Housing Law Bulletin - Issue 349 – 24 March 2014

Monday 24 March 2014

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SPECIAL NOTICE: the Editor of this Bulletin (Jan Luba QC) will be undertaking the London Legal Walk 2014 to raise funds for advice service charities. Please consider making a small donation. Click here to do so.

Housing Law News

Housing and legal aid (1): on 14 March 2014 new regulations were laid in the UK Parliament restricting the availability of legal aid in judicial review cases. Legal aid will no longer be available in cases where permission to bring the judicial review claim is refused. Where the case does not reach the permission stage, the Legal Aid Agency will retain discretion to grant funding. The changes will come into effect on 22 April 2014. For a copy of the new regulations, click here. For the explanatory memorandum, click here.

Housing and legal aid (2): the deadline for nominations for this year's Legal Aid Lawyer of the Year (LALY) awards, which include a new Housing Lawyer category, is 1 April 2014. For a nomination form, click here.

Enforcement of possession orders: on 27 February 2014 the Civil Procedure (Amendment) Rules 2014 were laid before Parliament. Among other things, the rules introduce a new Part 83 to the Civil Procedure Rules (CPR), entitled "Writs and Warrants - General Provisions". It consolidates and updates the High Court and County Court rules on enforcement contained in Schedules 1 and 2 to the CPR. The changes will take effect on 6 April 2014. From this date, Order 26 of the County Court Rules, which had previously governed the procedure for enforcing possession orders, will no longer form part of the CPR. For the new regulations, click here. For the explanatory memorandum, click here. For the on-line updating of the CPR, click here.

Private Renting (1): the London Borough of Hounslow has set up a Rogue Landlord Project to tackle rogue landlords who rent out unsafe, illegal and overcrowded properties in its area. The Project Board is made up of representatives from the Metropolitan Police, local schools and Children's Services, among others. For more details, click here.

Private Renting (2): Shelter Cymru have published a new report entitled "Fit to Rent: Todays Private Rented Sector in Wales" finding that the picture in the sector "is a shocking one, with nearly two-thirds of tenants experiencing some kind of poor conditions." For a copy of the report, click here.

Private Renting (3): the National Union of Students has released a report entitled "Homes fit for study: the state of student housing in the UK". The study finds that 76% of respondents had experienced at least one problem with the condition of their home, while 24% reported slugs, mice or other infestations. For a copy of the report, click here.‪

Housing Benefit: on 17 March 2014 the DWP published a general information bulletin, HB G3/2014, containing a useful update on Housing Benefit developments and recent Upper Tribunal cases. For a copy of the Circular, click here.

Bedroom Tax: on 21 March 2014 the House of Commons' Scottish Affairs Committee published a report calling on the Scottish Government to write-off all rent arrears caused by the "bedroom tax" and refund any money paid by those subject to the tax, stating in robust terms that "the bedroom tax remains cruel and unfair and we remain in favour of its abolition". For a copy of the Committee's report, click here.

Discretionary Housing Payments: on 18 March 2014 the Scottish Government published statistics showing that, across Scotland, 65% of the cash limit allocated to local authorities for discretionary housing payments had been spent, meaning that local authorities may spend a further £11,722,863 by 31 March 2014 before the limit is reached. Individuals wishing to make an application for discretionary housing payments in Scotland (or England) should therefore do so promptly. For a copy of the statistical report, click here.

Welfare Reform: on 19 March 2014 the DWP issued official statistics on the implementation of Universal Credit showing that between April 2013 and 31 December 2013, a total of 4,280 people were started on Universal Credit, the majority being unemployed people under the age of 25. For a copy of the statistical report, click here.

Council Accommodation: Housemark, a data analysis consultancy, has published a new report entitled "A sense of purpose: defining value for money in council housing". It reviews how to get the best value out of local authority housing stock. ‪For a copy of the report, 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 Ibrahim Bundu
20 March 2014

Mr Bundu was a caseworker in Southwark Council's homeless persons' department. From 2003 to 2011, he used false identities and false personal data to give his friends and family members characteristics that would make them 'high priority' for housing. He pretended that single women were pregnant, helping their applications gain priority. He used false documents to support fictional applications and then allocated homes to those who were his friends and family. Over time, he then extended his operation to others, who paid him for securing them a home. The frauds were detected as part of the council's data-matching exercise to detect social housing fraud. After hearing the prosecution case against him, and against members of his family, the defendant changed his plea to guilty. At Woolwich Crown Court he was sentenced to four year's imprisonment. For details of the prosecution, click here.

P v Cheshire West and Cheshire Council [2014] UKSC 19
19 March 2014

P had cerebral palsy and Downs syndrome and required 24-hour care. He was in supervised local authority accommodation. Physical intervention by staff was required to cope with his challenging behaviour. The Court of Protection concluded that he was being deprived of his liberty but that it was in his best interests. The Court of Appeal found that he was not being deprived of his liberty. The Supreme Court restored the Court of Protection's order. The judgments contain a consideration of the criteria for determining whether the living arrangements made for a mentally incapacitated person amount to a deprivation of their liberty. For the judgments, click here.

Anselm v Buckle [2014] EWCA Civ 311
18 March 2014

This is a Court of Appeal decision about works required under a commercial lease and a tenant's obligation (or otherwise) to mitigate his loss in the face of a landlord's breach, as well as the remoteness of any loss caused by the breach. The general principles may be applicable in housing cases. For the judgment, click here.

Erimus Housing Ltd v Barclays Wealth Trustees (Jersey) [2014] EWCA Civ 303
18 March 2014

(Although this case concerns a business tenancy, it contains a useful consideration of the status of an ex-tenant who continues in occupation after a fixed term lease expires.) A five-year lease of business premises expired in October 2009. There were negotiations between landlord and tenant, before and after the lease ended, as to the terms of new lease. In June 2011 the parties confirmed, in a series of e-mails, the terms for the renewal of the lease. However, the new lease was not executed and in August 2011 the tenant indicated that it did not wish to enter into a new lease and anticipated vacating in March 2012. Following further negotiations, the tenant sent a letter asking the landlord to accept notice of intention to vacate. The issue was whether that notice, or an earlier notice served by the landlord on 21June 2012, was effective to bring to an end whatever tenancy had arisen since the end of the earlier lease. The landlord sought a declaration that the tenant held over under the original tenancy. The judge found that the parties had created a new yearly tenancy. Allowing an appeal, the Court of Appeal found that the continued negotiations were inconsistent with the creation of a yearly tenancy and that there had only been a tenancy at will which had been ended by notice. For the judgment, click here.

Bhatia Best Ltd v The Lord Chancellor [2014] EWHC 746
17 March 2014

A firm of solicitors brought a claim under its contract with the Legal Aid Agency. It claimed to be entitled to payment of civil legal aid funding in respect of county court appeals made against homelessness decisions under Housing Act 1996 Part 7. Payment had been refused on the basis that "section 204" appeals did not fall within the "Public Law category" of contract that the firm held. The High Court decided that section 204 appeals were not within the public law category and the claim was dismissed. Legal aid for such appeals was only available from firms with a housing contract. For the judgment, click here.

Crompton v Woodford Scrap Metal [2014] EWHC (QB) noted on LAWTEL
17 March 2014

A landlord sought a possession order in the High Court rather than in the county court. Under Civil Procedure Rule 55.3 a possession claim has to be started in the county court unless the claimant files with his claim form a certificate stating the reasons for bringing the claim in the High Court, verified by a statement of truth. No such certificate had been filed. The court was not persuaded that a witness statement contained the necessary statement. Under CPR PD55A para.1.1, only 'exceptional circumstances' would justify starting a possession claim in the High Court. The action was accordingly transferred to the county court.

Complaint against Walsall BC Complaint 11022479
12 March 2014

The Local Government Ombudsman found fault causing injustice to the complainant. He had been moved to an "extra care housing scheme" and then charged unfairly for personal care services he did not need or want, both directly as a "care charge" and indirectly within a "well-being" charge. The complainant was found to have been caused unnecessary distress and had been subject to excessive demands for money. For the investigation report, click here.

H Waites Ltd v Hambledon Court Limited [2014] EWHC 651 (Ch)
11 March 2014

Hambledon Court consisted of a block of flats and two garage blocks. The claimant was a developer who wished to build a further flat on top of each of the garage blocks. The freeholder and various leaseholders of the flats and garages did not consent to such work. The High Court found that there was no implied covenant to restrain building of further flats on the estate but, on construing the leases for the garages, the court found that their demise included the floor, the roof and the walls. The garage leases therefore had to be treated as including the airspace above them and the foundations and subsoil below. The developer could not proceed in the absence of consent. For the judgment, click here.

Viridian Housing Association v X
26 February 2014

The association discovered that one of its tenants was living and working abroad and had been sub-letting his rented flat. At Wandsworth County Court, a district judge made an immediate outright possession order with costs and also an Unlawful Profit Order pursuant to Prevention of Social Housing Fraud Act 2013 section 5. The order was for £31,000, representing rent the tenant had received for the 31 months for which the association had been able to prove the subletting. For further details, click here.

G & O Investments v Khan [2014] UKUT 96 (LC)
26 February 2014

The lease of a flat provided that any demands, notices or other documents required or authorised to be given by the landlord "shall be well and sufficiently given if sent by the lessor or the lessor's agent through the post by registered post or recorded delivery...and any demand notice or other document sent by post shall be deemed to have been served forty-eight hours after posting". Service charge demands had been sent by the landlord by ordinary second-class post. An LVT found that the demands had not been served in accordance with the lease. Allowing an appeal, the Upper Tribunal found that the requirement in the lease was not a mandatory requirement that service of documents by post be exclusively by registered post or recorded delivery. The provision was permissive and did not prevent other means of service. The deeming provisions as to service 48 hours after posting were directly referable to the service of documents by ordinary post. For the judgment, click here.

Gustovarac v Croatia Application 60223/09
18 February 2014

In 1972 the applicants moved into a flat owned by the Yugoslav People's Army. The property was let to them illicitly through DV, in abuse of his position within the army. DV was later court martialled and found guilty of disposing of the flat unlawfully. The applicants remained in the flat paying rent. In 1991, following Croatia's independence, the flat became state property. In 2000 the state brought possession proceedings against the applicants. A Municipal Court granted a possession order. This was upheld on appeal and the applicants' complaint to the Constitutional Court was dismissed. In 2011 the applicants vacated the flat. They applied to the European Court of Human Rights, arguing that their rights under Article 8 had been violated. The Court dismissed the application. The applicants had never had any legal right to occupy the property and had been aware of this since the outset. In those circumstances, the interference with the applicants' Article 8 rights was proportionate. For the judgment, click here.

Croydon LBC v Cooper [2014] EWCA Civ 295
12 February 2014

Ms Cooper was a secure tenant. Croydon sought possession relying on rent arrears and acts of anti-social behavior, including noise nuisance, fighting and the use of the property as a "drugs-house". The judge found that there was a clear pattern of such anti-social behavior from 2001 onwards, though there had been no evidence of any problems during 2013. He found that Ms Cooper was not remorseful and made an outright possession order. Ms Cooper sought permission to appeal, arguing that the judge had improperly exercised his discretion in refusing to suspend the order. The Court of Appeal refused permission to appeal. In reaching his decision the judge had taken into account all the relevant factors.

In the matter of an appeal by SCMLLA (Freehold) Ltd [2014] UKUT 58 (LC)
11 February 2014

An LVT had determined substantive issues regarding disputed service charges raised by five of 140 tenants of a block of flats. The LVT also made an order under Landlord and Tenant Act 1985 section 20C limiting the landlord's costs to 50% and holding that they were to be regarded as relevant costs to be taken into account in determining the amount of any service charge payable by all (140) of the tenants. The Upper Tribunal held that an order under section 20C interferes with the parties' contractual rights and obligations and that an LVT does not have jurisdiction to make an order in favour of any person who has neither made an application of their own under section 20C nor been specified in an application made by someone else. It varied the order to relate to the five applicants only. For the judgment, click here.

R (Mahmoudi) v Lewisham LBC [2014] EWCA Civ 248
6 February 2014

The appellant was seriously disabled and lived in damp, unsuitable accommodation. He was offered and accepted a tenancy of alternative accommodation from 26 October. He was unable to move into his new home until 8 November because of his dialysis schedule, because he had to arrange for removals, and because the property needed decoration having been left in a dirty condition by the previous tenant. He sought housing benefit for both his existing and new accommodation. Housing Benefit Regulations 2006 regulation 7(8) allow dual entitlement where "delay was necessary in order to adapt the dwelling to meet the disabled needs of that person..." Refusal of benefit for two properties by the council was upheld by both the First Tier and Upper Tribunals. The Court of Appeal allowed an appeal. It held that "adapt" can mean to make fit, to change or to modify to suit a purpose. What in any individual case will amount to adapting a dwelling to meet the disabled needs of a person will depend very much on the nature of those needs. Adapting a dwelling need not involve works of any particular type.

Proxima GR Properties v McGhee [2014] UKUT 59 (LC) 

6 February 2014

A lease included a prohibition against sub-letting without prior written consent, such consent not to be unreasonably withheld. The tenant sub-let and retrospectively sought consent. The landlord sought a consent fee of £95. The Leasehold Valuation Tribunal (LVT) held that it was not entitled to charge a fee. On appeal, the Upper Tribunal held that whilst it was reasonable for a landlord to seek reimbursement of administrative expenses, it was not reasonable to treat the requirement to obtain consent as an opportunity to charge a fee unrelated to the costs of routine enquiries or administrative tasks. In a routine case, where the tenant provided details of the proposed sub-lease at the time of requesting consent and did not dispute the landlord's entitlement to charge a fee, and where no other complications (such as retrospective consent) arose, a fee of £95 would not be reasonable for the minimal administrative tasks involved in granting consent. However, in view of the presence of those factors in the instant application, the sum of £95 sought was reasonable. For the judgment, click here.

AH v Hackney LBC [2014] UKUT 47 (AAC)
30 January 2014

A man claimed housing benefit from Hackney. His claim referred to four properties worth in total £935,000 but subject to mortgages totaling £1,100,000. Hackney decided his capital was such that he was not entitled to benefit. The claimant appealed, contending that the properties were business assets. The First-tier Tribunal (FTT) upheld the refusal of the claim. On appeal, the Upper Tribunal held that the real issue was whether Hackney had correctly and lawfully made adverse assumptions about the claimant's circumstances. The FTT had failed to consider the evidence before it as to his financial position and had erred in law. The decision was set aside and the appeal was remitted to the FTT. For the judgment, click here.

Bank of Scotland v Brennan [2014] NI Ch 1
24 January 2014

Mr Brennan bought a house for £800,000 with a mortgage from the bank. He and his family moved in but found the house in worse condition than they had expected. They obtained planning permission to demolish the building and replace it with two semi-detached houses. They moved out into rented accommodation, demolished the house and began building the new homes. Arrears accrued on the mortgage. The bank, which had not consented to the demolition, sought and obtained a possession order. The High Court dismissed an appeal. The court had no statutory power to postpone possession (e.g. under Administration of Justice Act 1970 section 36) because there was no longer a "dwelling house" secured by the loan. For Article 8 purposes, the breach of the loan conditions, by demolition and non-payment, rendered the making of a possession order proportionate. For the judgment, click here.

Doherty, Re Judicial Review [2014] NIQB 6
22 January 2014

The applicant was the witness to a serious crime and gave evidence relating to what she had seen. She was then subject to a campaign of harassment and violence by associates of the accused in and around her home. The Police Service of Northern Ireland (PSNI) was aware of the campaign and recorded many of the more serious incidents. The applicant, who owned her home subject to a mortgage, applied to the Northern Ireland Housing Executive (NIHE) for admission to the Scheme for the Purchase of Evacuated Dwellings (SPED). The NIHE subsequently rehoused the applicant in rented accommodation on the basis of her personal circumstances but refused to purchase her former home at market value under the SPED scheme because the PSNI's Chief Constable refused to grant an appropriate certificate. The applicant by this stage had fallen into arrears with her mortgage and the lender had issued proceedings. The applicant sought judicial review of the PSNI's decision. The High Court dismissed the application. Despite the danger posed to the applicant, the decision was not irrational, had been made with regard to all relevant factors, and did not amount to a breach of the applicant's rights under Article 8. For the judgment, click here.

Poorsalehy v Wandsworth LBC [2013] EWHC 3687 (QB)
7 November 2013

A notice of appeal in a homelessness case was filed one day out of time. The appellant's notice failed to contain an application for an extension of time. The day before the appeal was heard, the appellant made a formal application to extend time, supported by a witness statement about why he had been one day late. The court could only give permission for a late appeal if satisfied both that there was a good reason for the failure to bring the appeal in time and for any delay in applying for permission to extend time. The delay in applying for permission was unexplained, permission was refused and the appeal dismissed. On an appeal against the refusal to extend time, the appellant said that the delay and the failure to explain it had been his solicitor's fault. The High Court dismissed the appeal. The establishment of clear blame on the solicitors did not rule out the possibility of concurrent, albeit slightly different blame, on the appellant personally. It must always depend on the particular facts, or, more precisely, all the available evidence. In the absence of any evidence before him about the lateness of the application, the decision of judge could not be characterised as "wrong". For the judgment, click here.

Housing Law Articles

Recent developments in housing law
N. Madge and J. Luba
[2014] March Legal Action 20
For back issues of articles in this series, click here.
To read the current article, click here (LAG subscribers only).

We shall not be moved (private renting)
A. Arden & R. Brown
[2014] LAG Housing Law Blog 18 March
To read the article, click here.

Stats blog: Legal aid housing safeguard
D. Douglas
[2014] Inside Housing 19 March
To read the article, click here.

Room for rent (unlawful subletting)
S. Evans
[2014] Inside Housing 21 March
To read the article, click here.

Better together (private landlord licensing)
A. Ward
[2014] Inside Housing 21 March
To read the article, click here.

Housing Law Training

Vulnerability and Priority Need in Applications for Homelessness Assistance
A webinar by Liz Davies and Connor Johnston.
CPD training from Jordan Publishing. For more details, click here.

Housing Law Events

This Week

Housing Rights of the Vulnerable
27 March 2014 from 18:30 to 20:00
Garden Court Chambers, London
For more details, click here.

Later this year

Homelessness Conference
15 April 2014
A Legal Action Group event in London
For more details, click here.

24 April 2014
A SHLA evening seminar in London
For more details, click here.

Housing Disrepair
30 April 2014
A Legal Action Group training event in London
For more details, click here.

Defending Possession Proceedings
14 May 2014
A Legal Action Group training event in London
For more details, click here.

Anti-social Behaviour Strategy
21 May 2014
A Housing Law Practitioners Association meeting in London
For more details, click here.

Homelessness and Allocations: Where Are We in 2014?
5 June 2014 from 18:30 to 20:00
Garden Court Chambers, London
For more details, click here.

Costs, CFA and Funding
16 July 2014
A Housing Law Practitioners Association meeting in London
For more details, click here.

Housing Money Claims: Deposits and Disrepair
17 September 2014
A Housing Law Practitioners Association meeting in London
For more details, click here.

Recent Developments in Housing Law
18 September 2014
A Legal Action Group training event in London
For more details, click here.

Conducting Disrepair Claims Post LASPO and Jackson
25 September 2014 from 18:30 to 20:00
Garden Court Chambers, London
For more details, click here.

Understanding Leasehold and Service Charge Disputes
23 October 2014 from 18:30 to 20:00
Garden Court Chambers, London
For more details, click here.

The Care Bill: Implications for Accommodation Issues
13 November 2014 from 18:30 to 20:00
Garden Court Chambers, London
For more details, click here.

Housing Law Update
19 November 2014
A Housing Law Practitioners Association meeting in London
For more details, click here.

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