Housing Law Bulletin - Issue 249 - 23 January 2012

Monday 23 January 2012

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The Latest Housing Law News

Social housing tenure reform in England: on 15 January 2012 it became possible for local housing authorities in England to begin drawing up, and consulting on, new tenancy strategies in readiness for the reforms to social housing tenure. The UK Government has brought into force sections 151 and 152 of the Localism Act 2011 and parts of sections 150 and 153. Together those four sections set the framework for tenancy strategies and require that the final strategy in every local authority area is agreed and published by 15 January 2013 at the latest. For the commencement order, click here. For the accompanying ministerial statement, click here.

Social housing allocation in England: on 15 January 2012 it became possible for local housing authorities in England to begin drawing up and consulting on new allocation schemes to reflect the changes to allocation law being made by the Localism Act 2011 sections 145-147. For the commencement order, click here. It is far from clear how any local authority can practically carry out this exercise. If it does so at this stage it must have regard to the statutory guidance issued by the secretary of state and to regulations he has made. The present statutory guidance only refers to the current law. The likely future guidance is still in draft and subject to consultation. Likewise, although the regulation- making powers of the secretary of state are now in force, no regulations have yet been issued. There is no commencement date for the substantive changes to allocation law.

Housing benefit to housing association tenants: on 19 January 2012 the UK Government announced which local authorities and housing associations would participate in a pilot arrangement for payment of HB direct to association tenants rather than to their landlords. From October 2013 the new Universal Credit (including the housing element) will be paid direct to 2 million social housing tenants of working age. For details of the participants in the pilot, click here.

Services in County Courts: on 9 January 2012 the Courts Service began a programme for county courts to consult local users about the future of counter services in those courts. The Service intends to remove all non-essential business from public access offices at county courts - including arrangements for the issue of most forms of possession claim and housing proceedings. Consultation appears to be occurring on an area by area basis. The Law Society branches in Bristol and Kent have published consultation details for their areas on their websites.

Housing help for the disabled and elderly: on 17 January 2012 the UK Government announced the distribution of a further £20m funding for the Disabled Facilities Grants programme. For the ministerial statement, click here. On the same day it issued a call for all councils to do more to assist the elderly owners and tenants under the New Deal for Older People. For the details, click here.

The Latest Housing Case Law

R(Gresty) v Knowsley MBC [2012] EWHC 39 (Admin)
19 January 2012

The claimants were owner occupiers. They commissioned extensive building works which, while in progress, were inspected by the council for building regulations compliance. The works resulted in the premises being dangerous to occupy. The claimants successfully sued the builders but could not enforce their judgment. They had no private law claim against the council and could not finance remedial work themselves. They sought a judicial review on the basis that the council owed a positive obligation under Human Rights Act 1998 Schedule 1 Article 8 to help them achieve reasonable living conditions by financing the remedial work. The High Court accepted that a positive obligation under Article 8 might arise in some circumstances but refused permission to bring the judicial review claim. It was both out of time and unarguable on the facts. For the judgment, click here.

City of London v Samede and others [2012] EWHC 34 (QB)
18 January 2012

The defendants were members of the Occupy encampment on the courtyard and highway adjacent to St Paul's cathedral. The council, as highway authority and as owner of part of the land, sought possession. The defendants contended that, having regard to their rights under Human Rights Act 1998 Schedule 1 Articles 10 and 11, any eviction would be disproportionate. The High Court granted a possession order and injunctions. A stay was added, in order to give an opportunity for an application to be made to the Court of Appeal. For the judgment, click here.

R(Moore) v Wandsworth LBC [2012] EWHC (Admin), [2012] All ER (D) 66 (Jan)
17 January 2012

The claimant's father and mother had both died. They had been, in turn, the secure tenants of the family home. The claimant had no statutory right to succeed, as a second successor, but applied for a discretionary tenancy under section 5 of the council's allocation scheme. That set qualifying criteria and provided that decisions would be taken jointly by the area manager and rehousing manager. The claimant's application was refused by the area manager on the basis that he did not satisfy the qualifying criteria. The High Court allowed a claim for judicial review and quashed that decision because: (1) the rehousing manager had not been involved; (2) the application had not been handled with procedural fairness; and (3) there had been a failure to take account of material considerations.

Pimlott v Varcity Accommodation Ltd [2012] EWHC (Admin) 19
17 January 2012

The claimant was an assured tenant paying rent of £347pcm. Her landlords served a notice under Housing Act 1988 section 13 seeking a rent of £550pcm. She referred the notice to a Rent Assessment Committee. It fixed the rent at £495pcm. The claimant appealed to the High Court asserting that the Committee had erred in law in taking into account, as a comparable, a rent of £620pcm paid locally under an assured shorthold tenancy (AST). The High Court dismissed the appeal. The committee had committed no error of law in considering the rent paid under an AST but, even if it had, that had in this case worked to the claimant's advantage because she had a fully assured tenancy which would normally have attracted a higher rent than an AST by virtue of its better security of tenure. For the judgment, click here.

Complaint against Havering LBC No. 10008622
12 January 2012

The complainant bid, under the council's choice based letting scheme, for a house advertised as having 3 bedrooms and a parlour. Her household comprised herself and three daughters. Two of the daughters were adults and the eldest was severely disabled, requiring a ground floor bedroom. The complainant was the highest ranked bidder with a 3 bed need but was not offered the property because all 3 bedrooms were on the upper floor. She had intended to convert the ground floor parlour to a bedroom for her disabled daughter. The property was offered to a family with a four bed need who used the parlour as a bedroom. The Local Government Ombudsman found that the council's allocation scheme was defective in that: (1) it did not define the term "children", which had allowed officers to treat the adult daughters as children for the purposes of the scheme; and (2) the scheme defined a 3 bed-plus-parlour house as a 4 bed property but the advertising of such a property was as having 3 bedrooms. In this particular case, the council had also failed to consider its obligations under the Disability Discrimination Act and the Human Rights Act. Recommendations included a review of the wording of the allocation scheme and £4000 compensation. For the full investigation report, click here.

Reading BC v Mir
4 January 2012

The council inspected an HMO rented-out by the defendant landlord, Mohammed Mir. It found the house in a poor state of repair and the garden full of rubbish. The defendant pleaded guilty to 16 offences under Houses in Multiple Occupation (England) Regulations 2006. Reading Magistrates' Court imposed £2,125 in fines and £1,815 costs. For more details, click here.

Complaint against Carmarthenshire County Council LBC No. 201001198
22 December 2011

The complainant was disabled. The council allocated him a property in 2008 which it subsequently said could not be adapted to meet his needs although it had been fully aware of his needs prior to allocating the property. It advised him to apply for a transfer but he did not wish to move again as his family had become settled. The council carried out no adaptations for over three years until it reassessed Mr M's needs following the complaint to the Ombudsman's office in 2011. It then agreed to carry out all the adaptations requested. The Ombudsman found maladministration in the allocation process and throughout Mr M's request for adaptations at the property. There had been no occupational therapy (OT) assessment prior to allocation, nor was there a full assessment of Mr M's needs for adaptations by either an OT or social services for over three years after he had moved in. The council did not appear to recognise its statutory social care duties to Mr M, or that his human rights may have been engaged. The Ombudsman upheld Mr M's complaint and made a number of recommendations including an apology and payment of £3000. For the investigation report, click here.

Sun Street Properties Ltd v Persons Unknown [2011] EWCA Civ 1672
19 December 2011

The defendant protestors had occupied the claimant's empty office building. The claimant brought a possession claim against trespassers, sought abridgement of time for service from 2 days to 45 minutes, and was granted a possession order by telephone from a duty judge at night without any practical notice to the occupiers. A High Court judge declined to set aside that order given the absence of any arguable defence. The Court of Appeal granted permission to appeal to enable it to determine whether, on an application to set aside such an order, the matter should be considered solely as one of principle or whether the judge had been right to enter into the merits.

R(DM) v Doncaster MBC [2011] EWHC (Admin) 3652
16 December 2011

The claimant's husband was in his 80s and suffered with dementia. Following an incident, he was taken to a police station and then to a care home where he was detained under the Mental Capacity Act (MCA) 2005. The council charged for the accommodation. The claimant sought a judicial review, contending that accommodation under the MCA should be provided free. The claim was dismissed. The accommodation was provided pursuant to the council's duty under National Assistance Act 1948 section 21 for which it was obliged to charge. There was no equality or human rights legislation which compelled a contrary result.

McDermott v Croydon LBC [2011] EWCA Civ 1696
13 December 2011

The council owed the claimant the main housing duty under the homelessness provisions of the Housing Act 1996 Part 7. It made him an offer of council housing to discharge that duty. He was a disabled man living with his wife. His physical disability was such that he could not access the kitchen in the offered property. On a review, the council confirmed that the offer was suitable. An appeal to the county court was dismissed. The Court of Appeal refused permission to appeal. The reviewing officer had been entitled to decide that, as the claimant could not have used the kitchen facilities in light of his disabilities, the premises were not unsuitable simply because he could not enter the kitchen.

Wacey-Germaine v United Kingdom [2011] ECHR 2325
13 December 2011

Ms Wacey-Germaine applied to Luton Council as homeless in 2006. It accepted that she was owed the main housing duty under Housing Act 1996 Part 7 and it provided non-secure temporary accommodation. In 2009 it served notice to quit and claimed possession referring to rent arrears of over £9000. Ms Wacey-Germaine sought to pursue an Article 8 human rights defence to the claim, based on her personal circumstances. A district judge made a possession order at a summary hearing, a circuit judge refused permission to appeal against that order, and possession was obtained. Ms Wacey-Germaine complained to the European Court of Human Rights. It asked the parties: Was the interference with the applicant's right to respect for her family life or home, within the meaning of Article 8(1) of the Convention, necessary in terms of Article 8(2)? The UK Government offered 5000 euros in satisfaction of her claims for damages and costs which Ms Wacey-Germaine accepted. On the basis of that settlement, the court ended its examination of the complaint. For the judgment, click here.

Mekarska v Ruiz and Boyden (Trustee in Bankruptcy) [2011] EWCA Civ 1646
2 December 2011

The claimant's marriage broke down. The only family asset was the matrimonial home held in her husband's name. She registered her 'home rights' under Family Law Act 1996 as a charge on the property. The husband was then made bankrupt. His trustee wanted to sell the property but the claimant thought it would sell at an undervalue. The trustee sought possession. The claimant contended in the matrimonial proceedings that her rights bound the trustee and he was subject to them. The Court of Appeal held that nothing in her matrimonial rights trumped the rights of the trustee.

Family Mosaic HA v Pimlico School HA [2011] EWHC 3561 (Ch)
1 December 2011

This was a dispute between two housing associations concerning a house in London SW1 that was owned by Family Mosaic HA ('Family') but managed by Pimlico School HA ('Pimlico'). The management agreement included these words in the clause describing how the agreement could be terminated: "Upon three months' written notice by either party and with the mutual consent of both parties". Family gave three months' notice in writing. Pimlico did not want the agreement to end and insisted that the notice was not valid unless both parties consented. The High Court decided that the meaning which gave best business sense was that the parties had not intended to prevent each other from giving unilateral notice to terminate. Therefore, Family's notice was valid and the agreement had been terminated.

Housing Law Articles

Recent developments in housing law
N. Madge and J. Luba
[2012] January Legal Action p19
For back-copies of articles in this series, click here.

All change for social housing?
J. Driscoll
(2012) 162 New Law Journal p90
For a copy of the article, click here.

Asbestos risks - what registered providers need to know
A. Stubbs
[2012] 12 January Local Government Lawyer
For a copy of the article, click here.

A supremely unsatisfactory solution
(commentary on Mexfield v Berrisford)
S. Murdoch
[2012] 1202 Estates Gazette p67

Battling fraud
(commentary on the proposals to tackle social housing tenancy fraud)
C. Hammond
[2012] 20 January Inside Housing p26
For a copy of the article, click here.

Housing Law Events

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

22 February 2012
Possession: Public Law and the Equality Act
An evening housing seminar at Garden Court Chambers.
For more details, click here.

23 February 2012
Tenure Reform under the Localism Act: Law & Practice
An evening meeting in London of SHLA
For the details, click here.

27 February 2012
Advocacy Training for Housing Cases
An evening seminar in London arranged by HLPA
For the details, click here.

8 March 2012
Anti-social Behaviour Update
An evening housing seminar at Garden Court Chambers.
For more details, click here.

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

21 March 2012
Homeless Children
An evening meeting in London of HLPA
For the details, click here.

18 April 2012
How to Defend Subletting Cases
An evening seminar in London arranged by HLPA
For the details, click here.

19 April 2012
Homelessness and Allocation after the Localism Act
An evening housing seminar at Garden Court Chambers.
For more details, click here.

25 April 2012
Doing Your Duty: How to Keep your Client's Home when on the Duty Possession Scheme
(Free for representatives on the housing possession day duty schemes)
An evening housing seminar at Garden Court Chambers.
For more details, click here.

1 May 2012
Defending Possession Proceedings
A Legal Action Group training event in London
For the details, click here.

16 May 2012
Possession Claims: The Old and The New
An evening meeting in London of HLPA
For the details, click here.

22 May 2012
Housing Disrepair
A Legal Action Group training event in London
For the details, click here.

24 May 2012
New Forms of Tenancy and Using the Ombudsman After the Localism Act
An evening housing seminar at Garden Court Chambers.
For more details, click here.

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