Housing Law Bulletin - Issue 240 - 7 November 2011

Monday 7 November 2011

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The Latest Housing Law News

Social housing law reform: later on today (7 November 2011) the House of Commons will consider Lords Amendments to the Localism Bill, almost completing the parliamentary passage of the Bill. Only one housing issue (the minimum duration of new fixed-term secure tenancies) is scheduled for discussion. The Bill will receive then Royal Assent this week or next. In the House of Lords, the Government brought forward amendments to enable social housing tenants to complain to a new housing ombudsman even if their complaints are not referred by an MP, councillor, or tenant panel but only if: (1) more than 8 weeks have passed since the last step in the complaints procedure; or (2) the complaint has been subject of written confirmation that it need not be referred or referral has been refused in writing. Those amendments are Lords Amendment 209-211 in the List of Amendments. For the List, click here. For the explanatory notes on the List, click here.

Advice and assistance for the homeless: some applicants for homelessness assistance are the beneficiaries of a duty on the local council to provide them with "advice and assistance". In England & Wales the content of such advice and assistance is the subject only of guidance, not legislation. On 1 November 2011 new regulations in Northern Ireland prescribed both the appropriate forms of advice and the appropriate types of assistance. Advisers in other parts of the UK could use the lists as useful check-sheets. For a copy of the regulations, click here.

Review of Homelessness Legislation: the Welsh Assembly Government announced on 26 October 2011 that it has commissioned research to help it decide how best to use its new law-making powers in relation to homelessness in Wales. For the Government announcement, click here. For terms of reference and other details of the research, click here.

Housing & Anti-Social Behaviour (1): today (7 November 2011) is the last day for responses to the UK Government's proposals to change the grounds for possession for anti-social behaviour. For the consultation paper, click here.

Housing & Anti-Social Behaviour (2): the UK Government has published a new report on Ending gang and youth violence. It includes a commitment to use the existing power to extend the availability of gang injunctions to those between 14 and 18 years old. For the report, click here.

Housing & Anti-Social Behaviour (3): on 1 November 2011 the new head of the Troubled Families Team at the Department for Communities & Local Government (Louise Casey CB) took up her new role. For more details, click here.

Accommodation under the Children Act 1989: on 1 November 2011 the Welsh Assembly Government published a consultation draft of the guidance it intends to issue to local authorities and their partners on the adoption of participation strategies to involve young people in the way in which the Children Act 1989 is implemented in their areas. For the draft guidance, click here.

Rough sleeping: despite recent Government initiatives, many people are still sleeping rough. On 31 October 2011 the charity St Mungo's published a report explaining why. For a copy, click here.

Young people and housing: a new booklet containing advice and information for young people living on their own for the first time has been published by Shelter, the Phoenix Centre and Freshfields Bruckhaus Deringer. The booklet was written by one of Shelter's clients, from his own experiences and is a useful resource for young people moving into their first home. For a copy of Your First Home Some Stuff You Really Need to Know, click here.

The Latest Housing Case Law

Westminster CC v Holmes [2011] EWHC 2857 (QB)
3 November 2011

The council had provided the defendant with council accommodation on a non-secure tenancy in performance of the main housing duty owed to him as a homeless person. It later gave notice to quit bringing the tenancy to an end. When two of its officers reported that they had been assaulted by the tenant, the council sought possession. The defendant denied the assault (explaining that he had fallen over onto the officers) and sought to defend the claim on public law grounds and on the basis of his Article 8 rights. A Recorder heard the case on a summary basis and made a possession order. The tenant appealed contending that the case required a trial of factual issues and of the issues of law raised by the defence. The High Court dismissed the appeal. The Recorder had been following the guidance of the Supreme Court in considering the matter summarily and without oral evidence. The proposed defence had disclosed no reasonable grounds for defending the claim. For the judgment, click here.

Fenland DC v Sheppard [2011] EWHC 2829 (Ch)
3 November 2011

The council took action under section 79 of the Building Act 1984 to make a property in its area safe. The building remained dilapidated and an eyesore but the council had a charge over it for the cost of its works (£72,000). The owner was made bankrupt and his trustee disclaimed the property. There was a mortgage on the property for £77,000. The council would have sought a vesting order but was concerned that if the freehold vested in it the charge would be extinguished. The High Court held that that was not the case. An order could be made which vested the freehold in the council, preserved its interests in its charge but also preserved some rights for the mortgage lenders. For the judgment, click here.

R(IA) v Secretary of state for Communities & Local Government [2011] EWCA Civ 1253
2 November 2011

The claimant owned the freehold of a house in Wandsworth. An inspection in 2006 identified 14 Category One hazards under the HHSRS system. The council decided to make a compulsory purchase order. The claimant objected. An inquiry was held. The inspector recommended approval and the Secretary of State approved the making of the order. The freehold was then vested in the council which registered its title. The claimant sought judicial review. The High Court refused permission to apply for judicial review. The claimant appealed. He claimed that he owned and lived in the property so that the CPO infringed his rights under Article 8 and Article 1 of the First Protocol in Schedule 1 Human Rights Act 1998. The Court of Appeal dismissed the appeal. The claimant could and should have used the correct statutory procedure to challenge the CPO under the Acquisition of Land Act 1981. In any event, there was no merit in his challenge. The inspector had taken account of the claimant's disabilities and the proportionality of making the CPO. For the judgment, click here.

Smith v Jafton Properties Ltd [2011] EWCA Civ 1251
2 November 2011

Freeholders granted a 99 year lease of a building. A company bought the lease and converted the house to four flats with some common parts. The company then made a transfer of 2 flats to Mr Smith, 2 flats to Mr Dennis, and the common parts to Smith and Dennis jointly. The two men were the sole directors of the company. This was done without notice to the freeholders. They then gave notice exercising their right to enfranchise (acquire the freehold) of the whole building. The judge held that they were not qualifying tenants for the purposes of the Leasehold Reform etc Act 1993. The Court of Appeal allowed an appeal. The judgment contains an illuminating analysis of how estates in land created by leases can be divided at common law and how the common law rules apply to the 1993 Act. For a copy, click here.

Mitu v Camden LBC [2011] EWCA Civ 1249
1 November 2011

Mr Mitu applied for homelessness assistance under Housing Act 1996 Part 7. The council decided that because he did not have priority need and had become homeless intentionally it only owed him the advice and assistance duty in section 190(3). He sought a review. The reviewing officer decided that he had not become homeless intentionally and did not have priority need. He was therefore owed the advice and assistance duty under section 192(2). The officer had not given a "minded-to" notice before making the review decision. A judge dismissed an appeal but the Court of Appeal allowed an appeal. The review regulations required a minded-to letter (and an opportunity to make oral representations) when the initial decision contained a 'deficiency'. Here the reviewing officer had been satisfied that the initial decision was wrong on an important aspect of the case. It was important because the section 192(2) duty triggered a discretionary power to accommodate whereas the section 190(3) duty did not. For the judgment, click here.

Camden LBC v Oladapo Talabi
Highbury Corner Magistrates Court, 26 October 2011

The defendant had been a secure tenant. In September 2010 he let his council property to a sub-tenant for approximately six months for the sum of £780pcm. The sub-tenant paid £5,586 to an estate agent who was handling the letting on the defendant's behalf. From that amount, the defendant received a lump sum of £4,000. The council decided to prosecute for fraud contrary to section 1 and 3 of the Fraud Act 2006. The defendant pleaded guilty to two counts of fraud and was ordered to pay costs of £750. On sentencing, the court took the view that the defendant had used the money to pay off his debts, particularly his rent arrears, and for that reason did not impose a custodial sentence but made a Community Order of 12 months comprising 100hrs unpaid work. A possession claim is underway For more details, click here.

Newham LBC v Hannan [2011] UKUT 406(LC)
7 October 2011

The council proposed to undertake major works on 71 tall blocks of council flats in its area. Many flats were occupied by leaseholders who would have to pay service charged in respect of the cost of the work. By mistake the council advertised for contractors to carry out the building work before serving notice on the tenants under Schedule 2 of the Service Charge (Consultation Requirements (England) Regulations 2003. It applied for dispensation from compliance under section 20ZA of the landlord & Tenant Act 1985. A Leasehold Valuation Tribunal (LVT) refused that application. The Upper Tribunal allowed an appeal. The LVT had failed to consider the issue of 'prejudice' and the facts showed that the giving of notice in the wrong sequence had caused no material prejudice to the tenants. For the judgment, click here.

Brent LBC v Ogunsola [2011] EWCA Civ 1278
2 October 2011

The defendant had been a secure tenant. The council formed the view that she was subletting. It served notice to quit and sought possession. The judge was satisfied that the property had been sublet and security of tenure thereby lost, He made a possession order. The defendant appealed contending that: (1) the judge had overlooked the evidence of a washing machine repair man who had seen the defendant at the property at the relevant time; (2) the Notice to Quit had not been proven to contain the statutory prescribed information; (3) the defendant had not entered into a new tenancy with Brent (having been a tenant of Stonebridge HAT); and (4) proportionality had not been considered. The Court of Appeal refused permission to appeal. It held: (1) the evidence of the repair man did not advance the tenant's case which had been decided on the factual evidence by the judge; (2) the council's case was that the prescribed information was auto-printed on the reverse of the original notice to quit and the tenant had not disclosed the original; (3) the freehold of the property had vested from the HAT to English Partnerships then to Brent and it held the interest of landlord whether or not new tenancy terms were agreed; and (4) the judge had considered 'reasonableness' (on the council's alternative case) and that had embraced the factual matters relevant to proportionality.

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.

The get out of jail free card
(commentary on Charles Terence v Cornwall)
J. Knox
[2011] 4 November Inside Housing p28
To read the article click here.

Look closely
(commentary on Daventry DC v Daventry & District HA)
M. Lake
[2011] 4 November Inside Housing p28
To read the article click here.

A simple choice: comply or lose out
(commentary on Brent LBC v Shulem B)
J. Driscoll
[2011] 1143 Estates Gazette p103

Housing Law Events

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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