Housing Law Bulletin - Issue 293 - 20 December 2012

Thursday 20 December 2012

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*** SPECIAL NOTICE. This will be the last Housing Law Bulletin of 2012. Its publication was deferred for four days to enable maximum possible coverage of housing events and cases before the seasonal break. The editor (Jan Luba QC) and the Housing Team at Garden Court extend seasonal good wishes to all readers. ***

Housing Law News

Housing and anti-Social Behaviour (1): on 13 December 2012 the UK Government published a draft Anti-social Behaviour Bill setting out changes to the law on injunctions, ASBOs, dispersal and closure orders, together with new "absolute grounds" for possession. For a copy of the Bill, click here. For the ministerial statement, click here. For the impact assessment on changes to ASB tools and powers, click here. For the impact assessment for the changed grounds for possession and possession procedures, click here.

Housing and anti-Social Behaviour (2): on 14 December 2012 the Home Affairs Select Committee issued a call for written evidence about the draft Bill. The deadline for submissions is 9 January 2013. For more on how to submit evidence, click here.

Housing and anti-Social Behaviour (3): on 13 December 2012 the UK Government launched a consultation on its proposals to allow police and crime commissioners (or the relevant local policing body) to give victims of anti-social behaviour a say in the punishment of the offender. For the announcement, click here. The consultation closes on 7 March 2013. For the impact assessment on the proposal, click here. The UK Government has also published a guide to evidence and good practice in working with troubled families to reduce their anti-social behaviour. For a copy of the guide, click here.

Social Housing Fraud: despite the fact that the Prevention of Social Housing Bill will make significant changes to both criminal and housing law, and will greatly expand the information-collecting powers of local authorities, the order committing it to a full discussion at Committee Stage in the House of Lords was withdrawn on 18 December 2012. Not a single amendment had been proposed and no peer had expressed a wish to speak on the Bill. It will now quickly complete its remaining House of Lords stages and pass into law. For more on the Bill's progress, click here.

Rents in Social Housing: this week the Homes & Communities Agency published its guideline rent limit for private registered providers (mainly housing associations) for the financial year 2013/2014. For a copy, click here.

Housing complaints: the Chartered Institute of Housing (CIH) has published a new Complaints Charter to help social landlords improve their arrangements for internal handling of housing complaints. For a copy of the Charter, click here.

Housing and judicial review: on 13 December 2012 the Ministry of Justice launched a consultation exercise on a series of proposed changes to the scope of judicial review and procedures for applications. For the consultation paper, click here. For the impact assessment, click here. The deadline for responses is 24 January 2013.

Rough Sleeping: a new national hotline and website service called Streetlink was launched on 11 December 2012. It enables anyone concerned about a rough sleeper to activate voluntary and statutory services to assist them. For the Government announcement, click here. The Hotline number is 0300 500 0914. For the website, click here.

Housing and Human Rights: on 18 December 2012 the Commission on a Bill of Rights delivered its final report to the UK Government. The majority of the Commissioners recommend a freestanding UK Bill of Rights. For the report, click here. For its announcement, click here.

Housing Standards: on 18 December 2012 the UK Government announced the outcome of its consultation on the future content of the Buildings Regulations which set standards for housing construction and renovation. For the full announcement, click here. The changes will come into effect on 9 January 2013. For the combined summary of responses to the consultation, click here.

Gypsies and Travellers: on 17 December 2012 the House of Lords gave a Third Reading to a Bill designed to cast a duty on every local authority in England to grant planning permission for sufficient Gypsy and Traveller caravan sites in their areas. For a copy of the Bill, click here. The Bill now moves to the House of Commons.

Discretionary housing payments: the UK Government has recently published its response to a consultation exercise on the content of a manual of guidance to be produced for local authorities in time for the April 2013 housing benefit changes. For a copy of the response, click here.

Private renting: on 13 December 2012 the Mayor of London published a new report on private rented sector housing in the capital. It proposes a new London Rental Standard. For a copy of the report, click here. Responses are sought by 15 February 2013. For a summary of the Mayor's general policy on private renting issues in London, click here. The Labour Party has established a policy review for the private rented sector in the UK designed to produce longer term tenancies at affordable rents. For a copy of the review paper, click here. For more information about the policy review, click here.

Exempt accommodation: in the Chancellor's Autumn Statement on 5 December 2012, the UK Government announced that Housing Benefit (HB) paid to households in exempt accommodation is being disregarded from the forthcoming benefit cap. As a result tenants in such accommodation will not now need to apply for Discretionary Housing Payments. The details are given in a Circular issued on 6 December 2012. For a copy, 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.

Brent LBC v Evans [2012] EWHC (QB) noted on LAWTEL
18 December 2012

A council tenant died. His daughter claimed that she had succeeded him. The council decided that she did not meet the succession conditions. It refused to grant her a discretionary tenancy and sought possession. Her defence asserted that: (a) she did meet the 12 months qualifying condition for succession; (b) if not, the decision to bring the claim was vitiated by a public law irregularity in refusing the discretionary tenancy; and (c) eviction would infringe her Article 8 rights. The judge decided that none of the issues gave rise to an arguable defence (see Civil Procedure Rule 55.8) and made a possession order at a summary hearing. The High Court allowed an appeal. While the second and third aspects of the defence were not seriously arguable, the first raised issues of fact which required a trial.

HSE v Apollo Property Services Group Ltd
17 December 2012

In 2008 the defendant undertook roof refurbishment works at the Abbey Road Estate in Camden. During the works seven residents were exposed to carbon monoxide because boiler flues servicing the flats were obstructed. The defendant knew that some flues may still be serving boilers in the properties but did not have an adequate system for inspecting them. Work had continued without checks being carried out. At the Central Criminal Court the defendant was found guilty of breaching section 3(1) of the Health and Safety at Work etc. Act 1974. It was (1) fined £165,000 (2) ordered to pay £117,582 costs and (3) required to pay £19,000 in compensation. For details of the prosecution,  click here.

R (Chatting) v Viridian Housing [2012] EWHC 3595 (Admin)
13 December 2012

The defendant housing association provided accommodation and support for an elderly tenant. It decided to withdraw from the business of providing personal care services. It continued as the claimant's landlord but arranged for a specialist contractor to provide her with care and support. She sought judicial review of that decision claiming that it breached her Article 8 right to respect for her private life, both substantively and (because she had not been consulted) procedurally. The High Court dismissed the claim. Although such a decision might in principle engage Article 8, in this case the change in the legal identity of the care provider had no substantive adverse effect on the claimant's private life. There had therefore been no obligation to consult her. For the judgment, click here.

Hounslow LBC v Devanney [2012] EWCA Civ 1660
13 December 2012

The council brought a claim for possession of land it owned. Mr Devanney claimed that he had acquired title to the land by adverse possession. That required him to show that by 13 October 2003 he had been in continuous adverse possession for 12 years. The judge was satisfied on the evidence that there were periods during which he had not been in occupation and made a possession order. The Court of Appeal dismissed his appeal. The judge had been entitled to hold that the evidence demonstrated that at least at one point in the necessary period Mr Devanney had not been occupying the land at all. For the judgment, click here.

Freetown v Assethold Ltd [2012] EWCA Civ 1657
13 December 2012

Adjoining property owners were in dispute about a party wall. The Party Wall etc Act 1996 section 10 provides that either party can appeal from the award of a surveyor within 14 days of service of the award. The award was sent by post. The issue was whether it was 'served' when posted or only when delivered (or deemed delivered). The County Court and High Court decided that time ran from posting. The Court of Appeal decided that time ran from actual or deemed receipt. For the judgment, click here.

Ball v Secretary of State [2012] EWHC 3595 (Admin)
13 December 2012

The claimant applied for planning permission to establish a privately run gypsy caravan site on land in the Green Belt. The council refused permission. On an appeal, an inspector recommended the grant of permission subject to conditions. The Secretary of State rejected the recommendation and dismissed the appeal. The High Court dismissed a further appeal. Although the claimant was asserting that the Secretary of State had failed to have regard to relevant considerations, had not given sufficient reasons, and had acted unfairly and with bias the Court was satisfied that there had been no irregularity in declining to follow the inspector's recommendations and in dismissing the appeal. For the judgment, click here.

Bank of Scotland v Qutb [2012] EWCA Civ 1661
13 December 2012

The bank brought a possession claim in respect of a house owned by Mrs Qutb over which it held a mortgage. The judge made a possession order. In February 2011 Mrs Qutb's son, Mr Azam Qutb, purporting to act as her litigation friend, appealed the order to the Court of Appeal. It was later discovered that Mrs Qutb had died in January 2010 (as her son knew) even before the initial possession claim was tried. The appeal was struck out. The bank sold the property but did not recover the full loan and costs. It applied for an order that Mr Qutb pay the costs personally. The Court of Appeal made that order. A person who holds themselves out wrongly as the agent of another will be personally liable for the loss caused to a third party by their acts. For the judgment, click here.

HSE v Chesterfield Borough Council
13 December 2012

The council was notified that the chimney stack of one of its rented houses was leaning and in danger of collapsing. The council arranged for it to be removed by a contractor and capped. However, the stack contained the flue for a gas fire and gas-fired back boiler and the capping meant they were no longer safely vented to open air. The contractor had not been told of the presence of the fire and boiler. The problem was only discovered six weeks later during an annual gas safety inspection. The HSE prosecuted for breach of the Health and Safety at Work etc Act 1974 section 3(1) for failure to maintain the property in such a way that the tenant was not exposed to the risks associated with carbon monoxide. The council pleaded guilty. Chesterfield Magistrates' Court fined the council £18,000 and ordered it to pay costs of £7,534. For details of the prosecution, click here.

Complaint against Croydon LBC
12 December 2012
A woman lived with her young children and her partner in private rented accommodation. Three unknown men armed with hammers and knives broke into their home and seriously assaulted them. The man was hospitalised and the woman and children fled to her mother's home before applying to the council as homeless on 28 April 2010. The council failed to offer interim accommodation until June 2010. It failed to notify a decision on the application until 19 November 2010. The only accommodation offered during that time was bed and breakfast, despite the fact that the family included dependent children. The Local Government Ombudsman found extensive maladministration. She recommended an apology, £2500 compensation and a review of policy and practice on handling homelessness applications. For the investigation report, click here. [See details of the earlier BBC news report that this council had been unlawfully accommodating 180 families for more than 6 weeks in B&B by clicking here.]

Phillips & Co v Bath Housing Co-op Ltd [2012] EWCA Civ 1661
11 December 2012

The defendant had engaged solicitors to act for it in a possession claim against one its tenants. The proceedings were over by the end of 2003 and the solicitors presented their bill. In September 2004 the Co-op responded that its members were "astonished and deeply shocked" by the fees claimed. In September 2010 the solicitors issued a claim for £52,000 in respect of unpaid fees. The Co-op successfully applied to a district judge for summary dismissal of the claim as it had been brought outside the six year limitation period. A circuit judge allowed the solicitors' appeal relying on the fact that the September 2004 letter had acknowledged the debt and had started the six year period afresh. The Court of Appeal dismissed the Co-op's appeal. Although six years was the limitation period it had begun to run again at the date of the acknowledgement letter. For the judgment, click here.

Linfoot v Secretary of State [2012] EWHC 3514 (Admin)
10 December 2012

The claimant sought planning permission for a change of use of land in the Green Belt for siting Gypsy caravans and mobile homes. The local council refused permission. An inspector upheld that decision on appeal. The claimant appealed on the ground that the inspector ought at least to have granted temporary planning permission and had failed to take account of a material factor (the possibility of authorised sites becoming available in the relevant wider area). The High Court allowed the appeal. The reasons given for the decision were insufficient to demonstrate that the inspector had taken that factor into account. For the judgment, click here.

City of London v Persons Unknown [2012] EWCA Civ 1648
21 November 2012

Mr Moran had been among the protestors encamped outside St Paul's cathedral. When he learnt of the possession claim he decided to attend at a case management hearing at the High Court and apply for permission to be added as a named defendant. He arrived late and the judge had no written application from him. The judge added three specific named individuals and decided that, in order to keep the case manageable, no more applicants should be joined as defendants. Mr Moran lodged an appeal. The possession claim was tried and possession was granted. Permission by other occupiers to appeal that order was refused. The Court of Appeal refused Mr Moran's appeal against the refusal to join him as a party. It had no arguable merit and had been rendered academic.

R (Zahid Khan) v Upper Tribunal (Lands Chamber) [2012] EWCA Civ 1669
14 November 2012

The claimant held a long lease in a block of flats. A resident-owned management company had incurred legal costs of £75,000 in earlier litigation against him. The claimant had referred those costs to a costs judge for assessment and they were reduced to £25,000. The company then sought to recover the full £75,000 from all the residents by way of service charges. A Leasehold Valuation Tribunal held that the lease entitled the company to recover its full costs. The Upper Tribunal refused permission to appeal from that decision. The claimant sought judicial review of the refusal of permission. The High Court refused permission. The £25,000 assessment simply capped what the company could recover from the paying party in the litigation. It did not prevent the company recovering its full costs through the service charges. The Court of Appeal refused a renewed application for permission to appeal against that decision.

Dartford BC v Coates [2012] EWCA Civ 1707
8 November 2012

The defendant, a Romany gypsy, bought a plot of environmentally sensitive land in the Green Belt and moved a caravan onto it. She began living there with her children, one of whom was disabled. In May 2012 she was told by the council that there was already a court injunction prohibiting occupation of the land (which was a breach of planning controls). In July 2012 a judge held that her presence was in breach of the injunction but she did not leave. The council applied for committal. Following a hearing in September 2012 a judge made a suspended order for 28 days in custody. The suspension was to end if she failed to leave the land and she was given one month to do so. The defendant appealed, asserting that the requirement to leave and the time given to leave (as well as the sanction) failed to have regard to her human rights as owner (Article 1 Protocol 1) or to respect for her home (Article 8). The Court of Appeal dismissed the appeal. The judge had not erred in his approach or in the result.

Miah v McGrogan [2012] EWCA Civ 1685
8 November 2012

The claimant landlord had let a house to students for the academic year 2009/10. He brought a claim for unpaid rent. The students defended on the basis that the house had been non-habitable throughout by reason of its poor condition and on-going repairs (the local council had served a statutory improvement notice). The judge held that the landlord had been in breach of the covenant to repair and dismissed his claim for rent on the basis that his liability to the students exceeded his own claim. The landlord appealed contending that the judge had been wrong to dismiss the claim for rent in the absence of both a fully-pleaded counterclaim and a pleaded set-off in the defence. The Court of Appeal refused permission to appeal. There was no prospect of an appeal succeeding. The students had been self-representing litigants and the professionally represented landlord had been well able to respond to their case at trial. The judge had been entitled to find that the landlord's agent had had full notice of the disrepair. The fact that the students had actually remained in occupation did not undermine their case, that the property had been found in seriously poor condition when they arrived at the start of term, because they had had no alternative but to move in.

R (Suruk Miah) v Westminster CC [2012] EWHC 3563 (Admin)
7 November 2012

The claimant applied to the council for homelessness assistance. It decided he had become homeless intentionally. The claimant sought a review and the provision of accommodation pending the review. The council refused such accommodation and the claimant sought a judicial review. The High Court decided that there was an arguable case that the refusal of accommodation pending review had been unlawful. In particular, the council had relied on documentation mentioned in the letter refusing accommodation which had not been mentioned in the decision letter on intentional homelessness and had given the claimant no opportunity to comment on it. The court continued an injunction until the trial of the claim or the completion of the review.

Housing Law Articles

Recent developments in housing law
N. Madge and J. Luba
[2012] December Legal Action 26
For back issues of articles in this series, click here.

Housing repairs update 2012
B. Prevatt
[2012] December Legal Action 11
For back issues of articles in this series, click here.

You can run but you can't hide
(analysis of one council's recent action on social housing fraud)
Harrow Council
[2012] 10 December
For a copy of the article, click here.

Squatting, clamping and beds in sheds
S. Eccles and K. O'Brien
[2012] Local Government Lawyer 11 December
For a copy of the article, click here.

Outright or suspended?
A. Lane
[2012] Local Government Lawyer 4 December
For a copy of the article, click here.

Housing for all
M. Murali
[2012] 156 Solicitors Journal Issue 47 Supp p19
For a copy of the article, click here.

Housing Law Books

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

Housing Law Events

Next Year

16 January 2013
Homelessness Suitability & Private Sector Discharge
A HLPA Members Meeting in London
For the details, click here.

24 January 2013
The new rules on housing the homeless
A Garden Court evening seminar
For the details, click here.

24 January 2013
Introduction to Housing Law
A Legal Action Group training event
For the details, click here.

1 February 2013
Using the Private Rented Sector for the Homeless
Conference in London from Lime Legal
For the details, click here.

13 February 2013
Latest Developments in EU Law for Housing and Social Assistance for Migrants and their Children
A Garden Court evening seminar
For the details, click here.

6 March 2013
Asylum support: Current Issues and Judicial Review challenges
An ILPA seminar in London
For the details, click here.

13 March 2013
Public Sector Housing Law Conference
Annual conference in London from Jordan Publishing
For the details, click here.

20 March 2013
Impact of Welfare Benefit Reform
A HLPA Members Meeting in London
For the details, click here.


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