Housing Law Bulletin - Issue 300 – 18 February 2013

Monday 18 February 2013

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***** SPECIAL ISSUE. Welcome to the 300th issue of the Housing Law Bulletin. The first issues were funded as part of a specialist support contract from the Legal Services Commission but the Housing Team at Garden Court Chambers has maintained and developed the Bulletin in the years since the contract ended. It is provided as part of an information service supplied to housing practitioners by the specialist housing law barristers at these Chambers. We are always grateful to readers for feedback, comments and corrections. Contact benw@gclaw.co.uk *****

Housing Law News

Legal aid in Housing cases (1): currently, 533 suppliers of legal services have contracts with the Legal Services Commission (LSC) to undertake casework in Housing law. Those contracts end next month. The number of bidders to hold new Housing law contracts from April 2013 was 828. They asked for the allocation of a total of 146,820 new cases ('matter starts') between them but the LSC has only made a total of 51,889 matter starts available. Most bidders offered contracts will therefore only be allocated the minimum, 100 matter starts each, for Housing-and-Debt contracts. For the detailed figures, click here. For an initial discussion of the implications, click here.

Legal aid in Housing cases (2): ahead of the introduction of the new legal aid scheme on 1 April 2013, a plethora of new statutory instruments will be issued. Several have been released in recent days. For the regulations excluding some applications for permission to appeal in welfare benefits cases from scope, click here. For proposed changes relating to judicial review and domestic violence cases, click here. For the revised formula relating to alternative remedies in judicial review cases, click here. For the proposed new rules about awarding costs against parties who have legal aid, click here.

Housing cases in the civil courts: from April 2013 fundamental rule changes take effect in the civil courts. The small claims track limit (below which costs cannot be recovered) doubles from £5,000 to £10,000. The new costs regime, recommended by Lord Justice Jackson's Review of Civil Litigation Costs, is implemented. Numerous amendments are made to the handling of multi-track and other civil cases. For the full details, set out in the amendment Order laid on 12 February 2013, click here. For the explanatory memorandum, click here.

Housing and equality: on12 February 2013 the Chartered Institute of Housing published a new free guide to help social landlords conduct an equality analysis as a way of considering the effects of policies, actions or services on different groups protected from discrimination by the Equality Act 2010 and to help them comply with the general equality duty. For a copy of "How to ...undertake an equality analysis" click here.

Housing & Anti-Social Behaviour: the House of Commons Home Affairs Committee has completed its pre-legislative scrutiny of the draft Anti-social Behaviour Bill. Its report states that current court timescales do not reflect "the misery called by ASB" and recommends abandoning the shift of remedies into the county court because "We heard that this was likely to severely slow down the process for dealing with ASB as County Courts are under pressure from reduced staffing and more litigants in person because of the reduction in eligibility to civil legal aid. County Courts were also likely to be further away for victims to attend." For a copy of the full report, click here.

Private renting (1): the House of Commons Select Committee on Communities is conducting an inquiry examining private rented sector housing, particularly the quality of housing in the sector, rent levels and the regulation of landlords, letting agents and houses in multiple occupation (HMOs) and tenure. For the evidence given at the first oral evidence session, held on 4 February 2013, focussing on key issues facing the private rented sector, click here. For the written evidence of those witnesses, click here. For the second oral evidence session, held on 11 February 2013, click here.

Private renting (2): on 14 February 2013 the Office of Fair Trading published a major new report on the private lettings market. It identifies several consumer protection issues based on an analysis of nearly 4,000 complaints made by people renting a home as well as those letting out a property. It found that both tenants and landlords were concerned about fees and charges levied by agents, poor service provided and that 'surprise' charges were introduced or 'drip-fed' once contracts have been signed. The report sets out a number of recommendations for Government, industry, enforcers and others in order to make the lettings market work better for tenants. For further details, and for links to the Report and its annexes, click here.

Possession proceedings: while the number of mortgage possession claims continues to fall, the recent increase in possession claims by landlords is continuing. In the last three months of 2012, 38,934 landlord possession claims were issued in England and Wales - equivalent to over 3250 every month, or more than 100 a day. In the same period over 8660 warrants for possession, generated by landlord possession claims, were actually executed by county court bailiffs. For the full figures, 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.

Moore v British Waterways Board [2013] EWCA Civ 73
7 February 2013

Mr Moore owned several vessels (including one which he occupied as his home) moored long term in the tidal part of the Grand Union Canal, adjacent to his riparian land. BWB gave notice that the vessels were moored "without lawful authority" within the meaning of the British Waterways Act 1983 and requiring that he remove them. The High Court found that the claimant had not demonstrated any right under the general law to moor vessels permanently, either in association with his riparian ownership or possession, or otherwise and that therefore they were present "without lawful authority". The Court of Appeal allowed an appeal. Although the rights of the riparian owner did not include a right to permanently moor vessels, the BWB had failed to establish that the claimant was doing anything unlawful. Absent some infringement of statute or common law (e.g. trespass or nuisance) what a person did was 'lawful'. The notices were quashed. For the judgment, click here.

Barons Finance Ltd v Makanju [2013] EWHC 153 (QB)
7 February 2013

In 2008 the claimant loaned the defendant £6,500, secured on his flat. When the repayments fell into arrear, the claimant obtained an order for possession in April 2009 and a money judgment for £10,495. An application to suspend the possession order failed and in 2012 the defendant applied for permission to appeal, out of time, against the 2009 orders. Exceptionally, the High Court granted permission. The appeal is scheduled to be heard on 14 March 2013 with a number of other "Barons cases" (cf. Barons Bridging Finance v NNadiekwe [2012] EWHC 4078 (QB)) described by the High Court in these terms: "The cases involve claims and appeals arising from loans made by Barons and companies associated with it including Reddy Corporation Limited and Ghana Commercial Bunks (sic). Sometimes, as a result of clerical errors, other similar names are used. The loans were generally made to people who have arrived in this country quite recently and are under severe financial pressure, at high rates of interest usually secured by charges on the borrowers' homes. ...In most cases the Defendants now seek to set aside or appeal against orders obtained some years ago. These Defendants generally claim that they entered into the loans under severe financial and personal pressures and have only recently learned of the legal grounds upon which the original judgments, often obtained by default or after only perfunctory resistance, may be challenged. The Defendants often say that they were unaware of their legal rights when entering into the transaction in dispute." For the full judgment, click here.

R(O'Connor) v Secretary of State for Communities [2013] EWCA Civ, [2013] All ER (D) 90 (Feb)
7 February 2013

The claimant was an Irish Traveller. She moved her caravans onto land that she owned in the Green Belt and sought planning permission from the local council to station them there. When permission was refused, she appealed to the Secretary of State who appointed an inspector. The inspector refused both temporary and permanent planning permission. The claimant challenged that decision on the grounds that she ought at least to have been granted temporary permission in the light of para 46 of Circular 01/2006, given the significant unmet need for gypsy and traveller sites in her area. The High Court rejected her claim. The Court of Appeal dismissed an appeal. The inspector had correctly applied the circular and the reasons given had been sufficient to show that unmet need had been considered and given weight.

Kremen v Agrest [2013] EWCA Civ 41
5 February 2013

In divorce proceedings, a husband was ordered to pay his wife £12.5m. The only asset held by the husband in the UK was a house with equity of £600,000 to £800,000. He sold it to a third party. The wife obtained an order setting aside that transaction. The third party sued the husband for return of the purchase monies and obtained a judgment in default. He then secured an interim charging order over the house in an attempt to satisfy his judgment. The wife opposed the making of an absolute charging order because the effect of it would be to deprive her of the only significant asset she could realise towards what her husband still owed her. The High Court refused to make the charging order absolute and the Court of Appeal dismissed an appeal. For the judgment, containing a useful review of the discretion available to the court on the competing claims of an ex-wife and a judgment creditor, click here.

Harlow Council v Monir Hossain
22 January 2013

The defendant converted a house and let parts of it to four separate households without having an HMO licence. At Chelmsford Magistrates Court the defendant pleaded guilty to a charge of failing to obtain a licence. He was fined £10,000. The Council was awarded £800 costs. For details of the prosecution, click here.

Leeds City Council v Rajinder Singh Digwa
21 January 2013

The defendant was a private landlord. On inspection of a property let by him, council officers found inadequate fire precautions, mould and electrical hazards together representing a risk to the health and safety of the tenant. Improvement notices were served under Housing Act 2004 Part 1 in October 2011 for the works to be completed by January 2012. Works were only undertaken in early January 2013, almost 12 months later. The council prosecuted for failure to comply with an improvement notice. The defendant pleaded guilty at Bradford Magistrates Court. He was fined £2800 and ordered to pay costs of £2993 plus a £15 victim surcharge. For details of the prosecution, click here.

Taylor v Secretary of State for Communities [2012] EWCA Civ 1891
12 December 2013

The claimant applied to a local authority for planning permission to establish a gypsy traveller site. The application concerned two separate plots of land. The council refused permission and an inspector dismissed an appeal from that decision. On appeal to the High Court, the claimant said that the inspector had failed to consider the two sites separately and had failed to deal discreetly with the possibility of temporary planning permission. The appeal failed. The claimant sought permission to appeal. The Court of Appeal refused such permission as an appeal had no real prospect of success. Read as a whole, the inspector's decision had dealt with the two sites distinctly and had correctly addressed temporary consent in the light of Circular 01/2006.

R v Sumal & Sons (Properties) Ltd [2012] EWCA Crim 3109
18 December 2012

The defendant property company succeeded in some aspects of its appeal against sentence for failing to hold an HMO licence under Housing Act 2004 (see [2012] EWCA Crim 1840). The Court of Appeal refused permission to appeal to the Supreme Court but certified this question of general public importance: "May rental income from a property which is unlicensed contrary to section 95(1) of the Housing Act 2004 be a person's benefit as being property obtained as a result of or in connection with particular criminal conduct for the purposes of section 76(4) of the Proceeds of Crime Act 2002?"

Housing Law Articles

Recent developments in housing law
N. Madge and J. Luba
[2013] February Legal Action 33
For back issues of articles in this series, click here.

The Pryce of eligibility
(commentary on Zambrano and Dereci)
T. Vanhegan
[2013] February Legal Action 31

The Prevention of Social Housing Fraud Act 2013
A. Arden and A. Cafferkey
[2013] 4 February LAG Housing Law Blog
To read the article, click here.

The council's risk register
(commentary on Clift v Slough BC)
A. Samuels
[2013] 13 February Local Government Lawyer
To read the article, click here.

Housing Law Books

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

Housing Law Events

This Spring

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

13 March 2013
Public Sector Housing Law Conference
Annual conference in London from Jordan Publishing (speakers include Liz Davies and Jan Luba QC)
For the details, click here.

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

15 May 2013
Using the Equality Act
A HLPA Members Meeting in London
For the details, click here.

22 May 2013
Housing Disrepair
A LAG training event in London (speakers include Beatrice Prevatt)
For the details, click here.

Practical Tips for Possession: The View from the Housing Possession Duty Desk and Exceptional Funding under LASPO
23 May 2013
A Garden Court Evening Seminar (speakers include James Bowen + Connor Johnston)
For the details, click here.


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