Housing Law Bulletin - Issue 333 - 18 November

Monday 18 November 2013

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Housing Law News

The "bedroom tax": the Welfare Reform Committee of the Scottish Parliament has been taking evidence on a petition relating to evictions due to housing benefit under-occupation deductions (the 'bedroom tax'). On 12 November 2013 the Committee heard evidence from Govan Law Centre and others. For a record of the evidence session, click here. On 13 November 2013 the UK Government published figures for the number of households claiming housing benefit that have been affected by the removal of the spare room subsidy. The figure reached 547,000 in May and had only fallen to 523,000 in August. For the Department of Work and Pensions (DWP) figures, click here. A House of Commons Debate on 12 November 2013, arranged to consider the 'bedroom tax', concluded with a Government majority. For the text of the debate, click here. On 8 November 2013 the DWP published a survey examining perceptions of the policy among the general public. For a copy of the survey report, click here. On the same day, the House of Commons Library issued an update of its excellent briefing note on the topic. For a copy, click here.

Not just the rent: a DWP Minister has provided a reminder that housing costs eligible for help by way of Discretionary Housing Payments (DHP) extend well beyond rents. On 4 November 2013 he wrote "Housing costs which may be eligible for assistance via discretionary housing payment are comprised of rental liability, rent in advance, deposits and other lump sum costs associated with a housing need such as removal costs." For the statement, click here. For a commentary on the rate at which local councils are spending (or not spending) their DHP budgets for 2013/14, click here.

Eviction of tenants: on 14 November 2013 the court statistics for landlord possession claims in the third quarter of 2013 were published. They show that there were 19,401 warrants of possession issued in that quarter and there were 9,469 actual repossessions by county court bailiffs. The number of possession claims continued the upward trend that has been in place since 2010. For the full statistics, click here.

Social Housing Fraud: on 14 November 2013 the Audit Commission issued its latest annual report on tackling local government fraud. It showed that councils had recovered 2,642 homes from fraudsters in the last year. This represents a 51% increase in detected social housing fraud since 2011/12. For the full report, click here.

Right to Buy Litigation: on 14 November 2013 the Judicial Office ‏announced that the Master of the Rolls had issued a Practice Direction on court management of "Right to Buy cases". Those are court claims "brought by any person or persons claiming damages and/or equitable compensation against a solicitor or firm of solicitors (or former solicitor or firm of solicitors) who acted for the claimant or claimants on the exercise of the right to buy their council houses under the Housing Act 1985 and who did so having allegedly been advised by a mortgage broker and/or introducer where such claim is not concerned solely with an alleged defect in title or an alleged error in conveyancing". For the Practice Direction, click here.

Council Housing Stock Transfer (1): on 14 November 2013 the Housing Minister laid new regulations which will enable local authority tenants in England to form tenants' groups for the purpose of putting forward proposals to transfer their homes to a private registered provider of social housing (such as a housing association). For a copy of the regulations, which come into force on 5 December 2013, click here. For the explanatory notes accompanying them, click here. For the statutory guidance issued to tenants and local authorities about the new regulations, click here.

Council Housing Stock Transfer (2): a consultation exercise conducted earlier this year, on the content of a new manual for local councils in England on the process for handling stock transfer, produced only 25 responses. For a summary of them, click here. Having considered the responses, on 12 November 2013 the UK Government issued the final Housing Transfer Manual which will govern transfers until the end of March 2015. For a copy of the manual, click here.

Housing and anti-social behaviour: today (18 November 2013) the House of Lords will resume detailed consideration of proposed amendments to the Anti-social Behaviour, Crime and Policing Bill. For the version of the Bill under consideration, click here. For the latest list of the amendments that will be considered, click here.

Repossession for mortgage default: in the period July - September 2013, there were 677 final possession orders made in mortgage cases in Northern Ireland. This is a 20% increase from the same period in the previous year (562 in 2012) and a 126% increase compared to the same period in 2009 (299). For more details, click here. In contrast, the number of repossessions by Council of Mortgage Lenders (CML) Members is falling. At 7,200, the number of repossessions for the third quarter of 2013 was the lowest since quarterly data began to be published. For the CML figures, click here. The court statistics show that there were 13,032 warrants of possession granted in mortgage possession cases in the third quarter of 2013. For those statistics, click here. The UK government has confirmed that the Mortgage Rescue Scheme is closing to new applicants from 31 March 2014, except in London where it has already closed to new applicants. Mortgage-to-Rent applications referred to housing associations by 31 March 2014 will have the opportunity to complete during 2014/15, except in London, where cases will need to be complete by 31 March 2014 unless there are exceptional circumstances. For the details, click here.

Housing Cases and Judicial Review: many housing cases brought by way of judicial review are settled without the parties being able to agree about costs. The Administrative Court Office has issued guidance as to how the Court will approach such costs disputes. The guidance will apply to all cases in which consent orders are submitted for approval and determination of costs after 20 November 2013. For a copy of the guidance, click here.

Private renting: on 11 November 2013 the National Landlords Association (NLA) wrote to all local authorities in England following-up three recent court and tribunal judgements which have raised issues over the licensing of Houses in Multiple Occupation (HMOs) and how local licensing fees should be determined. For a copy of the letter, click here. For the NLA press statement, 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 (Eastwood) v Windsor & Maidenhead RBC [2013] EWHC 3476 (Admin)
13 November 2013

In 2009, the claimant and other Romani Travellers set up a residential caravan site on a field of Green Belt agricultural land. They had no planning permission to do so. The council issued an enforcement notice to clear the site. In 2011, a planning inspector upheld the notice and a refusal of planning consent but extended the period for compliance with the notice by 18 months on the basis that in that time the council would be able to develop alternative official sites. When that period expired, the council decided to take direct action to clear the site although it had failed to secure a single additional official site. The High Court held that the decision was arguably perverse, granted permission to apply for judicial review, and stayed eviction until the trial. For the judgment, click here.

Croydon LBC v Shah [2013] EWHC (Admin) noted on LAWTEL
13 November 2013

The council applied for a liability order on the basis that Mr Shah had failed to pay council tax in respect of a property that he owned. He defended the application on the grounds that the property had been let as a whole to tenants so that they were liable and not him. A magistrates' court granted the liability order and Mr Shah appealed. The High Court allowed the appeal. The tenancy agreements were for the whole property and were not shams. Mr Shah had been entitled to raise a defence that he was not the person liable to pay even though he could have appealed to a valuation tribunal from the council's original decision to issue him with a demand.

Health & Safety Executive v Dr Victoria Martindale
12 November 2013

The defendant was a private landlord. She employed a letting agency to find a tenant. The agency arranged for a gas safety check to be completed before the tenants moved in. She decided not to employ the agency to manage the property and no further landlord gas safety checks or servicing of the gas appliances were completed after Mr Newton and his partner moved into the property as tenants in November 2005. In December 2009 Mr Newton was found dead and his partner was also almost overcome by carbon monoxide (CO) fumes but was found in time and made a full recovery. The defendant pleaded guilty to seven breaches of the Gas Safety (Installation and Use) Regulations 1998 and at Derby Crown Court was given a 16-month prison sentence, suspended for two years. She was also given 200 hours community service, fined £4,000 and ordered to pay £17,500 costs. For details of the prosecution, click here.

Sunderland City Council v Brij Bushan Chowdhry
8 November 2013

The defendant was a private landlord. His tenants complained to the council about disrepair and it served an improvement notice under Housing Act 2004 requiring remedial works. The defendant did not comply. On the council's prosecution, Sunderland Magistrates Court fined him £1,000 with £900 costs and a £100 victim surcharge. For further details, click here.

R (AB) v Home Secretary [2013] EWHC 3453 (Admin)
7 November 2013

This judicial review claim may have wide-ranging implications in the housing field even though it is not a housing case. The High Court held that, as a result of a case decided by the European Court of Justice, the rights protected by the Charter of Fundamental Rights of the European Union are enforceable in the UK despite the purported UK Government opt-out. The Charter contains two rights directly relevant to housing. Article 7 provides that "Everyone has the right to respect for his or her ...home" (without qualification). Article 34 provides that the EU "recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Union law and national laws and practice." For the judgment, click here. For the Charter, click here. For guidance on the application of the Charter, click here.

Nawaz v United Utilities Water PLC [2013] EWCA Civ 1479
22 October 2013

The claimant's property was flooded to a depth of nine inches as a result of a blocked sewer under the street. He claimed damages in negligence based on the defendant's failure to inspect and clean the sewer. The defendant said that it was sufficient that it had a 'reactive' system to attend to complaints of possible blockages. The judge concluded, on the facts, that a reactive system was a reasonable system which the defendant operated with reasonable care. He also held that even if he was wrong, and there should have been a proactive system of inspection without prior notice or complaint, there was no basis on which he could find as a fact that such a system would have detected this blockage. The Court of Appeal refused a renewed application for permission to appeal as it had no real prospect of success.

Cumbernauld Housing Partnership v Leary [2013] ScotSC 71
10 October 2013

The claimant was a social landlord of a mixed tenure housing development of both privately owned and social rented housing. The defendant owned 19 properties on the development. The association provided management services across the development and undertook repairs to the common parts. It presented invoices to the defendant for her share of those costs. The defendant declined to pay. The association led unchallenged affidavit evidence as to how the charges had been incurred and apportioned. The defendant submitted that the liability to pay had not been established. The court rejected that submission and ordered payment of the sums claimed. To read the full judgment, click here.

Ahmed v Mahmood [2013] EWHC 3176 (QB)
20 September 2013

The claimant obtained a county court possession order which provided for transfer to the High Court for enforcement. She then went to the High Court and obtained a writ of possession which was executed and the defendants were evicted. The claimant immediately re-let the property. Two weeks later, the defendants applied to set aside execution. The High Court granted that order. The writ had been obtained by abuse of process because the application for it contained a false representation that there were no relevant proceedings outstanding. In fact, an appeal had been awaiting determination. For further commentary on the decision, click here.

Housing Law Articles

Recent developments in housing law
N. Madge and J. Luba
[2013] November Legal Action 29
For back issues of articles in this series, click here.
To read the current article, click here (LAG subscribers only).

One thing that all family lawyers need to know about housing law
I. Loveland
[2013] November Legal Action 27
To read the current article, click here (LAG subscribers only).

Keep calm & carry on
HLPA
[2013] 16 Journal of Housing Law 111

The Bedroom Tax - the first six months
J. Bates
[2013] 16 Journal of Housing Law 113

Shared Ownership: a flawed model?
G.Peaker
[2013] 16 Journal of Housing Law 119

Does Ground 15A infringe Article 14
J. Hurford
[2013] 16 Journal of Housing Law 123

Grow your own lodger: a bedroom tax dodger
A. Hughes
[2013] 160 The Adviser 19

The right track (for tenancy deposit claims)
C. Kus
[2013] 160 The Adviser 22

Conviction or a fine (for subletting social housing)
M. Coates
[2013] 160 The Adviser 27

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

Welfare reforms are needed urgently, but the bedroom tax is still unfair
M. Kent
[2013] Guardian Professional 15 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

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.

Next Week

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

Later this Winter

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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