Housing Law Bulletin - Issue 255 - 19 March 2012

Monday 19 March 2012

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The Latest Housing Law News

Social Housing Management: only two weeks left to prepare! The major reforms to tenure and succession rights in social housing will come into force on Sunday 1 April 2012 with the commencement of Localism Act 2011 sections 154-166. For the commencement order, click here. From Monday 2 April councils can grant new style 'flexible' secure tenancies, assuming they have adopted a tenancy strategy dealing with such tenancies. The succession rights for all new social housing tenants will also change on that Monday. Housing mangers only have a fortnight left to gear-up the training of front line and managerial staff to enable them to deal with the new landscape. Advisers should particularly note the transitional provisions in Article 14 of the commencement order. For the presentation given to the Social Housing Law Association about the new flexible tenancy regime, click here. For the new regulations which govern reviews of flexible tenancy decisions, click here. For the new regulations limiting the statutory rights of assured shorthold tenants of social housing granted "affordable tenancies" after 1 April 2012, click here. For an explanation of what is changing and why see the article by Jan Luba and David Renton in February's Legal Action magazine.

Tenancy Deposits: the new statutory regime for tenancy deposits is coming into force in England on Good Friday 6 April 2012 with the commencement of Localism Act 2011 section 184. For the commencement order, click here. Advisers should particularly note the transitional provisions in Article 16 of the commencement order. An explanation of what is changing, and why, will be given in an article by Jan Luba and Michael Paget in April's Legal Action magazine.

New Social Housing Regulator from 1 April 2012: the new statutory regime for regulation of social landlords is coming into force in England on 1 April 2012 with the commencement of Localism Act 2011 sections 178-179. For the commencement order, click here. Advisers should particularly note the transitional provisions in Article 15 of the commencement order. For a copy of the consequential provisions order, click here. An explanation of what is changing and why is given in the article by Jan Luba and John Beckley in March's Legal Action magazine.

Right to Buy: a deluge of new material has been published ahead of the revamping of the right to buy which takes effect from 2 April 2012. For a simple summary of the key points, click here. For the DCLG's Information for Local Authorities about the changes, click here. For the Fact Sheet for Lenders, click here. For the Government's response to the recent consultation about the changes, click here. For an assessment of the likely impact of them, click here. To see the new statutory instrument on RTB discounts, click here. For the explanatory memorandum, click here. For the ministerial statement about the revamped RTB scheme, click here.

Housing and Anti-Social Behaviour: on 16 March 2012 the Chartered Institute of Housing published a simple template document enabling social landlords to put before county court judges in ASB possession claims a statement of community impact e.g. under Housing Act 1985 section 85A(2). For a copy of the template, click here. For the CIH press release introducing it, click here. For the Housing Minister's statement on it, click here.

Housing fraud: on 15 March 2012 the Chartered Institute of Housing published Tenancy fraud and data sharing: A guide for housing associations. The guide is designed to enable landlords and councils to share data to tackle unlawful sub-letting and other tenancy frauds. For a copy, click here.

Homelessness: the latest homelessness statistics for England were published on 8 March 2012. They show a 14% increase in from 2010 to 2011 in local authority acceptances of the main housing duty. For the full figures, click here. For the ministerial statement suggesting that this indicates that the 'safety net' system is working, click here. For details of the new £5m scheme to take rough sleepers off the streets of London, click here.

Mental capacity and tenancy agreements: the Court of Protection has published a February 2012 update to its guidance note Applications to the Court of Protection in relation to tenancy agreements. For a copy, click here.

Council tenants' powers: on 15 March 2012 the Housing Minister launched a consultation in England on proposals to extend the powers of council tenants to take over management of their own housing estates and/or transfer to new landlords. The consultation closes on 23 May 2012. For the consultation paper, click here. For the ministerial statement, click here.

New-build homes: the NewBuy scheme in England was launched on 12 March 2012 to assist buyers - who can raise only a 5% deposit - to acquire newly built homes. For a list of the key features of the scheme, click here. It is intended to help up to 100,000 households. For the ministerial statement about the scheme, click here. For information for prospective buyers, click here. Information for mortgage lenders about the scheme can be found by clicking here. For a summary of industry comments on the launch, click here.

Mortgage default in Northern Ireland: the Housing Rights Service has just published a new guide to helping borrowers who fall behind with their mortgages. For more details about Mortgage Debt? Forbearance Options, click here.

The Latest Housing Case Law

Byrne v Poplar HARCA [2012] EWCA Civ, noted on LAWTEL
16 March 2012
Following receipt of complaints against joint assured tenants of their anti-social behaviour, a premises closure order was made and an anti-social behaviour injunction was granted. The social landlord then sought possession under Housing Act 1988 Schedule 2 Grounds 12 and 14. The tenants failed to comply with court orders requiring them to file witness statements and disclose evidence. They were debarred from defending the possession claim. A judge refused to lift that debarring order and made an outright order for possession. The Court of Appeal dismissed an appeal. There was no basis for suggesting that the judge's exercise of discretion had been wrong, especially in the absence of any assurance that there would be any modification of the tenants' behaviour.

Faidi v Elliot Corporation [2012] EWCA Civ 287
16 March 2012

The claimants were tenants of a flat. The defendants were tenants of the flat above. They had laid wooden flooring throughout. The clam was that the defendants were in breach of the obligation in their lease to keep the floors covered with carpet and underlay with the result that noise was penetrating into the claimants' flat. The judge dismissed the claim. The Court of Appeal dismissed an appeal. The landlords had expressly consented to the defendants' works which had necessarily envisaged that no carpeting would be laid over the new floor. The covenant was no longer capable of enforcement in respect of that flat. For the judgment, click here.

Smith v Sec of State for Communities [2012] EWHC Admin, noted on LAWTEL
16 March 2012

The claimant was a gypsy who had applied for planning permission for a change of use of land. from agricultural use to a private caravan site. Doncaster council refused that application. Following an inquiry held by way of appeal, the secretary of state also refused planning permission. The claimant appealed, relying on Circular 01/2006 Planning for Gypsy and Traveller Caravan Sites and Planning Policy Statement 3 Housing (PPS3) para [71]. The High Court dismissed the appeal. The secretary of state had been entitled to taken into account the fact that the circular was to be withdrawn. The policy statement applied to future conventional housing provision and not to gypsy sites.

Westminster CC v Herminio Nascimento
14 March 2012

The defendant was a council tenant of a flat. He sublet the property without the council's consent whilst living with his partner in a property they jointly owned in Sussex. The council brought a prosecution under the Fraud Act 2006. The defendant was sentenced at Westminster Magistrates Court to 16 weeks imprisonment for that offence. The council was awarded £7,100 legal costs. For more details, click here.

Harripaul v Lewisham LBC [2012] EWCA Civ 266
14 March 2012

The claimant appealed against a reviewing officer's decision on her homelessness application. The appeal failed. The claimant sought and obtained permission for a second appeal from the Court of Appeal. The council then agreed to withdraw the review decision and carry out a fresh review. On that basis, the appeal was withdrawn but the parties could not agree who should pay the costs. The Court of Appeal received written submissions and gave a full judgment explaining the applicable principles and why, in this case, the council should be ordered to pay the costs. For the judgment, click here.

Corby BC v Scott, West Kent HA v Haycraft [2012] EWCA Civ 276
13 March 2012

The defendants were, respectively, an introductory tenant of a council and an assured shorthold ('starter') tenant of a housing association. In each case the social landlord claimed possession on the basis that the legal requirements for notice had been satisfied and that, as a matter of property law, they were entitled to possession. In each case the tenant raised a defence based on Article 8 (right to respect for a home). On appeals from the orders made, the Court of Appeal applied the principles in Pinnock and Powell. It decided that in neither case did the facts justify the refusal of possession. The judgment contains useful commentary on the substantive and procedural aspects of Article 8 defences. For a copy, click here.

Souglides v Tweedie [2012] EWHC 561 (Ch)
12 March 2012

The claimant had the under-lease of a flat. The head-lease was held by a management company. The freehold was held by one of the defendants. The claimant had bought the under-lease from a mortgage lender which had re-possessed the property on default of mortgage repayments by the previous tenant. The claimant applied to the court for a declaration that he was entitled to enforce an option to acquire a further term of 60 years on the lease. The High Court granted the declaration. Neither the fact that the title to the lease had been transferred from the previous tenant via the mortgage lender, nor the 'rule against perpetuities, nor an earlier variation of the lease to extend the premises it covered, could debar the exercise of the option. For the judgment, click here.

Complaint against Newham LBC [2012] Ombudsman Complaint No 11000383
8 March 2012
The complainant applied to the council for homelessness assistance. He furnished a letter from his mother indicating that he and his family had been given two weeks' notice to leave her home. Instead of treating the complainant as threatened with homelessness, the council told him to start looking for alternative accommodation and gave him details of local landlords and about housing benefit. When the notice expired, he and his family presented themselves at the council's offices. He waited 6 hours and was seen by at least three council officers. He was told that no interim accommodation would be provided under Housing Act 1996 section 188 and to take himself and his family to the police station. The police could not help so the family slept in a car. No decision was made on his application until 2 months later when the council accepted it owed a full duty. The council's reviews manager told the ombudsman that "verification of homelessness is a pre-requisite to providing interim accommodation" but other staff later told the ombudsman that that was not in fact council policy and that they applied the legal test of whether there was reason to believe an applicant "may" be homeless. The Ombudsman found extensive maladministration in the council's handling of almost every aspect of the homelessness application. For the full investigation report, click here.

Reeves v Northrop [2012] EWHC 415 (Admin)
6 March 2012

A former tugboat had been converted to provide living accommodation. From 2008 it was located at a riverside site in Barnstable and was occupied by the respondent. The council notified the Valuation Office Agency and it entered the boat in the Council Tax Valuation List. A tribunal allowed an appeal against that listing. The Listing Officer appealed. The High Court allowed the appeal. The tribunal had erred in law. The boat had been correctly added to the Valuation List as a dwelling with effect from 2008. For the judgment, click here.

Riverside Group Ltd v Thomas [2012] EWHC 169 (QB) noted on LAWTEL
2 March 2012

The landlord granted the defendant an assured shorthold (starter) tenancy. Following complaints about her anti-social behaviour, the landlord served a notice under Housing Act 1988 section 21 and claimed possession. While waiting for trial of that claim it was granted an anti-social behaviour injunction. The defendant - acting in person- sought a full trial of the issue whether possession would be proportionate under Article 8 (right to respect for a home) and whether the section 21 mandatory possession scheme was compatible with the Human Rights Act 1998. The High Court held that her defence did not meet the threshold for a full trial on the merits. There was no substance to the incompatibility claim.

R (U) v Newham LBC [2012] EWHC 610 (Admin)
23 February 2012

A child applied for assistance under the Children Act 1989 in the form of accommodation for herself and her mother. She was a British citizen but her mother was a non-EU third country national with no right to remain in the UK under immigration rules. When the council declined to assist, judicial review proceedings were started. Permission to apply for judicial review was granted on 21 June 2011 and a trial was fixed for 23 February 2012. The council failed to play any part in the proceedings until 2 days before the full hearing when it agreed to concede. The High Court made a declaration that read in part: "Local authorities when considering eligibility for support of a British child with a Third Country national parent under the Children Act 1989 must consider the nature of the family's composition and the dependency between the child and parent and the family's right to reside in the UK under EU law to determine the family's eligibility for mainstream support. This is not dependent on the Third Country national parent's domestic immigration status." The council was ordered to pay costs on an indemnity basis.

Sheppard v Richmond upon Thames LBC [2012] EWCA Civ 266
23 February 2012

The claimant appealed against a decision that she had made herself homeless intentionally. The reviewing officer had relied on the fact that a court order for possession of her former home had been made because of breach of her tenancy agreement (by refusing to allow gas safety checks). An appeal to the county court was dismissed. The claimant applied (in person) for permission to bring a second appeal. The Court of Appeal refused that application. The council had been entitled to rely on the possession order and had not been required to go behind its terms. There had been no violation of the claimant's human rights in the making of the decision and no procedural failing by the council.

R (Sharing) v Preston County Court [2012] EWHC 515 (Admin)
22 February 2012

A private tenant brought a claim for damages for harassment and unlawful eviction against her former landlord. A police officer had attended at the scene. At trial of the claim, the landlord told the district judge that he had issued a witness summons requiring the attendance of the police officer but that she had been unavailable to attend. The judge proceeded with the trial but did not accept that either the landlord or tenant were credible witnesses and made findings only where their accounts were independently corroborated. The claim was dismissed. The claimant applied for permission to appeal and permission to adduce fresh evidence in the form of a witness statement from the police officer. The statement said that the officer had not been summonsed, had been available, and had seen evidence consistent with forced entry by the landlord. The circuit judge refused both applications. The High Court granted an application for judicial review and remitted the applications to another circuit judge. That highly exceptional course was justified because the circuit judge's conduct and statements in court would have indicated to a fair-minded observer that he had been biased in that he had made up his mind to refuse the applications before the hearing started.

Dixon v United Kingdom [2012] ECHR 424
21 February 2012

The applicant and his sister were joint secure tenants of a council property. The sister gave notice to quit which brought the tenancy to an end. In 2006 the council obtained a possession order on the basis that the applicant had become a trespasser. In 2009 the High Court refused to set aside the possession order because, on the law as it then stood (pre-Pinnock and Powell), the applicant could not raise an Article 8 defence to the claim. He applied to the European Court of Human Rights. The UK Government accepted that there had been a procedural breach of Article 8 because the proportionality of the eviction had not been considered and paid the applicant 3000 euros. The Court decided to strike out the application. The court's practice in relation to pre-Pinnock possession cases leading to claims against the UK was well-settled and the compensation paid was in line with it. For the judgment, click here.

Dacorum BC v Southcott [2012] EWCA Civ 271
21 February 2012

The council had granted the defendant a secure tenancy in 2000. On a claim for possession, a possession order had been made in December 2003. It had not been enforced. Several years later the council brought fresh possession proceedings. They were struck out by a district judge as being an 'abuse of process.' A circuit judge allowed the council's appeal and directed a trial of the fresh claim. The defendant sought permission to bring a second appeal. She argued that the case raised an important issue of principle and practice as to whether fresh possession proceedings could be brought where there was already an order in earlier possession proceedings. The Court of Appeal refused permission. The tenant could take the point at trial that a second order ought not to be made in view of the existence of an earlier one.

R v Beatrice Muia [2012] EWCA Crim 332
9 February 2012

The defendant had been paid income support, council tax benefit and housing benefit for the period 2000-2006 on the basis that she was an unemployed single parent. She failed to declare that she was in fact in full time work. She had been paid more than £78,000 in benefits that she had not been entitled to receive. In 2000 she had bought a property in London and in 2002 she had bought another property in Luton. She was the council tenant of a flat in London and rented-out the Luton property. The Crown Court was satisfied that the rental income from the Luton property had only been made possible because of her offending and it made an order for confiscation of £67,000 representing the net equity in the Luton property. The defendant appealed. The Court of Appeal dismissed the appeal. The Crown Court had been fully entitled to make the order.

Wakolo v DPP [2012] EWHC 611 (Admin)
1 February 2012

The defendant and his wife were the joint freehold owners of a house which was the matrimonial home. The marriage broke down and the wife moved out. In an attempt at reconciliation, the defendant moved out and invited his wife to move back in. That having happened, he went back to the house and demanded to be let in. He smashed at the door causing damage. He was arrested and convicted of an offence of using violence to secure entry contrary to section 6 of the Criminal Law Act 1977. He appealed claiming that he was a "protected intending occupier" (PIO) because for the purposes of section 12(2)(a) he held a freehold interest. The High Court dismissed the appeal. In order to be a PIO he had to also satisfy all the other conditions of section 12(2), which he could not meet.

Housing Law Articles

Recent developments in housing law
N. Madge and J. Luba
[2012] March Legal Action p20
For back.-copies of articles in this series, click here.

The Localism Act 2011: complaints about social housing
J. Beckley and J. Luba
[2012] March Legal Action p25

Localism and homelessness: a very private matter
C. Fuller
[2012] 150 The Adviser p14

Localism and allocations: is it yesterday once more?
M. Mackreth
[2012] 150 The Adviser p20

Overview of the Housing Benefit Scheme: part 2
S. Madge-Wyld and S. Smith
[2012] 15 Journal of Housing Law p33

Criminalising property relations and stigmatising the social tenant
C. Hunter
[2012] 15 Journal of Housing Law p23

The future of housing co-operatives: Mexfield and beyond
C. Hunter and D. Cowan
[2012] 15 Journal of Housing Law p26

Housing Law Events (Spring 2012)

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.

17 May 2012
Localism Act & Social Housing
An evening meeting in Leeds of Yorkshire Housing Law Practitioners (with Jan Luba QC)
For more details: click here.

18 May 2012
Gypsy & Traveller Law Update
A Legal Action Group training event in Birmingham
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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