Housing Law Bulletin - Issue 234 – 26 September 2011

Tuesday 27 September 2011

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The Latest Housing Law News

Homelessness: the figures for local authority activity on homelessness in England for the second quarter of 2011 reveal an overall 17% increase in acceptances of the main housing duty compared with last year (Housing Act 1996 Part 7 section 193). The number of acceptances based on loss of an assured shorthold tenancy increased from 1460 to 2130 compared to the same quarter last year. In 73% of all cases the main duty was ended by the acceptance of an offer of Part 6 accommodation (social housing). For the full statistics, click here. For the ministerial statement in response to the figures, click here. The broader picture in relation to homelessness in England has been fully set out in the Homelessness Monitor published this month. For a copy, click here. On 26 September 2011 the House of Commons Library published two new free briefings on homelessness. For Homelessness in England, click here. For Homeless households in temporary accommodation (England), click here.

Homelessness Reviews: a survey of 97 local housing authorities in England by Inside Housing has indicated that in the period 2006-2011 they had carried out over 30,000 reviews of homelessness decisions (Housing Act 1996 Part 7 section 202). Of those, 42% had led to a revision of the original decision. The percentage of revised decisions was highest (65.7%) in the London Borough of Lambeth. For the article containing the figures, click here.

Social Housing Regulation and Inspection: the consultation on new statutory directions to the social housing regulator closes this week - on 29 September 2011. For the consultation documents, click here. Recent activity by the current regulator (the TSA) is reviewed in its latest updating letter sent to the chief executives of all social landlords (5 September 2011). For a copy of that, click here. The Audit Commission has now ended its work on inspection of social landlords but has brought together a compendium of good practice based on its inspections carried out over recent years. For a copy, click here.

Private landlords: in a new policy briefing published this month, Shelter has called on the UK government to encourage local authorities and courts to do more to enforce housing laws controlling the activities of amateur and rogue landlords. Research reported in the briefing paper indicates low levels of enforcement activity despite a growth in the number of complaints from private tenants and disappointing use of sanctions by the courts. For a copy of the briefing, click here.

Unlawful subletting of social housing: in recent years the Audit Commission has suggested that about 50,000 social housing properties are unlawfully occupied. An analysis of 125,000 housing transactions made by 10 social landlords has suggested that the figure for unlawful subletting may be much higher. The authors suggest a minimum of 157,000 cases in the UK. For the analysis, click here.

Housing & Anti-Social Behaviour: the House of Commons Library has just produced three topical free briefings. They are: (1) After the 2011 riots - evicting social tenants 12 September 2011. For a copy click here. (2) Anti-social behaviour in social housing 9 September 2011. For a copy click here. (3) Anti-social behaviour in private housing 8 September 2011. For a copy click here. The government has recently published statistics on the number of households participating in family intervention projects designed to address anti-social behaviour. For the figures, click here. For the latest independent research on the help given to such families, click here. An Emergency Motion passed at the Liberal Democrat conference last week noted "The proposal that social housing eviction be extended, beyond a sanction for causing a nuisance to other tenants and the immediate local community, to one for criminal behaviour generally; and that this would not only be unfair to innocent family members but would also discriminate against social housing tenants compared with private housing tenants or owner occupiers." For the full text of the motion on the riots, click here. For her part, Caroline Flint MP, current shadow communities secretary, has proposed the introduction of a "HASBO" allowing magistrates to not only evict troublemakers from their homes but to prevent them from thereafter living within 5 miles of their former homes. For further details, click here.

Mortgage arrears and repossession: the latest (September 2011) statistics from the Financial Services Authority (FSA) confirm the general downward trend in new arrears cases since the 2008 peak and note that the number of lender possession cases in the second quarter of 2011 (9494) was 5% lower than for the same period last year. For the full statistics, click here. Shelter has announced that the £500,000 Central Mortgage Rescue Scheme Repossessions Fund has now been exhausted and that final payments from the Fund will be made by 30 September 2011.

Housing Health & Safety: the Gas Safety Trust has published Carbon Monoxide Trends Report 1996-2010. The report indicates that risks in relation to monoxide poisoning are 50% greater in the private rented sector than in other housing tenures. It recommends that the duty on landlords to annually inspect gas appliances be enlarged to a duty to service them annually. For a copy of the report, click here.

Sales of social housing: the latest figures for England, published on 20 September 2011, reveal a 16% increase in right to buy sales over the past year. Another 3,300 properties were sold by social landlords to private sector purchasers. For the full figures, click here.

Housing Benefit: in a ministerial speech on 14 September 2011 the Government confirmed that from October 2013 benefit to meet housing costs for non-pensioner households in the social housing sector would be paid direct to the tenants. For the speech, click here. On the same day, details were given of six "demonstration projects" to be run by local authorities and partner housing associations from June 2012 to indicate how direct payments will work in helping tenants to develop budget-management skills. For more on those projects, click here. In a separate development, a research report published earlier this month has suggested that local housing allowance rates for housing benefit "cannot be used as a tool to force rents down". For a copy of that report, click here.

Guidance for estate agents: the Office of Fair Trading (OFT) has launched a consultation on draft guidance for estate agents (and others) in relation to the buying or selling of property or land in the UK and in particular as to the application of the Consumer Protection from Unfair Trading Regulations 2008 and Business Protection from Misleading Marketing Regulations 2008. The consultation closes on 9 December 2012. For a copy of the consultation paper, click here.

The Latest Housing Case Law

Egan v Basildon DC
[2011] EWHC 2416 (QB)
26 September 2011

The claimant lives at Dale Farm. He was concerned that the proposed "clearance" of the unauthorised part of the site by the council's officers and bailiff's may involve work going beyond that permitted by planning enforcement notices. He sought an injunction to restrain the work until details were provided as to exactly what was to occur. The county court transferred the claim to the High Court. An interim injunction was granted pending provision of particulars of the council's proposed enforcement activity in respect of each plot. At a subsequent on-notice hearing, the High Court was satisfied that the injunction should be continued until next Monday 3 October 2011 when the court could try the issues as to whether the now particularised proposed work extended beyond that permitted by the specific enforcement notices. For the full judgment, click here.

Garside v RFYC Ltd
[2011] UKUT 367 (LC)

15 September 2011
After years of landlord neglect of their estate, tenants successfully applied for the appointment of a manager. The manager identified remedial works costing hundreds of thousands of pounds and notified service charges necessary to fund the works. The tenants argued that the works should be phased (and the most urgent done first) so that they could avoid the hardship of bearing the costs of the works being done all in one go. The Upper Tribunal held that part of deciding whether such charges would be "reasonably incurred" could include considerations of their affordability and the possibility of phasing to avoid hardship. However, the judge said that "It is important to make clear that liability to pay service charges cannot be avoided simply on the grounds of hardship, even if extreme. If repair work is reasonably required at a particular time, carried out at a reasonable cost and to a reasonable standard and the cost of it is recoverable pursuant to the relevant lease then the lessee cannot escape liability to pay by pleading poverty." For the full judgment, click here.

Westbrook Dolphin Square Ltd v Friends Provident Life & Pensions Ltd
[2011] EWHC 2302 (Ch)
14 September 2011

Leaseholders gave notice to exercise a statutory right to collective enfranchisement. The landlord freeholder applied to strike out the claim to enfranchise on the basis that it was an abuse of process because the notice was essentially a repetition of an earlier near-identical notice on which enforcement had been discontinued. The High Court allowed the application. Although the statute envisaged successive claims it did not permit repetitious claims when there had been no material change of circumstances. The second notice was an abuse. For the full judgment, click here.

Gateway Community Housing Association Ltd v Beha Williams Norman Ltd
[2011] EWHC 2311 (TCC)
12 September 2011

The association acquired its housing stock from Preston Council in a large scale transfer. It later brought a claim for damages against the defendant which had acted as a consultant in the transfer. It claimed that the negligence of the consultant had caused it to lose millions of pounds, representing the difference between the costs of remedial work identified by surveyors pre-transfer (which had been met by subsidy) and the costs of further works said to have been promised to tenants as part of the transfer package but for which government subsidy had not been sought. The High Court rejected the claim. The suggested negligence of the consultant had not been causative of any loss. For the full judgment, click here.

Re Swift 1st Limited
8 September 2011

The Financial Services Authority (FSA) imposed a fine of £630,000 on mortgage lender Swift 1st Limited for unfair treatment by applying charges to accounts of its customers who were in mortgage arrears which were excessive in that they did not reflect a reasonable estimate of the cost of administering an account in arrears. The company had also: (1) applied excessive early repayment charges to the redemption figures of customers who were, or had been, in arrears; (2) failed to send all its customers in arrears prescribed documents, providing information on the options available to them; (3) focussed on the collection of arrears without always proactively engaging with customers to establish an appropriate "Arrangement To Pay" based on their individual circumstances; and (4) failed to have adequate systems and controls in place to deal with early redemptions which resulted in some customers who redeemed their mortgages overpaying. For the FSA announcement, click here. For the formal Notice to the company, click here.

Voyias v Information Commissioner
2 September 2011
[2011] UKFTT EA 0007 (GRC)

Mr Voyias made a Freedom of Information Act request to the council for details of all empty residential property in the borough not owned by private individuals. The council declined because it knew of Mr Voyias's written work on squatting and of his membership of the Advisory Service for Squatters. The Information Commissioner upheld the council's refusal and Mr Voyias appealed. The Tribunal allowed the appeal. The public interest in disclosure justified the release of the information. For the full judgment, click here. On 6 September 2011 the Housing Minister issued a response, describing the decision as "bizarre".

Lennon v Ground Rents (Regisport) Ltd
[2011] UKUT 330 (LC)
18 August 2011

The landlord brought a county court claim against the tenant for unpaid service charges in respect of an insurance premium. The court transferred the issue of whether that charge was 'reasonable' to a Leasehold Valuation Tribunal (LVT). The Tribunal decided that a reduced premium was reasonable and payable but went on to consider other aspects of the liability for service charges. The Upper Tribunal allowed an appeal. The LVT had only had jurisdiction to determine the issue which had been referred to it. For the full judgment, click here.

Rowden v Highland Council
[2011] ScotIC 170
17 August 2011

Mr Rowden complained to the council about the alleged anti-social activities of named individuals in his area and made a Freedom of Information Act request for details of the council's records concerning those individuals - including information about legal advice it had commissioned about a possible application for an ASBO. The council declined to provide the information. The Scottish Information Commissioner upheld that decision. To provide the information would interfere with the privilege attaching to legal advice and with rights to the protection of personal data of the named individuals. For the full judgment, click here.

Housing Law Articles

Recent Developments in Housing Law
N. Madge and J. Luba
[2011] September Legal Action p33
For back-copies of articles in this series, click here.

Housing Benefit Law Update
B. Harris, D. Rutledge and D. Watkinson
[2011] September Legal Action p16

From conviction to eviction
J. Plant
[2011] 9 September Inside Housing p38
To read this article, click here.

Empty Homes requests
E. Duke
[2011] 23 September Inside Housing p28
To read this article, click here.

A Fair Ride
(fairness in public authority decision-making)
N. Dobson
[2011] 161 New Law Journal p1279

A Dish to savour
(commentary on Mustafa v Sweden)
N. Roberts
[2011] 161 New Law Journal p1277

At the Sharples end?
(commentary on Places for People v Sharples)
C. Warenius
[2011] 161 New Law Journal p1240

Zero Tolerence
(eviction for anti-social behaviour)
T. Rubens
[2011] 155 Solicitors Journal No.33 p5

(possession claims for anti-social behaviour)
J. Holbrook
[2011] 161 New Law Journal p1163
To read the article: click here.

Evictions, the Law Lords and the European Court
A. Latham
[2011] Public Law p730

Lenders and unlawful tenants
M. Pawlowski
[2011] Property Law Journal No 274 p20

Time Out
(cases on the tenancy deposits schemes)
G. Healey and J. Sutherland
[2011] 161 New Law Journal p1173

But my tenancy agreement says...
(tied accommodation)
M. Robinson
[2011] 147 Adviser 26

Older people must have housing options
A. Chaplin
[2011] 147 Adviser 24

Mortgage Possession Update
M. Robinson
[2011] 147 Adviser 20


Housing Law Events

Autumn 2011

29 September 2011
Preventing Homelessness and Helping Homeowners at Risk National Conference 2011
A Lime Legal Event in London
For the details, click here.

5 October 2011
Social Housing Allocations Conference
A Lime Legal Event in London
For the details, click here.

13 October 2011
Unlawful Eviction: What to Look for and What's the Damage?
A Garden Court evening seminar in London
For the details, click here.

18 October 2011
Current Issues in Housing Law
A Garden Court free evening seminar by Jan Luba QC in Leicester
For the details Email Brian Hitchcock by clicking here, Email.

25 October 2011
Northern Housing Law Conference
A North West Housing Law Group conference in Manchester
For the details, click here.

1 November 2011
Mental Capacity and Housing
A Legal Action Group Training Event in London
For the details, click here.

8 November 2011
Homeless Children in Need
A Legal Action Group Training Event in London
For the details, click here.

10 November 2011
Disrepair: Penetration, Infestation and Hibernation
A Garden Court evening seminar in London
For the details, click here.

16 November 2011
Housing Law Update
A Housing Law Practitioners Association meeting in London
For the details, click here.

25 November 2011
Housing Law Conference
Annual Conference of the Social Housing Law Association in London
For the details, click here.

1 December 2011
Residential Landlord & Tenant Update 2011
A Professional Conferences event in London
For the details, click here.

14 December 2011
Housing Law Conference
Annual Conference of the Housing law Practitioners Association in London
For the details, click here.

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 - which runs to over 1000 pages - has been published. Price: £55.00. For full details, click here.
To read an independent review, click here.
To watch an independent review, click here.
To access the free downloadable update to several chapters of the current edition of the book to take account of recent cases such as Pinnock and Powell, click here.

Housing Allocation and Homelessness
The new (second) edition ofHousing 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 a review by Robert Latham, click here.
To read another 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.



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