Housing Law Bulletin - Issue 173 - 4 May 2010

Tuesday 4 May 2010

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Editorial Note: publication of this issue of the Housing Law Bulletin was delayed in the temporary absence of our Editor during much of April. This issue is therefore much fuller than usual to ensure that no developments during April 2010 have been overlooked. The Bulletin will now resume its normal weekly cycle.

The Latest Housing Law News

Social housing - the new rules: on 1 April 2010 the Tenant Services Authority (TSA) became the new regulator for all social housing - both council and housing association stock. It has published a new "regulatory framework" indicating how it will exercise its powers. The framework contains six new statutory standards with which social landlords must comply. For a copy of the framework document, including the new standards, click here.

Housing and Anti-Social Behaviour: in another drive to tackle this issue, a new Government-funded team of four specialist ASB Action Team Advisers has been seconded to the TSA to help social landlords in their efforts to address housing-related misconduct. For more details of the work they will undertake, click here. At the same time, a new Tools and Powers - toolkit for social landlords has been published. For a copy, click here.

Homeless teenagers: in an attempt to help housing and social services authorities understand who should take responsibility for homeless teenagers, the UK Government has published new guidance for local authorities in England: Provision of accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation. For a copy, click here.

Discrimination in Housing: the Equality Act 2010 received Royal Assent on 8 April 2010. It will be brought into force in stages. Sections 189 and 190 deal with reasonable adjustments and improvements in relation to lettings to disabled tenants. For an introduction to the provisions of the Act see under "Housing Law Articles" (below). For the Act itself, click here.

Tenants of Mortgage Borrowers: the Mortgage Repossessions (Protection of Tenants etc) Act 2010 received Royal Assent on 8 April 2010. It applies to England and Wales and will be brought into force by commencement order. It will give tenants some notice of the making of a possession order and the opportunity to apply for a stay of the warrant of possession. For an introduction to the provisions of the Act see under "Housing Law Articles" (below). For the Act itself, click here.

Controlling Development of Houses in Multiple Occupation: new controls on the development of HMOs took effect on 6 April 2010. For a copy of the relevant regulations, click here. For a copy of Circular 05/2010, which explains the changes and gives guidance on them, click here.

Effects of Poor Housing: a new study from the National Housing Federation, published last week, highlights some of the critical impacts that poor quality, overcrowded, and temporary accommodation can have on individuals' health and well-being, likelihood of criminality, and educational attainment. For a copy of The Social Impact of Poor Housing, click here.

Social Housing in Scotland: the Scottish Government has launched a consultation exercise on possible improvements to the protection of tenants of social housing with rent arrears. Responses are sought by 28 May 2010. For a copy of the consultation paper, click here.

Homeowners in Scotland: the Home Owner and Debtor Protection (Scotland) Act 2010 received Royal Assent on 18 March 2010. It enhances statutory protection for secured loan defaulters in Scotland and confers rights of audience on approved lay representatives in possession claims. For a copy of the Act, click here.

Housing associations in Wales: the Welsh Assembly Government has launched a consultation exercise on the development of common performance standards for social housing providers in Wales. Responses are sought by 19 May 2010. For a copy of the consultation paper, click here.

Affordable housing in Wales: the Welsh Assembly Government has launched a consultation exercise on the provision of intermediate housing for rent in Wales and possible adoption of a "rent first" model. Responses are sought by 28 May 2010. For a copy of the consultation paper, click here.

Housing reform in Wales: the delivery of new housing legislation in Wales suffered a setback when the UK Parliament failed to pass the proposed National Assembly for Wales (Legislative Competence) (Housing and Local Government) Order 2010, relating to Sustainable Housing, before the end of the parliamentary session. The Welsh Affairs Committee had recently published a special report on the Order. For a copy, click here.

Housing in Northern Ireland: the Housing (Amendment) Act (Northern Ireland) 2010 received Royal Assent on 13 April 2010. It gives the homeless in Northern Ireland a right to a review of, and appeal from, an adverse homelessness decision and makes a range of other changes to Housing Law there. The Act will be brought into force by order. For a copy of the Act, click here.

The Lands Chamber Rules: a consultation exercise is underway on the proposed new procedural rules for the Upper Tribunal (Lands Chamber) which hears appeals from Residential Property and Leasehold Valuation Tribunals. The consultation closes on 20 July 2010. For a copy of the consultation paper, click here.

The Latest Housing Case Law

29 April 2010
TG v Lambeth LBC
[2010] EWHC 907 (Admin)
In 2006, when he was 16, the council provided the claimant with accommodation. Later, the question arose whether that had been provided as a social services function (in which case the claimant was entitled to services under the Children (Leaving Care) Act) or under the homelessness provisions of the Housing Act (in which case no such services were available). The High Court considered the two recent House of Lords cases - M and G - and decided that the claimant had only ever been accommodated by the housing department. For the full judgment, click here.

28 April 2010
Clue v Birmingham CC
[2010] EWCA Civ 460
The claimant was destitute and sought assistance from the council for herself and her dependent children. She was an overstayer with an extant application for indefinite leave to remain. The council declined to provide support or accommodation (under Children Act 1989) on the basis that the claimant could return, with her children, to Jamaica. That decision was quashed in judicial review proceedings and the council appealed. The Court of Appeal dismissed the appeal. The application ought not to have been refused while the claimant had an undetermined claim to remain in the UK unless that claim was hopeless or an abuse of the system. For the full judgment, click here.

28 April 2010
Floyd v Legal Services Commission
[2010] EWHC 906
The claimant, a landlady, sought possession for rent arrears. The Commission (LSC) granted legal aid to the tenant to enable him to defend the claim. The defence failed and the tenant's appeal to the Court of Appeal was dismissed with costs. The claimant presented her bill of costs to the LSC relying on section 11 of the Access to Justice Act 1999. The bill was served out of time. The claimant sought an extension of time on the basis that the discretion to extend time in the Civil Procedure Rules could be applied to the time limits in the legal aid regulations. The High Court rejected that argument and held that, in any event, there were no grounds for the grant of any extension of time. For the full judgment, click here.

23 April 2010
Link Lending Ltd v Bustard
[2010] EWCA Civ 424
The claimant granted a loan of over £100,000, secured on property. On default of repayments, it sought possession. Ms Bustard heard about the claim. She had been swindled out of the property, that she had owned, by the borrower and now lived in a care home. The issue was whether she had been in "actual occupation" of the property when the loan was made, so that the claimant's rights were subject to hers, even though she had been staying in the care home. The judge found that she had been in "actual occupation" and dismissed the claim. The Court of Appeal dismissed the claimant's appeal. For the full judgment, click here.

22 April 2010
Kensington & Chelsea RLBC v Secretary of State
[2010] EWHC Admin, CO/10514/2009, noted on LAWTEL
A developer sought planning consent to convert a hotel for housing use. The council insisted that some affordable housing be provided on site but the developer contended that it would not be economic to do so. A planning inspector granted planning permission although he had been unable to determine whether affordable housing could be economically provided on the site or not. The High Court allowed the council's appeal against that decision. The issue of economic viability needed to be determined.

22 April 2010
Complaint against Harlow District Council
LGO Complaint 09 005 422
A council tenant complained to the Local Government Ombudsman about the unreasonable delay of her landlord in carrying out repairs to her home. A water leak rendered the ceiling of her daughter's bedroom unstable and the room could not be used for 18 months. The Ombudsman upheld the complaint and recommended payment of £4500 compensation. For more detail and a copy of the full investigation report, click here.

20 April 2010
Paddington Basin Developments Ltd v Sharr
[2010] EWHC 833 (Ch)
A residential development contained 400 flats in three blocks. The flats were let on long leases requiring payment of service charges and other charges. A dispute arose as to whether certain payments were due. The issue turned on whether a particular agreement was a "qualifying long term agreement" for the purposes of the Landlord & Tenant Act 1985 section 20ZA(2) and the Service Charges (Consultation) Regulations 2003. The High Court gave a ruling on that question in determining a preliminary issue. For the full judgment, click here.

20 April 2010
R (Kiana) v Secretary of State
[2010] EWHC Admin, [2010] All ER (D) 110 (Apr)
The claimant was a failed asylum seeker. On his application, the Secretary of State agreed to provide him with support under Asylum and Immigration Act 1999 section 4 in the form of accommodation and vouchers. The claimant wanted to continue to live with his partner and child in her accommodation. He asked the Secretary of State to treat his partner as supplying him with accommodation under section 4 and to provide him with vouchers there. The High Court held that neither option was possible under the section 4 regime.

15 April 2010
Paddington Churches HA v Campbell
[2010] EWHC 859 (QB)
The claimants applied for an injunction requiring the defendant, their tenant, to allow staff to make a gas safety inspection. A judge granted the injunction and awarded £1000 costs of the application. The tenant appealed. She contended that no injunction application should have been made because (1) other proceedings (for possession and a disrepair counterclaim) were outstanding between the parties and the question of access could have been addressed in them and (2) she had notified the landlords' agents that she did not use gas at the premises. The High Court upheld the judge's order for the injunction but reduced the costs from £1000 to £150. However, as the tenant had lost the substantive issue on the appeal, she was ordered to pay £1499 costs of the appeal. For the full judgment, click here.

14 April 2010
R (Adow) v Newham LBC
[2010] EWHC 951 (Admin)
The council's housing allocation scheme provided that medical assessments of applications for housing accommodation would be carried out by the "medical assessment officer in the quality and review team". The council had no employee in that post and sent the claimant's application for assessment to an external adviser, "Dr. Keen". In a judicial review of that decision, the High Court granted a declaration that the council was acting in breach of the terms of its scheme by having "out-sourced" its decision-making in that way.

31 March 2010
Eastlands Homes v Whyte
[2010] EWHC 695 (QB)
The claimant was a social landlord. It granted an assured shorthold ("starter") tenancy to the defendant. It later served notice seeking possession under Housing Act 1988 section 21. The defendant appealed against the decision to evict her but that appeal was rejected by the claimant's appeals panel. In the possession proceedings, the defendant claimed that the decision to evict was unlawful on public law grounds. The High Court held that the claimant had unlawfully exercised its powers. It had: (1) failed to supply written evidence in advance of the appeal pane hearing; (2) broadened the matters considered by the appeal panel beyond the information contained in the case summary; and (3) most importantly, failed to consider its "clearly stated policy for dealing with rent arrears, which applied to starter as well as assured tenancies". For the full judgment, click here.

31 March 2010
Souter v McAuley
A394/09, Dundee Sheriff Court
The parties were joint tenants of a council flat in Dundee and had been living in the flat in a same-sex cohabitation (although they had not entered into a civil partnership). Their relationship broke down and an application was made to the court to determine to whom the joint tenancy should be to transferred as a sole tenancy. They were both single men in their thirties. The judge found that, in the absence of any clear distinction between the merits of the claims of each party, the tenancy should be transferred to the least troublesome of them. He ordered the tenancy be transferred to the one described by a neighbour as "quiet and friendly" rather than to the "short-tempered, noisy, disturbance-creating alternative." For the full judgment, click here.

30 March 2010
Salford CC v Mullen
[2010] EWCA Civ 336
The Court of Appeal heard five appeals together, all concerning public law defences to possession claims. It dismissed two appeals relating to introductory tenancies and dismissed three appeals relating to non-secure council tenancies occupied by tenants who were being assisted under homelessness duties. It gave permission to appeal to the Supreme Court in relation to one case of each type. (Those appeals are now listed to be heard by a seven-justice division of the Supreme Court on 23 and 24 November 2010). For the full judgments, click here.

30 March 2010
Hilmi & Associates Ltd v 20 Pembridge Villas Freehold Ltd
[2010] EWCA Civ 314
Four tenants in a block of seven flats served statutory notice on the freeholder to acquire the freehold of their block. Three of the tenants were individuals. The fourth was a company. The notice had only been signed by one director of the company. The freeholder claimed the notice was invalid. A judge rejected that claim but the Court of Appeal allowed an appeal. A company could only give formal notice by complying with the Companies Act e.g. by affixing its seal. For the full judgment, click here.

Housing Law Articles

Recent Developments in Housing Law
J. Luba and N. Madge
[2010] April Legal Action 22

Dealing with Infestations
D. Forster
[2010] April Legal Action 28

Owner Occupiers Law Review
D. McConnell
[2010] April Legal Action 14

Social landlords and the use of Ground 8
D. Cowan et al
[2010] 13 Jnl of Housing Law 37

Costs in Housing Cases: implications of Jackson
M. Partington
[2010] 13 Jnl of Housing Law 33

Unenforceable Possession Orders
S. Madge-Wyld
[2010] 13 Jnl of Housing Law 47

Legislative competence in Housing in Wales
S. Hoffman
[2010] 13 Jnl of Housing Law 41

Fair Share
(commentary on UK Housing Alliance v Francis)
D. Smith
[2010] 30 March, Solicitors Jnl

The New Latest Last Word
(on Article 8 and Possession Proceedings)
I. Loveland
[2010] Jnl of Planning Law p415

Waiting in the Wings
(the new rent threshold for assured tenancies)
J. Driscoll
[2010] 1016 Estates Gazette p98

Human Rights & Possession Claims
G. Webber
[2010] 14 L & T Review p37

The Mortgage Repossessions Bill
T. Sutton
[2010] 14 L & T Review p48

The Fraudulent Tenant
R. Crozier
[2010] 14 L & T Review p63

In the dog house
(Tenants and their pets)
K. Youde
[2010] 16 April, Inside Housing, p12
To read the article, click here.

Court in the middle
(social landlords and possession claims)
I. Larkins
[2010] 30 April, Inside Housing, p31
To read the article, click here.

On the public highway
(Housing associations as public bodies)
H. Stephens
[2010] 16 April, Inside Housing, p22
To read the article, click here.

Declare Your Deposits
P. Hayes
[2010] 9 April, Inside Housing, p35
To read the article, click here.

Deal with pet peeves
(commentary on Thomas-Ashley v Drum Housing Association)
S. Greenwood
[2010] 9 April, Inside Housing, p35
To read the article, click here.

Moving the Goalposts
(commentary on the Equality Act 2010 and housing)
C. Syder
[2010] 23 April, Inside Housing, p33
To read the article, click here.

Housing Law Books

Housing Allocation and Homelessness - new edition
The new edition of Housing Allocation and Homelessness: Law and Practice by Jan Luba QC and Liz Davies has been published. Price: £50.00.
For full details, click here.

Repairs: tenants' rights
The new edition of Repairs: tenants' rights by Jan Luba QC, Deirdre Forster and Beatrice Prevatt has been published. Price: £45.00. For full details, click here.

Housing Law Handbook - 10% off
The Housing Law Handbook, edited by Stephen Cottle and written by other members of the Garden Court Housing Team, provides a first port of call for lawyers and advisers dealing with housing. The book covers possession proceedings, homelessness rights, the allocation of social housing, and other routes into housing. To claim your 10% discount, order online and quote promotion code GCTHLH when prompted.

Housing Law Consultations

Closing on 19 May 2010
The Welsh Assembly Government consultation exercise on common performance standards for social housing providers in Wales. For a copy of the consultation paper, click here.

Closing on 28 May 2010
The Welsh Assembly Government consultation exercise on intermediate housing for rent in Wales and a "rent first" model. For a copy of the consultation paper, click here.

Closing on 28 May 2010
The Scottish Government's consultation on the protection of tenants of social housing with rent arrears. For a copy of the consultation paper, click here.

Closing on 6 July 2010
The UK Government's consultation on new proposals for council housing finance. For the consultation documents, click here.

Closing 20 July 2010
The consultation exercise on the proposed new procedural rules for the Upper Tribunal (Lands Chamber). For a copy of the consultation paper, click here.

Housing Law Events in May and June 2010

13 May 2010
Social Housing Law and Practice
A Lime Legal Conference in London
For the details, click here.

14 May 2010
Homelessness and Allocations
A Legal Action Group Training Day in London
For the details, click here.

20 May 2010
Homelessness: Getting Past the Gatekeepers!
A Garden Court Chambers evening seminar
For the details, click here.

27 May 2010
Part 6 and the Allocation Game
HLPA General meeting in London
For the details, click here.

27 May 2010
Homelessness Update
An SHLA training event in London
For the details, click here.

14 June 2010
Introduction to Housing Law
A Legal Action Group Training Day in London
For the details, click here.

17 June 2010
Public Law Defences and Article 8
A Garden Court Chambers evening seminar.
For the details, click here.

25 June 2010
Housing and Anti-Social Behaviour
A Jordans Conference in London
For the details, click here.

28 June 2010
Housing Disrepair
A Legal Action Group Training Day in London
For the details, click here.

29 June 2010
Housing Law 2010
An NHC Conference in York
For the details, click here.

 

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