Housing Law Bulletin - Issue 191 - 1 November 2010

Monday 1 November 2010

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The Latest Housing Law News

Important judgment this week: the UK Supreme Court has indicated that the judgments in Manchester City Council (Respondent) v Pinnock (Appellant) will be given on Wednesday 3 November 2010 at 09:45am in Courtroom 1. For more details, click here.

New non-secure tenancies: in his letter to housing authorities, issued on 20 October 2010, detailing the outcome of the spending settlement on social housing, the Housing Minister (Grant Shapps MP) gave a brief outline of the new social housing tenancy that the UK Government proposes be introduced. He wrote "in future, housing associations will have another option to offer households who need support for a fixed period. We are calling it Affordable Rent. This new tenure will allow greater flexibility, focus state support on those in greatest need for as long as they need it and secure greater value for money for taxpayers. I will be setting out further details on these reforms shortly." For a copy of the letter, click here.

Regulating Social Housing: in June 2010 the UK Government announced a review of the role and purpose of the Tenant Services Authority (TSA) and of the framework for social housing regulation. On 18 October 2010 it published the report "Review of social housing regulation" which looks at the context for the review, sets out its main conclusions and outlines the implications for the organisations and individuals affected. For a copy of the report, click here. The main proposals that the Government are taking forward are (1) to replace the TSA with an Independent Regulation Committee which will be set up within the Homes and Communities Agency with its membership appointed by the Secretary of State and (2) as part of a revised Tenant Involvement and Empowerment Standard, social landlords will be expected to provide a range of opportunities to influence and participate in the scrutiny of their performance. This will include the formation of tenant panels. For more details, click here. For more on the abolition of the TSA, click here.

Secure tenancy successions: in response to an information request, the UK Government published on 18 October 2010 figures showing that around 90,000 council tenants in England, who were successor tenants after the death of the original tenant, were still living in their council accommodation in 2007/8 (the last period for which figures were available). For more details, click here.

Homelessness in London: on 25 October 2010 the Government announced distribution of £10 million funding this financial year for local authorities in London to help those households that are affected by the proposed Housing Benefit reforms. The funding can be used to provide financial advice, renegotiating rents and helping people move to more affordable accommodation. £750,000 has also been provided to support the 'No second night out' rough sleeper project in London. For further details, click here.

Rehousing ex-prisoners in the private rented sector: on 19 October 2010 the Government announced the intention to launch a new scheme, in which ex-offenders and single homeless people will be given help to find and maintain a new home in the private rented sector. For more details, click here.

Gypsies and Travellers: on 11 October 2010 the UK Government announced that, following consultation, it intends to commence section 318 of the Housing and Regeneration Act 2008, which is designed to extend tenancy rights for Travellers on authorised local authority Traveller sites by including them in the Mobile Homes Act 1983. For the announcement, click here. For the summary of responses to the consultation paper, click here.

Rents in Social Housing: on 28 October 2010 the latest figures were released on the rents being charged by registered social landlords in England. The statistics are broken down by region and by local authority area as at 31 March 2010. For the details, click here. The National Housing Federation has said that the average rent for a three-bedroom social home is £85 per week but that under plans to allow increases in rents of up to 80% of the market rate, that figure could triple to £250 per week. For the NHF statement, click here.

Facts and Figures on Housing in England: the English Housing Survey Household Report 2008-09 and English Housing Survey Housing Stock Report 2008 were both published on 27 October 2010. For the former, click here. For the latter, click here. The English Housing Survey Bulletin presents the key findings of both reports in a digestible format. For a copy, click here.

Spending on Housing: on 27 October 2010, Nick Raynsford MP led a debate in Westminster Hall on Housing and the Comprehensive Spending Review. For the Hansard record of that debate, click here.

The Latest Housing Case Law

London Borough of Haringey v Hines [2010] EWCA Civ 1111
20 October 2010

In 2001 Ms Hines exercised her right to buy her council flat at a discounted price and was in October 2002 granted a 125 year lease. By a claim brought in 2008 the council asserted that she had not been a secure tenant in 2002 because by then she was living elsewhere. It sought rescission of the lease (or a declaration that it was void) and damages for fraudulent or other misrepresentation in 2002. The tenant said that she had been occupying as her only or principal home in 2002: Housing Act 1985 section 81. The trial judge found that she had not been in such occupation and had not been a secure tenant at the time the lease was granted. He awarded damages of £38,000 (the discount) plus interest. The Court of Appeal allowed an appeal. The council had failed to establish its pleaded case that in May 2002 there had been a knowingly fraudulent misrepresentation by Ms Hines and in those circumstances no damages were payable. Even if the October 2002 lease ought not to have been granted, it had been. The council had failed to seek any rectification of the registered title to remove the lease or to join as defendants those persons with charges on that title. In such circumstances, the lease could not be declared void. For the full judgment, click here.

Bolton Metropolitan Borough Council v Patel [2010] UKUT 334 (LC)
19 October 2010
The council was satisfied that the condition of rented premises was a Category 1 hazard arising from the fact that the central heating and hot water boiler was defective and not working (giving rise to hazards of excess cold and food safety) and that there were exposed electric wires in two locations. It decided that emergency remedial action was required. On the landlord's appeal under Housing Act 2004 Act section 45, a Residential Property Tribunal held that the council's decision in relation to the electrical hazards was justified but that emergency remedial action was not a course that was open in respect of the hazards of excess cold and food safety. The council appealed. The Lands Chamber dismissed the appeal. The RPT had made no error of law and its findings of fact that: the weather forecast showed that it was not unusually cold for the time of year; that in any event the occupiers were not wholly without heating; and that they had already been without heating for several months, were soundly based. The judgment provides an instructive guide to hazards assessment and offers guidance on the correct approach to the conditions for emergency action. For a copy, click here.

R (Khazai) v Birmingham City Council [2010] EWHC 2576 (Admin)
15 October 2010

On 10 November 2009 the High Court handed down a judgment severely critical of the council's handling of homelessness applications and, in particular, the non-provision of interim accommodation pending decisions on applications (R (Kelly) v BCC [2009] EWHC 3240 (Admin)). Following that judgment, the Interim Head of Housing Need distributed an email to staff in February 2010 which read: Please note with immediate effect all single homeless who are presenting as homeless/roofless and Domestic Violence victims requiring refuge must be referred to the appropriate funded support service. We should not be completing a homeless application. That instruction was not fully and expressly retracted until July 2010 by which time further claims for judicial review were on foot. The council accepted that the instruction had been unlawful. The High Court rejected a claim that the officer responsible had been guilty of misfeasance in public office. The judge said that the instruction was more "the product of oversight and ill-considered drafting than anything more sinister." For the full judgment, click here.

Broomleigh Housing Association v Okonkwo [2010] EWCA Civ 1113
13 October 2010

The claimants brought three successive possession claims against the defendant, their tenant. In each claim he was ordered to pay the costs and those costs were not paid. To obtain information necessary to determine how best to enforce the recovery of the costs, the claimants instituted the procedure for oral examination of the defendant about his means (CPR rule 71). After much delay, an oral examination was concluded but meanwhile - as part of the process for securing the tenant's attendance at court - suspended committal orders had been made. The tenant successfully appealed, unopposed. against those orders. The Court of Appeal held that such orders ought not to be routinely made to secure CPR rule 71 examinations. For the full judgment, click here.

Pieretti v London Borough of Enfield [2010] EWCA Civ 1104
12 October 2010

The claimants were husband and wife. On their eviction from private rented accommodation they both applied to the council for assistance under the homelessness provisions of the Housing Act 1996 (Part 7). Their GP supplied the council with a report on each of them indicating that both had disabilities. The council decided that they had become homeless intentionally. On appeal against that decision, the claimants said that the council had failed to have regard to its duty under the Disability Discrimination Act 1995 section 49A(1)(d) which provides that "every public authority shall in carrying out its functions have due regard to... the need to take steps to take account of disabled persons' disabilities". The Court of Appeal decided that the duty applies not only at the level of general policy formulation but also to the determination of individual cases. The duty applied when dealing with homelessness functions just as much as to any other council functions. The reviewing officer in these cases had failed to take the duty into account notwithstanding its relevance to the question of whether, given their disabilities, the claimants' acts or omissions had been 'deliberate'. For the full judgment, click here.

R (SO) v London Borough of Barking & Dagenham [2010] EWCA Civ 1101
12 October 2010

The question raised in this appeal was: who must provide accommodation for an 18 year old asylum seeker who is a "former relevant child"? Does it fall to the local social services authority, pursuant to its duty under section 23C(4)(c) of the Children Act 1989, or does it fall to the National Asylum Support Service (NASS)? The Court of Appeal held that the duty fell upon the local authority. The Children Act duty encompassed the provision of accommodation and the council could not rely on the fact that if it did not house the claimant, NASS would have to do so. For the full judgment, click here.

Watson v London Borough of Wandsworth [2010] EWCA Civ; [2010] All ER (D) 136 (Oct)
12 October 2010

The council accepted that it owed the claimant the main housing duty under the homelessness provisions and made her an offer of accommodation in its area. The claimant rejected the offer as unsuitable because she feared violence from a previous attacker or his associates living in that part of the council's district. A reviewing officer decided that there was no evidence to substantiate her fears and that the offer was 'suitable'. The county court overturned that decision but the Court of Appeal allowed an unopposed appeal by the council. The judge had been wrong to substitute her own view of the matter for that of the council. It had made no error of law.

Scullion v Colleys [2010] EWHC 2253 (Ch)
8 October 2010

The claimant decided to enter the buy-to-let market and bought a flat in October 2002. He intended to let it for an amount which would enable him to pay the mortgage and outgoings and to obtain some extra income. He also hoped to make a capital profit by selling the flat in due course. Colleys were engaged to value the fiat for the mortgage lender though, in the usual way, the money to pay their fee was provided by the claimant. Colleys produced a valuation which gave the open market value as £353,000 and stated that the flat could be expected to achieve a rental of £2,000pcm. The High Court decided that having regard to appropriate comparables a careful and competent valuer would have valued the property at £300,000 with a permissible "bracket" of between £270,000 and £330,000 and that if he had sought information from local letting agents, a careful and competent valuer would have advised that the flat could only be expected to achieve a rental of about £1,100 pcm, with an upper limit to the bracket of about £1,350 pcm. It found that Colleys had acted negligently in over-stating both the capital value of the flat and the expected rental income. The claimant was awarded over £72,000 damages with interest and costs. For the full judgment, click here.

Hanley v Tameside Metropolitan Borough Council [2010] UKUT 351 (LC)
30 September 2010
On receipt of a complaint from tenants, a council inspected a rented property in which the loft had been converted to provide a bedroom. It decided that the steep stairs to the loft and the restricted ceiling height constituted a Category 1 hazard and it issued a prohibition notice requiring occupation to cease. The landlady unsuccessfully appealed to the Residential Property Tribunal. On a further appeal the Lands Chamber found that the RPT has misdirected itself on the correct relationship between Part 1 of the Housing Act 2004 and the Building Regulations but had nevertheless reached the right conclusion. For the judgment, click here.

R (WG) v Local Authority A [2010] EWHC 2608 (Admin)
24 September 2010
The claimant applied to the council for assistance with accommodation. She had clear medical needs but declined to engage with any process of assessment offered by the council. She had similarly failed to engage with an assessment of a homelessness application which had culminated in a hearing in the Court of Appeal. She sought a judicial review to compel the council to make an assessment of her community care needs. The High Court judge extended an injunction requiring that the council supply accommodation for a further three months so that a community care assessment could be completed. The fact that an applicant was un-cooperative or unwilling to engage is itself no reason for non-provision of community care services.

R (GD) v London Borough of Redbridge [2010] EWHC 2611 (Admin)
21 September 2010
Following a violent incident in December 2009, the claimant left the home of her father and step-mother and went to stay temporarily with an aunt. She applied to the council for assistance under Children Act 1989 section 20. The council took the view that reconciliation was possible and that, with mediation, she could return home. It therefore decided that a section 20 duty was not owed. The High Court dismissed a claim for a judicial review of that decision. The judge said that it was not arguable, on the facts, that the council's decision had been irrational or otherwise impugned normal principles of administrative law.

Housing Law Articles

Recent Developments in Housing Law
J. Luba & N. Madge
[2010] October Legal Action p28

Human Rights/Housing: An Ongoing saga
L. Johnson
[2010] 160 New Law Journal 1365

Getting past the gatekeepers - part 1: applications for homelessness assistance
J. Luba & L. Davies
[2010] October Legal Action p38

The Equality Act 2010 - its effect on property owners and tenants: Part 2
S. Highmore
[2010] 14 Landlord & Tenant Review 173

An Obituary to the oxymoron
(commentary on Austin v Southwark)
C. Collins
[2010] 4 October Issue Property Law Journal p12

Certainty Doubted
(commentary on Mexfield Housing Co-op v Berrisford)
E. Cole
[2010] 14 Landlord & Tenant Review 187

Housing benefit claimants take the strain
L. Phelps
[2010] Autumn Issue Evidence p2
(The Social Policy Publication of the CAB service)

Housing Law Books

Defending Possession Proceedings
The new (seventh) edition of Defending Possession Proceedings by Jan Luba QC, John Gallagher, Derek McConnell and Nic Madge runs to over 1000 pages and was published last month. Price: £55.00. For full details, click here.
To watch an independent review, click here.

Housing Allocation and Homelessness
The new (second) 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.
To read an independent review, click here.

Repairs: tenants' rights
The new (fourth) 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.
To watch an independent review, click here.
To read an independent review, 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, 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.
To read an independent review, click here.

Housing Law Events

This Month

17 November 2010
The Housing Law Update 2010
An HLPA General Meeting in London
For the details, click here.

26 November 2010
SHLA Fifth Annual Conference 2010
A Social Housing Law Association event in London
For the details, click here.

30 November 2010
Residential Landlord & Tenant Conference
A Professional Conferences event in London
For the details, click here.

Later this Year

1 December 2010
Housing Management Conference 2010
A Lime Legal conference in London
For the details, click here.

1 December 2010
Annual Crime and ASB Conference 2010
A Northern Housing Consortium conference in York
For the details, click here.

15 December 2010
HLPA Annual Conference
A London Conference
For the details, click here.

 

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