Two consultation papers have recently been issued, one by the Department of the Environment proposing the replacement of the current homelessness legislation, and the other by the Law Commission on the subject of aggravated and exemplary damages.HomelessnessThe principal proposals in the DoE consultation paper, 'Access to local authority and housing association tenancies', are that waiting lists should be the sole route to a secure tenancy or nomination to a housing association tenancy, and that local authorities' duties for the provision of accommodation to the homeless should extend no further than to secure temporary accommodation for applicants in priority need who are in 'an immediate crisis that has arisen through no fault of their own' and have 'no accommodation of any sort' to which they could reasonably be expected to go.No duty would arise until the authority had completed its enquiries and was satisfied that all the criteria were met.

Even then, it would only continue for a limited period, although no decision has yet been made as to whether or how to define that period.

A person asked to leave by his or her family should no longer automatically be eligible for assistance, nor a person with any form of accommodation available, however temporary.

Immigrants who enter the UK on the basis that they will not have recourse to public funds (ie practically everyone) should not be eligible for assistance.The s.64 duty to notify applicants of, and give reasons for, decisions would be 'simplified'.

Given the more limited substantive accommodation duties, it is envisaged that a less extensive duty of consideration and notification would 'benefit both authorities and applicants'; how it would benefit applicants is not expressed.

The possibility of a mandatory internal appeals procedure is raised.These proposals are clearly closely related to, and indeed, in part, arise from, the other main proposa l that the local authority's waiting list should constitute the sole route to secure tenancies and to nominations to housing associations, and that joint waiting lists should be established between authorities and their local housing associations.Suspended possession orderSince the decision of the Court of Appeal in Thompson v Elmbridge District Council [1987] 1 WLR 1425, that following a suspended possession order, a secure tenancy terminates automatically upon the first breach of any of its terms, the status of occupiers who remain in occupation after their tenancy has terminated in this way has been unclear.

S.85 of the Housing Act 1985 confers upon the court jurisdiction to suspend the order for possession until the date of its execution.

Yet, if the occupier is no longer a tenant but the court orders a further suspension on terms, does the secure tenancy somehow revive (as in relief from forfeiture)? Does a new tenancy arise or a tenancy on sufferance or some kind of statutory tenancy - a personal immunity from eviction so long as the terms of the new suspension are complied with?In R v London Borough of Newham, ex p.

Campbell, unreported, 14 September 1993, Sir Louis Blom-Cooper QC, sitting as a deputy judge of the High Court, considered this question in the context of homelessness.

The authority had found the applicant intentionally homeless on the basis that she had failed to pay her rent and had failed to comply with the terms of a suspended order.

The applicant contended that the authority ought to have taken into account the fact that what actually caused her to leave the premises was domestic violence.

The authority replied that the violence was irrelevant as, by the time the applicant left the premises, she had already lost her tenancy, and hence the accommodation, as she had failed to comply with the terms of the suspension, some months earlier.The judge held that the tenant did not remain secure for the purposes of making an application under s.85.

'Until eviction, he can merely postpone that fateful day of eviction, without altering his status of occupancy.' The right to apply to the court under s.85 of the 1985 Act does no more than afford an added safeguard against eviction; it leaves unaffected the legal consequences of a possession order.

Moreover, the provisions of the Protection from Eviction Act 1977 do not affect the position because they do not alter the property relationship between the landlord and the tenant.

The Act even protects unlawful occupiers.It would appear from these remarks that the tenancy, once lost by breach of the suspended order, does not revive by virtue of the order of a further suspension, pursuant to s.85, but that the tenant simply remains irremovable so long as the terms of the new suspension are complied with.

While this is a useful indication of the position, it is unfortunate that the legal basis of the tenant's continued occupation and, indeed, the implications of Thompson have still not been fully considered.For the purposes of the homelessness application, however, it was held that the authority had been wrong to fail to consider the subsequent domestic violence.

A homeless person can retrieve an adverse situation until the moment of decision making, and the deliberate act of refusing to pay the rent could not be divorced from the subsequent cessation of occupation due to the violence and harassment.

'Actuality...is always relevant to a determination of causation under s.60' and the authority was not entitled to disregard the evidence that the applicant had been driv en out by her partner's actions.ChildrenIn R v London Borough of Brent, ex p.

Sawyers [1994] 1 FLR 203, the applicant was an autistic and hyperactive child, living with his grandparents in accommodation which was wholly inappropriate for his needs.

By s.23(8) of the Children Act 1989 the authority was under a duty to provide accommodation and, so far as was reasonably practicable, to secure that the accommodation was not unsuitable to his particular needs.

Several offers of accommodation were made, none of which was considered suitable by the applicant's grandparents or his social worker.In May 1992, the applicant's grandfather wrote to the authority's chief executive complaining that they had been waiting five years for a suitable offer.

The authority's solicitor wrote saying that the last offer was the most reasonable that could be made and would remain open for 14 days.

The grandparents applied for judicial review to require the authority forthwith to offer or make available suitable accommodation.At first instance, Owen J, refusing the full application, held that the applicant did not have accommodation which was not unsuitable for his needs, but that if the accommodation which had been offered was the best 'not unsuitable' accommodation which it was reasonably practicable for the authority to provide, then the reason for such accommodation not having been secured was the refusal of the applicant's grandparents, advised by the authority's social services department, to take up the accommodation offered.Further, he would refuse relief on the basis that the court was an unsuitable forum to decide the question of what had been reasonably practicable for the authority.

An application to the secretary of state, under s.84 of the Act, was a more suitable, alternative remedy.

That section entitled the secretary of state, if satisfied that an authority was in default of its duties under the Act, without reasonable excuse, to make an order to that effect.The Court of Appeal dismissed the applicant's appeal, but on different grounds.

The court held that s.84 did not provide an alternative remedy: although default powers could be taken into account by the court as a possible alternative avenue of redress, s.84 did not provide the applicant with any right of appeal from a decision of an authority.That conclusion was reinforced by the existence of s.26(3), under which the authority was obliged to set up a procedure for considering representations or complaints about the discharge of its functions, which must include consideration of the representations by an independent person, not involved with the previous conduct of the case, and entitled the complainant to refer to a panel, the recommendations of which the authority would be obliged to consider.

The grandfather's letter of May 1992 had been a representation within s.26(3), but the authority had not appreciated this and had never undertaken the procedure.The trial judge had been wrong to hold that pursuing this procedure would have been pointless as the authority refused to commit itself to implementing the recommendations of the panel.

Although the authority could not bind itself, it would be unusual for an authority not to follow the recommendations of its panel and the independent person.In addition, whether or not the court was unsuited to deciding what was reasonably practicable for the authority was not the question which the court asked itself in judicial review proceedings.

The correct question was whether the authority's decision to offer the accommodation compl ained of in fulfilment of its duty under the Act was 'Wednesbury' unreasonable, or impugnable on any other ground for seeking judicial review.The authority's decision was not unreasonable in this sense and, accordingly, it was not in breach of its duty.

In any event, the order of mandamus sought was appropriate, given the terms of the duty under s.23(8).

There would have been considerable difficulty in formulating a satisfactory order of mandamus.DisrepairIn disrepair cases, penal notices indorsed upon county court interlocutory injunctions are usually, where a local authority is the defendant, addressed to the director of housing.

In R v Wandsworth County Court, ex p.

Munn, unreported, 2 March 1994, Sedley J considered the appropriate procedure for attaching such notices.

An order had been made by the circuit judge by consent.

The authority did not consent to the indorsing upon it of a penal notice.

The circuit judge refused, in the absence of the defendant, to indorse a notice upon the order, on the basis that by withholding consent to the notice, the authority may not, in reality, have consented to the order.

The judge was also concerned as to the correct form of the notice, and that it may not be right to name an individual officer.Treating the application for leave as the substantive hearing of the judicial review application, Sedley J held that there is no discretion to refuse to indorse a penal notice: it is a mandatory and ministerial act.His Lordship also held that the prescribed form of penal notice in use in the county courts (form N.77) - 'You must obey the directions contained in this order.

If you do not you will be guilty of contempt of court and you may be sent to prison' - was inapposite in relation to a corporate defendant, where any individual named in the order may not be guilty of contempt of court if he or she fails to obey the directions contained in the order.The High Court practice was different.

There, the form of penal notice is: 'If [the defendant] neglects to obey this order by the time stated, you [named individual] a director or officer of the said [defendant] may be held to be in contempt of court and liable to imprisonment.'His Lordship held that the prescribed forms (County Court (Forms) Rules 1982) were not mandatory and that form N.77 should be adapted along the lines of the High Court practice.

Further, it should not be the practice to name an individual in the penal notice - although that is the High Court practice and although attention should be drawn to the fact that individuals may be in contempt of court if they frustrate the implementation of the order against the corporation - because the addition of the name adds nothing; service upon the individual is everything.

There is, however, nothing unlawful about the inclusion of a name, but this must be done by order of the judge or district judge, and not by the court office.DamagesThe Law Commission consultation paper No.132, 'Aggravated, exemplary and restitutionary damages' (1993), raises three issues: should non-compensatory damages be retained? If so, how should the law develop after Rookes v Barnard? What should be the principles upon which non-compensatory damages are based?The Law Commission's own preliminary view is that while such damages should be retained, aggravated damages should be abolished and exemplary damages form the sole non-compensatory award.

They suggest two bases for awards: first, where it was proved that a defendant had acted maliciously or otherwise outrageously, and secondly, where the parti es were, at the time, in an 'unequal' relationship and the defendant has deliberately and consciously done wrong, showing a contumelious disregard for the plaintiff's rights.1994