Housing Law Bulletin - Issue 251 - 13 February 2012

Monday 13 February 2012

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The Latest Housing Law News

Possession claims: on 9 February 2012 the UK Government published the latest statistics on housing possession claims made in the county courts in England & Wales. These show that while the number of possession claims brought by landlords is increasing, the numbers of claims made by mortgage lenders are stable or falling slightly. For the full figures, click here. Statistics published by the Council of Mortgage Lenders on the same day showed that its members recovered possession of 36,200 properties in 2011 for default on first-charge mortgages. For those figures, click here. On the same day, the Government announced a new £20m repossessions prevention fund including £1m for court-based help. For the announcement, click here. The £1million will be distributed to 51 local authorities to commission a Court Desk scheme at their county court where one is not already provided independently or via the Legal Services Commission. Each council will receive £18,500 per court desk in their area. For the full allocation list click here.

Reform of the county courts: on 9 February 2012 the UK Government published its response to the recent consultation exercise on the work of the county courts. It has decided to raise the small claims track limit. Initially the rise will be from £5000 to £10,000 (and, if that is successful, to £15,000). The current special provisions for some housing disrepair cases will be retained. It will also be proceeding with the establishment of a single national county court system and mandatory mediation in small claims cases. For the full report, click here.

Tenancy policies for social housing: the Chartered Institute of Housing has published guidance to help social landlords devise their new tenancy strategies that will be required by the Localism Act 2011 sections 150-153. For a copy of the guidance, click here.

Sale and Rent Back: the Financial Services Authority has conducted a review of 22 firms authorised to undertake sale and rent back (SRB) arrangements. It found widespread poor practice. The main concern was that most SRB sales were either unaffordable or inappropriate - meaning consumers have entered into agreements that have either led to a poor outcome, or are highly likely to in the future. Due to the seriousness of these findings, five firms have voluntarily stopped their SRB business. A number of firms have also agreed to review their business, which may lead to further action being taken. One has already been referred to the FSA Enforcement Division. As a result of these findings, the FSA launched on 3 February 2012 a consultation on issuing tighter guidance. The deadline for responses is 29 March 2012. For more details, click here.

Housing in England: the UK Government has published the main findings of the English Housing Survey 2010/11. The survey found that owner occupation had continued on a downward trend (66% of households are now owner-occupiers) and that average weekly rents in the private sector (£160) remained significantly higher than those in social housing (£79). For the 'headline' findings, click here. For the latest EHS bulletin, click here.

Social Housing in Scotland: the Scottish Government promised to consult on changes to the way social housing is allocated and managed in Homes Fit for the 21st Century, its action plan and strategy for housing for the next decade. The new consultation document published on 6 February 2012 seeks the views and input of landlords, tenants, applicants, housing groups, advice and support agencies and the wider general public on a range of proposals to increase the flexibility social landlords have to allocate and manage their housing. For the consultation paper, click here.

Tenancy deposits: the existing arrangements for approval of specified insurance-based tenancy deposit scheme providers expire at the end of March 2013. The UK Government has indicated that will shortly be carrying out a formal procurement exercise and has published the notes of preliminary meetings to review future options. For copies of those notes, click here.

The Latest Housing Case Law

Wirral MBC v Salisbury Independent Living Ltd [2012] EWCA Civ 84
9 February 2012

SIL is a voluntary organisation providing housing and support to its tenants. It lodged over 50 appeals against adverse council decisions regarding the housing benefit (HB) entitlements of those tenants. In all but 10 cases it provided express authorities from the tenants for it to lodge appeals on their behalf but in those 10 cases the tenants had either died or could not be traced. A tribunal struck out the 10 appeals. The Upper Tribunal re-instated them, holding that SIL was able to appeal in its own right. The Court of Appeal allowed the council's appeal. On a true construction of the relevant legislation, it gave landlords no general or freestanding appeal rights in respect of the HB decisions notified to their tenants. For the judgment, click here.

R(George) v Hammersmith & Fulham LBC [2012] EWHC 210 (Admin)
2 February 2012

The claimant's mother moved to a care home and he applied to the council for the discretionary grant of her tenancy to him. In June 2010 the council rejected the application. In April 2011 the claimant applied again but the council responded that it had decided the application previously. The claimant sought a judicial review. The High Court held that any claim in respect of the June 2010 decision was out of time but that permission to apply for judicial review should be granted in respect of the April 2011 decision. It was arguable that the refusal to consider the new application on its merits was unlawful because the earlier application had only been rejected for want of certain documentation.

Enfield LBC v Martin
1 February 2012

The council obtained a gang injunction prohibiting the defendant, a young man of 19, from inciting violence on the internet, wearing gang colours or being in possession of an offensive weapon. In July 2011 the county court heard an application for committal for breach of the injunction. It found 7 breaches proven and imposed a 14 month custodial sentence suspended for two years. Following two further breaches, the council applied to active the suspended sentence. The judge at West London County Court allowed the application and imposed a 15 month immediate custodial sentence. This is believed to be the first case in which a breach of a gang injunction has led to imprisonment.

Complaint against Wrexham CBC Case No 201002076
25 January 2011

The complainant was a middle-aged single disabled man living with his mother (who was a tenant of the council). He made repeated applications for rehousing by the council complaining that his accommodation was unsuitable for his disabilities and was in disrepair. The Public Services Ombudsman for Wales found extensive maladministration including: systemic failures in approach to the rehousing applications; failure to follow relevant legislation, statutory guidance and its own policies and procedures; and poor record keeping. He recommended a wide-ranging re-training of staff, review of the council's policies, systems and procedures, an apology and £1500 compensation. For the full investigation report, click here.

Babenko v Ukraine [2012] ECHR 145
4 January 2012

The applicant was a war veteran who had a statutory entitlement to priority for council housing. His attempts to enforce that right in domestic courts failed and he complained of a breach of his human rights. The European Court of Human Rights ruled the application inadmissible. The applicant had not shown that Article 8 was in play by evidence of any homelessness or that his current housing was in a deplorable state. Although the grant of a tenancy might be a "possession" for the purpose of Article 1 of Protocol 1 the statutory right to priority in allocation of apartments was not a possession protected by that Article. For the text of the decision, click here.

Dolan v Corby [2011] EWCA Civ 1664
7 December 2011

The parties had lived together as joint tenants of a council house for over 30 years. The relationship broke down. Ms Dolan applied for an occupation order under Family Law Act 1996 section 33. The judge made an order excluding Mr Corby for 6 months. He appealed. The Court of Appeal held that "an order requiring a respondent to vacate the family home and overriding his property rights is a grave or draconian order and one which would only be justified in exceptional circumstances, but exceptional circumstances can take many forms and are not confined to violent behaviour on the part of the respondent or the threat of violence and the important thing is for the judge to identify and weigh up all the relevant features of the case whatever their nature." Although the judge had failed to apply the statutory test in the precise way required, his ultimate exercise of discretion was not flawed. For the judgment, click here.

R(Taylor) v Croydon LBC [2011] EWHC 3728 (Admin)
16 November 2011

The claimant was a council tenant in a sheltered housing complex. Following a consultation exercise, the council decided to remove the on-site warden service and replace it with an integrated rapid response service and arrangements for information kiosks and other new technology-based provision. The claimant sought a judicial review, contending that the decision had been taken in breach of the statutory disability equality duty. The High Court refused permission to bring the claim. The council had considered all the relevant issues and materials and there was no reasonable prospect of success with the claim.

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.

Make yourself at home?
(commentary on recent cases concerning occupations by protestors)
S. Jones
[2012] 162 New Law Journal p207
For a copy of the article, click here.

Housing Law Events

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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