carrying less weight than the public interest argument in favour of disclosure..

in assessing the weight to give these factors the Tribunal takes into consideration the nature of the crimes that it considers would follow disclosure and finds that they are at the lower end of victim impact and that in some cases the presence of organized squatters itself will prevent the use of the premises for more socially disruptive crime (e.g. use as a crack house).

It seems to have quiety ignored the issue of "stripping" which had been so central in the Tower Hamlets case (refer to our Library Item for links to that case). It is telling that its description of the "public interest" dimension of preventing crime mentions

  • avoiding personal distress to the victims of crime,
  • avoiding distress to those in the wider neighbourhood who may be affected by crime,
  • and a public interest in the efficient use of police resources.

but does not mention any public interest associated with the "efficient use" of tte council's own resources that might need to be diverted to evicting squatters and/or making good damage, particularly where homes have been stripped.

Short-life housing the best answer?

The Appellant made a strong case in favour of short-life housing which, disappointingly, the Tribunal did not seem to find very convincing:

The Appellant argues that this [i.e. short-life housing] would be in the commercial and financial interest of the public because: in relation to Council properties it would reduce the costs associated with “empty property crime” and bring in additional revenue to the Council by way of rent for dwellings that were brought back into use earlier than they would otherwise have been. However, the Tribunal notes that this has to be balanced by the increase in costs relating [to] additional empty property crime arising out of the publication of the disputed information, and considers therefore overall that this is not a particularly strong public interest.

See me, feel me, touch me, heal me?

In the final analysis, the Tribunal's decision seems to rest on two key "public interest" factors. Most important seems to have been straightforward transparency:

The Tribunal is satisfied that there is already a lively and informed debate in this area, but, recognises that specific examples provide colour and are important in increasing public understanding and local involvement. It puts the specific empty properties into the limelight, may be an added tool to incentivize owners to reuse their properties and would enable the general public to walk up to a ‘void’, and see for themselves what is going on, whether it is being worked on, or has been left in limbo. Although the Tribunal recognizes the various reasons why a property may be vacant including bereavement, the Tribunal is satisfied on the balance of probabilities that this remains a very strong public interest factor in favour of disclosure.

The second key advantage is highlighted by the Decision's statement that:

The Tribunal is satisfied that publication of this list would bring a proportion of the void properties back into use earlier than would otherwise be the case and that consequently this is a strong public interest factor in favour of disclosure

That would assume they hadn't been stripped in the meantime of course...

Case references

Case reference: Appeal No. EA/2011/0007; Voyias v IC & LBC

Date of Hearing: 9th June 2011

Date of Decision: 2nd September 2011

Library Item linking to Camden Appeal Decision.

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Comments

David Ireland (Empty Homes charity)
Daily Telegraph
Grant Shapps (as reported by Press Association)
Daiy Mail  This attracted over 1000 comments.
Interestingly, the Mail reports without comment at the end of the article the following:

"Mr Neill, a Tory, said he would step up the ‘empty dwelling management orders’ brought in by Labour in 2006."

The proposal to make councils wait two years before an empty property can be EDMO'ed would - if enacted as first proposed - mean waiting two years after a home had been squatted, as we pointed out in our consultation response.