Housing Law Bulletin - Issue 303 – 11 March 2013

Monday 11 March 2013

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Housing Law News

Challenge to HB size criteria in social housing: several claimants have launched a judicial review challenge to the introduction of the new criteria from 1 April 2013. Mitting J has directed a response from the DWP within 14 days and a hearing in May 2013 seems likely. For further details, click here.

Young homeless people: at the end of February 2013 the Young People's Programme at the Law Centres Network published its analysis of 138 local authority protocols for dealing with homeless 16 and 17 year olds. It found that many protocols do not adequately guarantee that the correct processes are being followed to ensure that 16 and 17 year old homeless young people are provided with the support they need and are entitled to under the law and statutory guidance. For a copy of the report, click here.

Housing & Anti-Social Behaviour: in a response to the Government's further measures to control anti-social behaviour, the Social Housing Law Association has supported the proposed Community Remedy and suggested that the power to impose the remedy should be extended to nominated officers of social housing landlords as well as the police. For a copy of the response, click here.

Regulating the private rented sector: on 1 January 2013 Newham became one of the first councils in England to require landlords to have licences for all private-rented properties in its district. On 28 February 2013 it announced that it had already initiated over 20 prosecutions after having conducted the first wave of inspections covering 100 of the cohort of properties believed to be unlicensed. . It has established the capacity to prosecute more than 500 landlords over the next 12 months. For more details of its enforcement strategy, click here.

Right to buy: on 26 February 2013 the UK Government released figures suggesting that increasing numbers of tenants in social housing in England were exercising their right to buy. The statistics show that by the end of December 2012, 3,495 council-owned properties had been sold to tenants under Right to Buy since the 'reinvigorated' scheme was launched in April 2012 - a third more than in the whole of the previous year and the highest number of sales since 2007. For the announcement, click here. For the statistics, click here.

Accommodation for asylum seekers: asylum seekers lose the accommodation and support provided to them by the UKBA when notified that their asylum claims have succeeded or that they have been given leave to remain on other grounds. They can then apply for benefits and housing in the usual way. However, some have found their support and accommodation withdrawn before they receive the formal documentation they need to apply for benefits and housing. In a series of judgments, the First Tier Tribunal (Asylum Support) has ordered that support must be continued until that documentation is available. For the latest March 2013 guidance on such cases, contact ASAP by clicking here.

Squatting: a new organisation - Squatters Legal Network - has been established to offer support to people under actual or threatened arrest for breach of the Legal Aid, etc Act 2012 section 144. For more 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.

R (X) v Tower Hamlets LBC [2013] EWHC 480 (Admin)
8 March 2013

The claimant was a foster mother. She was related to the three children for whom she provided accommodation. The council's policy for payment of allowances to foster parents provided for a lower rate of payment where children were related to the carer who was accommodating them. The High Court declared the policy unlawful. It was inconsistent with the national guidance contained in The Children Act 1989 Guidance and Regulations Volume 4: Fostering Services and the National Minimum Standards for Fostering Services. The local authority had not discharged the burden upon it of showing sufficiently cogent reasons for departing from the principle of equal treatment of family and unrelated foster carers in the payment of fees (and to the extent relevant, allowances) required by the statutory guidance. For the full judgment, click here.

Brent LBC v Tudor [2013] EWCA Civ 157
6 March 2013

The secure tenant of a six-bedroom house died. Her daughter succeeded to the tenancy. She lived in the house with her disabled brother. They were joined by another brother and his two children. The council brought a possession claim relying on Ground 16 (under-occupation). The judge accepted evidence that the second brother and his children lived in the house at the date of the hearing and dismissed the possession claim. The Court of Appeal dismissed an appeal. Although the quality of the judgment did not meet the usual standard it gave sufficient reasons to sustain the judge's conclusion that the property was not under-occupied. For the judgment, click here.

Fareham BC v Miller [2013] EWCA Civ 159
6 March 2013

In 2009 the defendant had been a homeless heroin addict. The council accepted that it owed him the main housing duty and had provided him with a non-secure tenancy under Housing Act 1996 section 193. In 2011, while in prison, the defendant gave the keys to another man who caused anti-social behaviour. The council served notice to quit and, after further incidents brought a possession claim. The defendant ran a private law defence (that the notice to quit had been revoked), a public law defence, and an Article 8 defence (based on the defendant's vulnerability as an ex-offender and drug addict; his exploitation by the other man; and the council's failure to consider and employ alternative methods of controlling the anti-social behaviour). The judge dismissed the possession claim. He held that the council had taken a decision which, in effect, revoked the notice to quit. The Court of Appeal allowed an appeal. A notice to quit could not be revoked or withdrawn. Once it was given the occupier was a 'tolerated trespasser' until eviction. Neither the public law defence nor the Article 8 defence was seriously arguable. A possession order was made. For the judgment, click here.

Daejan Investments Ltd v Benson [2013] UKSC 14
6 March 2013

Daejan was the landlord of five leased properties. It carried out substantial works and claimed service charges, seeking to recover a total of £280,000. The tenants complained that there had been a failure to meet consultation requirements about the works and a leasehold valuation tribunal (LVT) agreed. Daejan then asked for dispensation from the requirements. The LVT refused, with the result that the liability of each tenant was limited to £250. Daejan offered to give £50,000 credit for any prejudice suffered as a result of the deficiency in the consultation process but its appeals were rejected by the Upper Tribunal and the Court of Appeal. By a bare majority, the Supreme Court allowed a final appeal by the landlord. It held that the question a LVT should ask on dispensation applications is whether the tenants would suffer any prejudice (and if so what prejudice) if the application was allowed unconditionally. Here the prejudice was not greater than would be met by a condition requiring payment of the £50,000 credit offered. For the full judgment, click here.

Southwark LBC v Bevan [2013] UKUT 116 (LC)
4 March 2013

The council owned a block of flats, one of which was held on a long lease. The lessees were required to pay a reasonable proportion of the costs of works to the block. The council calculated the proportion by adding up the number of bedrooms in the block and then based the lessees' share on the fact that their flat had two bedrooms. The lessees said that the calculation had been done wrongly because another flat had two bedrooms rather than just one as suggested by the council. An LVT rejected the evidence of an inspection undertaken by an unqualified housing officer that he had found only one bedroom. The Upper Tribunal allowed an appeal. An officer did not need a property-related qualification in order to give acceptable evidence about whether a flat had one or two bedrooms. For the judgment, click here.

Newport Council v Sajad Iqbal
26 February 2013

The defendant was a private landlord. The council brought a prosecution against him for failing to have an HMO licence for one of his properties. He had a previous conviction for failing to license a HMO in 2011. He was convicted in his absence at Abergavenny magistrates' court, was fined £12,500 and was ordered to pay the council's costs of £923.He appealed against conviction and sentence to the Newport Crown Court but withdrew the appeal at a hearing (at which his appeals in respect of other offences relating to the same property were allowed). For details of the prosecution, click here.

Hillfinch Properties Ltd v Lessees of Southbourne Court [2013] UKUT 96 (LC)
26 February 2013

The company was the freeholder and landlord of 28 leased properties. It applied to a leasehold valuation tribunal (LVT) for a determination that the service charges in respect of proposed works were reasonable. An issue arose as to whether the works relating to the rear balconies were affordable. The LVT decided that the issue of affordability did not fall to be resolved by them and made an order preventing the costs of the company's application from being added to the service charges. That was because the company had had to bring the case because its own leases were unclear. The Upper Tribunal allowed the landlord's appeal on both points. The LVT had been seized of the affordability issue and had had to decide it. On costs, almost every case involved issues of construction of a lease drafted by a landlord. Here the lease seemed clear. The case was remitted to an LVT. For the judgment, click here.

Westfields Construction Ltd v Lewis [2013] EWHC 376 (TCC)
27 February 2013

The company were engaged by the defendant to carry out building works on a house. There was a dispute about the works and the company claimed that over £17,000 was due and unpaid. The agreement for the works contained no express terms about arbitration. An arbitrator appointed under the Housing Grants (Construction and Regeneration) Act 1996 found in favour of the company. The defendant said he met the exception in section 106 of the Act that he "occupies, or intends to occupy, as his residence" and therefore the arbitrator had no jurisdiction. The company said that he had always intended the sell or let the house after the works. The High Court held that "'occupation' is an on-going process and cannot be tested by reference to a single snapshot in time. "Occupies" must carry with it some reflection of the future: it indicates that the employer occupies and will remain at (or intends to return to) the property. Thus the evidence about the position at the date that the contract was made has to be considered in the context of all of the evidence of occupation and intention, both before and after the agreement of the contract." On the facts, the defendant had not been in occupation and had intended to let out the property on completion of the work. For the judgment, click here.

Skrtic v Croatia [2013] Application 64982/12
11 February 2013

The applicant and her husband were tenants of a council flat. A bomb was thrown into the flat and they were moved out for security reasons. The council provided them with temporary accommodation in the husband's name. The husband later moved out and they were divorced. The council revoked the decision to provide temporary accommodation and claimed possession. The domestic courts decided that the applicant had no legal right to remain and she complained to the European Court. If has posed the following question for the parties: Has there been a violation of the applicant's right to respect for her home, contrary to Article 8 of the Convention? For the statement of facts, click here.

Boyd v Incommunities Ltd [2013] EWCA Civ 167
7 February 2013

The defendant was an assured tenant. His social landlord sought possession on the basis of rent arrears and anti-social behaviour (ASB). The judge made a conditional possession order requiring compliance with terms of the tenancy. The defendant appealed. The Court of Appeal held that the order might have been warranted on the grounds of rent arrears but permission to appeal should be given on the ASB aspect. The judge had been satisfied about the ASB based on evidence comprising only three anonymised witness statements from people who did not give evidence. The Court said that "it may be that it is salutary for the Court of Appeal to have another opportunity to consider a more stark case as regards the use of anonymous evidence than the Moat Housing Group case presented". The full appeal is scheduled to be heard in May 2013.

Barclays Bank v Odih [2013] EWCA Civ 168
6 February 2013

The defendant re-mortgaged with the Bank in 2003 and it took a first charge. In 2005 she took a further secured loan from Southern Pacific, In 2007 she re-mortgaged with the Bank again but that did not produce enough to pay off Southern Pacific who retained their charge. She defaulted on the Bank's mortgage and it claimed possession as equitable mortgagee. The defendant said that she had not executed the 2007 re-mortgage but had been the victim of a fraud by her son and his girlfriend. The judge rejected that defence and held that she had entered into the 2007 arrangements. The Court of Appeal refused permission to appeal. There was no real prospect of overturning the finding of fact made by the judge.

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.

Flexible tenancies, security and succession
A. Samuels
[2013] 27 February Local Government Lawyer
To read the article, click here.

Homeless families: when is a family accommodated "together"?
S. McNamara
[2013] 7 March Local Government Lawyer
To read the article, click here.

Challenging the use of B&B
A. Arden QC and A. Cafferkey
[2013] 24 February LAG Housing Law
To read the article, click here.

Where next for the private rented sector?
C. Hunter
[2013] 16 Journal of Housing Law p19.

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 Week

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.

Next Week

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

Later This Spring

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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