Housing Law Bulletin - Issue 244 – 12 December 2011

Monday 12 December 2011

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The Latest Housing Law News

Homelessness in England: on 8 December 2011 the latest official data on homelessness applications to local housing authorities in England was published. It shows that 12,510 applicants were accepted as owed a main housing duty during July to September 2011, 6% higher than during the same quarter of 2010. On a seasonally-adjusted basis, there were 11,930 acceptances, an increase of 1% from the previous quarter. For a copy of the full statistical report, click here. In response to the figures, the Housing minister issued a statement encouraging households facing the prospect of homelessness to obtain early advice. For a copy of that statement, click here. For access to further statistical data on housing including lettings, rents and tenancy types, click here.

Young homeless people: the policy team at HomelessWatch has produced Young & Homeless - the report of a survey of homelessness agencies and local authority housing options teams conducted in November 2011 to investigate the extent of and nature of youth homelessness in England. It found significant continued use of B&B for the young homeless and continuing difficulties in some areas on joint working with children's services departments over homeless 16/17 year olds. For a copy of the report, click here.

Court Action in Wales on Social Housing: on 7 December 2011 the Welsh Assembly Government published the latest statistics on court proceedings brought by social landlords in Wales during 2010/11. They indicate a continuing fall in the number of possession orders granted to local authorities (down 6%) and other social landlords (down 15%). Over 800 tenants were evicted on execution of possession orders. The number of ASBOs granted to social landlords fell from 33 to 8 and the number of demotion orders from 41 to 23. Over 100 outright possession orders were made for anti-social behaviour. For the full statistical material, click here.

Housing & the Legal Aid reforms: on 1 December 2011 the Ministry of Justice announced that the legal aid measures contained in the Legal Aid etc Bill presently before Parliament would not be brought into force until April 2013. For the ministerial statement, click here. The Bill is now in the House of Lords. Shelter is among the organizations promoting amendments in the Lords Committee Stage on the scope of the Bill in relation to housing matters. For Shelter's Briefing on Lords Second Reading, click here.

Help with mortgage payments: on 6 December 2011 the UK Government issued a call for evidence on the future role of support with mortgage interest payments for benefit claimants who are homeowners, which is presently costing £400m pa. For the statement of intent, click here. For a copy of the call for evidence, click here. For the impact assessment of any change to current arrangements, click here.

Mortgage rescue in England: £86m is available in 2011/12 to support mortgage rescue in England. The latest tranche of £16m of that sum has just been released and all local authorities have been encouraged to work with providers to ensure it is spent by the end of the financial year. In the first 6 months of 2011/12, the fund assisted 820 households to complete mortgage rescues. For the breakdown of that figure, click here. For more details on the MRS in England, click here. A further £86m is expected to be available in 2012/13.

Housing Associations: on 7 December 2011 the Housing Minister again called for housing associations to make much more of their financial data transparent and open to the public. For his statement, click here. For his letter to the National Housing Federation, click here. He repeated that it was the Government's intention to consult on extending the Freedom of Information Act 2000 so that it applied to housing associations.

Empty homes: on 8 December 2011 the UK Government published figures showing that over the past year the numbers of long-term empty homes in England has fallen by over 21,000. There remain over 720,000 homes currently vacant. For the details, click here.

The Latest Housing Case Law

Sun Street Properties Ltd v Persons Unknown [2011] EWHC (Ch), [2011] All ER (D) 72 (Dec)
7 December 2011
Protestors took possession of the claimant's unused office building as part of their campaigning related to the current financial climate. The claimant sought and obtained an order for possession from a judge during a without notice out-of-hours telephone hearing. The defendants applied to set the possession order aside on the basis of several procedural irregularities. The High Court refused that application on the grounds that even if there had been irregularities, e.g. as to service of documents, the defendants' rights under Articles 10 and 11 of the Human Rights Act 1998 Schedule 1 could not legitimize their occupation of the property or amount to any defence to a possession claim. The Court of Appeal granted a stay of execution of the possession order pending an oral hearing of a renewed application for permission to appeal. For further details, click here.

Islington LBC v Boyle [2011] EWCA Civ 1450
6 December 2011
The defendant was the secure tenant of a flat in Islington. Her partner had a house in the country. For family reasons, the tenant moved to live in the house for a number of years and her partner moved to live in the flat in London. The council claimed that the tenant no longer occupied the flat as her only or principal home (Housing Act 1985 section 81) and that security of tenure had been lost. It served notice to quit and claimed possession. A judge dismissed the claim. He held that the absence was only temporary and that she had intended to return. The Court of Appeal allowed the council's appeal. This was a 'two homes' case and the judge had not ruled on the council's claim that, even if the tenant could still be in deemed occupation of the flat, it was not her principal home. A re-trial was ordered. The judgment contains useful guidance applicable to non-occupation cases and to second homes cases. For a copy of the judgment, click here.

Gladysheva v Russia [2011] ECHR 2021
6 December 2011

In September 2005 the applicant bought a flat. She registered her title and lived in the flat with her son as their home. In July 2009 a court decided that true title to the flat belonged to the local council and it ought never to have been available for purchase. Her title was revoked and the council was declared to be the legal owner. As she had no legal right to remain, the court made a possession order. The applicant's appeals were dismissed and she applied to the European Court of Human Rights complaining of infringement of her right to respect for her home (Article 8). It held that: (1) although the possession order had not been enforced, the very making of such an order amounted to an infringement of the Article 8(1) right; (2) the order had been lawfully obtained in pursuit of a legitimate aim (the provision of housing to welfare claimants to whom the flat would be reallocated); (3) on the question of whether the interference was 'necessary', the state had a narrow margin of appreciation when seeking to justify interference with Article 8 rights in respect of housing matters; and (4) the domestic courts had made no examination of the proportionality of the eviction and had left Article 8 rights wholly out of account when deciding to make a possession order. The Strasbourg Court made an order directing that the applicant's title be restored, the eviction rescinded, 9000 euros compensation be granted and 11,245 euros costs paid. For a copy of the judgment, click here.

Beaufort Park Residents Management Ltd v Sabahipour [2011] UKUT 436 (LC)
21 November 2011
The terms of a lease required the tenant "to permit the Lessor and its Surveyors or Agents with or without workmen and others at all reasonable times to enter upon the Flat for the purpose of examining the state and condition thereof". The tenant reported a leak and the lessor appointed its Director (also the Company Secretary) as its agent to investigate. There was a history of difficulties between the tenant and that director and the tenant refused access. He was prepared to admit any other agent of the landlord. The landlord applied for a declaration that the tenant was in breach of the lease. A Leasehold Valuation Tribunal declined to make the declaration. The Upper Tribunal allowed the landlord's appeal. The director was the company's agent and the tenant was obliged to give him access for the purposes stated in the lease. For the judgment, click here.

R(Campbell) v Clerkenwell & Shoreditch County Court [2011] EWCA Civ 1525
21 November 2011
The claimant was a Hackney council tenant. In a claim for possession, she raised a defence that the council was in breach of an order made many years earlier requiring it to complete her right to buy her flat. Her defence was struck out by a district judge. She was refused permission to appeal against that order by a circuit judge. She brought a claim for judicial review of the refusal of permission to appeal. The High Court held that the judicial review claim did not fall within the narrow category of cases in which judicial review of such a refusal could be permitted. The Court of Appeal dismissed an application for permission to appeal against the rejection of the judicial review claim.

Howard v Stanton [2011] EWCA Civ 1481
16 November 2011
A tenant brought a claim against her landlady for the return of the balance of her deposit. The landlady counterclaimed for the costs of remedial work and rent lost by the inability to re-let immediately. At trial, the tenant succeeded and the counterclaim was dismissed. The landlady sought permission to appeal and her application was listed for an oral hearing. The tenant was not required to attend and, on enquiring, was told by court staff that she need not attend. At that hearing the circuit judge granted permission to appeal and immediately proceeded to hear the appeal which he allowed. The Court of Appeal allowed the tenant's further appeal. The judge ought not to have determined the substantive appeal in the tenant's absence. The appeal was remitted for rehearing. For the judgment, click here.

Barons Finance Ltd v Olubisi [2011] EWCA Civ 1461
16 November 2011
Ms Olubisi bought her flat with a mortgage. She fell into arrears with repayments and the lender issued possession proceedings. To clear the arrears, Ms Olubisi borrowed money from the claimant company which took a charge over title to the flat to secure its loan. Ms Olubisi cleared her mortgage lender's arrears but then fell into arrears on repayments to the company. It sought and obtained a possession order. Ms Olubisi appealed. The judge allowed the appeal and dismissed the claim, holding that the loan had not been made in accordance with the formal requirements of the Consumer Credit Act 1974. He ordered repayment of over £3000 that Ms Olubisi had paid the company. The Court of Appeal refused the company's application for permission to appeal as it had no prospects of success and did not meet the criteria for a second appeal.

Sim v Latymer Court Freehold Co Ltd [2011] EWCA Civ 1492
7 November 2011
Ms Sim was the long leaseholder of her flat. Her front door was broken down by the police when seeking to trace a leak into the flat below her flat. She applied in the High Court for a mandatory injunction requiring the block's management company to re-instate the door. The claim was resisted on the basis that there was a triable issue as to whether the company or the police were liable. The judge decided that any claim should proceed in the ordinary way in the county court and refused the injunction sought. He ordered Ms Sim to pay costs assessed at £500. The Court of Appeal refused permission to appeal against the costs order, as it had no prospects of success.

Kata v Westminster CC [2011] EWCA Civ 1456
4 November 2011
The claimant, a single man, applied to the council for homelessness assistance under Housing Act 1996 Pt 7. The council decided on review that although he was HIV positive he was not vulnerable and therefore not in priority need. He appealed, arguing that: (1) his condition had actually developed into AIDS; and (2) the reviewing officer had failed to deal with his inability to access medication if he was street homeless. The county court judge noted the Code of Guidance para 10.32 but dismissed the appeal as he could detect no error of law in the review decision. The reviewing officer had correctly applied the Periera test to the facts. The Court of Appeal refused permission to bring a second appeal. The appeal raised no important point of principle or practice and had no prospect of success.

R(KN) v Barnet LBC [2011] EWHC (Admin) 2019
29 July 2011

The claimant, a young woman, applied to the council. It undertook an assessment of her age which she challenged by a claim for judicial review. The judgment is interesting for its extended treatment of the question of what role, if any, the burden of proof has to play in an age assessment case. In the event, the judge was able to assess age without recourse to the burden of proof and held that the claimant was a 'child' entitled to section 20 Children Act 1989 accommodation.

Housing Law Articles

Recent developments in housing law
N. Madge and J. Luba
[2011] December Legal Action p26
For back-copies of articles in this series, click here.

Housing & the Localism Act 2011: homelessness
L. Davies and J. Luba
[2011] December Legal Action p21

Housing Repairs Update 2011 - Part 1
B. Prevatt
[2011] December Legal Action p11

Practitioner's page: Housing Disrepair
M. Paget
[2011] 15 Landlord & Tenant Review p234

Tenancy Deposits
O. Tassell
[2011] 15 Landlord & Tenant Review p226

Legal Wonderland (commentary on Mexfield v Berrisford)
B. Chataway
[2011] 155 Solicitors Journal No.45 p12

Landlord & Tenant update
T. Shepperson
[2011] 155 Solicitors Journal No.45 p27

The mental health maze (possession claims against tenants with capacity issues)
R. Wassall
[2011] 9 December Inside Housing
To read the article, click here.

Housing Law Events

This Week

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.

Next Year

3 February 2012
Recent Developments in Housing Law
A Legal Action Group training event in London
For the details, click here.

9 March 2012
Introduction to Housing Law
A Legal Action Group training event in London
For the details, click here.

1 May 2012
Defending Possession Proceedings
A Legal Action Group training event 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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