Issue 121 - 26th January 2009

Monday 26 January 2009

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The Latest Housing Law News

Housing cases in the courts: among the amendments to be made by the 49th Update to the Civil Procedure Rules are several applicable to housing cases. From 6 April 2009, housing judicial review cases will be capable of issue and determination at court centres outside London. The detail is in the new Practice Direction 54D Judicial Review (Administrative Court (Venue)). Other changes - also in force from 6 April 2009 - include amendments of CPR 55 (possession claims), CCR Ord 26 (possession warrants) and CPR 52 (appeals). For further details, click here.

Family Intervention Tenancies: on 21 January 2009 the Government published non-statutory guidance for social landlords (local authorities and RSLs) on the use of these new forms of tenancy. The guidance helpfully attaches the relevant regulations and orders as well as a checklist of issues to consider. For a copy of the guidance, click here.

New standards in Social Housing: the Tenant Services Authority (TSA) has statutory power to fix national standards required to be observed by social landlords in the letting and management of the homes they provide. The standards will be enforceable by fines and compensation. Before framing the drafts of the new standards, the TSA has launched a massive consultation exercise to ask social housing tenants what they think the standards should contain. Housing advisers will be well placed to help tenants and tenant organisations to respond. The initiative is called the "National Conversation" and involves a programme of meetings around the country (driven by 33 specially trained "trailblazer" organisations) and other opportunities for participation. For details (including a resource pack), click here.

Priority Need and HIV: a new report published by the National Aids Trust on 20 January 2009 notes that often decisions on the priority given to individuals with HIV for social housing are based on out-of date criteria such as whether or not someone has an AIDS diagnosis or the presence of certain 'symptoms'. This approach fails to address HIV as a recognised disability and a long-term condition which involves continuing vulnerability and very often fluctuating health. For a copy of the report, click here.

Disability Discrimination & Housing: the Commons select committee on Work and Pensions has been taking oral and written evidence on how the issues arising from the decision of the House of Lords in Lewisham LBC v Malcolm should be addressed in the forthcoming Equality Bill. To access the evidence of, among others, the Housing Law Practitioners' Association and the Discrimination Law Association, click here.

Private Renting: a research project reviewing regulation and redress arrangements in the housing market has reported to Government that "the highest degree of consumer dissatisfaction in private rented accommodation which is also the sector that has the least regulated services and very limited redress opportunities". The report concludes that there is scope for reform, extension and rationalisation in regulation and redress. For a copy of the research report, click here.

More Council Houses: on 21 January 2009 the Government announced new arrangements under which local authorities will be free to build council housing again and keep the full rents received (or the proceeds of sale under the right to buy). The detail is set out in a consultation document to which responses are sought by 17 April 2009. For a copy of the ministerial statement, click here. For a copy of the consultation document, click here.

Mortgage Rescue Scheme: this rescue vehicle for vulnerable households facing repossession by mortgage lenders was launched nationwide on 16 January 2009. Those eligible are priority need households with incomes of less that £60,000pa who would be housed under the homelessness provisions of the Housing Act 1996 if they were evicted. Instead, their homes will be acquired by social landlords and then rented-back to them. The scheme is funded by a £200m government grant. For a fuller description of the new national scheme, click here. For those homeowners entitled to payment of Support for Mortgage Interest as part of their welfare benefits, recent changes made by regulations have brought some additional assistance. For a copy of the Government's Equality Impact Assessment of those changes, click here.

Decent Homes: the Government's target is that every social housing tenant should have a "decent" home by 2010. Over the past few years there have been discrepancies in the statistics used to record and monitor moves towards that target. The Government has now published a document seeking to reconcile the statistics in order to demonstrate precisely what progress (or otherwise) has been made. For a copy of the document, click here.

Empty Housing: local housing authorities have discretionary powers in respect of empty properties to waive some of the council tax which would otherwise be payable by the owners. A new Government-commissioned research report considers the impact of the exercise of that power on the number of empty homes in the country. For the executive summary, click here. For the full report, click here.

Retirement Home Leases: the leases on retirement flats for the elderly sometimes provide that, on any later sale of the lease, the tenant will pay a "transfer fee" to the original builder/developer. The Office of Fair Trading has taken the view that such a term may be "unfair" and thus breach the Unfair Terms in Consumer Contracts Regulations 1999. The major builder McCarthy & Stone Plc has agreed with the OFT that it will not enforce such terms in its existing leases and will amend the terms of the future leases it offers to new purchasers. For a copy of the OFT announcement, click here.

Housing statistics: on 22 January 2009 the Government published the latest available statistics on local authority housing. the figures cover, waiting lists, choice based letting, decent homes delivery and total stock. For a copy of the statistical release, click here.

The Latest Housing Case Law

23 January 2009
R(Alam) v Tower Hamlets LBC
[2009] EWHC (Admin) 44
Tower Hamlets' choice-based allocation scheme placed the homeless in "group 2". Mr Alam applied to the council for housing. It decided that he was homeless but not in priority need. It placed his housing application in the lower "group 3". A High Court judge granted a declaration that he should have been placed in "group 2". The Housing Act 1996 section 167(2)(a) requires homeless persons to be given a reasonable preference in an allocation scheme and the word "homeless" as used in the council's scheme included such a person even if not in priority need. For a copy of the judgment, click here.

22 January 2009
R(McCarthy) v Basildon DC
[2009] EWCA Civ 13
The claimants were gypsies and the owners of green belt land on which they had stationed their homes. Planning permission for that use was refused. Appeals were dismissed and enforcement notices issued. Both the council and the Secretary of State refused even temporary or personal planning permission notwithstanding that no alternative lawful sites were available and the council resolved to take direct action (physical eviction) to enforce the notices. The High Court quashed that decision but the Court of Appeal allowed an appeal. On the facts, the council had not misdirected itself and had been entitled to decide to evict. Before implementing that decision it would need to receive and consider any homelessness applications and make arrangements for performing any duties arising. For a copy of the judgment, click here.

22 January 2009
R(A) v Coventry CC
[2009] EWHC 34 (Admin)
The claimant was a teenager estranged from his parents. Following contact with social services, he was provided with accommodation by the mother of a friend. The council declined to meet his living costs on the basis that the woman had voluntarily taken him in. The High Court quashed that decision. The council had owed a duty to secure accommodation for the claimant under Children Act 1989 section 20 and he was therefore a looked-after child. It was accordingly liable to pay his host an allowance for his living costs. For a copy of the judgment, click here.

21 January 2009
Trent Strategic Health Authority v Jain
[2009] UKHL 4
A health authority sought and obtained an ex parte order for the immediate closure of a residential nursing home operated by the claimants. The home was closed, the residents removed and the claimants' business destroyed. The House of Lords held unanimously that although the closure order should never have been sought nor granted, the common law of negligence could not provide the claimants with a remedy against the authority. For a copy of the judgment, click here.

20 January 2009
R(Scott) v Hackney LBC
[2009] EWCA Civ, [2009] All ER (D) 124 (Jan)
The claimant, a disabled adult, took judicial review proceedings relating to his community care needs and the failure to provide a care plan. Permission was granted but before trial the council produced a care plan and the judicial review claim was withdrawn. The judge decided to make no order for costs. The claimant appealed. The Court of Appeal dismissed the appeal. The judgment reviews the principles under which the courts should deal with the costs of judicial review claims which are determined by settlement or withdrawal.

15 January 2009
Dixon v Wandsworth LBC
[2009] EWHC (Admin) 27
Mr Dixon and his sister were joint secure tenants. She ended the tenancy by notice to quit and left. The council obtained a possession order. Mr Dixon applied to set aside the possession order or prevent execution of it on the basis that the law enabling one joint tenant to unilaterally destroy a joint tenancy was inconsistent with Human Rights Act 1998 Schedule 1 Article 8 (right to respect for a home) and that his eviction would be disproportionate. The High Court rejected the application. The common law was not incompatible with Article 8 and the council had reached the decision to evict in a way that was reasonable and proportionate.

13 January 2009
Forde v Birmingham CC
[2009] EWHC 12 (QB)
The claimant, a council tenant, brought a claim for housing disrepair. She was refused legal aid and entered into conditional fee agreements (CFAs) with her solicitors. On a claim for costs following settlement of the claim, the council disputed the validity of the CFAs and the legitimacy of the amounts of the success fees claimed. A master upheld the costs claim and the council appealed. A High Court judge dismissed the appeal. His judgment reviews the law and practice relating to costs assessments under CFA claims in housing disrepair cases. For a copy of the judgment, click here.

12 January 2009
Brittain v Haghighat
[2009] EWHC (Ch), [2009] All ER (D) 31 (Jan)
A married couple owned a house in the husband's name and occupied it with their three children, the eldest of whom was very severely disabled. The husband was made bankrupt with the house as his only asset of value (although its sale value would not cover all the debts. His trustee applied for an order for possession. The High court held that the circumstances were "exceptional" for the purposes of Insolvency Act 1986 sections 336-2337, granted a possession order, but deferred its operation for 3 years to enable the wife and children to arrange to be rehoused by a local authority directly into accommodation meeting the special needs of the disabled child.

Housing Law Consultations

Housing Benefit: the Social Security Advisory Committee's consultation exercise on the new draft regulations for capping housing benefit for larger homes closes on 6 February 2009. For a copy of the consultation document, click here.

Housing Law Articles

Mortgage Possession Claims: Legal Update
Chris Atkinson
[2009] January 15 issue, Law Society Gazette p8

Let the Borrower Beware
DJ Peter Jolly
[2009] January 15 issue, Law Society Gazette p24

(1) Homelessness case law headlines
(2) A year in Social Housing
(3) A year in Private Rented Housing

[2009] 131 January/February issue, Adviser, pp22-36

Housing Law Events

27 January 2009
Private renting
University of Oxford Housing Seminar
For details, click here.

27 January 2009
Homelessness Conference: working together to improve services
CAPITA Conferences
For the details click here

4 February 2009
Housing Disrepair
A Legal Action Group Training event
For the details, click here.

5 February 2009
Tolerated trespassers (London)
A Chartered Institute of Housing Training Event
For the details, click here.

5 February 2009
Anti-social Behaviour - Tackling Problems, Supporting Victims

10 February 2009
Housing - The changing legal landscape
University of Oxford Housing Seminar
For details, click here.

11 February 2009
Tackling Homelessness in London
East Thames Group
For details, click here.

24 February 2009
Tolerated trespassers (Manchester)
A Chartered Institute of Housing Training Event
For the details, click here.

24 February 2009
University of Oxford Housing Seminar
For details, click here.

17 March 2009
Housing Advice Conference
A Chartered Institute of Housing Training Event
For the details, click here.

18 March 2009
Possession & Tolerated Trespassers
A HLPA Members' Meeting & AGM in London
For the details, click here


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