Housing Law Bulletin - Issue 286 – 29 October 2012

Monday 29 October 2012

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The Latest Housing Law News

Housing fraud: on 23 October 2012, the House of Commons expressed all-party support for the Prevention of Social Housing Fraud Bill during a debate on authorising the public expenditure that may be incurred when it is enacted. For the debate (at column 891) click here. The Bill completed its Committee Stage scrutiny in a single day on 24 October 2012. For the committee proceedings, click here. For the Bill as amended, click here.

Private rented sector: on 19 October 2012 the Commons Select Committee on Communities and Local Government launched an inquiry into the private rented sector. The Committee invites submissions by 17 January 2013 from interested parties covering the quality and regulation of private rented housing, and levels of rent within the sector. For details of the inquiry, click here.

Empty homes: local councils in England that are minded to apply to residential property tribunals in respect of empty properties may wish to do so before 15 November 2012. On that date, the conditions for successful applications in respect of such properties are made more onerous by a new amendment order. For a copy of the Order, click here.

Housing stock in England: on 22 October 2012 the National Housing Federation published Home Truths 2012, a report reviewing housing need and the public expenditure incurred in addressing it. The report found that 417,830 more working people, an 86% increase since 2009, are now reliant on housing benefit to help them pay the rising rents and that every month almost 10,000 more working people need housing benefit to help pay their rent. For a copy of the report, click here.

Tenancy Deposits: on 1 November 2012 new regulations take effect in Northern Ireland for a compulsory tenancy deposit protection scheme. For a copy of the regulations, click here.

The Latest Housing Case Law

Fuller digests of most of the cases noted each week in this Bulletin appear in an online, indexed and searchable database edited by Jan Luba QC and called the Case Law Digest. For details of that service, click here.

Complaint against Cardiff County
Council Case No: 2011/02310
24 October 2012

The complainant was a secure tenant of the council. In August 2010 his ex-partner smashed the glass in his front door. When he went outside, she stabbed him with a knife. He left the property and went to stay temporarily elsewhere. In January 2011 he sent a letter to the council explaining what had happened and wrote that he had "great difficulty in residing" at his address and asking for a transfer as a matter of "great urgency". The council failed to recognise the letter as an application under Housing Act 1996 Part 7 (Homelessness) even though the complainant was seeking assistance in obtaining (other) accommodation and the letter must have given the council reason to believe that he may be homeless: section 183. The Public Sector Ombudsman for Wales said that he "was concerned that this case yet again reflected a series of similar cases where the council has not only failed to recognise when its homelessness duty to make enquiries is engaged, but has failed to appreciate that a [formal] homelessness application is not necessary to trigger that duty". He recommended: (1) an apology; (2) payment of £5750; and (3) an audit of "front line services to identify any significant problems in the identification of when its homelessness duty is triggered".

Gala Unity Ltd v Ariadne Road RTM Company Ltd [2012] EWCA Civ 1372
23 October 2012

Tenants established a management company to take over the management of two blocks of flats. An issue arose with the freeholder as to the management of common parts of the development of which the blocks formed part. The Upper Tribunal (Lands Chamber) decided that the company could manage property "appurtenant" to the blocks (Commonhold, etc Act 2002 section 71) including car parking spaces allotted with the leases of the flats and the common areas over which the tenants had rights. The freeholder appealed on the basis that this would lead to both it and the management company managing the common parts because it would retain management functions for properties on the development which were not in the blocks. The Court of Appeal dismissed the appeal. The Tribunal had correctly identified the statutory rights. The parties would need to work out joint management on a practical basis. For the judgment, click here.

Kenny v Brubaker [2012] EWCA Civ, [2012] All ER(D) 242 (Oct)
23 October 2012

The claimants brought a small claim in the county for repayment of their tenancy deposits. The claim identified two individuals and a company as the defendant. At the hearing, none of the defendants attended and judgment was entered against them. One of them applied, out of time, to set aside the judgement (CPR 27.11). He said he had been assured that one of the other defendants would deal with the deposit matter. The application was dismissed. That dismissal was upheld on appeal. The Court of Appeal dismissed a further appeal. The application had been made out of time, the defendant had not advanced any good reason for his non- attendance and he ought to have attended the hearing if he wished to contest his liability.

Cash v Secretary of State for Communities [2012] EWHC 2908 (Admin)
22 October 2012

The claimant owned an area of woodland protected by tree preservation orders. He cleared the land of preserved trees and developed the site to create hard-standings for 22 mobile homes which he let to tenants. The local council refused a retrospective application for planning permission and issued two enforcement notices. An appeal was considered at a local public enquiry. Following the inspector's recommendations, the Secretary of State dismissed the appeals. The claimant applied to the High Court to quash the decision on numerous grounds including:(1) failure to serve the notices on the tenants; and (2) an incorrect approach to the planning need for affordable homes. Dismissing the applications, the Court held that the residents had been well aware of the notices and their opportunity to appear at the inquiry. There had been no error of approach to affordable housing need. The claimant was not letting any of the homes at below market rents. For the judgment, click here.

Complaint against City of York Council Complaint No 11 018 683
16 October 2012

The complainant, his wife and their two daughters (then aged 9 and 10) were homeless in March 2010. The council accepted that it owed them the main housing duty (Housing Act 1996 section 193). It made them an offer of a two bedroom property from the allocation scheme which was accepted. In January 2012 they complained that they had been overcrowded for almost two years. The second bedroom was only 7.7 sq metres and the girls had been sharing it. The council rejected suggestions that the home was statutorily overcrowded because it had a living room which could be used for sleeping accommodation. Following a complaint to the Local Government Ombudsman, the council eventually conceded that because the living room had a gas fire and a back boiler it could not be used for sleeping-in. It apologised for the error and agreed to backdate priority status under the allocation scheme to the date that the tenancy had been accepted. The ombudsman found that it was maladministration for the council to have offered a property which would be statutorily overcrowded from the outset. Each day the family had occupied it, the council had been committing an offence. £2000 compensation was agreed. The council also agreed to provide guidance and training to its staff on overcrowding rules. For the full report, click here.

Norwich CC v Joseph Howman
12 October 2012

The defendant was the private landlord of a house divided into 10 bedsits. He had an HMO licence. On inspection, council officers found, among other problems, the rooms had no heating, the main bathroom had no hot water, the communal bathrooms were dirty, the fire doors were in poor condition with many not working, and there were electrical hazards, including hanging wires and defective lighting. The council brought a prosecution for breach of the licence conditions and of the HMO regulations. On a guilty plea, the defendant was fined £5000 at the Norwich Magistrates Court. The council then applied for a confiscation order to recover the proceeds of the crime - the rents the defendant had received. The court made an order for payment of £40,000 and a further £8,500 in costs. For details of the prosecution, click here.

Lancashire Fire & Rescue v Neal Gilligan
11 October 2012

The defendant was the private landlord of seven houses sub-divided into flats. On inspection, serious breaches of fire safety legislation were detected including: inadequate fire risk assessments; fire alarms systems switched off or damaged; fire safety equipment, such as fire extinguishers, fire alarm systems and emergency lighting not being maintained in adequate condition; obstructions and combustibles (including a motorcycle) on escape routes; and inadequate fire separation, meaning that a fire could have swept through the accommodation unchecked by fire doors or appropriate barriers to fire spread. Enforcement notices and prohibition notices were not complied with. The defendant pleaded guilty to 13 offences under the Regulatory Reform Fire Safety Order 2005. At Preston Crown Court he was given a prison sentence of six months - suspended for 18 months - and made subject to a six-month curfew between the hours of 7pm to 7am. For details of the prosecution, click here.

Velimirovic v Montenegro [2012] ECHR 1774
2 October 2012

The applicant was an employee of a state-owned company. It let several flats to workers and the applicant applied for one. When he was not successful, he applied to the Labour Court. It ordered the company to re-allocate a number of the flats. In 1992 the High Court upheld that judgment. Despite multiple further court hearings, the judgment was never complied with. The European Court of Human Rights held that there had been a denial of justice to the applicant contrary to Article 6 of the human rights convention. It awarded 3600 euros compensation. For the judgment, click here.

Ivanova v Ukraine [2012] ECHR 1733
24 September 2012

The applicant was a civil servant allocated a room in a building let to public officials. The local municipal company began renovation works and sought a possession order requiring her to leave. The first court granted possession on the basis that the applicant would have to leave permanently because of the nature of the works and would be granted other housing. On appeal, the order was modified so that she would only need to leave temporarily. The applicant established that the company had no valid permit to undertake the development but, despite court orders for suspension of the works, they continued around her. The applicant complained of an infringement of her right to respect for her home. The European Court of Human Rights posed this question for the parties: Has there been a violation of the applicant's right to respect for her home, contrary to Article 8 of the Convention? In particular, regard being had to the fact that the issue of the applicant's relocation and its temporary or permanent character had not been decided before the deployment of the reconstruction works, have these works been carried out in accordance with the law, and, if so, did the applicant suffer an individual and excessive burden in connection with the works at issue? For the statement of facts, click here.

Cazacliu v Romania Application no. 63945/09
17 September 2012

The applicant and 75 other nationals of Roma origin were living in an abandoned building. They included women, children, elderly and disabled people. The owner obtained a possession order and all were evicted. The local council relocated some in an abandoned army barracks on an industrial site and others, initially with no place to stay, were relocated to a site which was a former rubbish tip. None were granted proper social housing. They complained to the European Court of Human Rights which has posed several questions for the parties, including: Was there a violation of Article 3 and/or of Article 8 of the Convention on account of the applicants' living conditions in the accommodation provided by the authorities as social housing? For the statement of facts, click here.

Housing Law Articles

Recent developments in housing law
N. Madge and J. Luba
[2012] October Legal Action 32
For back issues of articles in this series, click here.

A proportionate approach
(commentary on Buckland v UK)
J. Bates
[2012] 26 October Inside Housing 33
For a copy of the article, click here.

Damage Control
(comment on increases in damages awards)
[2012] 26 October Inside Housing 33
For a copy of the article, click here.

Tackling some pet peeves
(controls on pets kept by social housing tenants)
J. Francis
[2012] 19 October Inside Housing 33
For a copy of the article, click here.

Reviewing Service Charge Clauses
J. Coulter
[2012] 156 Solicitors Journal Issue 39 p21
For a copy of the article, click here.

Housing Law Events

This Week

31 October 2012
Tackling tenancy fraud
A Conference in London
For the details, click here.

1 November 2012
On the Streets
Garden Court Chambers Film Festival
For details, click here.

This Winter

13 November 2012
Allocation, Homelessness & social housing management after the Localism Act 2011
An evening seminar with Jan Luba QC in Coventry
For the details, Email Emmett Maginn.

16 November 2012
SHLA Annual Conference
The 7th Annual Conference of SHLA in London
For the details, click here.

20 November 2012
Human rights defences to possession claims
An evening seminar with Jan Luba QC in Nottingham
For the details, Email Cheryl Weston.

21 November 2012
Housing Law Update
An evening meeting in London of HLPA
For the details, click here.

21-22 November 2012
New Approaches to Allocations, Lettings & Homelessness Conference 2012
A two-day Chartered Institute of Housing conference in Nottingham
For the details, click here.

22 November 2012
Gypsies and Travellers: An Update
An afternoon seminar at Garden Court Chambers
For the details, click here.

27 November 2012
Housing Allocations and Homelessness: The Practitioner Seminar Series 2012
A Jordans Housing seminar in Leeds
Includes a free copy of the forthcoming Housing Allocation and Homelessness (3rd edition) by Jan Luba QC and Liz Davies
For the details, click here.

28 November 2012
Housing Allocations and Homelessness: The Practitioner Seminar Series 2012
A Jordans Housing seminar in Manchester
Includes a free copy of the forthcoming Housing Allocation and Homelessness (3rd edition) by Jan Luba QC and Liz Davies
For the details, click here.

29 November 2012
Housing Allocations and Homelessness: The Practitioner Seminar Series 2012
A Jordans Housing seminar in Birmingham
Includes a free copy of the forthcoming Housing Allocation and Homelessness (3rd edition) by Jan Luba QC and Liz Davies
For the details, click here.

30 November 2012
Housing Allocations and Homelessness: The Practitioner Seminar Series 2012
A Jordans Housing seminar in London
Includes a free copy of the forthcoming Housing Allocation and Homelessness (3rd edition) by Jan Luba QC and Liz Davies
For the details, click here.

5 December 2012
After the possession order: set aside or appeal?
An evening seminar in London for HLPA members
For the details, click here.

6 December 2012
Social housing: shaping an Allocations policy
A White Paper Company conference
For the details, click here.

11 December 2012
Housing Law Conference
Annual conference of HLPA in London
For the details, click here.

Garden Court Chambers Film Festival

Garden Court Chambers is delighted to present a series of six thought-provoking films this autumn. Each film explores different human rights issues connected with our work. Each film screening will be followed by a panel discussion, films will be showing from Friday 5 October until Friday 9 November, click here for more information.

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