Housing Law Bulletin - Issue 331 - 4 November

Monday 4 November 2013

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MESSAGE FROM THE HOUSING TEAM AT GARDEN COURT: we are pleased to thank all our customers for the glowing feedback given in the Chambers UK 2014 directory published last week. It was much appreciated. To see what was said, click here.

Housing Law News

Homelessness: recent media reporting suggests that the use of B&B accommodation for homeless families in England has now reached levels not seen since the practice was outlawed in 2006. For the latest such article, click here. London local authorities are reported to be dispersing hundreds of homeless families to other parts of England. For that report, click here.

Social Housing Rents: on 31 October 2013 the UK Government fleshed out its proposed changes to social housing rents in England. First, from April 2015 annual rent increases will be linked to inflation by using the Consumer Price Index as a measure rather than the Retail Price Index as has been used in previous years. Second, limits on social rent levels would be lifted from April 2015 where tenants earn at least £60,000. For the ministerial statement, click here. For the detailed proposals and consultation documents, click here. For its part, the CIH has published guidance for those social landlords interested in the move to 'market rent' housing. For a copy of that guidance, click here.

Social Housing Rent Arrears (bedroom tax): on 31 October 2013 the UK Government complied with judgments of the High Court and Court of Appeal by making amending regulations exempting rooms used to meet the needs of some disabled children from the 'bedroom tax'. The regulations have yet to be published. For details of the content, click here. However, a House of Lords debate on 31 October 2013 indicated no likelihood of an early repeal of the scheme. For the debate, click here. Indeed, on 30 October 2013 the DWP issued HB Bulletin U7/2013 asking local authorities to notify it of any appeals against bedroom tax decisions regardless of whether the decision is overturned or whether they intend to appeal adverse decisions. For a copy of the Bulletin, click here. On the previous day, Govan Law Centre had issued an updated guide to bringing such appeals. For a copy, click here.

Social Housing Rent Arrears (welfare reform): data collected by social landlords is showing that "ALMOs and councils across the country are very concerned about the impact of the recent changes to the welfare system on both their housing businesses and the communities they serve". For the report of that data, click here. For the new CIH guidance for social landlords on How to support households affected by the overall benefit cap, click here. The DWP has updated its welfare reform communications toolkit for landlords - and others - who seek to explain the impact of the changes. For the toolkit, click here.

Private renting (1): the Residential Landlords Association has persuaded the UK Government to amend the Immigration Bill clauses which will impose penalties on some landlords renting to some migrants. For the ministerial letter to the RLA, click here. The RLA has additionally published a paper inviting the Government to desist from attempts to force longer term tenancy agreements on the private sector. For a copy of that report, click here.

Private renting (2): on Friday 1 November 2013 new restrictions on misleading advertising about the costs of private rented accommodation were brought into force in England. The charity Shelter has launched an on-line proforma which prospective tenants can use to report instances of 'hidden' letting fees imposed by landlords or their agents. For the details, click here. On 24 October 2013 the House of Commons Library issued an update version of its briefing on The regulation of private sector letting and managing agents. For a copy of that, click here.

Poverty and housing: a new report from the Children's Commission on Poverty has found that over half (53%) of children who said their family is 'not well off at all' also said that they do not have enough space at home, while damp or mould was an issue for just over a quarter (26%). Over half of children who said that their family is 'not well off at all' (54%) also said that their homes were much or a bit colder than they would have liked. For the report summary, click here.

Updates on Housing Law: for daily housing law news and updates follow the editor of this Bulletin (Jan Luba QC) on Twitter @JanLubaQC

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 v Dirk Duputell
31 October 2013

The defendant was charged with squatting in residential premises contrary to section 144 of the Legal Aid etc Act 2012. He was found in a residential property with his limbs super-glued around a wooden beam. To be guilty of the offence he had to have been "living in the building" or intending "to live there for any period". On an appeal or re-trial at Hove Crown Court, the judge directed an acquittal as there was insufficient evidence of actual residential occupation. For details of the hearing, click here.

Eaton Mansions (Westminster) Ltd v Stinger Compania De Inversion S.A. [2013] EWCA Civ 1308
30 October 2013

The defendant installed air conditioning in two flats that it leased from a landlord and placed the air conditioning units on the landlord's roof of the block of flats. It had no right to use the roof for that purpose. The landlord brought an action for trespass to its roof and asked for aggravated damages. The trial judge rejected that part of the claim and the landlord company appealed. The Court of Appeal dismissed the appeal. Aggravated damages are designed to compensate the successful claimant for distress and injury to feelings caused by the defendant's conduct which, in the case of a company, was not a possibility. For the judgment, click here.

Welwyn Hatfield Borough Council v Kevin Taylor
24 October 2013

The defendant was a private landlord. Council officers inspecting his property found that it was an unlicensed HMO and that fire safety arrangements did not meet required standards. He was unable to produce up-to-date gas and electrical safety certificates. At Watford Magistrates Court he pleaded guilty to seven offences including five breaches of the Management of Houses in Multiple Occupation Regulations 2006. He was fined £10,000 for failure to obtain an HMO licence. He was also fined £1,500 for failing to provide the council with documents which he was required to produce under section 235 of the Housing Act 2004. Additionally, he was fined £750 for failing to provide a gas safety certificate and electrical safety certificate. The total of fines, costs and surcharges was £24,250. For details of the prosecution, click here.

Winterstein and Others v France (Application no. 27013/07)
17 October 2013

The applicants were 25 travellers who were part of a much larger travelling community living in huts and mobile homes in the Val d'Oise department. They were occupying land which they did not own and for which they had no planning permission. They had done so for many years. The local council obtained orders for possession and removal which were upheld on appeal. The applicants claimed that their evictions, even though some had been offered social housing, infringed their Article 8 rights to respect for their homes. The European Court of Human Rights accepted that there had been an infringement because: (1) they had not had the benefit, in the context of the eviction proceedings, of a proper examination of the proportionality of the interference with their right to respect for their private and family lives and their homes as required by that Article and (2) there had also been a violation of Article 8 in the case of those applicants who had requested alternative accommodation on family sites, as their needs had not been duly considered. For further details of the judgment (itself available only in French) click here.

Simon v Denbighshire County Council [2013] UKUT 0488 (LC)
17 October 2013

The council decided that a Category 1 hazard (excess cold) existed at an HMO let by Mr Simon. It served an improvement notice under Part 1 of the Housing Act 2004 requiring insulation, double glazing and heating facilities. Mr Simon lodged an appeal to the Residential Property Tribunal and a hearing was fixed for August 2009. Three weeks prior to the hearing, the council purported to withdraw the improvement notice. The Upper Tribunal held that there was no power to withdraw a notice. The council either had to revoke the notice or submit to the appeal being allowed. For the judgment, click here.

Realreed Ltd v Cussens [2013] EWCA Civ 1333
9 October 2013

A landlord brought a county court claim for a declaration that a tenant was in breach of a covenant in her lease. The tenant defended the claim but she failed. The declaration was made and she was ordered to pay the costs. Those orders were upheld in the High Court. The tenant sought permission to bring a second appeal on the basis that she should not pay the costs. She said the landlord could and should have obtained the declaration from a leasehold valuation tribunal (LVT) which does not generally award costs. The Court of Appeal refused permission to bring the second appeal. The county court and LVT had parallel jurisdictions. The tenant had not applied to have the claim transferred from the former to the latter. The judge had considered that omission in deciding to award costs and there was no real prospect of success with any appeal against the costs order.

Lambeth LBC v Partridge [2013] EWCA Civ 1334
8 October 2013

The council acquired a street of "short life" properties. They were made available on licence to housing associations and co-operatives and Mr Partridge held a sub-licence from a co-op. After many years, the council decided to sell the stock and terminated the licences. Mr Partridge was in turn given notice to quit. On the council's claim for possession, he asserted: (1) he had obtained title by adverse possession; or (2) he was a secure tenant; or (3) an eviction would infringe his Article 8 rights. The judge made a possession order. The Court of Appeal refused permission to appeal. The judge had rejected the adverse possession claim on the facts. There could be no secure tenancy as there had never been a legal relationship between the council and the occupiers. The judge had considered the Article 8 claim in detail and had ultimately decided that it would not be disproportionate to evict. An appeal would have no real prospect of success.

Bristol City Council v Digs (Bristol) Ltd
7 October 2013

The defendant was the private landlord of a maisonette in multiple occupation. The council brought a prosecution for failure to obtain an HMO licence and for breaches of the HMO regulations. A District Judge at Bristol Magistrates Court tried the preliminary issue of whether the maisonette was a licensable HMO. It extended over two storeys of a building with a further entrance corridor and hallway on a lower storey. The council included the lower storey in deciding that the HMO extended to three storeys. The Judge held that having regard to Article 3 of the HMO (Prescribed Description) (England)(Order) the maisonette was not an HMO. The council had been wrong to include the lower storey. In the light of that ruling, the council offered no evidence and the defendant was acquitted. For the judgment, click here. For commentary on the judgment,click here.

Vinniychuk v Ukraine (Application no. 34000/07)
7 October 2013

The applicant had been a tenant of a flat. She was sentenced to a term of imprisonment. She later returned to live in the flat and cleared the arrears which had accrued. However, relying on loss of security of tenure caused by her absence, the council landlord obtained a possession order and she was evicted in 1998. In 2005 a court ordered that she be provided with council accommodation equivalent to her previous flat. The council failed to comply with the judgment until 2010 when it provided a dilapidated house with no modern plumbing or sewage facilities. The European Court of Human Rights has directed the parties to address the question: Was protracted failure of the authorities to house the applicant following her eviction and enforce the judgment of 6 July 2005 compatible with Article 8 of the Convention? For the Statement of Facts, click here.

Kashchuk v Ukraine (Application no. 5407/06)
7 October 2013

The applicant had owned a house. Due to a rise in groundwater levels in 1996 it was rendered uninhabitable and was officially recommended for demolition. The Housing Code provided that free accommodation would be provided to any citizen whose home became uninhabitable "as a result of a natural disaster". The Court of Appeal decided that the provision did not apply to the applicant's case. The Supreme Court dismissed an appeal. The European Court of Human Rights has directed the parties to address the questions: (1) Did the applicant have a fair hearing in the determination of his civil rights and obligations? In particular, did the Court of Appeal and the Supreme Court give adequate reasons for their decisions? and (2) Did the State comply with its positive obligations under Article 8 as regards the applicant's right to respect for his home? For the Statement of Facts, click here.

Lorimer v Griffiths
30 August 2013

A tenant was Rent Act protected. His landlord sought possession for rent arrears and obtained an order for possession. That was suspended on two conditions: (1) payment of £17,741 in arrears of rent within 21 days; and (2) that access be allowed to the landlord and workmen on 7 days' notice. The arrears were paid on time. Access was sought by notice and given on 16 August 2011 but the tenant declined to admit an electrician, suggesting in advance that the electrical inspection be undertaken separately at a different time. The sheriff decided that this amounted to a breach of the second condition and that eviction should be permitted. An appeal was allowed. The tenant had sufficiently complied with the second condition. In those circumstances both the conditions had been met and the possession order was discharged. For a copy of the judgment, click here.

R(Centreprise Trust Ltd) v Hackney LBC [2013] EWHC 3314
29 August 2013

The council had brought a possession claim in a county court. It had been defended but a possession order had been granted. The Court of Appeal had refused an application for permission to appeal from that order. The claimant (who had been the defendant in the county court) sought judicial review of the council's decision to bring the possession proceedings. The claim was based on the Equality Act, public law duties, failure to undertake an impact assessment and legitimate expectation. The High Court rejected a renewed application for permission to proceed with the judicial review. The points made could and should have been made in the county court proceedings and had not been.

Housing Law Articles

Recent developments in housing law
N. Madge and J. Luba
[2013] October Legal Action 31
For back issues of articles in this series, click here.
To read the current article, click here (LAG subscribers only).

The role of Article 8 in residential possession claims made by individuals and companies
J. Luba
[2013] 17 Landlord & Tenant Review 170

'You can judge them on how they look...': Homelessness Officers, Medical Evidence and Decision-Making in England
J. Bretherton et al
[2-13] 7 European Journal of Homelessness 69
To read the article, click here.

Personal Injury claims against landlords Part 2
J. Mitchell and G. Cursham
[2013] 119 Personal Injury Law Journal 4
To read the article, click here

From bedroom to courtroom: challenging the 'bedroom tax'
M. Spencer
[2013] October Welfare Rights Bulletin 4

Is this the end of unlawful subletting in social housing?
S. Rai
[2013] SHLA Website 30 October
To read the article, click here.

Out in the cold (impact of legal aid cuts in housing)
G. Marrs
[2013] Inside Housing 29 October
To read the article, click here.

Fighting back (tenants in the private rented sector)
M. Pooler
[2013] Inside Housing 1 November
To read the article, click here.

Going its separate way (Housing law in Wales)
I. Brooks-Jones
[2013] Inside Housing 1 November
To read the article, click here.

Devolution & the Law (Housing law in Wales)
R. Price
[2013] 92 WHQ Legal Update 1 November
To read the article, click here.

Housing Law Books

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

Housing Law Events

This Week

What's the use of Article 8?
7 November 2013
A Garden Court Chambers evening seminar for advisers
For more details, click here.

Later this Autumn

Allocations, lettings and homelessness
19-20 November 2013
A Chartered Institute of Housing conference (speakers include Liz Davies)
For more details, click here.

Housing law update
20 November 2013
A HLPA Members evening seminar
For more details, click here

ASB & Social Housing Conference
22 November 2013
A Lime Legal conference in London (speakers include Jan Luba QC)
For more details, click here.

Housing & Residential Property Mediation Conference
26 November 2013
A dispute resolution conference in London
For more details, click here.

A round up of 2013 and a look ahead to 2014
5 December 2013
A SHLA members' evening seminar in London
For more details, click here.

Housing Management Conference
6 December 2013
A Lime Legal conference in London (speakers include Jan Luba QC)
For more details, click here.

Annual Housing Law Conference
10 December 2013
A HLPA conference in London, with Jan Luba QC and Beatrice Prevatt speaking.
For more details, click here.

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