Housing Law Bulletin - Issue 243 – 5 December 2011

Monday 5 December 2011

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The Latest Housing Law News

Housing Facts & Figures: on 30 November 2011 the UK Government released the latest statistics on council housing in England. They indicate that 87% of councils now use choice-based letting schemes and that 1.84m people are on housing waiting lists. Last year, councils evicted 6000 tenants and made 146,400 lettings. For the full statistics, click here. For the statement drawing attention to the decline in the number of non-decent council homes, click here. For the latest live tables of statistical information on rents, lettings and tenancies covering both social housing and the private rented sector, click here.

Experts in Housing Cases: in housing cases for which legal aid has been granted since 3 October 2011, fees for experts are capped at £50ph which is proving unrealistically low for surveyors and independent EHOs. HLPA is making representations to the Ministry of Justice to increase the rates and has called for help and information from advisers who are already experiencing difficulties with finding experts at the new rates. For more details contact vgambling@lambethlawcentre.org.

Housing & Anti-social Behaviour: the Welsh Assembly Government is conducting a consultation exercise on a new mandatory power of possession for anti-social behaviour and whether or not such a power is needed in Wales. For the consultation document, click here. Responses are needed by 10 February 2012.

Coping with Housing Benefit Cuts: the Department for Work and Pensions has published a compendium of good practice based on the response of council HB departments to the benefit changes which took effect earlier this year, including distribution of Discretionary Housing Payments. For a copy, click here.

The New Homes Bonus: on 1 December 2011 the UK Government published an Unlocking the Bonus Bulletin explaining what the New Homes Bonus is, giving examples of the types of benefits that the award of New Homes Bonus payments can deliver and describing how it helps to promote housing growth. For a copy, click here. In a ministerial statement made on the same day, the Housing Minister said that the bonus will be paid in respect of 159,000 homes from October 2010 to October 2011 including 137,000 extra homes and 22,000 long-term empty properties brought back into use. The allocations also include the first affordable homes enhancement, which totals £21m in respect of 61,000 new affordable homes. For the full statement, click here. For the news release describing progress in use of the bonus, click here.

Regulation of Social Landlords in Wales: on 2 December 2011 the new arrangements for regulation of social landlords in Wales were brought into force. For the commencement order, click here.

The new Energy Performance Certificates: a new revised version of the EPC for residential premises will be introduced in April 2012. On 29 November 2011 the Government released the details and the arrangements for re-training Domestic Energy Assessors. For the briefing, click here.

Gypsies & Travellers: the importance of making provision for gypsies and travellers when formulating strategies for housing and planning need is emphasised in We are Londoners too, a response by the London Gypsy & Traveller Unit to the draft London Plan. For more details, click here.

Private Rented Sector in Northern Ireland: The Chartered Institute of Housing, Department for Social Development and SmartMove NI have jointly published Making the Most of Northern Ireland's Private Rented Sector. Its aim is to further the debate on the role of the private rented sector as part of the wider housing agenda in Northern Ireland and to raise awareness of the sector as a valuable housing option. For a copy of the paper, click here.

The Latest Housing Case Law

Francis v Southwark LBC [2011] EWCA Civ 1418
1 December 2011
Mr Francis had been a secure tenant. In proceedings for arrears of rent, a conditional possession order was made and breached. He claimed the right to buy which was refused on the basis that his tenancy had been ended by the possession order. He later obtained a declaration in the possession proceedings that he had remained a tenant throughout but he could not re-activate his RTB claim because the home had been demolished and he had been re-housed. He claimed damages for the council's failure to give him a confirmation rather than refusal of his right to buy. The Court of Appeal held that a decision on an RTB claim does not give rise to an action for breach of statutory duty, even if it contains a wrongful refusal. The tenant's remedy is to make an application to a court. For the judgment, click here.

Potter v Dyer [2011] EWCA Civ 1417
30 November 2011
One of two joint tenants left a property and later, in response to an invitation from the landlord, gave notice to quit. The former landlord then sought possession. The remaining joint tenant wanted to argue that the notice was not valid to determine the tenancy because it had been induced by the landlord's misrepresentation. He was refused permission to amend his statement of case to advance that defence. The Court of Appeal dismissed his appeal. Even if the tenant could establish the misrepresentation, the notice could not take effect as a simple release of the other joint tenant's interest in the tenancy which was the construction he wished to place on it. For the judgment, click here.

Hardy v Haselden [2011] EWCA Civ 1387
29 November 2011
Occupiers claimed that they had a tenancy of a farmhouse. At trial, which the defendant owner did not attend, a judge made a declaration to that effect and ordered execution of an appropriate lease. The defendant applied to set aside the order but could not meet the first condition of CPR 39.3 (that the application had been made promptly). The defendant then sought to bring a late appeal. The Court of Appeal considered its recent judgment in Bank of Scotland v Pereira about the overlap between set-aside applications and appeals. It granted an extension of time and allowed the appeal. There was no legal basis for upholding the judge's order. For the judgment, click here.

Secretary of State for Work & Pensions v Mohammad [2011] EWCA Civ 1358
23 November 2011
A matrimonial home was owned in a husband's name. In 2002 he raised a loan by way of mortgage against title to the house. In 2003 the couple separated. The later divorce culminated in an order for transfer of the house from husband to wife but on terms that she pay the mortgage instalments. The wife was dependent on Income Support and sought to have her benefit increased to cover the instalments. She succeeded at the Upper Tribunal but the Court of Appeal allowed the Secretary of State's appeal. Benefit could be paid to meet a loan "taken out" by a claimant but not one "taken over" as in this case.

Richmond Upon Thames LBC v Piara Singh Sehajpal
Kingston Crown Court, November 2011

A property owner converted three houses into flats and let them out to tenants. He had no planning permission to do so and failed to respond to requests to cease letting and convert them back. Enforcement notices were served and ignored. The council prosecuted for breach of the notices. The landlord pleaded guilty at the magistrates' court but the case was referred to the Crown Court for sentence. HHJ Kent imposed a fine of £21,000, awarded costs of over £9,900 and made a confiscation order for £112,500 representing the rental income that the landlord had made from his criminal breach of planning law. For more details, click here.

R(Babakandi) v Westminster CC [2011] EWCA Civ 1397
2 November 2011

A transfer applicant challenged the legality of the council's social housing allocation scheme by way of judicial review. All four grounds in the claim failed in the High Court. The claimant sought permission to appeal. The Court of Appeal refused permission on the basis that none of the grounds had a reasonable prospect of success. On the first ground, failure to give the 'reasonable preference' categories preference at all times, it said: "While of course the obligation to give reasonable preference is a continuing one and in that sense is absolute and required to be complied with at all times, it would be wrong to assess whether or not it is being complied with by simply taking a snapshot of the operation of the scheme on a particular day or a particular week."

Housing Law Articles

Recent developments in housing law
N. Madge and J. Luba
[2011] November Legal Action p36
For back-copies of articles in this series, click here.

Making sense of it all
(commentary on Westminster CC v Holmes)
R. Wassall
[2011] 2 December Local Government Lawyer. To read the article, click here.

The certainty rule
(commentary on Mexfield Co-op v Berrisford)
A. Dymond
[2011] 2 December Inside Housing p32 To read the article, click here.

Tenant take over
(leaseholders becoming managers)
N. Kissen
[2011] 2 December Inside Housing p32 To read the article, click here.

The legal aid lifeline
(how legal aid cuts will hit law centre housing work)
J. McCabe
[2011] 2 December Inside Housing p34 To read the article, click here.

Housing Law Events

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 organised 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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