Issue 104 - 11th August 2008

Monday 11 August 2008

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Latest Housing Law News

Possession claims: the latest figures on the number of possession claims being made in county courts in England & Wales should have been released on 8 August 2008 but were hit by a computer problem and will now be published later this week. For the explanation given for the delay, click here. To access the latest statistics when they become available click here.

Mortgage Repossessions: the latest figures from the Council of Mortgage Lenders released on 8 August 2008 show that the number of homes repossessed in the first 6 months of 2008 was 18,900 compared to 12,800 in the first six months of 2007. The CML forecasts that 170,000 borrowers will be in arrears of more than 3 months by the end of this year. For the detailed announcement, click here. The National Landlords Association has issued a consultation paper suggesting a Code of Practice for those landlords entering into "sale and rent back" arrangements with defaulting homeowners. Responses are sought by 31 August. For a copy of the consultation paper, click here. The Financial Services Authority has called for mortgage lenders to ensure they are treating customers fairly in the current market conditions. Its latest review had found weaknesses in the way some lenders were handling arrears and repossessions - particularly for consumers with impaired credit histories. For the FSA statement, click here.

Court Possession-day Schemes: the Legal Services Commission has invited bids to provide court-based advice and assistance on housing possession days at a further 20 county courts. Bids must be submitted by 12 noon on 4 September 2008. For a list of the courts and other details for tenders, click here. For the LSC Press Release (incorporating case study), click here.

Housing and Anti-Social Behaviour: for the 12 months from October 2006 a pilot scheme of appointing an ASB co-ordinator was adopted by 12 county courts in England & Wales. The pilot has now been evaluated. The researcher reported a significant lack of awareness among local stakeholders that the pilot had even been underway in their areas. For a copy of the report published on 5 August 2008, click here.

New Housing Act: the Housing & Regeneration Act 2008 obtained Royal Assent on 22 July 2008. Over 700 amendments had been added during the parliamentary passage of the Bill. Most of the Act can only be brought into force by order but some provisions (including those relating to stock transfer ballots and to the right to buy) will come into force automatically on 22 September 2008. For a copy of the new Act (all 256 pages), click here. For the Explanatory Notes prepared by the civil servants, click here.

Housing Disrepair Claims: the Government has announced that, following a consultation exercise, it has decided to make no change to the threshold for determining whether housing disrepair cases should be allocated to the small claims track or the fast track. For the paper containing the responses to the consultation and the Government's policy conclusions, click here.

Accommodation for Gypsies & Travellers: the Housing Corporation has published a new toolkit for housing associations encouraging them to either establish or manage sites providing for the accommodation needs of gypsies and other travellers. For a copy of the report, click here.

Fire Safety in Housing: the Chartered Institution of Environmental Health and the Association of Chief Fire Officers have jointly prepared a new guidance paper, "Housing - Fire Safety". For a copy, click here.

Housing & the Ombudsmen: the local government ombudsmen's Annual Report 2007/08 shows that 21% of all complaints they received concerned Housing matters. A further 1000 complaints concerned (Housing) benefits and another 700 were about anti-social behaviour. For a copy of the annual report, click here.

The Latest Housing Case Law

31 July 2008
Secretary of State v Meier
[2008] EWCA Civ 903
The Secretary of State at DEFRA applied for, and was granted, orders of possession against travellers occupying areas of Forestry Commission woodland in Dorset. The judge declined to also grant an injunction preventing the travellers from entering and encamping in the woodlands. The Secretary of State appealed. By a majority, the Court of Appeal was satisfied that the judge should have exercised his discretion in favour of granting the injunctions. For a copy of the judgment, click here.

30 July 2008
Birmingham City Council v Lee
[2008] EWCA Civ 891
A tenant instructed solicitors to pursue a claim for disrepair against her council landlord. The solicitors took instructions, recorded defects and prepared a full statement under a conditional fee agreement. That enabled them to utilise the Housing Disrepair Protocol to present a letter of claim to the council. On receipt of the letter, the council inspected and undertook the repairs. Compensation and costs were not agreed, so proceedings were issued. The value of the claim meant that (in the absence of any claim for specific performance) it would be assigned to the small claim track and no legal costs would be recoverable. The Court of Appeal held that in those circumstances a proper order was for the tenant to have her legal costs down to the date the repairs were completed if she succeeded in her claim. For a copy of the judgment, click here.

30 July 2008
Doherty v Birmingham City Council
[2008] UKHL 57
The council terminated Mr Doherty's licence to occupy a plot on its gypsy site and sought possession. A judge decided that he had no defence to the claim and that the right to respect for a home (Art 8 ECHR) could not assist him. The Court of Appeal dismissed his appeal. The House of Lords (after reviewing Kay v Lambeth LBC and McCann v UK) unanimously allowed an appeal. Mr Doherty had to be given the opportunity of a court hearing to challenge the reasonableness and proportionality of the council's decision to evict him. For a copy of the judgment, click here.

30 July 2008
Heffernan v The Rent Service
[2008] UKHL 58
This appeal concerned arrangements made by the Rent Service when fixing geographic "localities" as areas for comparison purposes when assessing "reference rents" for housing benefit claims. By a narrow majority (3:2), the House of Lords decided that the Rent Service had misconstrued the relevant regulations in applying guidance enabling it to select very broad geographic areas such as the whole of a substantial city. For a copy of the judgment, click here.

30 July 2008
M v Slough BC
[2008] UKHL 52
The claimant had overstayed his leave to remain in the UK. He was HIV+ and needed accommodation with a refrigerator in which to store his medication. That need would be met by NASS (probably in a dispersal area) unless he was in need of "care and attention" in which case it would be provided by the local council under National Assistance Act 1948 section 21(1)(a). The House of Lords decided that a person who only needed provision of normal housing (with a fridge) was not necessarily in need of "care and attention". To be so, a person had to need "looking after". Mr M did not need looking after. For a copy of the judgment, click here.

30 July 2008
Honeygan-Green v Islington LBC
Porter v Shepherds Bush Housing Association

The House of Lords granted leave to appeal in both these cases against orders of the Court of Appeal. Because the cases concern the effects of possession orders made against tenants of social housing, the House has directed that they be heard at the same time as the appeals in White v Knowsley Housing Trust and Ansell v London & Quadrant Housing Trust. The six-day hearing will begin on 8 October 2008.

29 July 2008
R(G) v Southwark LBC
[2008] EWCA Civ 877
Aged 17, the claimant left his parental home and could not return. He applied to the council's social services department for accommodation. A social worker conducted an assessment that identified a need for housing. However, having found G to be capable and resourceful, it concluded that he only needed "help" with securing accommodation from the housing department as a homeless teenager in priority need. G sought judicial review claiming that social services had to accommodate him under Children Act 1989 s20. The Court of Appeal granted permission to apply for judicial review but dismissed the claim. By a majority, it decided that the council had been entitled to find that G only needed "help" with finding accommodation from another council department. For a copy of the judgment, click here.

29 July 2008
Cantrell v Wycombe DC
[2008] EWCA Civ 866
In 1995 the council helped a housing association finance the purchase of 6 houses in return for nomination rights under which the association agreed that it (and its successors) would repair the houses and make a first letting of them to council tenants. This took effect as a covenant of "positive obligation". The houses were later acquired by a different association and it sold one (at auction) to Mr Cantrell. The council sought to enforce the obligation against him. The Court of Appeal confirmed that only negative (not "positive") obligations run with the freehold title. Nothing in the Housing Act 1985 section 609 altered that. So Mr Cantrell was not bound by the agreement made with the previous (housing association) owners. For a copy of the judgment, click here.

25 July 2008
Goldeagle Properties v Thornbury Court Ltd
[2008] EWCA Civ 864
The tenants of a block of flats set up Goldeagle as a nominee purchaser from the owner (Thornbury) of its freehold interest in the block. There was a dispute as to the terms of acquisition. That was referred to the Leasehold Valuation Tribunal and adjudicated upon. Another dispute over the transaction arose and the question was whether the LVT could entertain a successive dispute about the same transaction. The Court of Appeal held that it could. It gave guidance to ensure that parties in similar cases put before an LVT all matters not positively agreed so that they can all be determined at the same time. For a copy of the judgment, click here.

22 July 2008
Onwuama v Ealing LBC
[2008] EWHC 1704 (QB)
In 2005, a council tenant brought a claim for damages for disrepair - the main problem being dampness in her home. She did not have legal representation or expert evidence. Her claim was dismissed. The judge was satisfied that there was damp but not that it arose from disrepair. In 2007, armed with expert evidence, she issued a second claim seeking to show that the dampness had a structural origin. The claim was dismissed on the basis that it was "estopped per rem judicatam" i.e. the same issue had already been raised and decided by another court. The High Court decided that if there had been some new type of dampness or new cause of dampness asserted, a fresh claim might have been brought. But the tenant could not circumvent the pre-existing judicial decision as to the cause of the same and continuing dampness.

22 July 2008
North Devon Homes v Batchelor
[2008] EWCA Civ 840
A registered social landlord brought a possession claim against an assured tenant alleging nuisance and breach of the tenancy agreement. The judge rejected the evidence of anti-social behaviour but did find that the tenant had been convicted of using cannabis in her home. He found that a ground for possession had been made out but that it would not be reasonable to order possession. The Court of Appeal dismissed an appeal by the landlord. The judge had considered all the facts and exercised his discretion within permissible bounds. For a copy of the judgment, click here.

21 July 2008
Admiral Taverns (Cygnet) Ltd v Daniel
[2008] EWHC 1688(QB)
A judge made a possession order to which Housing Act 1980 section 89 applied (possession not to be delayed beyond 14 days, or 6 weeks in exceptional circumstances). The tenant appealed. The High Court held that, notwithstanding the terms of the section, an appeal court could grant a stay of execution of the order pending the appeal even if that meant that the tenant remained in possession beyond the stipulated periods.

18 July 2008
R(Liverpool CC) v Hillingdon LBC
[2008] EWHC 1702 (Admin)
A young male asylum-seeker, AK, applied to Liverpool for accommodation. It decided he was an adult and referred him to NASS. He was then accommodated in Hillingdon's area. An immigration judge having dealt with him on the basis he was a child, the Home Office referred him to Hillingdon Social Services. It claimed that Liverpool had a continuing responsibility for him and AK willingly went back there with Hillingdon's assistance. He was not "ordinarily resident" in either council's area. The High Court decided that Liverpool was responsible for providing him with accommodation and other assistance under the Children Act 1989. For a copy of the judgment, click here.

17 July 2008
Office of Fair Trading v Foxtons
[2008] EWHC 1662 (Ch)
Foxtons contracted to provide services as agents to landlords seeking tenants for their houses and flats. Following receipts of complaints by landlords, the OFT brought an action for a declaration that the terms and conditions used by Foxtons contained "unfair" contract terms and were (to that extent) unenforceable. Foxtons applied to strike out parts of the claim. The High Court struck out some parts of the claim, dealt with applications for interim relief, and gave directions necessary for the claim to be tried.

17 July 2008
Newport City Council v Charles
[2008] EWCA Civ, [2008] WLR (D) 245
A secure tenant died. Her son succeeded to the tenancy. He was the sole occupier of the family-sized home. He did not tell the council about his mother's death. When the council found out, three years later, it brought a possession claim relying on Housing Act 1985 Sch 2 Ground 16. That requires a claim to be issued within a year of the death. The council claimed that Mr Charles was estopped from asserting that the claim was out of time. A judge granted possession but the Court of Appeal allowed an appeal. To grant possession would be to allow estoppel to be used as a "sword" when it could only be used as a "shield". For the WLR note, click here.

16 July 2008
R(Dumbaya) v Lewisham LBC
[2008] EWHC 1852 (Admin)
The claimant had been owed the main housing duty under Housing Act 1996 section 193 and had been provided with accommodation by the council. She was then evicted from that accommodation for rent arrears. The council took the view that she had become homeless intentionally and declined to provide further accommodation. In judicial review proceedings, the claimant obtained an interim order to accommodate and permission to apply. Meanwhile, she appealed to the County Court and a compromise of that appeal was reached, favourable to her. The High Court later decided that the council should pay the costs of the judicial review proceedings. The council had rejected the contention that, even if the claimant was intentionally homeless, it had then owed a limited duty under section 190. The judge found that the prospect of the council losing the judicial review on the merits was "towards the obvious end of the spectrum". For a copy of the judgment, click here.

Housing Law Events Coming Up

 

This Week

14 August 2008
Housing Law - An Update
A Chartered Institute of Housing event in London
For the details, click here.

This Autumn

19 September 2008
Choice Based Letting
A Lime Legal Conference in London
For the details, click here.

22 September 2008
Introduction to Housing Law
A Legal Action Group training event.
For the details, click here.

3 October 2008
Mortgage Possession: Preventing homelessness and protecting homeowners
A Lime Legal Conference in London
For the details, click here.

The Housing Law Bulletin will now break for the summer period and will commence again in September

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