Housing Law Bulletin - Issue 332 - 12 November

Tuesday 12 November 2013

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Housing Law News

The "bedroom tax": on 7 November 2013 regulations were laid to enable a further bedroom to be included for Housing Benefit (HB) purposes where the household includes "a child who cannot share a bedroom". This definition applies to a child who (1) is entitled to the care component of disability living allowance at the highest or middle rate, and (2) by reason of their disability is not reasonably able to share a bedroom with another child. For the Housing Benefit amending regulations, click here. For the Order dealing with consequences for rent officer functions, click here. The amendments take effect on 4 December 2013. For the updated House of Commons briefing paper on under-occupation in social rented housing and housing benefit, click here. For its briefing paper on reformed HB in the private sector, click here.

Housing and Welfare Reform: the organisation London Councils has produced a new report on Tracking Welfare Reform in London. For a copy, click here. For the BakerTilly report, Welfare reform in Social Housing, click here. For the Unison publication, Community and voluntary services in the age of austerity, click here.

Housing and anti-social behaviour: the latest statistics show a continuing fall in the use of ASBOs. For a copy of Anti-social behaviour order statistics: England and Wales 2012, click here.

Housing and legal aid: £2.5 million of legal aid money has been made available to social landlords for projects aiming to provide advice, information and/or representation for social tenants in Scotland dealing with the impact of changes to the benefit system, particularly those changes which are likely to impact on their ability to manage their housing costs or to sustain their tenancies. For more details, click here.

Complaints about social housing: the organisation Housemark has issued the latest findings of its work on benchmarking standards for the handling of housing complaints by social landlords. For a copy, click here.

Private renting: the House of Commons Home Affairs Select Committee's report on The work of the UK Border Agency (January-March 2013) was published on 8 November 2013. At page 14 it addresses the Immigration Bill clauses applicable to private landlords. It states that "The Committee is concerned about the implications of this proposal on millions of private landlords across the county. This additional regulatory burden, in effect requiring them to carry out immigration checks on behalf of the Home Office, is challenging." For the report, click here.

Right to Buy: the Chartered Institute of Housing has issued a new briefing note on How to ...prevent right to buy fraud and right to acquire fraud. For a copy, click here. The Housing Minister issued a statement on 7 November 2013 applauding take-up of the 'reinvigorated' right to buy. For the statement, click here.

Housing Supply: on 7 November 2013 the UK Government published the latest figures for housing provision in England. Fewer homes are being provided. In 2012/13, 124,720 additional dwellings were provided - an 8% fall from 2011/12. For the full statistics, click here.

The Politics of Housing: a new report from the National Housing Federation examines the political treatment of housing under both present and previous governments. For a copy, 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.

Haringey LBC v Goremsandhu [2013] EWHC (Admin) noted on LAWTEL
8 November 2013

The council served improvement notices requiring works to flats in a House in Multiple Occupation (HMO) owned and managed by the defendant. On appeal, a residential property tribunal varied the notices. The defendant did not comply with them in the time specified and the council prosecuted for breach. The defendant claimed that she had a reasonable excuse for failure to comply because an error in one of the notices had led her to believe that she had nine months to complete all the works. A magistrates' court accepted that defence and acquitted. The High Court remitted the case, directing a conviction and sentence. There had been no material on which anyone could have been justified in understanding the error as meaning that the defendant had nine months to carry out the works. The magistrates' had been wrong to hold that a reasonable excuse was made out.

King's Lynn & West Norfolk Council v Bunning [2013] EWHC 3390 (QB)
7 November 2013

The council claimed that the defendant was in breach of a High Court order preventing the use of certain land for residential purposes. It applied to commit her for contempt of the order. The Legal Aid Agency declined an application to grant legal aid - on the basis that the availability of civil legal aid to defend committal proceedings had been withdrawn by the Legal Aid etc Act 2012. The High Court accepted that civil legal aid was no longer available for committal proceedings but itself granted a representation order enabling the defendant to have the benefit of criminal legal aid. For the judgment, click here.

Wandsworth LBC v NJ [2013] EWCA Civ 1373
7 November 2013

The applicant fled her home in Leicester as a result of domestic violence. On arrival in London, the first women's refuge able to offer her a place was in Lambeth. After six months, she was ready to make a fresh start and made a homelessness application to Wandsworth. It accepted that it owed the main housing duty but made a local connection referral to Lambeth which accepted that it owed the duty. The applicant wanted to live in Wandsworth rather than Lambeth and sought a review on the basis that the conditions for referral were not satisfied because she had no connection with Lambeth (given that her residence in the refuge there had not been by her 'choice'). On the review she also said that since the initial decision, she had been placed in fear of violence in Lambeth as a result of which she had been moved to a refuge in Southwark. A reviewing officer upheld the initial decision but the county court reversed that on appeal. The council brought a second appeal. The Court of Appeal held that the reviewing officer had been entitled to find that the applicant had voluntarily chosen London as the place to escape to and had chosen to take-up the offer of a refuge place secured for her. She was accordingly resident in Lambeth of her own choice. However, the reviewing officer had failed to treat the initial decision as 'deficient' because it did not address the more recent risk of violence in Lambeth. A 'minded-to' letter should have been issued on that point. The review decision was quashed. For the judgment, click here.

Poorsalehy v Wandsworth [2013] EWHC (QB) noted on LAWTEL
7 November 2013

The council decided on a review that the applicant was not homeless. His appeal to the county court was lodged by his solicitors one day beyond the 21-day time limit. No application to extend time was lodged until the eve of the full appeal hearing, four months later. The judge decided that although there was good reason why the appeal had been lodged a day late, there was no good reason for the delay in submitting the application to extend time. As good reason had to be established for both delays (Housing Act 1996 section 204(2A)(b)), time could not be extended and the appeal was struck out. The applicant appealed, contending that the fact that he had instructed experienced housing solicitors who were on the record for him throughout, and had been responsible for the late submission of the application notice, was sufficient for him to show "good reason". The High Court dismissed his appeal. There was no rule of law that instructing seemingly competent solicitors was, of itself, sufficient to amount to "good reason" or "good cause" for any subsequent delay. Absent any actual evidence as to why the application to extend time had been made late, the judge had been entitled to hold that the second condition was not made out.

Lambeth LBC v Smart [2013] EWCA Civ 1375
7 November 2013

In 1971 the council had compulsorily acquired a street of short-life housing. Squatters took possession of it during the 1970s. In the 1980s the council made the houses available to housing co-ops and associations so that they could be used as temporary accommodation for the squatters and others and be kept up to minimum standards with grant-aid. Eventually, all the arrangements ended and the council sought possession. Mr Smart claimed to have acquired possession of his home by 12 years' adverse occupation as a squatter. Because he had recognised the council's title in November 1993 (by making an unsuccessful right to buy claim) he had to show 12 years' adverse possession had accumulated by that date. A judge rejected his claim. The Court of Appeal dismissed an appeal. The occupiers had, at all times since 1981, been in occupation pursuant to negotiations with, and thereafter with the consent of, the council. For the judgment, click here.

R v Margaret Ofoswah Boateng [2013] EWCA Crim, [2013] All ER (D) 69 (Nov)
6 November 2013

A council conducted an investigation the result of which suggested that in some 120 cases applicants had been supplied with, or had provided, false documents to enable them to make homelessness applications and obtain council tenancies at a cost to the council estimated at £25 million. Following a trial, the defendant was found guilty of having produced a false birth certificate and a false entry on a passport which had enabled her to obtain a council home. She was convicted on one count of obtaining by deception and six counts of using false instruments and was sentenced to 12 months' immediate imprisonment. She appealed on the basis that the sentence was manifestly excessive. The Court of Appeal dismissed the appeal. The effects of the deception had been long term and very advantageous to the defendant. Absent any significant mitigation, the sentence could not be faulted.

R v Tristan Dixon
6 November 2013

The defendant was arrested by police and evicted by them from a derelict cottage he was occupying as a trespasser. He was charged with squatting in residential premises contrary to the Legal Aid etc Act 2012 section 144. He said that he had never intended to reside in the cottage but simply wanted to use the land around it to grow trees and vegetables. He was convicted at Welshpool Magistrates' Court and appealed against that conviction. On the hearing of the appeal, at Mold Crown Court, the Crown Prosecution Service (CPS) conceded that the appeal should be allowed and the conviction quashed. For more details, click here.

Ealing LBC v Purewal [2013] EWCA Civ, [2013] All ER (D) 90 (Nov)
5 November 2013

The applicant was a disabled woman living in wheelchair-adapted accommodation. She made a homelessness application contending that she could no longer reasonably occupy her home. That was based on an assertion that she had been assaulted by a neighbour and had been subject to harassment and threats after reporting the assault. The council decided that she was not homeless, The decision was upheld on review. A county court judge allowed an appeal on the basis that the reviewing officer had not considered relevant material. The judge decided to vary the decision to one that the applicant was homeless as the council could not lawfully reach any other conclusion. The Court of Appeal allowed the council's appeal. The council had rightly asserted that on the fresh review being correctly conducted, on all the available material, a reasonable council might or might not conclude that the applicant was homeless. In those circumstances, the judge should not have varied the order but simply remitted the review to the council.

Reading BC v Ravinder Singh Takhar
24 October 2013

The defendant was the private landlord of an HMO. A council inspection found the property in poor condition and it issued a notice requiring the defendant to disclose his interest in the property. At Reading Magistrates' Court he pleaded guilty to seven charges, including failing to maintain smoke alarms and fire extinguishers, allowing the back garden to become heavily overgrown, providing filthy and torn carpets in the communal areas and failing to advise the council of his interest in the property. He was fined a total of £12,000 with costs of £4,982.49 and a victim surcharge of £120, bringing the total to £17,102.49. His attempt to mitigate on the basis of his financial circumstances was met by the council producing a document showing his entry in the "Asian Rich List 2005" putting his wealth at £6.5 million. For details of the prosecution, click here.

Watford BC v Alex De Gabriele
24 October 2013

The defendant was the private landlord of three HMOs in the same street. None were licensed and all were in poor condition. The council identified multiple breaches of the HMO regulations and brought a prosecution. The defendant pleaded guilty at the first opportunity. At Watford Magistrates' Court he was fined £5000 in respect of each of the three failures to hold an HMO licence. Further fines for the HMO regulation breaches, costs and a victim surcharge produced a total of £30,202.16. For details of the prosecution, click here.

Birmingham CC v Howell [2013] EWCA Civ 1422
10 October 2013

The council brought a claim for possession. It asserted that the previous tenancy of the house had ended when the secure tenant, who had moved to a residential care home, has signed a notice to quit at the end of an interview with the council officer conducted at the care home. The defendants claimed that the notice had been procured by undue influence. The High Court rejected that defence. It held that the relationship between the housing officer and the elderly tenant was not such as to give rise to a presumption of undue influence. The Court of Appeal granted permission to appeal. There was at least a prospect of success in showing that the characterisation of the relationship by the judge had been wrong.

Greenside Properties Ltd v Faizi [2013] EWCA Civ 1382
7 October 2013

A landlord brought county court proceedings for payment of unpaid service charges (and interest). Although the tenants opposed the claim, asserting that it should be transferred to the leasehold valuation tribunal (LVT), the landlord obtained judgment for the sum claimed. It later brought a possession claim based on forfeiture arising from non-payment of the charges for which judgment had been obtained. The tenants suggested that the dispute over service charges could still be referred to the LVT. A judge decided that the sum had already been found payable by a court and granted possession. An appeal was dismissed. The tenants sought permission to bring a second appeal. They contended that the landlord could not rely on the judgment for the service charges as it was a default judgment and there had been no determination of reasonableness of the charges by an LVT. The Court of Appeal refused permission for a second appeal. The Housing Act 1996 section 81 provided that a final determination of liability for a service charge could be made by a court or LVT. They were alternatives. The landlord had a county court judgment which, whether made by default or otherwise, was sufficient.

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).

Letting tenants down
A. Arden
[2013] 7 November LAG Housing Law blog
To read the article, click here.

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

Protecting the castle (Article 8 and private owners)
A. Rosenthal and J. Ollech
[2013] 163 New Law Journal No. 7583 p11

Article 8: An update following two recent decisions
A. Lane
[2013] 31 October Local Government Lawyer
To read the article, click here.

Housing the nation: changing the mindset
C. Dickinson
[2013] Journal of Planning and Environment Law Supp 13 ppOP18-OP45
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

Next Week

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.

Later this Winter

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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