Housing Law Bulletin - Issue 254 - 5 March 2012

Monday 5 March 2012

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This Bulletin is one of the many services provided by the Housing Team at Garden Court Chambers. To find out more about the others, get our free Housing Team Customer Care Pack by calling 020 7993 7600 or send an Email request (with your postal address) to civilclerks@gclaw.co.uk

The Latest Housing Law News

Under-occupying Social Housing: the Welfare Reform Bill passed its final Parliamentary stages on 29 February 2012. The Lords accepted the Commons amendments. The result is that all attempts to water-down the Housing Benefit reductions for social housing tenants with spare bedrooms have failed. For the final debate on the subject, click here.

Housing Benefit Cuts: on 23 February 2012 DWP Circular HB/CTB S1/2012 was issued to local authorities indicating how the arrangements would work for distributing the £15m funding for 2012/13 to ease the transition of the Housing Benefit (HB) changes in the private rented sector. A further £15m will be available for each of the next 2 years. For a copy of the circular, click here. For the DWP announcement on how the funding is being distributed, click here. Meanwhile, the deadline for submission of discretionary housing benefit final claims by councils to Government has been brought forward to 30 April 2012. For the details of that and other forthcoming HB changes see the March 2012 edition of Housing Benefit Direct, available by clicking here.

Empty Homes: local authorities in England intending to bring more than 100 empty homes back into use in their area have until 12 March 2012 to express their interest in obtaining part of the £50m available from the Clusters of Empty Homes Programme. For the invitation to express an interest, click here. For the full details, click here.

Service Charges: on 1 March 2012 the London Assembly received a report from its Housing & Planning Committee on residential leasehold service charges in London. The report sets out a number of changes that would make the present service charges regime operate more equitably. For a copy of the report, click here.

The Latest Housing Case Law

Smith Brothers Farms Ltd v Canwell Estate Company Ltd [2012] EWCA Civ 237
2 March 2012
Rentcharges impose payment obligations on the owners of freehold properties. They are quite common in the Manchester and Avon (including Bristol) areas.The Rentcharges Act 1977 prohibited the creation of new rentcharges subject to limited exceptions. One exception applies to an "estate rentcharge" which the Act defines. This appeal was about the legal status and effect of a registered rentcharge created in 1990 and whether it fell within the exception. For the judgment, click here.

NM v Islington LBC [2012] EWHC 414 (Admin)
29 February 2012

The claimant had significant learning disabilities and was a prisoner serving an indeterminate sentence. As part of considering his possible future release, the Parole Board sought information about his accommodation and care arrangements. He applied to Islington for a community care assessment. When it declined to carry one out he sought a judicial review. The High Court dismissed the claim. It held that in a number of situations, such as release from mental hospital, discharge from hospital and release from prison, it may be sufficiently clear that a person is likely in the very near future to be present in the area of the local authority and, when they are, may then be in need of community care services, so that the obligation of assessment arises before the person actually arrives. But in this case the connection between the proposed consideration by the Parole Board and the release of the claimant to go to Islington was too conditional and speculative to fall within the narrow class of future provision cases for which an assessment had to be carried out. For the judgment, click here.

Kolyadenko v Russia Applications no. 17423/05
28 February 2012

The applicants were homeowners, council tenants and other residents. They alleged that the State was responsible for damage done to their homes and property as a result of a sudden large-scale evacuation of water from a state-owned reservoir and for the ensuing flooding. The State said that there had been a natural disaster. The European Court of Human Rights found that the flood was caused by the negligence of the state authorities. It held that there had been the breach of the State's positive obligation to accord respect for the applicants' homes under Article 8 and awarded compensation. For the judgment, click here.

Donegan v Dublin CC [2012] IRSC 265/08
27 February 2012

Mr Donegan had been the council's tenant for 25 years. The council was satisfied that his son, who lived with him, was a drug pusher and it gave notice to quit to end the tenancy. Mr Donegan denied that his son was a drug pusher. The council sought possession relying on section 62(3) of the Housing Act 1996 which required the court to grant possession if certain formalities as to notice had been complied with. The Supreme Court of Ireland granted a declaration, under section 5 the Human Rights Act 2003, that section 62(3) was incompatible with Article 8 (the right to respect for a home). The possession claim raised a factual dispute which the section prevented the courts from determining and for which judicial review did not provide an appropriate mechanism for independent adjudication. The judgment will be available shortly by clicking here.

Kiss v Braintree DC [2012] EWHC 197 (QB)
19 February 2012

The claimant was the tenant of an industrial unit that he rented from the council. There was a long history of litigation between the parties including claims by the council for rent arrears and possession. The claimant brought an action for damages for harassment, negligence and obstruction against the council. He obtained judgment in default. The council applied to set aside the judgment and strike out the claim. The High Court held that the claim did not meet the conditions for establishing harassment by litigation. The default judgment was set aside and the claim declared to be totally without merit.

Kontseveych v Ukraine [2012] Application no. 9089/04
16 February 2012

The applicant owned a flat which was her home. In 1996 she pledged it as security for a loan. When she could not repay the loan, the lender took enforcement action. Bailiffs recovered possession by evicting the applicant and sold the property at auction in 1997. It was bought by the lender and rented out. The applicant had nowhere to go and lived in a ruined building unfit for habitation. On her application, in 2002 a court declared that the eviction and auction by the bailiff service had been unlawful and that the applicant should be restored to the flat. The judgment was not enforced by the courts for 4 more years. The applicant complained to the European Court of Human Rights. It found a violation of the positive obligation on the state to secure for the applicant the right to respect for her home protected by Article 8. It awarded 8000 euros compensation. For the judgment, click here.

Swindon BC v Forefront Estates Ltd [2912] EWHC 231 (TCC), [2012] All ER (D) 181 (Feb)
14 February 2012

The Building Act 1984 gives local authorities powers to take action in respect of dangerous buildings in their areas. Under section 77, application can be made to a court for an order that the owner carry out works. If the danger is immediate, the council is empowered by section 78 to enter and carry out the works itself without a court order. In this case the council found a building with a roof in imminent danger of collapse with a risk of asbestos and lead being dispersed into the air by a collapse. It took action under section 78 and sought to recover the costs of its works. The owner defended the claim on the basis that the council should have used the section 77 procedure. The High Court was satisfied that immediate action had been required and awarded over £330,000 in respect of the remedial works.

Mortgages 1 Ltd v Wallis [2012] EWCA Civ 226
7 February 2012

Mr Wallis accrued over £70,000 arrears of instalments on his mortgage. The lender obtained a possession order. Several further orders were made delaying execution but finally a district judge refused to suspend a warrant. The circuit judge dismissed an appeal. The Court of Appeal refused a renewed application for permission to appeal. There was no reasonable prospect of showing that the judge had erred in failing to give Mr Wallis more time to sell, even at a price lower than the amount outstanding on the mortgage.

Housing Law Articles

Recent developments in housing law
N. Madge and J. Luba
[2012] February Legal Action p10
For back-copies of articles in this series, click here.

Tenant-friendly revisions
(amending the tenancy deposit scheme)
E. Cracknell
[2012] 284 Property Law Journal p22

The order of importance
(allocations after the Localism Act)
S. Hall
[2012] 2 March Inside Housing p47
For a copy of the article, click here.

Catch the pigeon
(commentary on Siveter v Wandsworth LBC)
G. Peaker
[2012] 2 March Inside Housing p47
For a copy of the article, click here.

What a charade
(commentary on Brumwell v Powys CC))
J. Upton
[2012] 162 New Law Journal p322

What's in store for housing law in 2012?
S. Greenwood
[2012] Local Government Lawyer 29 February
For a copy of the article, click here.

Housing Law Events

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
Social Housing Law & Practice
A Lime Legal training event in London
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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