Housing Law Bulletin - Issue 264 – 21 May 2012

Monday 21 May 2012

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The Latest Housing Law News

Social Housing Fraud: on 16 May 2012 the Audit Commission published the latest annual report on the National Fraud Initiative which allows social landlords which are members to swop personal data to enable them to detect social housing fraud. It records that 235 unlawfully occupied social housing properties have been recovered through anti-fraud work since 2010. For a copy of the report, click here. Despite these successes, only 6% of housing associations have joined the Initiative. The Audit Commission has estimated that, had they participated, a further 254 properties would have been recovered. For the Audit Commission statement, click here. For case studies published by the Audit Commission highlighting the anti-fraud work on housing in 2010/11, click here.

National Housing Policy: Shelter, the National Housing Federation and the Chartered Institute of Housing have jointly published their second detailed analysis of whether the UK coalition Government is achieving its objectives set out in the National Housing Strategy. For a copy of their new report, click here.

New tenancies in social housing: new tenants entering social housing since the beginning of April 2012 have been subject to the new tenancy succession regime and the tenure reform arrangements introduced by the Localism Act 2011. The Chartered Institute of Housing has just published a May 2012 revision of its guide, The practical implications of tenure reform, outlining the changes. For a copy, click here. The National Housing Federation has published a guide to the housing and planning provisions of the Localism Act 2011. For details of that, click here.

Tenant take-over: the UK Government consultation exercise on extending the 'right to manage' and extending the 'right to transfer' closes on Wednesday this week (23 May 2012). For the consultation paper, click here.

Homelessness: the Housing Executive has published a Homelessness Strategy for Northern Ireland covering 2012-2017. For a copy, click here.

Money from Right to Buy Sales: councils receiving money from new Right to Buy purchasers now have greater flexibility to retain and re-use those monies. On 15 May 2012 the UK Government announced that: (1) additional Right to Buy receipts for councils that have not signed the Right to Buy agreement with Government will immediately be passed on to the Homes and Communities Agency or the Greater London Authority for investment; (2) councils that wish to retain additional Right to Buy receipts for the first quarter of 2012/13, must sign up to the Right to Buy agreement by Wednesday 27 June 2012 (agreements can be signed after this date but will not cover receipts for Q1); (3) if retained Right to Buy receipts remain unspent at the end of three years they must be returned to central Government for investment by the Homes and Communities Agency or Greater London Authority. Similarly, if receipts constitute more than 30% of total investment, then a sum equivalent to the overspend should be returned to central Government. For a copy of the announcement, click here.

Selling council houses: beyond the exercise of the right to buy, disposals of council housing in England (e.g. by sale at auction) usually require ministerial consent under Housing Act 1985 section 32. The UK Government has now responded to a recent consultation exercise on extending the classes of sales for which consent is deemed to be given. For the response, click here. For the new General Housing Consents 2012, click here.

Making a 'home': the Royal Institution of British Architects has published a new report indicating what consumers need and expect from their homes, now and in the future. For a copy of The way we live now: what people need and expect from their homes, click here.

The Latest Housing Case Law

Maswaku v Westminster CC [2012] EWCA Civ 669
18 May 2012

The claimant was homeless and was owed the main housing duty under Housing Act 1996 section 193. The council made her an offer of temporary accommodation in performance of its duty. The offer letter warned that "if you refuse this offer, you will have to find your own accommodation". The offer was refused and the claimant sought a review of the council's decision that its duty had ended. She said that the council had not complied with its duty under section 193(5) to inform her of the "possible consequence of refusal" because it should have informed her that: she would be evicted from her current accommodation; that her homelessness application would be cancelled; that there would be no obligation on the Council to secure any further homelessness accommodation for her; that she had the right to make a fresh application as a homeless person pursuant to section 193(9), but may be found to be intentionally homeless on any fresh application; and that she would be able to remain on the waiting list, but would lose priority for an allocation of long term accommodation under Part 6. The Court of Appeal held that the council had complied with its duty. The only "possible consequence of refusal" that needed to be stated was the one stipulated in section 193(5) itself i.e. that a refusal would end the duty. For the judgment, click here.

El-Goure v Kensington & Chelsea RLBC [2012] EWCA Civ 670
18 May 2012

The claimant and the mother of his children were separated. The children lived with her. On the claimant's homelessness application, the council decided that he did not have a priority need because the children did not live with him and it was not "reasonable to expect them to reside with him": Housing Act 1996 section 189(1)(b). A reviewing officer upheld that decision as the claimant's position was not exceptional. The claimant said there had been an error in applying a test of exceptionality. The Court of Appeal held that the reviewing officer had applied the statutory language to the facts of the case. The reference to 'exceptional' simply described the outcome of a case in which it would be reasonable for a council to provide a second home for children already adequately housed. For the judgment, click here.

Westbrook Dolphin Square Ltd v Friends Life Ltd [2012] EWCA Civ 666
18 May 2012

The tenants in a block of flats sought to exercise the right to collectively acquire the freehold. They gave notice under the Leasehold Reform etc Act 1993 and sought to enforce their right in proceedings. Later, those proceedings were discontinued. A fresh notice was then served and fresh proceedings brought to enforce it. The landlords argued that the second claim required permission of the court which had not been obtained (CPR 38.7) or was otherwise an abuse of process. The Court of Appeal held that, since a second notice was permitted by the Act, proceedings to enforce a second notice were not caught by the requirements of CPR 38.7 and were not an abuse. For the judgment, click here.

Wickland (Holdings) Ltd v Telchadder [2012] EWCA Civ 635
16 May 2012

The claimant was the owner of a mobile home park. The defendant had a licence to station his mobile home on one of its pitches. In 2006 the claimant gave a warning that the defendant was in breach of the licence terms by committing acts of anti-social behaviour. In 2009, following a further incident, it sought an order for termination of the licence and for possession under the Mobile Homes Act 1983. The court granted the order and the defendant appealed. He argued that the notice should be treated as having expired in the absence of further incident for 3 years and that, given his disabilities and his Convention rights, it was not reasonable to make the order. The Court of Appeal dismissed the appeal. There was no statutory limitation to a warning notice given under the 1983 Act which therefore could remain effective for the whole unexpired term of the licence. The judge had taken into account the defendant's disability and human rights and his decision that it was reasonable to make a termination order could not be faulted. For a copy of the judgment, click here.

Burnip v Birmingham CC [2012] EWCA Civ 629
15 May 2012

The claimant was a disabled private sector tenant claiming Housing Benefit (HB). He required an additional bedroom to accommodate an overnight carer. At the time, HB regulations made no allowance for rooms required by such carers and his HB was fixed by reference to the one-bedroom rate. His appeal was rejected by the Upper Tribunal. The Court of Appeal allowed his further appeal. The effect of the regulations was to discriminate against the disabled. Because HB is a "possession" for the purposes of Article 1 Protocol 1 of Human Rights Act Schedule 1, discrimination against the disabled is prohibited by Article 14 unless it can be justified. It was not reasonable or proportionate to discriminate against the disabled in this way. A declaration to that effect was made and the appeal allowed. For a copy of the judgment, click here.

Beitov Properties Ltd v Martin [2012] UKUT 133(LC)
8 May 2012

Demands for service charges were served by a landlord's agent on a tenant. The demands stated that for the purposes of Landlord & Tenant Act 1987 section 48 the address for service of any notice on the landlord was the agent's address. A Leasehold Valuation Tribunal held that the charges were not payable until the tenant had been given both the actual name and actual address of the landlord as required by section 47 of the Act. The Upper Tribunal confirmed that requirement. The statutory obligation was to give the landlord's true address to the tenant, not least so that, if the name did not sufficiently identify the actual landlord, the address would. For the judgment, click here.

Dundon v Secretary of State for Communities [2012] EWHC 1318 (Admin)
4 May 2012

The claimant sought planning permission to establish a permanent private gypsy traveller site on agricultural land on which mobile homes had been stationed. The council refused permission. An inspector upheld that decision because, among other matters, he was satisfied that the site was in a flood zone. The claimant said that the inspector's decision had been flawed. The High Court rejected the challenge. The decision contained no error of law.

Paragon Mortgages Ltd v Peters [2012] EWCA Civ 651
30 April 2012

The defendant owed the claimant £6.8m in respect of lending advanced to support a strategy of building-up a portfolio of buy-to-let properties to let to students. £3.6m was owed personally under mortgages of properties he jointly owned. £3.1m was owed in respect of his guarantees of his company's mortgages. A judge found that the loans had been called-in and receivers properly appointed to realise the assets. The Court of Appeal refused permission to appeal. There was no real prospect of showing that the loans were 'regulated agreements' for the purposes of the Consumer Credit Acts.

Delaney v Secretary of State for Communities [2012] EWHC 1303 (Admin)
23 April 2012

The claimant, a traveller, sought retrospective planning permission to establish a private gypsy traveller site on land that he owned in the Green Belt and on which his mobile home was stationed. The council refused permission. An inspector upheld that decision. The claimant said that the inspector's decision had not been fully reasoned and the inspector ought to have granted at least temporary or personal planning permission. The High Court rejected the challenge. The decision gave sufficient reasons and contained no error of law.

Coyle v Glasgow City Council [2012] ScotCS CSIH 33
29 March 2012
Mr Coyle applied for renewal of his licence to operate a House in Multiple Occupation. The council's committee heard evidence from the police that an incident had taken place in another of his properties, which was occupied by a female tenant; that the police had been called to the house by the female tenant, who had told the police that Mr Coyle was inside the flat and was refusing to leave; that the female tenant had been very distressed; and that when the police had entered the flat the female tenant was found to have locked herself in her bedroom. Mr Coyle had subsequently been arrested and convicted of two offences following those events. The committee refused renewal of the licence on the grounds that Mr Coyle was not a fit and proper person to hold one. Two successive appeals against that decision failed. For the Court of Session judgment, click here.

Housing Law Articles

Recent developments in housing law
N. Madge and J. Luba
[2012] May Legal Action p29
For back issues of articles in this series, click here.

Decisive response
(Commentary on Byrne v Poplar HARCA and Riverside v Thomas)
J. Plant
[2012] 18 May Inside Housing p32
To read the article, click here.

Flexible tenancies - the beginning of a new age
M. Coates
[2012] 151 May/June Adviser p22

No direction home - the new Direction on Tenure
M. Robinson
[2012] 151 May/June Adviser p28

Perilous time - the new Tenure arrangements for social housing
M. Robinson
[2012] 151 May/June Adviser p32

Not such a dead letter - new law on tenancy deposits
J. Gallagher
[2012] 151 May/June Adviser p35

Housing Law Events (Spring/Summer 2012)

This week:

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.


13 June 2012
Homeless Cases: Has the Duty been Discharged?
An evening housing seminar from HLPA
For more details, click here.

27 June 2012
Social Housing Tenancy Agreements
A Lime Legal training event in London
For the details, click here.

28 June 2012
Anti-Social Behaviour
A SHLA evening seminar in London
For the details, click here.

29 June 2012
Homelessness: Law & Practice
A Lime Legal training event in London
For the details, click here.

18 July 2012
Outside the Housing Acts: No recourse and Community Care
An evening meeting in London of HLPA
For the details, click here.



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