Housing Law Bulletin - Issue 335 - 2 December 2013

Monday 2 December 2013

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STOP PRESS: the current editor of this Bulletin (Jan Luba QC) will be chairing and delivering presentations on social housing law THIS FRIDAY at the Housing Management Law Conference. To join him, click here.

Housing Law News

Legal Aid for Housing Possession Cases: housing possession cases in England and Wales are considered so important for defendants that legal aid can be granted to defend them even when it is not possible, by reason of disputed law, fact or expert evidence, to (i) decide that the chance of obtaining a successful outcome is 50% or more; or (ii) classify the prospects as "poor". From 27 January 2014 it is proposed to abolish legal aid for this 'borderline' category. The necessary regulations have been laid and require approval of both Houses of Parliament. For a copy of the draft regulations, click here.

Welfare Reform and Housing: last week the House of Commons Library updated two of its key free briefing notes. For a copy of Under-occupation of social housing: Housing Benefit entitlement, click here. For The housing element of Universal Credit, click here.

Social Housing Rent Arrears: last week the organisation Housemark estimated that collecting rent currently costs the UK social housing sector well over half a billion pounds a year. After taking inflation into account, costs for organisations in its dataset rose by 3.5% between 2011/12 and 2012/13. This adds around £19m to the real cost of managing rent arrears and collection for all UK social landlords. For a copy of its report, The tipping point?, click here.

Regulating Social Landlords: on 29 November 2013 the regulator of social housing in England reported on the first year of the new consumer regulation standards in the sector. Its report highlights its first finding of "potential serious detriment" in respect of a complaint that a housing association was failing to secure regular gas safety inspections. For a copy of the report, click here.

Social Housing Rents: in November 2013 the regulator of social housing in England announced the guideline rent limits that housing associations can introduce for the year 2014/15. For a copy of those limits, click here.

Housing Complaints: at present, complaints about council services in England relating to housing (except housing management matters) go to the Local Government Ombudsman (LGO) Service. On 29 November 2013, the Government published the results of an independent review of the LGO service. For the report, click here. For the Government announcement, click here. For the LGO response, click here.

Housing law reform: the Communities, Equality and Local Government Committee of the Welsh Assembly is undertaking an inquiry into the provisions of the Housing (Wales) Bill before it begins its passage through the Assembly. Submissions should be made by 17 January 2014. For details of the inquiry, 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.

Sandher v Pearson [2013] EWCA Civ, [2013] All ER (D) 335 (Nov)
28 November 2013

The claimant bought the defendant's home (in order to clear liabilities under a mortgage and secured loan) and then granted the defendant a tenancy of it. The defendant later fell into arrears of rent and the claimant sought possession. The defendant discovered that the house had been bought at a higher price than the price agreed and counterclaimed that the claimant had been unjustly enriched by the transaction. A judge dismissed the counterclaim. The Court of Appeal dismissed the defendant's appeal. On the facts, the claim of unjust enrichment was not made out.

R (Alansi) v Newham LBC [2013] EWHC 3722 (Admin)
27 November 2013

The claimant was one of about 400 households who had applied as homeless to Newham and been accepted as owed the main housing duty. Each was told that if they took a qualifying offer of an assured shorthold tenancy they would retain their priority status under the council's housing allocation scheme. The households acted on those assurances and took private sector tenancies. The council later changed its allocation scheme to remove priority status from the entire group (subject to an individual right to review). The claimant's claim for judicial review was dismissed. Although she had enjoyed a legitimate expectation that she would retain priority status and had relied on the council's promise to her detriment, the council had not acted unlawfully in changing its policy given the demands upon it to shape its allocation scheme to meet competing priorities for a limited stock of social housing. For the judgment, click here.

W and C v Sandwell MBC
25 November 2013

The council adopted a local council tax reduction scheme which provided that only claimants who had lived in its borough for two years could be eligible for a reduction. The council applied the rule to the two appellants because the council's Cabinet Member for Strategic Resources had decided that the rule should be interpreted as requiring residence for the two years immediately prior to the claim. Both appellants had earlier lived in the borough for more than two years. The Valuation Tribunal (England) allowed their appeals. The scheme itself did not require two years continuous residence immediately prior to the claim and the additional requirements of the Cabinet Member could not be implied or be achieved by any permissible construction of the rule.

Odeniran v Southend-on-Sea BC [2013] EWHC (Admin) noted on LAWTEL
22 November 2013

The council decided that remedial action was required in respect of the condition of a house and served an improvement notice under Housing Act 2004 Part 1. Section 13(3) provides that such a notice may not require any remedial action to be started earlier than the 28th day after that on which the notice is served. The notice was served on April 5 but required works by May 3. When works did not start, the council brought a prosecution. The magistrates held that they could treat the notice as amended so as to give it validity. The High Court allowed an appeal. The terms of the Act were mandatory and the notice was defective.

London Fire Service v Wayne Chodosh
20 November 2013

The service was called to a semi-detached house on a report of a suspected fire. The property was divided into nine separate flats and was being used as an unlicensed house in multiple occupation. A joint inspection by fire safety officers and Haringey Council officers found poorly maintained and fitted fire doors, no working fire alarm system and no emergency lighting. They also discovered that no fire risk assessment had been carried out for the building. The defendant landlord pleaded guilty to four offences under the Regulatory Reform (Fire Safety) Order 2005 and at Tottenham Magistrates' Court was fined a total of £12,520. For details of the prosecution, click here.

Young v Chadwick [2013] EWCA Civ 1553
14 November 2013

Ms Young had been made bankrupt. Her trustee in bankruptcy applied for orders for possession and sale of her property. A district judge made the orders sought. Ms Young applied for permission to appeal to the High Court. Her application was listed for oral hearing. She sought an adjournment on health grounds and in order to obtain legal representation. The High Court refused that application and went on to refuse permission to appeal from the district judge's orders. Ms Young sought permission to appeal from the refusal of the adjournment. The Court of Appeal refused permission to appeal. In light of the history of delay and Ms Young's earlier difficulties in securing representation there was no real prospect of an appeal against the order refusing an adjournment.

Liverpool City Council v Azim Kibria
7 November 2013

The defendant was a private landlord of an unlicensed HMO. A council officer visited the 10-bedroomed property which was occupied by six tenants sharing kitchen and bathroom facilities. The officer found that the ceiling of the basement, which contained the gas and electric meters, had exposed floor joists; the partition wall between the basement and the hallway did not provide adequate fire resistance and the door to the basement was not a fire door. There was no handrail to the basement stairway with the stairs being uneven increasing the likelihood of falling. There was also a gap in the kitchen ceiling which created a fire hazard. The defendant pleaded guilty at Liverpool Magistrates' Court to the offence of not having a licence for the HMO and also admitted five breaches of regulations. He was fined £1,200 and costs of £1,240. For details of this and other prosecutions brought by the council's HMO licensing team, click here.

McIntosh v Castle Rock Edinvar Housing Association Limited
6 November 2013

Ms McIntosh was employed by the association as warden of a sheltered housing scheme from 1987 to 2011 and occupied a warden's house. She claimed to have a continuing fair rent regulated tenancy which carried the right to buy. The association refused her application on the grounds that either her employment status had deprived her of the right to buy or that its charitable status did so. The Lands Tribunal (Scotland) held that the right to buy was not defeated on either ground but on the alternative ground that when the tenancy was granted the association had been entitled to a particular form of charitable tax relief within section 64(1)(e) of the Housing (Scotland) Act 1987. For the judgment, click here.

Maznenko v Ukraine
4 November 2013

In 1996 Ms Mazenko bought a flat, renovated it and lived in it with her son as their home. A court later declared that the purchase had been a nullity as the vendor had lacked the legal right to sell. On the application of the 'true' owner (an individual) a court annulled the purchase and ordered possession on the basis that Ms Mazenko's legal right to occupy had been lost. In August 2004 bailiffs broke into the flat and evicted her. She applied to the European Court of Human Rights. Despite the fact that the possession claim had been brought by an individual, it posed this, among other questions, for the parties: Was the applicant's eviction lawful and necessary in a democratic society within the meaning of Article 8 of the Convention (see e.g. McCann v. the United Kingdom, no. 19009/04, § 50, 13 May 2008, Kryvitska and Kryvitskyy v. Ukraine, no. 30856/03, §§ 43-44 and 48-52, 2 December 2010 and Gladysheva v. Russia, no. 7097/10, § 95, 6 December 2011)? For the statement of facts, click here.

Karakutsi v Ukraine
21 October 2013

Mr Karakutsi had been a military serviceman provided with accommodation for himself and his family by the Ministry of Defence. When he resigned, the Ministry sought possession and a District Court made a possession order. The applicant appealed. The Court of Appeal heard and dismissed the appeal. It did not notify the applicant of the hearing or of the order it made and he was evicted. Having later found out about the Court of Appeal hearing and order, he sought to appeal to the Supreme Court but his appeal was dismissed as brought out-of-time. He and his wife applied to the European Court of Human Rights. It posed this question for the parties: Did the applicants' eviction constitute an interference with their right to respect for their home? If so, was that interference in accordance with the law and necessary in terms of Article 8(2)? In particular, was the decision-making process in this case compatible with the requirements of Article 8 of the Convention? For the statement of facts, 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)

Volume of evidence (ASB reforms)
K. Varley
[2013] Inside Housing 22 November 2013
To read the article, click here.

Major Housing Reforms unveiled in Wales
B. Britton
[2013] Local Government Lawyer 21 November 2013
To read the article, click here.

Get a grip on repair costs (social landlords and service charges)
K. Varley
[2013] Inside Housing 29 November 2013
To read the article, click here.

Housing Law Events

This Week

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.

Next Week

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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