Housing Law Bulletin - Issue 291 - 3 December 2012

Monday 3 December 2012

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The Latest Housing Law News

Additional Priority in Social Housing Allocation: on Friday 30 November 2012 the new regulations, requiring "additional preference" to be given to certain members of the armed forces in the allocation of social housing in England, came into effect. For a copy of the regulations, click here. For the memorandum explaining the new regulations, click here. The regulations complete the portfolio of legal materials needed by local housing authorities in England to undertake the revision of their own local allocation schemes.

Priority Need Abolished: on 27 November 2012 an order was made abolishing the priority need test for homelessness applicants in Scotland. It comes into force on 31 December 2012. For a copy of the order, click here. For the policy note explaining the order, click here. For an assessment of the likely impact of the measure, click here. On the same day, regulations were made specifying a statutory duty, which will come into force in Scotland on 1 June 2013, to provide support services for the homeless who are in need of such support. For a copy of those regulations, click here.

Housing Law Advice: on 28 November 2012 the Legal Services Commission announced the successful bidders for contracts, which take effect from April 2013, for the provision of specialist legal advice by telephone to members of the public in the Housing & Debt category of law. They are: Access Legal Training Limited, Carillion Energy Services, Derbyshire Housing Aid, Duncan Lewis solicitors and Shelter. For the full announcement, click here.

Social Housing Fraud: the Making Best Use of the Stock (MBUS) team at the Chartered Institute of Housing has published a practice note on the Prevention of Social Housing Fraud Bill. For a copy, click here. The team has also prepared a new briefing on How to... make the case for tackling tenancy fraud. For a copy of that briefing, click here. For more details of the work of MBUS, on tackling under-occupation, fraud and overcrowding in social housing, click here.

Housing & Anti-Social Behaviour: on 27 November 2012 the Home Secretary made a written ministerial statement to Parliament to accompany publication of the latest Home Office report on action to tackle gang and youth violence. The report indicates that Merseyside Police obtained 12 gang injunctions during the first half of 2012 and have recently obtained 14 more interim injunctions. They have pioneered the use of a single statement setting out the chronological history of a gang rather than a statement for each gang member. Six gang members have been imprisoned for breaching their gang injunctions. For a copy of the report, click here.

Empty Homes: on 26 November 2012, in a speech to the national Empty Homes Conference 2012, the DCLG Minister Don Foster MP set out UK Government policy on tackling empty homes and the practical and financial measures being deployed in support of that policy. For a copy of the speech, click here. On the same day, he gave details of the application process for the £300m funding available to statutory and voluntary agencies to tackle the blight of empty homes. For the announcement, click here.

Mobile Homes: the Bill to improve the rights of residents on mobile home sites completed its House of Commons Third Reading on 30 November 2012. For the debate, click here and go to column 558. To keep up with the Bill's progress, click here.

Housing vulnerable homeless people in the private sector: a new report, published last week by the Housing Rights Service and Policis and based on experience in Northern Ireland, makes the case for more to be done to secure suitable accommodation for the vulnerable homeless in private rented accommodation. For a copy of the report, 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.

Cometson v Merthyr Tydfil CBC [2012] EWHC 3446 (Ch)
30 November 2012

The claimants were the owners of a flat above shops. The council decided to undertake a Group Repair Scheme for 28 properties, including the claimants' property, by funding 75% of the costs. The work was undertaken by a building contractor. The claimants asserted that they had suffered loss as a result of the work being done badly. It was common ground that there was a contract between the claimants and the council but confusion as to its terms. The documents (drafted by the council) imposed obligations only on the claimants. The High Court held that there had been a private law relationship between the claimants and the council and that the task of the court was to 'build up the terms of the contract from all the relevant circumstances'. Applying that approach, the court held that the council's obligations had been to arrange for the delivery of the Scheme and to supervise and take responsibility for the works being done to the claimants' property. The terms of the Supply of Goods and Services Act 1982 sections 13 and 14 were to be implied into that contractual relationship in relation to the "service" which the council was to provide to the claimants. For the judgment, click here.

Birmingham CC v Ashton [2012] EWCA Civ 1557
29 November 2012

The defendant was a secure tenant. He had been convicted of offences in relation to four separate incidents at the property which had involved violence or threats of violence. The council sought possession. At trial, it was conceded that a ground for possession was made out and the judge decided that it would be reasonable to make a possession order. He then suspended the order on terms. The council appealed. The Court of Appeal allowed an appeal and remitted the claim for reconsideration. It found that the judge had taken the wrong approach and that "The onus should be on the party who seeks to have the benefit of suspension of a possession order ...to provide cogent evidence to show that what can generally be characterised as anti-social behaviour will not recur, or will be unlikely to do so." For the full judgment, click here.

Richmond upon Thames LBC v Kubicek [2012] EWHC 3392 (QB)
23 November 2012

Ms Kubicek applied to the council for homelessness assistance. She said she had fled the matrimonial home as a result of violence from her husband. The council made two calls to her mobile phone in the course of its enquiries. It said both calls had been answered by her husband. It decided that she was not homeless as it was reasonable for her to return home. That decision was upheld on review. On her appeal, a judge in the county court admitted a witness statement from Ms Kubicek which asserted that she had been told by a council officer that the two calls had never been made. The judge directed a trial of a preliminary issue of fact. The High Court allowed the council's appeal. The judge had been wrong to admit the evidence and wrong to direct a preliminary hearing. On a 'point of law' appeal, the admission of fresh evidence and the contention of error of fact had to be guided by principle. The judgment sets out what the principles are and why they were not satisfied in this case. For a copy of the judgment, click here. See also, Ali v UK summarised below.

Health & Safety Executive v Emran Hussain
22 November 2012

The defendant was a private landlord. He failed to have the gas appliances in his rented accommodation inspected annually. In response to an improvement notice, he produced a fabricated gas safety certificate. On a prosecution by the HSE, he pleaded guilty to two offences under Health and Safety at Work etc. Act 1974 section 33(1) for his breach of duty and dishonesty. He was sentenced to two months' imprisonment for each offence, with the sentences to run concurrently but suspended for 12 months. Cambridge Magistrates' Court also required him to wear an electronic tag for two months and he was ordered to pay full prosecution costs of £4,768. For details of the prosecution, click here.

Watford BC v Mohammed Rehman
16 November 2012

The defendant was the private landlord of an HMO for which he had a licence. An inspection by council officers found poor conditions and that there had been 16 or 17 people from 11 households in the building when it was licensed for no more than 11 persons in 9 households. On a prosecution brought by the council at Watford Magistrates' Court, he pleaded guilty to six offences under the Housing Act 2004: (1) Letting the property to more people than stipulated on the licence. Fined £8,000; (2) Letting rooms in a way other than stipulated on the licence. Fined £2,000; (3) Not maintaining the fire alarm in the property. Fined £2,000; (4) Not keeping the means of escape in the property free from obstruction. Fined £2,000; (5) Not maintaining the common parts of the HMO. Fined £2,000; and (6) Not maintaining the fire doors. Fined £2,000. He was also ordered to pay costs of £7,756 and a victim surcharge of £15. For details of the prosecution, click here.

Plymouth CC v Knuth
13 November 2012

Neighbours complained of loud music, shouting and banging coming from the defendant's flat. The council served a noise abatement notice but the nuisance continued. The defendant pleaded guilty to two breaches of the notice. Plymouth Magistrates' Court imposed a fine of £500 for each breach and ordered payment a victim surcharge of £15. The court also ordered the forfeiture of the defendant's music equipment including a CD player, digital synthesiser tuner, a speaker, CDs and a DVD player. The council was awarded costs of £1,200. For details of the prosecution, click here.

Fazia Ali v United Kingdom [2012] ECHR 1969
7 November 2012

The applicant had applied to Birmingham Council for homelessness assistance. An issue arose as to whether she had received a letter from the council offering her accommodation. It was a pure question of fact and was decided against her by the council's own reviewing officer. On an appeal to the county court the judge declined to deal with the issue of fact because appeal lay only on 'a point of law'. That decision was upheld by the Court of Appeal and the Supreme Court (for the Supreme Court judgment, click here). The applicant complained to the European Court of Human Rights that her right of access to a fair trial by an impartial and independent tribunal (Article 6) had been infringed. The Court has posed these questions for the parties: (1) Did the determination of the rights and/or entitlements of the applicant in respect of the "main housing duty" owed to her by Birmingham City Council involve the determination of a "civil right" within the meaning of Article 6(1)? ; and (2) If so, did the determination of the applicant's civil rights satisfy the requirement of Article 6(1) of the Convention ? For the Court's statement of facts, click here.

Complaint against Hounslow Homes
6 November 2012

The applicant had asked Hounslow Homes (an ALMO) to provide details showing which properties on a particular estate were tenanted and which were held by leaseholders. The ALMO provided the number of tenants and leaseholders but declined to provide lists of the specific addresses. The Information Commissioner upheld the applicant's complaint of breach of the Freedom of Information Act 2000 and ordered that the information be disclosed within 35 days. For a copy of the decision notice, click here.

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.

Second successions to secure tenancies
I. Loveland
[2012] Conveyancer and Property Lawyer 453

Death of one joint tenant - succession or not?
(commentary on Solihull MBC v Hickin)
S. Gerlis
[2012] 22 October Busy Solicitors Digest

Not so pretty vacant
(tackling empty homes in Wales)
P. Harkness
[2012] 30 November Inside Housing 27.
For a copy of the article, click here.

A question of priorities: mortgages, sell-to-rent-back tenancies and overriding interests
R. Crozier
[2012] 16 Landlord & Tenant Review 220

Trespassers and the limits on the application of article 8: Birmingham City Council v Lloyd
R. Kelly
[2012] 16 Landlord & Tenant Review 232

Landowner and landlord liability for the nuisance-causing actions of third parties on the landowner/landlord's land: an analysis of Brumby v Octavia Housing
I. Loveland
[2013] Journal of Planning & Environment Law 5

Proportionality review in possession proceedings
I. Loveland
[2012] Conveyancer and Property Lawyer 512

Housing Law Books

Housing Allocation and Homelessness (Third Edition) by Liz Davies and Jan Luba QC was published last week. For information on how to get the book, click here.

Housing Law Events

This Week

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.

Next Week

10 December 2012
Asylum support: Current Issues and Judicial Review challenges
An ILPA seminar in London
For the details, click here.

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

Next Year

13 March 2012
Public Sector Housing Law Conference
Annual conference in London from Jordan Publishing
For the details, click here.


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