Housing Law Bulletin - Issue 252 - 20 February 2012

Monday 20 February 2012

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The Latest Housing Law News

Under-occupying social housing: on 14 February 2012 the House of Lords insisted on an amendment to the Welfare Reform Bill designed to protect the welfare benefits of some tenants under-occupying social housing. A reduction in benefits would not apply if: (1) they only have one spare bedroom; and (2) there is no suitable alternative accommodation; and (3) they, or a dependent, are in receipt of disability living allowance, or personal independence payment, or attendance allowance or an increase of disablement pension (where constant attendance is required) or the claimant is a war widow or widower or the claimant routinely provides foster care placements. It is the last remaining issue in dispute between Commons and Lords over the Bill which returns to the Commons for a final decision this week. For the Lords Debate, click here.

Social housing allocation and the Equality Act 2010: many local authorities and other social housing providers are re-writing their allocation schemes in the light of changes made by the Localism Act 2011 and new regulatory requirements. On 16 February 2012 the Local Government Association re-launched its Social Housing Equality Framework designed to ensure that the new housing allocation schemes meet the requirements of equalities legislation. For more details, click here.

Involving tenants and residents: the new regulatory standards for social landlords will continue to require emphasis on tenant engagement and involvement. The Chartered Institute of Housing has just published its latest "How to..." guide on the subject. For a copy of How to... prepare for regulatory reform: Tenant engagement and scrutiny, click here. For its part, Hyde Housing Group has just published the research it commissioned from Heriot Watt University on resident involvement. For a copy of Resident involvement in social housing in the UK and Europe, click here.

A right to family housing: in 1962 the UK ratified the European Social Charter. Article 16 requires that the UK Government promote the protection of family life by such means as provision of family housing. Compliance with that obligation is monitored by the European Committee of Social Rights (ECSR). In its January 2012 report the ESCR (at pp10-11) invites the Government to supply further evidence that it has complied with Article 16, particularly in respect of Gypsy and Traveller families. For a copy of the report, click here.

Migrants in the private rented sector: a new report from the Housing and Migration Network provides evidence that most recent migrants live in the private rented sector, frequently in poorer properties and explores the reasons for this (and the practical consequences for migrants themselves and for the neighbourhoods where they live). For a copy of the report, click here.

Homelessness: in the first two quarters of 2011/2012 there were 23,796 homelessness applications made in Scotland - 20% lower than the number of applications received in the same period in 2010. The number of applications had fallen in 28 out of Scotland's 32 local authorities. Of those applications, 90% were accepted as having priority need. For the full statistics, published on 14 February 2012, click here.

The Latest Housing Case Law

Siveter v Wandsworth LBC [2012] EWCA Civ, Case No: B2/11/2078, noted on LAWTEL
16 February 2012

The claimant was a council tenant. Her home was rendered uninhabitable by an infestation of poultry mites. She claimed that the mites had spread from a pigeon's nest resting on a cupboard outside her flat, into the cupboard and through an opening into her flat. The council had arranged to have the nest removed but the cupboard itself had not been inspected or sprayed. The judge rejected a claim that the landlord was liable for compensation. The Court of Appeal allowed an appeal. The expert evidence was that, in addition to the nest removal, the cupboard should at least have been inspected and, probably, treated. It was inevitable and foreseeable that, if left uninspected and untreated, the infestation would migrate from the cupboard and throughout the flat.

Ford v Alexander [2012] EWHC 266 (Ch)
16 February 2012

Mr and Mrs Ford were made bankrupt. Their only significant asset was their home, of which they were legal and beneficial owners. Their trustee in bankruptcy gave notice of his intention to sell and applied to the court. The couple had no dependents and their only medical condition was moderate depression. The judge made an order for possession in 6 weeks and gave directions for sale. She said that the issue was whether it was just and reasonable to make an order in all the circumstances (Insolvency Act 1986 section 335A) but that even if an Article 8 proportionality assessment had been also appropriate a possession order would still be made. The Fords were refused permission to appeal. The High Court was not satisfied that it was reasonably arguable that the judge had been wrong. For the judgment, click here.

Oxford CC v Basey [2012] EWCA Civ 115
15 February 2012

The housing benefit (HB) scheme will cover service charges for the costs of cleaning and of fuel for communal areas in all accommodation except 'rooms'. But it will even cover the costs of cleaning and fuel for communal 'rooms' if they are in sheltered accommodation. The HB regulations do not define 'sheltered accommodation'. This case was concerned to settle what the term meant. The Court of Appeal held that Parliament had not chosen to define 'sheltered accommodation' and the Court should not impose a prescriptive definition upon an inherently flexible concept which can take many different forms, and which now includes very sheltered or extra care sheltered accommodation. For the judgment, which contains such guidance as the Court was able to give, click here.

R(McDonagh) v Hackney LBC [2012] EWHC Admin. [2012] All ER (D) 105 (Feb)
15 February 2012

The council adopted a new allocation scheme for pitches on its official gypsy and traveller sites. The new scheme required applicants to re-register every year and to provide documentary evidence of a residential connection with the borough. The claimant, an Irish traveller, sought a judicial review of the new scheme claiming that it imposed unrealistic and bureaucratic requirements on a mobile and vulnerable group. The High Court dismissed the claim. It was lawful and rational to adopt a scheme which recognised those with some connection with the area. Annual renewal was a legitimate means of keep the waiting list manageable.

Hurley v Darjan Estate Co Ltd [2012] EWHC 189 (Ch)
10 February 2012

Mr and Mrs Hurley entered into a 21 year lease of a pub. They failed to pay the rent. The landlord forfeited the lease and recovered possession. It then issued statutory demands for the unpaid rent and applied for a bankruptcy order. Then judge made the order despite Mrs Hurley's argument that there was a substantial dispute as to whether: (1) she had entered into the lease under undue influence by her husband; and (2) the landlord was on notice as to that influence having happened. The High Court dismissed an appeal. In a contract case (such as a lease) nothing less than actual knowledge of undue influence would do and there was nothing about the letting to suggest to the landlord that her participation as joint tenant had been secured by her husband's wrongdoing.

Oxfordshire CC v Zulfqar Hussain Oxford Crown Court
9 February 2012

The defendant ran Charles Lawson Lettings agency on Cowley Road, Oxford. The county council's Trading Standards Service received over 60 complaints from customers of :(1) not having their deposits returned to them at the end of their tenancies; or (2) not having their deposits refunded when the letting agency could not provide a property. Some landlords did not receive the rent they were owed by the agency. The defendant pleaded guilty to seven Consumer Protection Regulation offences and one offence for money laundering. He was given a nine month prison sentence, suspended for two years, and ordered to carry out 40 hours of unpaid work. He was also ordered to pay compensation to victims of £8,167 and costs of £51,136.40. A Criminal Confiscation Order was made for £250,000 with a
three year prison sentence in default of payment. For more details, click here.

Simpson-Lowe v Croydon LBC [2012] EWCA Civ 131
19 January 2012

The claimant had suffered a motorcycle accident which left him with mobility issues. The DWP awarded him disability living allowance at the higher rate on the basis that he was unable or virtually unable to walk. The council decided that although he was homeless he did not have a priority need as he was not vulnerable as a result of his physical disability. A county court judge dismissed an appeal. The claimant sought permission to bring a second appeal to the Court of Appeal suggesting that the case raised two points of legal importance: (1) the correct approach to handling medical advice in the light of conflicting decisions of the Court of Appeal; and (2) the correct approach a council should take to vulnerability when the DWP had made a decision about disability for benefits purposes. Permission to appeal was refused by the Court of Appeal. There was no inconsistency in earlier Court of Appeal decisions and it was settled law that a council could take into account, but was not bound by, relevant DWP decisions on disability issues.

Southwark LBC v Hyacinth Lambeth County Court 9LB51432
21 December 2011
The defendant was an introductory tenant. The council gave notice of intention to recover possession for rent arrears. That notice was upheld on a review and possession proceedings were issued. At the hearing of the claim, there were arrears of over £1300. The defendant was unrepresented. A possession order was made by the district judge, who said she had no alternative but to make the order. The defendant was then referred to the Homeless Persons Unit, then to the CAB, and then to a solicitor who lodged notice of appeal. The appeal was allowed and the proceedings were dismissed. The Circuit Judge was satisfied that the council had unlawfully failed to follow and apply its Rent Income and Arrears Management Procedure Guide. The review panel had not identified that failing and, in upholding the decision to evict, had reached a decision no reasonable panel could have reached. (For a full discussion of this case on the NearlyLegal blog, click here.)

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.

Localism Act: security of tenure in social housing
J. Luba and D. Renton
[2012] February Legal Action p14

Uncertain terms
(commentary on Mexfield)
M. Pawlowski
[2012] 156 Solicitors Journal no6 p14

No magic solution
(commentary on grounds for possession for nuisance)
A. Jack
[2012] Inside Housing 10 February
To read the article, click here.

Take care
(capacity to sign tenancy agreements)
R. Latham
[2012] Inside Housing 17 February
To read 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
Flexible tenancies: Law, Policy & Implementation
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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