Housing Law Bulletin - Issue 253 - 27 February 2012

Monday 27 February 2012

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The Latest Housing Law News

Rough sleeping: the latest figures on rough sleeping in England were released on 23 February 2012. The Autumn 2011 total of rough sleeping counts and estimates in England was 2,181 individuals, up by 413 (23%) from the Autumn 2010 total. For the full figures, click here. For the ministerial announcement, made on the same day, drawing attention to the £18.5m supplement to the Homelessness Prevention Fund directed specifically at work with single homeless people, click here. The UK Government has also given support to the 'Before you Go' campaign aimed at central and eastern European nationals alerting them to the dangers of arriving in the UK without support. For more details of that statement, click here.

Expanding the private rented sector: on 21 February 2012 the independent review of the barriers to institutional investment in private rented homes, led Sir Adrian Montague, issued a formal call for evidence. The closing date is 30 March 2012. For the details, click here.

New social housing regulator: on 20 February 2012 Piers Williamson, Jane May, Richard Moriarty and Jim Coulter were appointed as the remaining members of the Homes and Communities Agency Regulation Committee created the Localism Act 2011. The Committee will assume full power as social housing regulator in England from 1 April 2012, following abolition of the Tenant Services Authority. For the announcement, click here.

The Latest Housing Case Law

City of London v Samede [2012] EWCA Civ 160
22 February 2012

The City had been granted a possession order and injunctions in respect of the unlawful occupation of land around St Paul's Cathedral. The occupiers sought permission to appeal, arguing that the orders represented a disproportionate interference with their rights under Articles 10 and 11 of Human Rights Act 1998 Schedule 1. The Court of Appeal refused permission to appeal on the basis that there was no real prospect of showing that the orders had been wrongly made. It also gave guidance for the handling of future claims against demonstrators who raise human rights defences to such orders. For the judgment, click here.

Newman v Framewood Manor Management [2012] EWCA Civ 159
21 February 2012

The claimant was the long leaseholder of a flat in a block of flats. She brought a claim for damages in respect of a number of alleged breaches of covenant by the landlord (a management company jointly owned by the residents) in relation to leisure facilities in the block. The judge held that the landlord was entitled to rely on an 'exoneration' clause in the lease, limiting its liability to only such damage as it might have insured against. It had no insurance in respect of the compensation the tenant was claiming. The Court of Appeal allowed an appeal. Properly construed, the clause did not allow the landlord to avoid liability simply by not insuring against a particular form of loss. The Court of Appeal found several breaches of covenant were made out and awarded £6452 damages. For the judgment, click here.

R(HA) v Hillingdon LBC [2012] EWHC 291 (Admin)
20 February 2012

The council provided accommodation for the claimant, an unaccompanied asylum seeker, under Children Act 1989 section 20 on the basis that he was his claimed aged of 14. On a later, more detailed assessment, it decided that he was over 18. It ceased to provide for him and he was accommodated by the UKBA in Birmingham. He sought a judicial review of the age assessment and interim relief requiring Hillingdon to accommodate him until trial of that issue. Hillingdon claimed that if any authority should accommodate the claimant it should be Birmingham, where he now lived. The High Court granted permission to claim judicial review of the age assessment and directed a trial of that issue by the Upper Tribunal. Meanwhile, it refused to join Birmingham as a defendant to the claim and ordered Hillingdon to accommodate pending the trial. For the judgment, click here.

Leary v Birmingham Crown Court [2012] EWHC (Admin), [2012] All ER (D) 137 (Feb)
17 February 2012

The defendant was the sole tenant of a flat. As a result of action by the police and local council, a magistrates' court granted a premises closure order on the basis that the flat was being used in connection with supply of Class A drugs. That decision was confirmed by the Crown Court on appeal. The defendant appealed to the High Court on the grounds that, by excluding him, the order breached his Article 8 right to respect for his home in circumstances where there was no evidence that alternative measures had been pursued short of closure. Alternatively, he claimed that the closure order should be modified to permit him to return, while excluding others. The appeal was dismissed. It was not a requirement of the premises closure order scheme that less extreme remedies had to have been considered and attempted. Nor could an order be modified to allow a person to re-enter and occupy his home.

Complaint against Ealing LBC Complaint 10015936
16 February 2012

The complainant, a council tenant, was a permanent wheelchair user. She experienced difficulty exiting and accessing the block in which her flat was located and applied for a transfer. The council was repeatedly put on notice of her difficulties and the Fire Brigade told the council that she was at risk in the event of fire. It gave her a 'Band B' priority for transfer on medical grounds but it did not refer the transfer application to its Social Welfare Panel until September 2011, even though it had identified this as a possibility in May 2009. This was despite the fact its transfer scheme was unlikely to lead to a higher priority than Band B on medical grounds and its knowledge of the lengthy period a Band B applicant for a property suitable for a disabled person would have to wait for an appropriate offer. The complainant then received Band A priority. Further maladministration by the council included: (1) telling a councillor that it had carried out works to the door entry system when that had not been done; and (2) failing to consider a suggestion that it modify the front door to the block. The local government ombudsman recommended £2000 compensation and a backdating of Band A status to May 2009. For the investigation report, click here.

Moore v British Waterways Board [2012] EWHC 182 (Ch)
10 February 2012

The claimant moored several vessels on the Grand Union Canal adjacent to land that he owned. He occupied one or more of the vessels as his home. The board found that the vessels were not being regularly used for navigation and served notices requiring them to be moved (threatening removal of them by the board in default). The claimant brought a claim for a declaration that the board had no power to serve the notices upon which it relied and that their action infringed his right to respect for his home under Article 8. The High Court formed a provisional view that the purported use of the board's draconian powers, without prior warning and in the absence of any identified and real threatened or actual obstruction of safe navigation, with the effect of depriving the claimant of his home, was not proportionate. For the judgment, click here.

R (Broadway Care Centre Ltd) Caerphilly County Borough Council [2012] EWHC 37 (Admin)
19 January 2012

The claimant company owned a residential care centre. It sought permission to challenge, by way of judicial review, the decision of the council to terminate its contract to provide care for elderly dementia sufferers at that centre. One basis on which it claimed legal standing to bring the claim was that it was seeking to protect the rights of its residents to respect for their homes under Article 8. The High Court held that it was not possible for the company to show that it was a 'victim' of any alleged infringement of those rights for the purposes of Human Rights Act 1988 section 7 and thus it had no standing to bring a claim for an alleged violation of its residents' rights. For the judgment, click here.

Wychavon District Council v EM (HB) [2012] UKUT 12 (AAC)
6 January 2012

The claimant was a severely disabled woman who claimed housing benefit in respect of rent that was said to be payable under a tenancy agreement. The council decided that she was not entitled. On a second appeal, the Upper Tribunal judge found that she had no liability to pay the rent because she had never actually entered into the tenancy agreement. She had no knowledge or means of knowledge of it and had not had the mental capacity to enter into such a tenancy. Following that decision, the claimant's representatives raised the point that, under Mental Capacity Act 2005 section 7, a person who lacked capacity but to whom necessary goods and services were supplied had to pay a reasonable price for them. The Judge agreed to review his decision and then allowed the appeal. The accommodation was a 'necessary' service for the claimant and she was obliged to pay an amount equivalent to the rent because it was a reasonable charge. For the judgment, click here.

Swift Advances PLC v McConnaghie
18 November 2011

The claimant, a sub-prime mortgage lender, granted the defendant a loan of £9000 for 7 years repayable by installments at an APR of 18.7% (variable). The defendant lost his employment, became mentally unwell and defaulted on repayments. The claimant sought an order for possession under its charge for the secured loan. The defendant counterclaimed for a time order under the Consumer Credit Act 1974. The High Court granted a time order re-scheduling the outstanding balance of £17,836 as repayable over a further 20 year term at a fixed interest rate of 6.5% by installments of £133pm. A possession order was made suspended on those terms. For the judgment, 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.

Have you got an authority for that?
(key cases for possession day duty scheme advisers)
B. McCormack
[2012] Garden Court North Housing Team Legal Bulletin January issue
For a copy, click here.

Providing the necessaries
(commentary on Wychavon DC v EM)
M. Hill and K. Slade
[2012] 15 February Local Government Lawyer
For a copy, click here.

Housing Law Events

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.

12 March 2012
Homeless young people - rights, wrongs and choices
An afternoon seminar presented by Freshfields Brukhaus Deringer and Shelter Children's Legal Service
For full details and to book places email londonlegaladmin@shelter.org.uk.

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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