Housing Law Bulletin - Issue 288 - 12 November 2012

Monday 12 November 2012

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***STOP PRESS: Tomorrow afternoon (Tuesday 13 November at 5pm), Jan Luba QC will be leading a free seminar on homelessness, housing allocation, and tenancy strategies in Coventry. To attend, and for venue details, Email Emmett.maginn@covlaw.org.uk

The Latest Housing Law News

Homelessness: last Friday (9 November 2012) the changes to homelessness law in England came into force. They make it possible for local housing authorities to discharge the main housing duty by making an offer of a suitable private sector assured shorthold tenancy, whether the offer is accepted or not. On the eve of the changes (8 November 2012), the UK Government published new statutory guidance for local housing authorities about the new rules. For a copy of that guidance, click here. The likely effect of the changes is set out in an Impact Assessment. For a copy, click here. The new regulations spelling-out the 'suitability' and 'location' requirements had been the subject of a consultation exercise. For a summary of the feedback received to that consultation, and of the UK Government's response to them, click here. For the Housing Minister's statement on the changes, click here. Notwithstanding the new restrictions on 'location', reports suggest that some authorities will place many homeless households outside their own area. For a recent survey of the intentions of some London authorities, click here.

Evicting tenants: the UK Government has just published the figures for possession claims brought by landlords in the county courts during July-September 2012. They show that: (1) 38,947 landlord possession claims were issued; (2) 25,756 landlord possession claims led to an order; (3) 14,599 warrants for possession were issued; and (4) there were 8,738 actual repossessions for landlords by county court bailiffs. All these figures were higher than in the previous year, continuing the upward trend since 2010. The majority of the claims were brought by social landlords. For the full figures, click here.

Evicting homeowners: in contrast, the same official figures reveal a decline in court-based repossession activity by mortgage lenders. The Council of Mortgage Lenders has reported that a total of 8,200 properties were taken into possession by its members in the third quarter of 2012, down from 8,500 in the second quarter and from 9,600 last year. This is the lowest number of properties taken into possession in a single quarter since 2007. For the CML statistics, click here. For the Housing Minister's speech to the CML conference on the eve of publication of the figures, click here.

Housing fraud: on 8 November 2012 the Audit Commission published its latest report on activity to tackle fraud against local authorities. Housing tenancy fraud, including unlawful sub-letting, was said to cost £900 million per year. This is the single largest area of loss to fraud in local government but councils recovered nearly 1,800 homes last year with a total replacement value of nearly £264 million. For the full report, click here.

Private rented sector: the Residential Landlords Association has announced the results of a survey of over 1000 private landlords in relation to recent and prospective housing benefit (HB) changes and the introduction of universal credit. For the announcement, click here. For the survey report, click here.

Under-occupied social housing: working-age tenants of social housing, who may be caught by changes to HB rules in April 2013 because they are under-occupying, may be well advised to take in lodgers. On 9 November 2012 the Chartered Institute of Housing published How to ...support tenants to find a lodger. For a copy, click here. In Northern Ireland, the Federation of Housing Associations has called on the UK Government to defer the under-occupation changes for a further six months to enable social landlords to prepare for the impact. For its statement, click here. For its part, the NI Housing Executive has published on-line information for its tenants, with worked examples, explaining the impact of the changes. For the details, 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.

Thurrock BC v West [2012] EWCA Civ 1435
8 November 2012

The joint secure tenants of a three bedroom council house both died. Because it had been a joint tenancy, there could be no further succession. Their adult grandson, his partner and their child had been living with them. The council served notice to quit on the Public Trustee and, when it expired, claimed possession. The sole defence was that a possession order would be a disproportionate interference with the right to respect for the home: Human Rights Act 1998 Schedule 1 Article 8. A district judge upheld that defence and dismissed the possession claim. The Court of Appeal allowed the council's appeal. The judge's order would have had the effect of displacing the council's housing allocation function. The defence should have been dealt with and rejected at a summary hearing. The Court of Appeal set out eight principles to be applied by courts considering 'failed successor' and other possession claims in which an Article 8 defence is taken. For the judgment, click here.

White v South Derbyshire DC [2012] EWHC (Admin), [2012] All ER (D) 91 (Nov)
8 November 2012
In 2001 the council
issued a caravan site licence for a site for which the owner had no planning permission. In those circumstances, the grant of the licence had been beyond the council's powers. By 2009 the use of the site had become established and the council granted a certificate of lawful use for the site. It invited the new owners to apply for a new, valid licence. When they did not apply, the council prosecuted for operating the site without a valid licence. The magistrates' court entered a conviction, It held that the 2001 licence was a nullity and invalid. The Divisional Court allowed an appeal. The council could not rely on its own unlawful act (granting an invalid licence) to prosecute the owner for not having a valid licence.

Pryce v Southwark LBC [2012] EWCA Civ (unreported)
7 November 2012

Ms Pryce was in the UK unlawfully. Her two dependent children were British citizens. On her application for homelessness assistance, the council decided that she was not eligible: Housing Act 1996 section185.That decision was upheld on review and Ms Pryce appealed unsuccessfully to the county court. The Court of Appeal allowed a second appeal. Because of her children's need for her to remain in the UK as their carer, Ms Pryce also had a right to reside in the UK under Article 20 of the EU Treaty as explained by the European Court of Justice in the case of Zambrano. It followed that she was eligible for assistance. For a note on the Court of Appeal decision, click here. NB: this decision will only assist applicants who applied for homelessness assistance or social housing allocation before 8 November 2012. On that date regulations took effect to specifically provide that those solely relying on Article 20 would not be eligible.

R(South West Care Homes Ltd) v Devon County Council [2012] EWHC 2967 (Admin)
7 November 2012

The council provided accommodation for elderly and disabled residents, under National Assistance Act 1948 section 21, by paying for places in care homes run by the claimant. In April 2012 it announced the fees it was prepared to pay for 2012-2013. The claimant contended that the fee levels were so low as to undermine the viability of the homes and would lead to closures. It sought a judicial review on the basis that the council had not complied with its duty under Equality Act 2010 section 149. The High Court quashed the council's decision. Its equality impact assessment had been insufficient and it had breached its equality duty by failing to give proper consideration to mitigation measures or the proper management of closures (which would involve officer-time in engaging and interacting with disabled residents). For the judgment, click here.

Swan Housing Association v Gill [2012] EWHC 3129 (QB)
7 November 2012

Mr Gill had been an assured tenant of a flat since 2000. His tenancy gave him the right to use a side passage to the property and part of the rear garden. He installed a lock on the passageway gate and obstructed it with a greenhouse. He also erected a gazebo over part of the garden belonging to the tenant of another flat. The association applied for an anti-social behaviour injunction (ASBI) requiring him to remove them. His defence claimed that he had acquired the right to the land by adverse possession of it. He applied to the Land Registry to register his possessory title and sought an adjournment of the trial of the ASBI claim. The judge held that Mr Gill could not make the Land Registry application (see Land Registration Act 2002 Schedule 6 para 1(3)) and gave directions for the trial to proceed. The High Court allowed an appeal. The prohibition in para 1(3) only applied if the tenant was facing a claim for possession. As Mr Gill only faced a claim for an ASBI, his Land Registry application could proceed. For the judgment, click here.

R(Kadri) v Birmingham City Council [2012] EWCA Civ 1432
7 November 2012

The claimant arrived in the UK from Iran in 2008. A local authority assessed his birth date as being in May 1990. The UKBA accepted that assessment, treated him as an adult and provided him with accommodation pending the outcome of his asylum claim. On an appeal relating to that claim, an Immigration Judge decided that his date of birth was in May 1994, but refused asylum. The claimant applied to Birmingham. It decided his date of birth was in January 1990 and declined to accommodate him because he was not a child. On his claim for judicial review of that decision, the High Court granted permission and fixed an age determination hearing in the Upper Tribunal. The claimant appealed, contending that the council was bound by the Immigration Judge's finding. The Court of Appeal held that neither an UKBA/local authority protocol not any provision of EU law required that the UKBA and local authorities had to reach the same result on age assessments. For the judgment, click here.

Ayannuga v Swindells [2012] EWCA Civ noted on LAWTEL
6 November 2012

A landlord brought a possession claim based on rent arrears. The tenant counterclaimed that the landlord had not provided prescribed information regarding the protection of the deposit and sought an award of three times the deposit. The landlord said that the deposit had been protected and that any non-compliance with the requirements of the prescribed information provisions had been technical and had caused no prejudice. The judge found that a combination of the terms of the tenancy agreement and the information actually supplied had amounted to sufficient compliance with the requirements. The Court of Appeal allowed the tenant's appeal. It decided that there had been non-compliance with the requirements and that, although the failures concerned procedural information, such information was of real importance to tenants. The landlord was ordered to refund the deposit and pay a sum equal to three times the deposit.

KA (Afghanistan) v Home Secretary [2012] EWCA Civ 1420
6 November 2012

Following a contested age assessment hearing, the Upper Tribunal rejected the claimant's asylum claim on the basis that he had not been under 18 when the relevant decision was made. The judge had not been satisfied as to the evidenc e relating to the date of birth or as to expert evidence about the claimant's age. The claimant appealed on the ground that the judge had failed to apply UKBA Guidance (to the same effect as local authority guidance) that on any assessment which raised a doubt, the young person should have the benefit of the doubt. The Court of Appeal held that the 'benefit of the doubt' guidance applied only at the initial assessment stage, not to the judicial assessment stage. For the judgment, click here.

Freehold Managers (Nominees) Ltd v Piatti [2012] UKUT 241 (LC)
6 November 2012

A lease provided that the tenant could not sublet without consent, which would not be unreasonably withheld by the landlord. The tenant sought retrospective permission to sublet. The landlord imposed a charge. The tenant applied to a Leasehold Valuation Tribunal which held that no provision in the lease provided for such a charge which was therefore not recoverable. The Upper Tribunal allowed an appeal. The landlord was entitled to impose a reasonable charge as a condition for grant of consent because refusal of consent would not be unreasonable if the tenant refused to pay a reasonable charge: Landlord & Tenant Act 1927 section 19. For the judgment, click here.

Lane v Kensington & Chelsea RLBC [2012] EWHC (QB) noted on LAWTEL
6 November 2012

A secure tenant died. His wife succeeded to the tenancy. She then surrendered it and took a lease of the same property for 21 years and one day. The lease enabled use of the property, on business terms, as an artist's studio. On her death, the lease vested in her estate and then to her son who lived in the premises. The son claimed that he was a secure tenant. In proceedings brought by the son under the Equality Act 2010, a judge held that he did not lawfully occupy the property as required by section 35 of that Act. The High Court granted permission to appeal on this issue of his status under the Equality Act. He then applied to enlarge the grounds of appeal to argue that the 21 year lease had been a sham. The High Court refused permission to amend. The 'sham' point required evidence and had not been taken at the trial

Complaint against Newham LBC Case No 11006128
29 October 2012

A council tenant had been subjected to domestic violence. She applied for an emergency housing transfer. That would normally have resulted in a direct offer but the council's allocation scheme provided that if an applicant had a 'property related debt' they would only have a reduced priority and that this provision could only be waived in 'exceptional circumstances'. The tenant did have 'former tenant arrears' in respect of earlier accommodation from which the council had re-housed her. After the re-housing, the council had allowed the tenancy to run-on for 18 months accruing very significant rent arrears. Those arrears were taken into account in making the decision under the allocation scheme and operated to block the transfer. The tenant used the council's complaints procedure. Her complaint succeeded. The council accepted that it should have terminated the earlier tenancy, about two weeks after she was rehoused. That reduced the arrears to under £140 but the complainant still did not get a management transfer and complained to the Local Government Ombudsman. The Ombudsman decided that, but for the council's error in failing to end the old tenancy earlier, the arrears would have been modest and would have been cleared by the tenant in order to secure the transfer. The error had been maladministration and had caused injustice. For the full investigation report, click here.

Welwyn Hatfield BC v Pindi das Madan
18 October 2012

The defendant was the private landlord of a house in multiple occupation (HMO). On inspection, council officers found that routes of escape from fire were not kept free from obstructions, some smoke detectors had been removed, the emergency lighting did not work, fire doors to several rooms and areas of the property were defective, and some exit doors were a fire safety hazard as they could be kept locked. In response to action by the council, the landlord tried to get one of the tenants to accept the blame. The landlord was prosecuted by the police and convicted of blackmail of that tenant in the St Albans Crown Court. He was sentenced on 12 October 2012 to six months' imprisonment, suspended for 12 months, 150 hours Community Service, and ordered to pay compensation and costs. The council then prosecuted for multiple breaches of the HMO Management Regulations. Watford Magistrates Court found the defendant guilty on 18 October 2012 of nine breaches of the Regulations and imposed fines and costs of £15,702. For more information on the prosecutions, click here.

Complaint concerning Sheffield Homes Case Ref: FS50429553
9 October 2012

Sheffield Homes is an ALMO. The complainant requested access under the Freedom of Information Act to the minutes of its AGM held 20 September 2011. Sheffield Homes responded late and initially only provided a redacted version of the minutes. It withheld a requested document "Project business case" relying on section 36(2)(c) of the Act on the basis that disclosure would prejudice the effective conduct of public affairs and section 43(2) in respect of the redactions made to the minutes, as the information was commercially sensitive. During the investigation of a compliant, the ALMO withdrew its reliance on section 36(2)(c) and instead relied on section 41 as the document had been provided in confidence. The Information Commissioner decided that it had incorrectly applied section 43(2) and section 41 to the withheld information. The Commissioner also decided that in responding outside 20 working days, the ALMO had breached section 10. The Commissioner required provision of the withheld information. For the decision notice, click here.

Hounslow LBC v Cumar [2012] EWCA Civ 1426
2 October 2012

The defendant was a secure tenant of Hounslow Council. A claim for possession was issued against him naming 'Hounslow Homes', an ALMO, as the claimant. The defendant took the point that he was not the tenant of the claimant and that the court could not order the council to be substituted as claimant because CPR 19.2(4) only allowed substitution when a new claimant had acquired a previous claimant's interest. The judge decided that he could use his powers to (1) add the council as a party and then (2) remove the ALMO as a party, leaving the council as the only claimant. The tenant appealed to the Court of Appeal on the ground that this circumvented the terms of CPR 19.2(4). The appeal failed. The Court of Appeal held that there was no prohibition on the court doing in two steps what the rules prevented it doing in one.

Housing Law Articles

Recent developments in housing law
N. Madge and J. Luba
[2012] November Legal Action 19
For back issues of articles in this series, click here.

Housing benefit law update 2012
B. Harris, D. Rutledge and D. Watkinson
[2012] November Legal Action 10
For back issues of articles in this series, click here.

Breaking the mould
T. Waitt
(commentary on a successful prosecution under the Environmental Protection Act)
[2012] 9 November Inside Housing 30
To read the article, click here.

Housing Law Events

This Week

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.

This Winter

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.

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