Housing Law Bulletin - Issue 239 - 31 October 2011

Monday 31 October 2011

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The Latest Housing Law News

Squatting: on 26 October 2011 the UK Government published its conclusions on reform of the law relating to squatting, following the recent consultation exercise. For a copy of the Response to Consultation report, click here. The Government has decided to proceed with its proposal to make living in residential premises - by a person who entered as a trespasser - a criminal offence. Provisions to that effect are to be inserted by amendment into the Legal Aid etc Bill which begins its Commons Third Reading stage today (31 October 2011). For details of the amendments and proceedings on the Bill, click here. The Impact Assessment on the new offence suggests that there might be between 200 and 2,100 criminal squatting cases in residential property across England and Wales. To obtain the Impact assessment, click here. For a helpful House of Commons briefing note on the current law relating to squatting in residential premises, click here.

Housing & Legal Aid (1): the only substantive amendments made to the Legal Aid etc Bill at its Commons Committee stage, in respect of what civil legal aid can cover, were government amendments to slightly extend the range of housing cases for which legal aid would continue to be available. For details of those changes, click here and scroll down to col.378. For a useful House of Commons Library research paper on the Bill's Committee Stage, click here.

Housing & Legal Aid (2): on 26 October 2011 the House of Lords debated a motion to annul the recent Funding Order which introduced 10% reductions in payments to advisers and lawyers for those new housing and other civil legal aid cases which are started on or after 3 October 2011. Although the motion was withdrawn, Lord Scott - a retired Law Lord - indicated that if the motion had been put to a vote, he would have voted for annulment. For the debate, click here.

Mutual Exchanges and Transfers in Social Housing: on 27 October 2011 the UK Government announced the launch of HomeSwap Direct as the new national web-based mutual exchange scheme for social housing in the UK. It will bring together four internet-based providers of mutual exchange services: HomeSwapper, House Exchange, Abritas and LHS (Locata). From next April, new standards imposed by the social housing regulator will require all social landlords to facilitate access for their tenants to the new scheme. For details of the announcement, click here. In London there are increased opportunities for social housing tenants of the largest housing associations to transfer to other areas in the city under the London Moves scheme. For the details, click here.

Tenants of Mortgage Defaulters: on 24 October 2011 the House of Commons Library published a new free briefing note on Mortgage Repossession: Rights of Tenants. For a copy, click here.

Longer Mortgages: at present, most mortgage lending is at variable interest rates over terms of 20-25 years. In a speech on 20 October 2011 the Housing Minister called on lenders to offer longer term loans (as much as 30 years) and fixed repayment rates extending much longer than the maximum five year rate-fixing presently offered. For the speech, click here.

Help with heating bills for tenants of social housing: on 24 October 2011 the UK Government issued a plea to social landlords to make better use of special funds available to finance energy saving works to their tenants' homes. For the details, click here.

Housing Supply: on 25 October 2011 IPPR published Build Now or Pay Later, a new report on housing supply. The report concentrates on three key ideas to increase supply - institutional investment, the role of local authorities and re-capitalising public spending in housing - as well as additional proposals around expanding the nascent Green Investment Bank into a true National Investment Bank and reform of the development industry. For a copy of the report, click here.

The Latest Housing Case Law

Hertsmere BC v Lovat [2011] EWCA Civ 1185
27 October 2011

Mrs Lovat held the long lease of a house with surrounding gardens. Beyond her gardens lay rural land. She served notice seeking to acquire the freehold of her house. The council which was the freeholder of both the house and gardens and the surrounding rural land, claimed that her tenancy was excluded from the right to enfranchise by section 1AA(3) of the Leasehold Reform Act 1967.That provides (in part) that the right is excluded where "the freehold of [the] house is owned together with adjoining land which is not occupied for residential purposes". The judge held that the exception did not apply because the house was separated from the rural and non-residential land by the garden and therefore did not "adjoin" it. The Court of Appeal allowed an appeal by the council. In the context, "adjoining" land meant "neighbouring" land. Although the rural land did not touch the house it was sufficiently "adjoining" to it for the exception to apply. For the full judgment, click here.

Saxon Weald Homes Ltd v Chadwick [2011] EWCA Civ 1202
26 October 2011

The claimant association granted the defendant an assured shorthold tenancy which provided that it would become an assured tenancy on its first anniversary provided that no notice requiring possession had been served under Housing Act 1988 section 21. Four days before the anniversary the association served a s21 notice and later brought a possession claim. Due to an internal procedural error, on the anniversary date the association sent a standard letter confirming that the tenancy had become assured. The tenant relied on the later letter as written confirmation that the tenancy was an assured tenancy relying on Schedule 2A para 2 of the 1988 Act. The Court of Appeal rejected the association's appeal from a finding that the tenancy was fully assured. There was no way of construing the standard letter other than as a written confirmation of the type envisaged by the Act. For the full judgment, click here.

Aylesbury Vale DC v Ilyas [2011] EWCA Civ, [2011] All ER (D) 213 (Oct)
25 October 2011

The defendant carried out extension works to his family home which were beyond the scope of his planning permission. The council served an enforcement notice requiring demolition of the extension. An appeal against the notice was dismissed. The council prosecuted for non-compliance and a fine was imposed. But the defendant still did not undertake the demolition work. The council applied for and obtained an injunction requiring demolition. The defendant did not comply. The council applied for his committal and the judge imposed a sentence of 3 months imprisonment suspended upon compliance with the order within 4 weeks. The defendant appealed against the committal and applied for permission to appeal out of time against the making of the injunction. The Court of Appeal dismissed the appeal and refused the application. The long history of flagrant non-compliance had justified the position taken by the courts.

R(K) v Newcastle CC [2011] EWHC 2673 (Admin)
24 October 2011

The claimant had applied for asylum and had been accommodated by NASS. Her claim for asylum failed, an appeal was rejected and her NASS accommodation was withdrawn. She later had two children. The council was satisfied that they were 'children in need' and it provided support under Children Act 1989 section 17. It later decided that the claimant should apply for support from the government under section 4 of the Immigration & Asylum Act 1999 and proposed to withdraw its own support. The High Court quashed that decision. Although it was theoretically possible that the assessed needs of a child might be capable of being met under section 4 it was much more likely that adequate provision for such needs would only be met by continued Children Act support. The judgment contains a thorough review of the interface between the Children Act and other schemes of support for asylum seekers.

Complaint against Northampton BC [Local Government Ombudsman No.10 009 338]
19 October 2011

The council received an application for a mandatory disabled facilities grant (DFG). The applicants lived in privately rented accommodation with no statutory long-term security of tenure. Although the conditions for grant were met, the council did not want to see £30,000 of grant monies expended on insecure private accommodation and suggested that the applicants move to adapted social housing. Two years later the grant had still not been paid. The Ombudsman found that the failure to pay the DFG to which the applicants had been entitled was maladministration. Recommendations made included £5000 compensation for two years in unnecessarily unsatisfactory housing conditions. For the full investigation report, click here.

Haq v Eastbourne BC [2011] UKUT 365 (LC)
10 October 2011

The claimant applied for compensation of £45,000 following the making of a Housing Act 2004 section 20 prohibition order in respect of a flat he had let in a converted house which he owned. The flat had no planning consent for residential use, having been described in plans submitted to the council as a "communal bathroom". On inspection, the council found that the flat had a total measurement of 12.5 square metres and was occupied by a tenant and her daughter. The council decided that on "crowding and space" grounds the flat was a Category 1, Band A hazard and had served the prohibition order as a result. The Upper Tribunal rejected the compensation claim. Occupation of the flat would be "detrimental to the health" of any occupants and therefore, applying rule 4 of the valuation rules in Land Compensation Act 1961 section 5, the owner had suffered no loss in its value by prohibition of its use. For the full judgment, click here.

Flynn v Basildon DC [2011] EWCA Civ 1226
19 September 2011

Mrs Flynn lived on land she owned at Dale Farm. Her applications for planning permission to station her mobile home on the land were unsuccessful. The council's decision to use its powers to enforce planning controls was upheld by the Court of Appeal in 2009. In 2011, when the council decide to actually implement the clearance of the plot by direct measures, she applied for an injunction to restrain the council's action which she claimed would amount to a breach of her rights under Article 8 of Schedule 1 to the Human Rights Act 1998. The High Court refused her application mainly on the grounds that the issue had already been determined by the Court of Appeal in 2009 (and was therefore 'res judicata'). The Court of Appeal was not inclined to support that finding but nevertheless refused permission to appeal because had been right to hold that Article 8 did not entitle Mrs Flynn to a "full merits review" on her injunction application.


Housing Law Articles

Recent developments in housing law
N. Madge and J. Luba
[2011] October Legal Action p31
For back-copies of articles in this series, click here.

Plugging the gap?
(on using DHPs to make good cuts in housing benefit)
E. Graham
[2011] 224 Welfare Rights Bulletin p11

Housing Law Events

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
ASB & Social Housing Conference 2011
Annual Conference run by Lime Legal 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.

29 November 2011
Human Rights for Housing Providers: are you compliant?
A Conference in Leeds
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.

15 December 2011
Housing Management Law Conference
Annual Conference organized by Lime Legal 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 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 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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