Housing Law Bulletin - Issue 304 – 27 March 2013

Wednesday 27 March 2013

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SPECIAL NOTICE: This special, extended issue of the Housing Law Bulletin will be the last to be issued ahead of the massive changes to Legal Aid, to Civil Procedure and to Housing Benefits which all take effect on 1 April 2013. It has been held back to offer maximum coverage of developments prior to these changes in the lead-up to the Easter break. The next issue will be published on Monday 8 April 2013.

Housing Law News

Housing Benefit social sector size criteria: the new arrangements to apply the HB under-occupancy standards to social housing take effect from 1 April 2013, with negligible transitional protection. A full description of the changes and the policy behind them is given in a House of Commons Library Briefing Note last updated on 14 March 2013. For a copy, click here. The UK Government has announced that the change will now not impact on some foster carers who are keeping a spare room for a foster child's arrival and on some households with members in the armed forces. The necessary modifications have been made by amending regulations. For a copy of those regulations, click here. In addition to the current legal challenge to the size criteria being pursued by disabled tenants, disabled children and their carers living in social housing, proceedings are being issued by Liberty on behalf of tenants who will be unable to retain a spare bedroom for children who visit and stay with them but at other times live elsewhere. For details of the first challenge, click here. For details of the Liberty cases, click here.

Rents and the benefits cap: the total benefit cap will mainly be enforced by local authorities who will reduce help with housing costs to ensure that total benefit received by households remains within the cap. The changes take effect in w/c 15 April 2013 in the four London boroughs of Bromley, Croydon, Enfield and Haringey and then from 15 July 2013 across the rest of the country. The latest information is given in the Benefit Cap Update in the March 2013 issue of Housing Benefit Direct. For a copy, click here. The regulations containing the power to restrict HB so that it stays within the cap were laid on 12 March 2013. For a copy, click here. An evaluation of the likely impact on social landlords of this change found that "Nearly two-thirds (63%) of associations likely to be affected by the household benefit cap believe it will likely lead to increased difficulty collecting rent. ...more than seven in ten (71%) associations operating in London believe it is likely to result in increased difficulty collecting rent." For the full evaluation report, click here.

Homelessness: on 22 March 2013 the UK Government published the figures for statutory homelessness in England for the period October to December 2012. They show that (1) 13,570 applicants were accepted as owed a main homelessness duty, bringing the total to 53,450 acceptances in the 2012 calendar year (up 10% from 2011) and (2) 53,130 households were in temporary accommodation on 31 December 2012, 9% higher than at the end of 2011, For the full statistics, click here.

Immigration status and social housing: on 25 March 2013 the UK Government announced that, as a result of data indicating that in England "almost 1 in 10 of all new social housing tenancies are given to foreign nationals", it would strengthen the statutory guidance on social housing allocation. The new guidance will be issued in draft for consultation and will "ensure councils require people to have lived in the area for at least 2 years. Only those who passed this test would be accepted onto the waiting list in the local area.... It will also encourage them to set other local rules for testing a resident's connection to the area. This could include having attended the local school or having family living in the local area". For further details, click here.

Immigration status and private rented housing: on 25 March 2013 the UK Government also announced that, in a system mirroring obligations on employers, in future "private landlords would be required to make simple checks on new tenants to make sure that they are entitled to be in this country". The proposals, to be issued for consultation, "will be straightforward, quick and inexpensive for law-abiding landlords and tenants to comply with. Action could be targeted at particular high-risk sectors, such as houses in multiple occupation....[Landlords] would receive support from public bodies such as the UK Borders Agency to make the necessary checks." For more details, click here.

Homelessness prevention and housing benefit reform: to help prevent homelessness caused by the changes to the housing benefit regime, the Welsh Government made £1.4m available to local authorities to develop projects in the two years to March 2013, to raise awareness of the reforms and provide support and advice to landlords and tenants. The first evaluation to explore the approach, effectiveness and impact of each project has just been published. For a copy of the report, click here.

High income tenants of social housing: in the 2013 Budget, HM Government announced that it would proceed with plans to introduce an income-cap for sub-market rents for social housing tenants. The cap will be a total household income of £60,000 and tenants will be required to disclose their incomes to their social landlords. Tenants with an income above the cap may be charged market rents. Ministers said that: "The move could see tens of thousands of high-earning social tenants paying market rents to continue living in their social homes, and the additional income generated could then be used by landlords to increase spending on affordable housing. Ministers believe the changes are necessary to address the problem of precious social housing resources being occupied by tenants who could comfortably afford to live elsewhere." For further details, click here

Right to Buy: following the 2013 Budget announcement, the UK Government moved immediately to increase the maximum discount on right to buy purchases in London to £100,000 from Monday 25 March 2013. For the statutory order which made the change, click here. For the explanatory memorandum, click here.

Housing disrepair claims: tenants conducting housing disrepair claims on the multi-track in the county court can now download and amend the standard order for directions in such cases and a template Scott Schedule of alleged disrepair. For the free official precedents, click here.

Prosecutions for squatting: a Freedom of information Act request to the Metropolitan Police has produced statistics for prosecutions of squatters in London. These show that, since LASPO section 144 came into effect, there have been 75 offences of squatting dealt with by the police in London. The highest numbers were in Barking and Dagenham (8), Barnet and Ealing (6 each) and Westminster and Croydon (5 each). For further details, click here.

Fair tenancy terms: on 19 March 2013 the Law Commission published the advice it has given to the UK Government about further revision and reform of the law relating to unfair contract terms. For the full advice, click here. For the summary, click here.

Cold homes: researchers are undertaking a study on whether there is consistent guidance on applying the HHSRS standards when considering whether 'cold' in a property causes it be a hazard. To take part in the study, click here. For the current (2011) CIEH guidance on the topic, click here. For the contribution of an experienced EHO on the topic, click here.

Disposing of social housing: on 13 March 2013, the UK Government issued the new general consents for the disposal of social housing under Housing Act 1985 section 32. In cases governed by the terms of the new consent document, individual ministerial consents are not required. For the 2013 document, 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.

Chishimba v Kensington & Chelsea RLBC [2013] EWCA Civ , [2012] All ER (D) 247 (Mar)
25 March 2013

Ms Chishimba was not eligible for homelessness assistance. She deceived the council into believing otherwise by producing a false British passport. The council accepted that she was owed the main housing duty and provided her with temporary accommodation. It later discovered the deception, gave notice to quit and obtained a possession order. Ms Chishimba applied as homeless again. This time she was eligible because she had been granted leave to remain. The council decided that she had become intentionally homeless because the temporary accommodation had been gained and lost by her deception. An appeal to the county court was dismissed. The Court of Appeal allowed a second appeal. Ms Chishimba could not have been intentionally homeless from the temporary accommodation because (1) it was lost in consequence of the fact that she was ineligible and not by any act or omission on her part and (2) once the deception was discovered, it was not reasonable for her to remain in accommodation she ought never to have been occupying.

Islington LBC v Unite Group PLC [2013] EWHC 508 (Admin)
22 March 2013

Unite owned a block of self-contained flats in Islington. The ground floor of the block was occupied by a shop. The four storeys above comprised a separate self-contained flat on each storey. Each flat was let to students and was itself a house in multiple occupation (HMO). The High Court was asked to grant a declaration as to whether Unite needed an HMO licence. The court decided that on a true construction of Article 3 of the Licensing of Houses in Multiple Occupation (Prescribed Description) (England) Order 2006 no licence was required. For the judgment, click here.

El-Dinnaoui v Westminster CC [2013] EWCA Civ 231
29 March 2013

The appellant suffered from severe vertigo and a lifelong fear of heights. The council owed her the main homelessness duty and made her an offer of accommodation on the 16th floor of a tower block. On a viewing, the appellant became distressed, had a panic attack, collapsed and was taken by ambulance to A&E. She refused to accept the accommodation. The council decided that the offer had been suitable and its duty had ended. That decision was upheld on review and an appeal to the county court failed. The Court of Appeal allowed a second appeal and quashed the review decision. The reviewing officer's opinion that the appellant would have settled in the property 'with time' failed to give proper weight to the medical evidence. The conclusion on suitability was outwith the range of decisions a reasonable reviewing officer could take and was perverse. For the judgment, click here.

Birmingham CC v Beech [2013] EWHC 518 (QB)
15 March 2013

The council let a three bedroom house to a married couple in 1967 on a joint tenancy, to provide a home for themselves and their children. In 1994 the husband died. In 2009 the wife was taken into hospital and then transferred permanently to a residential care home. She was visited there by a council officer and signed a notice to quit ending the tenancy. She later died. The council brought a possession claim which was resisted by the couple's daughter and her husband who lived in the house. They claimed that the notice to quit had been procured by undue influence, that the claim had been brought against them in breach of public law principles, that the statutory succession regime was incompatible with their convention rights and that they had an arguable Article 8 defence to the possession claim. The case was transferred to the High Court. It made a 28 day possession order. The claim of undue influence was not made out on the evidence. There had been no public law illegality in bringing the claim. No question of the compatibility of the statutory scheme arose on the facts because (1) the tenancy had been ended before death and (2) the daughter and mother had not lived together in the 12 months prior to the mother's death. The Article 8 defence did not reach the high threshold of being seriously arguable. For the judgment, click here.

Croydon LBC v Axford [2013] EWCA Civ 215
22 February 2013

Mr Axford was a secure tenant. The council sought possession under Housing Act 1985 Schedule 2 Ground 1(rent arrears) and Ground 5 (tenancy obtained by deception). The judge found that arrears of over £4000 were owed and that Mr Axford had obtained the tenancy by failing to declare that he owned properties in Wales and France. He made an outright order for possession. The Court of Appeal refused permission to appeal. As to Mr Axford's contention that the judge had been wrong to find it 'reasonable' to award possession, it said "Once the judge had decided that Mr Axford had deliberately made an untruthful representation in order to induce the grant of the tenancy, it was almost inevitable that he would go on to find that it was reasonable to make an outright order for possession."

Newcastle Upon Tyne CC v Rogan [2013] EWCA Civ 248
20 February 2013

The council brought a claim for possession. The claim was defended on the basis that the occupiers were a secure tenant and her husband. The council said that the tenancy was excepted from secure status by the operation of Schedule 1 paras 2(1) and 2(4) of the Housing Act 1985 (tied accommodation). The county court judge decided that the tenancy was not secure and refused permission to appeal. The Court of Appeal likewise refused permission to appeal. The appeal had no real prospect of success.

Yasinskyy v Ukraine [2013] Application 28848/07
20 February 2013

In 2001, the applicant was allocated a flat by the state railway company. Before he moved into it, the local council let the flat to another man (B). The applicant and his family then moved in but he became embroiled it litigation as to whether he or B was the lawful tenant. Eventually, in 2006, the Supreme Court upheld the grant of the tenancy to B. The applicant and his family were then evicted. On his application to the European Court it has asked the parties to address the questions: (1) Has there been an interference with the applicant's right to respect for his home, within the meaning of Article 8(1) of the Convention? (2) If so, was that interference in accordance with the law and necessary in terms of Article 8 (2)? For the Statement of Facts, click here.

R(Mohammed) v West London County Court [2013] EWCA Civ 207
30 January 2013

The claimant had been an assured shorthold tenant. Her landlord served a Housing Act 1988 section 21 notice and sought possession. The claimant put in a counterclaim seeking redress for the landlord's alleged breaches of her tenancy agreement. The county court made a possession order and adjourned to counterclaim for later consideration, Permission to appeal against the possession order was refused and the claimant was evicted. She sought a judicial review of the refusal of permission to appeal against the possession order. The High Court refused permission to bring that claim. The Court of Appeal dismissed an appeal from that refusal. Whether the claimant had a valid monetary counterclaim could not affect the landlord's right to possession based on the section 21 notice.

Tobicon Ltd v Collinson [2013] UKUT 47(LC)
30 January 2013

The company was registered in Jersey and owned a block of flats in the UK. The tenants brought proceedings in the Leasehold Valuation Tribunal (LVT) concerning service charges. The proceedings were not served on the company's registered office. The papers were, however, copied to its representatives in the UK. The LVT made an award in favour of the tenants in the absence of the landlord company. The company appealed. The Upper Tribunal held that although, strictly, the proceedings had never been properly served, the decision should stand. It found that the company was well aware of the claim - through its surveyor and solicitor in the UK - and took a deliberate decision not to participate, action which was consistent with its longstanding unwillingness to engage with management of the flats. For the judgment, click here.

East Herts Council v Paul Allen
29 January 2013

The defendant was a private landlord of two HMOs. A council inspection found that each of the properties had been converted into around ten units, some very small, and had a range of hazards, including inadequate heating and insulation and lack of protection in the event of fire. Fire safety breaches included failure to ensure that fire fighting equipment and alarms were in good working order and failure to maintain all means of escape in good order and repair. Improvement notices had been served but works were never completed. Hertford Magistrates' Court imposed fines totalling £10,400 for non-compliance with the notices and ordered the defendant to pay the council's full costs of £11,480. (The fines are subject of an appeal.) For details of the prosecution, click here.

Housing Law Articles

Recent developments in housing law
N. Madge and J. Luba
[2013] March Legal Action 18
For back issues of articles in this series, click here.

Property: Hard cases make bad law (Thurrock BC v West)
N. Dobson
[2013] 163 New Law Journal 313

Young people should not be living in B&Bs
C. Firmin
[2013] 26 February The Guardian
For a copy of the article, click here.

The Bedroom Tax
A. Lewis and D. White
[2013] 156 Adviser 9

Complaints handling in Social Housing
H. Megarry and D. Connolly
[2013] 156 Adviser 19

Silence in Court? (rights of audience in housing cases)
M. Robinson
[2013] 156 Adviser 22

The claim game: DIY litigation for 'minor' disrepair claims
M. Mackreth
[2013] 156 Adviser 28

The flood, the bad and the ugly
C. Kus
[2013] 156 Adviser 28

Squatting and the extending reach of the criminal law: effective or not?
A. Arden QC and A. Cafferkey
[2013] 21 March LAG Housing Law
To read the article, click here.

Set aside or Appeal? Pereira in Practice
D. Underwood and J. Young
[2013] 16 Journal of Housing Law p22

"House" - a call to Parliament
P. Orji
[2013] 16 Journal of Housing Law p26

Fairness and the Leasehold Valuation Tribunal
J. Bates
[2013] 16 Journal of Housing Law p31

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

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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