Housing Law Bulletin - Issue 287 - 5 November 2012

Monday 5 November 2012

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Garden Court Housing Team receives top Chambers & Partners ranking

The Garden Court Chambers Housing Team was delighted to learn that, once again, we have been ranked in Band 1 in the Chambers UK 2013 directory. The editors comment "Seen by many as the premier chambers representing tenants or the homeless, Garden Court has individuals who are 'at the forefront of housing law.' Its highly regarded members are 'a pleasure to work with,' and are lauded for their dedication to the sector. They are 'passionate about assisting vulnerable people in society, and ensuring that justice is upheld,' say observers. An additional boon provided by the set comes in the form of the clerking team, led by Phil Bampfylde, all of whom 'provide a high level of service' and are 'very helpful.'" Click here for the full commentary.

The Latest Housing Law News

Homelessness: this Friday (9 November 2012) changes to homelessness law come into effect in England making it possible for local housing authorities to discharge the main housing duty under Housing Act 1996 section 193 by making an offer of a suitable private sector assured shorthold tenancy, whether the offer is accepted or not . The latest "How to..." guide from the Chartered Institute of Housing explains how councils wishing to use the new power can work best in partnership with private sector landlords. For a copy, click here. For an earlier CRISIS guide dealing with the same topic but in relation to youth homelessness, click here.

Housing and anti-social behaviour: the Home Office will shortly publish a Bill to give effect to the UK Government's commitment to replace and simplify the tools and powers available to deal with anti-social behaviour. On 31 October 2012 the House of Commons Home Affairs Select Committee announced that it would conduct a pre-legislative scrutiny. For the announcement, click here. The Committee will invite written evidence when the Bill is published and will take oral evidence in 2013. For the White Paper which set out the Government's intentions, click here.

Housing benefit: on 1 November 2012 the National Audit Office published its report on UK Government management of the process of housing benefit reform. For a copy of the report, click here. In the November 2012 issue of Housing Benefit Direct (Issue 134), the DWP outlines how the costs of (1) temporary accommodation for the homeless and (2) supported housing for those in exempt accommodation will be addressed in the reform process in 2013. For a copy of HB Direct, click here. More details about the arrangements for households in temporary accommodation are given in the Annex to Circular G10/2012. For a copy of that, click here.

Private rented sector: on 31 October 2012 the Welfare Reform Minister in the UK Government gave a speech to the National Landlords Association (which represents private landlords). The speech outlines "what the state is prepared to pay" to private landlords through the Housing Benefit Scheme. For a copy of the speech, click here.

Accommodating children: certain "children in need" are entitled to accommodation under section 20 of the Children Act 1989. On 31 October 2012 the UK Government released the national statistics on Children in Need in England for 2011-2012. As at 31 March 2012, the number of children in need had decreased from the previous year, from 382,400 to 369,400. For the full data, click here.

Mortgage default: the UK Government has announced that the Mortgage Rescue Scheme will continue to operate in England until the end of March 2014. The scheme had previously been designed to end in Spring 2013. For the updated details of how the scheme can help homeowners in arrears with their mortgage, click here. For a detailed guide to the 2012/2013 scheme, click here.

Affordable housing stock in England: on 1 November 2012 the UK Government published figures charting the decline in affordable housing provision in England. Last year, only 57,950 new affordable homes were provided, a 4% annual decrease. Of those, only 37,540 were for social rent. The rest were shared ownership properties or housing built to let at new 'affordable' rents. For the full statistics, 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.

Paratus AMC v Jameer [2012] EWCA Civ, [2012] All ER (D) 300 (Oct)
29 October 2012

The claimant loaned the defendant £202,000 secured by a mortgage on her home. Arrears accrued. The lender sought and obtained a possession order. A warrant to enforce that order was suspended on terms. The defendant failed to meet the terms and the warrant was re-issued. It was withdrawn when further repayment terms were agreed. But the defendant defaulted again and another warrant was obtained. The defendant applied to suspend the warrant on the basis that she now had a firm repayment proposal. The district judge refused to suspend the warrant. That was upheld by a judge on appeal. The Court of Appeal dismissed a second appeal. The defendant had failed to demonstrate her ability to meet the terms of any further suspension.

Wales & West HA Ltd v Paine [2012] UKUT 372 (LC)
22 October 2012

The association sought to recover service charges from one of its right to buy leaseholders. The service charge had several elements including a management charge which itself contained an element for administration. The lessee applied to the Leasehold Valuation Tribunal challenging the service charges and wrote that "administration should not be included". The LVT decided that the association was entitled to recover that element but that it was unreasonably high and reduced it. The Upper Tribunal allowed the association's appeal. The LVT had acted without procedural fairness in taking a point (reasonableness of the charge) which the lessee had not raised and on which it had invited no evidence. He charge was payable as claimed. For the judgment, click here.

Stokes v UK [2012] ECHR 1862
18 October 2012

The applicant was an Irish Traveller. In 2007 she moved with her children into an empty mobile home on a pitch in a Brent Council traveller site. The council refused to grant her a licence to occupy the pitch brought possession proceedings. The applicant sought to defend the claim relying on her Article 8 rights but a judge found that the claim was not seriously arguable and made a possession order on a summary basis. The applicant said that she was entitled to disclosure of the documents outlining the council's reasons for seeking possession so that she could know how to frame her defence. The High Court rejected an appeal against the possession order, the Court of Appeal refused permission for a second appeal, and the applicant left the site. She applied to the European Court of Human Rights. It has posed the following question for the parties: Did the absence of any domestic law obligation on the public authority landlords to give a detailed statement of reasons in connection with possession proceedings brought against a trespasser violate the applicant's rights under Articles 6 and/or 8 of the Convention? For the Statement of Facts, click here. See too, the judgment in McKenna (below).

Fowler v Secretary of State for Communities [2012] EWHC 2770 (Admin)
17 October 2012

The claimant and his brother inherited an 18th century house in Ealing which was a Grade II listed building. It had lain empty since the death of their father in 2003 and was in poor repair. The claimant applied for planning permission to demolish or reconstruct it so as to create a new home for his family (who lived with him elsewhere). Permission was refused. That decision was upheld by a planning inspector. The claimant appealed. He contended that the refusal of permission infringed his right to peaceful enjoyment of his possessions (Article 1, First Protocol) and his right to enjoy a private and family life (Article 8) in the house. The High Court rejected the appeal. Although the human rights points had not been pursued with the inspector, the court was itself under a duty to consider them. Both rights invoked were qualified rights. The right to enjoy possessions was not a right to make whatever development the claimant wanted to undertake. On the facts, it was difficult to see how any lawful application of planning legislation to an alternative home could interfere with the claimant's rights to private and family life which he enjoyed in his current home.

Luton BC v Khaled Ahmed
15 October 2012

The defendant was the private landlord of a four storey house divided into eight bedrooms. He had failed to obtain an HMO licence. On inspection, council officers found one tenant living in an attic room with no heating, ventilation or windows and another in a bedroom measuring five square metres. Multiple breaches of the HMO Management Regulations were detected including obstructed fire exits, accumulations of rubbish, lack of fire doors, lack of fire alarms and general disrepair to the property. Luton Magistrates Court found the defendant guilty in his absence and described the property as a "death trap". The defendant was fined £15,000 for failing to obtain an HMO licence, a further £4,000 for each of nine breaches of the HMO Management Regulations (£36,000 in total) and a £15 victim surcharge. The council was also awarded £1,957 costs. Total fines and costs came to £52,957. For details of the prosecution, click here.

South Lanarkshire Council v McKenna [2012] ScotCS CSIH_78
10 October 2012
The defendant had been a secure tenant. As a result of her anti-social behaviour, the tenancy had been demoted to short Scottish secure tenancy. The council later gave statutory notice to end that tenancy and sought possession. The statutory scheme required that the court hearing the claim for possession "must make an order" if the requisite notice had been served. The statute did not require the landlord to give reasons for seeking possession in the notice or in the claim. The Court of Session held that in order to be compatible with Article 8 the statute had to be read as (1) enabling the court to consider the proportionality of any eviction and (2) as requiring reasons to be given. The Court said this about reasons: "we are of the opinion that such an obligation can, and should, be read into the Scottish legislation, simply as an aspect of procedural fairness which underlies all questions in relation to the vindication of human rights. We would stress, however, that only if the application is being sought to be challenged on the basis of proportionality would the authority need to give reasons beyond what is said, as a matter of course in the statutory notice and then, only, if their decision was based on reasons which go beyond what is stated in the statutory notice." For the full judgment, click here.

In the matter of AC [2012] EWHC 2714 (COP)
2 October 2012

Mrs C lived in a house with her adult son who was her carer. She owned the house, which was worth over £200,000. She lacked capacity to decide how her housing needs should be met. Her capital was almost depleted and she relied on benefits. The Court of Protection held that the financial circumstances suggested that a sale would be appropriate but it decided that the house should not be sold. The house was a home for both Mrs C and her son and they should not lose that home unless and until it became apparent that Mrs C's daily needs were no longer capable of being met. For the judgment, 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.

Housing Law Events

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.

20-21 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.

21 November 2012
Housing Law Update
An evening meeting in London of HLPA
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.

7 December 2012
Housing management: law and practice
A Lime Legal conference in London
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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