Housing Law Bulletin - Issue 265 – 28 May 2012

Monday 28 May 2012

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The Latest Housing Law News

Housing and anti-social behaviour: on 22 May 2012 the Minister for Housing announced that the UK Government is to press ahead with changes to the grounds for possession for anti-social behaviour (ASB). The discretionary ground will be enlarged to include any riot-related criminal behaviour and a new power to obtain possession on a mandatory basis for repeated ASB will be enacted. The detail is in the Government's response to the recent consultation exercise of the proposals. For that response, click here. Part of the motivation for the proposals comes from the perception that even in serious cases of ASB, possession cannot be obtained swiftly from the courts. The Minister's announcement annexed examples of cases brought by Helena Partnerships, Adactus Housing and Gloucester City Homes. For a copy, click here. The necessary legislation will be brought forward in a Home Office Bill which will also deal with the replacement of ASBOs and ASBIs. For the Home Office announcement of those proposals, click here. For the detailed Home Office white paper on tackling ASB also published on 22 May 2012, click here.

Changing Housing Law: on 21 May 2012 the Welsh Government published its white paper on the reform of housing law in Wales. The Government proposes to enact the simplified arrangements for security of tenure in tenanted housing recommended in the 2006 Law Commission report Renting Homes. For a copy of the white paper, click here. The white paper also contains proposals for radical changes to homelessness law in Wales, informed by a recent impact analysis of the existing homelessness legislation in Wales. For a copy of that analysis, click here.

Social Housing Regulator: on 25 May 2012 the social housing regulator for England published a paper setting out its approach to regulation, including what landlords can expect from the HCA as regulator, and an explanation of the questions it will ask, and why, when seeking assurance that its regulatory standards are being met. For a copy of the paper, click here.

The Latest Housing Case Law

Viridian Housing v O'Connell [2012] EWHC 1389 (QB)
25 May 2012

The defendant was an assured housing association tenant. When her mother died, she inherited property elsewhere. As a result of that asset, her housing benefit stopped and she accrued over £4500 rent arrears. The association sought possession on Grounds 8, 10 and 11. At the hearing, the defendant attended unrepresented and the duty solicitor applied on her behalf for an adjournment because there was a possibility of a defence raising issues of disability discrimination, public law and Article 8. The judge refused an adjournment and made an outright order for possession. The High Court dismissed an appeal. The defendant had failed to file evidence as to why she had not been ready to advance her case at the hearing. There had been no evidence before the judge of a seriously arguable case that the arrears were related to the defendant's disability and the judge had considered Article 8 but held that no arguable defence based on it had been made out. For the judgment, click here.

Thompson v Roberts [2012] EWHC (QB) noted on LAWTEL
23 May 2012

A landlord and tenant did not agree about the period of notice to quit required to be given under a tenancy agreement. The landlord thought it was four weeks, the tenant thought it was two months. The landlord served an envelope on the tenant containing two notices to quit. One for four weeks, the other for two months. The tenant claimed that neither notice taken alone complied with the requirements of the Protection from Eviction Act 1977 section 5. The High Court held that the tenancy agreement had required two months notice and that the two documents could be read together as constituting a valid two months' notice.

Freetown Ltd v Assethold Ltd [2012] EWHC 1351 (QB)
21 May 2012

The parties were owners of neighbouring properties. A surveyor made an award under the Party Walls etc Act 1996. Freetown lodged an appeal against the award in the county court. A judge struck it out on the basis that it had been lodged out of time. The High Court dismissed an appeal. It was a feature of the statutory scheme for party walls that the time for appealing a surveyor's award ran from when it was posted to the parties and not from the date it was received: Webber (Transport) ltd v Railtrack PLC [2001] 1 WLR 320, CA. For the judgment, click here.

Woodman v Chowdhury [2012] EWCA Civ 690
14 May 2012

The claimant landlady served a Housing Act 1988 section 21 notice on the defendant assured shorthold joint tenants and sought possession. A district judge made a possession order and a circuit judge dismissed an appeal. The tenants sought permission to bring a second appeal, arguing that: (1) they had not been served with information about the protection of their deposits; (2) the landlady had not been able to let the property to them because she was a bankrupt and/or did not have the mortgage lender's permission to let; and (3) there were claims for damages for harassment and disrepair. The Court of Appeal refused permission to appeal. It held that: (1) the judge had found as a fact that the deposit information had been served; (2) the tenants were estopped from denying their landlady's title to let; and (3) the possible counterclaims for damages were no defence to the claim for possession.

Irwell Valley HA v Docherty [2012] EWCA Civ 704
14 May 2012

In 2008 the association obtained a postponed possession order for rent arrears of £1216. The order provided for payment of current rent and £3pw towards the arrears. It stipulated that it would cease to be enforceable when "the total judgment debt was paid". 18 months later, the tenant had obtained a debt relief order (DRO). By the end of the 12-month DRO moratorium period, the total arrears had risen to £2000. The association applied for a date for possession to be fixed. The tenant said that the effect of the DRO had been to satisfy the judgment debt. The district judge fixed a date for possession. A circuit judge dismissed an appeal. The tenant sought permission to bring a second appeal. The Court of Appeal dismissed that application. While Sharples v Places for People [2011] EWCA Civ 813 had decided that an order should not be made requiring instalment payments towards arrears against a tenant with a DRO, the order in this case had been made before the DRO. The DRO had expunged only the judgment debt but the arrears had increased because the tenant had not paid the current rent during the moratorium period.

R(DeSouza) v Croydon Magistrates Court [2012] EWHC 1362 (Admin)
4 May 2012

The claimant lived next door to a police station. He laid a complaint in the magistrates' court contending that the noise generated from the police station (sirens, banging car doors, etc) was a statutory nuisance contrary to the Environmental Protection Act 1990. The court issued a summons but at trial the prosecution was dismissed. The claimant was ordered to pay costs of over £28,000 to the solicitors for the police. On a claim for judicial review, the High Court quashed the costs order. In criminal proceeding, such as these, a successful defendant could only obtain an order for payment of costs from central funds. However, the claimant could not obtain his costs of the successful judicial review either from the district judge who had made the costs order or the district judge.

Havering LBC v MacDonald [2012] UKUT 154 (LC)
4 May 2012

The council served demands for service charges on a tenant who had acquired a lease under the right to buy. The tenant said that the charges in respect of the service for communal TV and radio were unreasonably high. The Leasehold Valuation Tribunal (LVT) agreed. Relying on its own expertise, it held that the charges were not reasonable. The council appealed on the basis that the LVT had failed to give proper reasons for its decision. The Upper Tribunal allowed the appeal and remitted the matter to a differently constituted LVT. The judgment contains guidance on the adequacy of LVT reasons and the extent to which they can be amplified by the LVT after it has delivered its decision. For a copy of the judgment, click here.

Hafiz & Haque v Westminster CC [2012] EWHC 1392 (Admin)
3 May 2012

The council received a homelessness application from a Mr Haldar. The decision made by the council on that application was subject to an appeal to the county court which was listed for 29 September 2011. On 24 August 2011 Mr Haldar's solicitors issued an application in the county court for an order that he be provided with accommodation pending the hearing of that appeal. The application was listed for 22 September. Mr Haldar attended that hearing but the solicitors failed to do so. The application was dismissed. The judge ordered the solicitors to explain why the application had been made and stood over the question of a wasted costs order to the main appeal hearing the following week. The main appeal was dismissed but the solicitors did not attend that hearing either. The judge made a wasted costs order in respect of the earlier application. The solicitors applied to set that aside, unsuccessfully. They then lodged an appeal. The High Court decided that the appeal had been lodged out of time and that, as the appellants were solicitors, there was no good reason for not having complied with the time limit. In any event, permission to appeal would have been refused. The application heard on 22 September had been wholly unnecessary. By that date Mr Haldar had had temporary accommodation and the main appeal had only been 7 days away.

Gateway Community Housing Association Ltd v Beha Williams Norman Ltd (TCC)
23 April 2012

The association acquired its housing stock from Preston Council in a large scale transfer. It later brought a claim for damages against the defendant which had acted as a consultant in the transfer. It claimed that the negligence of the consultant had caused it to lose millions of pounds, representing the difference between the costs of remedial work identified by surveyors pre-transfer (which had been met by subsidy) and the costs of further works said to have been promised to tenants as part of the transfer package but for which government subsidy had not been sought. The High Court rejected the claim. (see [2011] EWHC 2311) on the grounds that the suggested negligence of the consultant had not been causative of any loss. The association applied for permission to appeal. Refusing that application, the single Lord Justice said: "This is an attempt to ask this court to reopen a factual question which has been explored in great detail by the trial judge and I see no realistic prospect of it succeeding."

R(May) v Birmingham CC [2012] EWHC 1399 (Admin)
20 April 2012

The claimant left her home in Slough because of domestic violence and applied to the council for accommodation because she had family in Birmingham. In January 2010 the council accepted the homelessness application and made an offer of accommodation which the claimant refused. On review, the council decided that its duty had been discharged. The claimant's grandmother agreed that she could stay with her until her name came up on the ordinary waiting list. However, in November 2010 the relationship with the grandmother unexpectedly broke down and the claimant was asked to leave. She made another homelessness application. The council declined to accept the application on the basis that it was made on the same facts as the earlier application. The High Court allowed a claim for judicial review and quashed that decision. The judge held that it had been irrational of the council to take the view that the circumstances of the further application were based on the same facts as when the January 2010 application had been made.

R(Fadol) v Westminster CC [2012] EWHC 1399 (Admin)
21 March 2012

The claimant applied to the council for homelessness assistance. It decided that he was owed the main housing duty and that he had no local connection with its area. It decided to refer his application to Cardiff. The claimant sought a review of that decision. Cardiff notified the council that it accepted the referral and would accommodate. The council decided to withdraw the claimant's temporary accommodation and provide a warrant for travel to Cardiff. The claimant asked the council to provide continued temporary accommodation for him pending the outcome of the review. That application was refused with written reasons. The claimant applied for a judicial review. The High Court refused permission to apply for judicial review on the basis that there were no arguable grounds for asserting that the council had erred in law in declining to provide accommodation pending review. The judge also discharged an interim injunction which had been granted on an urgent application which had failed to mention that Cardiff had agreed to accommodate. The judge described it as "the worst case of nondisclosure I have ever come across".

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.

New powers
(The new offence relating to squatting)
J. Young
[2012] 25 May Inside Housing p32
To read the article, click here.

Warning signs
(Commentary on Barking & Dagenham v Bakare)
J. Gregson and S. Glanville
[2012] 23 May Local Government Lawyer
To read the article, click here.

Travellers, homelessness and bricks and mortar
N. Dobson
[2012] 17 May Law Society Gazette
To read the article, click here.

Certainty of terms and leases: curiouser and curiouser
(Commentary on Mexfield v Berrisford)
K. Low
[2012] 75 Modern Law Review 401

Housing Law Events (Summer 2012)

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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