Issue 124 - 23 February 2009

Tuesday 24 February 2009

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The Latest Housing Law News

Possession claims: the latest figures for the number of possession claims brought in county courts in England & Wales were released on 20 February 2009 covering the last quarter of 2008. An introductory note to the statistical report suggests that the launch of the mortgage possession pre-action protocol was the likely cause of a fall of around 50% in the number of new claims being issued weekly from October to December 2008. In the last quarter of 2008, 29,000 mortgage possession orders were made and 27,715 possession orders were granted to landlords. For the full statistical report, click here. On the same day, the Council of Mortgage Lenders released its own report indicating that "first charge" lenders had recovered possession of 40,000 homes in 2008 and 75,000 further homes were likely to be repossessed in 2009. For the detail behind the CML figures, click here. The Centre for Policy Studies has published Save 100,000 homes from repossession identifying the extent to which positive use of judicial discretion could prevent large numbers of evictions. For a copy of that paper, click here.

Second charges: the Office of Fair Trading is inviting comments on the draft guidance it proposes to issue to brokers and lenders in the "second charges" or "homeowner loans" market. The consultation period closes on 8 May 2009. For a copy of the consultation paper, click here.

Mortgage Rescue Scheme: on 11 February 2009 the Housing Minister set out the progress that the government had made in encouraging the establishment of the national Mortgage Rescue Scheme. She identified Havering, Portsmouth, Kettering and Penwith as being especially advanced among the 75 local authorities that will be operating the Scheme and said that "we expect to see the first people benefiting any day now". For a copy of her speech, click here.

Statutory Guidance on Local Authority Powers: new guidance has been issued to local authorities designed to encourage greater and more imaginative use of the very wide-ranging power in section 2 of the Local Government Act 2000. The power enables a council to do almost anything to improve the well-being of its area by (among other things) assisting individual residents. Those advising residents with housing problems may find it useful to remind authorities of the very broad scope of their powers. For a copy of the guidance, click here.

Up-Grading Housing: on 12 February 2009 the Housing Minister set out the Government's aspiration to "retro-fit" the current housing stock to make it more energy efficient. This will involve basic measures, like loft-lagging and cavity wall insulation for all homes by 2015, more substantial improvements to 7 million homes by 2020, and by 2030 all homes are to benefit from "all the cost-effective measures possible". How this is to be achieved is set out in a new consultation paper. For the ministerial speech, click here.

Housing & Anti-Social Behaviour: the February 2009 edition (Issue 3) of the Home Office's ASB Focus features a number of case studies on local authority use of the new Premises Closure Orders which became available on 1 December 2008. For a copy of the publication, click here.

Land for Housing: on 6 February 2009 the Department of Health wrote to all NHS trusts and health service bodies giving them directions (under section 8 of the NHS Act 2006) about the factors to be taken into account when selling-off their land for housing development. The directions cover the quality of the housing to be developed and the requirement for developers to provide "an appropriate mix of tenures". For a copy of the letter, click here.

National Tenant Voice: in February 2009 the Government published National Tenants Voice, Plans Agreed - An Update for Tenants explaining the progress that had been made towards establishing a national representative group for tenants and the further steps to be taken. For a copy of the paper, click here. The next steps will involve a series of "road shows" in spring and summer followed by recruitment to a new National Tenant Council. more info

The Latest Housing Case Law

20 February 2009
Health & Safety Executive v Shahid Hussain
Stafford Crown Court
The defendant rented-out 12 properties to private tenants. Nine of those had gas appliances fitted. Only two had current landlord gas safety certificates. On inspection, a number of the appliances were found to be "immediately dangerous" and others were "at risk". The defendant pleaded guilty to specimen charges under Health & Safety at Work Act 1974 section 3(2). He was fined £40,000 and ordered to pay £44,500 costs with 18 months imprisonment to be served in default of payment. For more details, click here.

19 February 2009
AB v Leicester City Council
[2009] EWCA Civ, noted on LAWTEL
The claimant applied for homelessness assistance. She declined to provide any information about her nationality or immigration status or allow the authority to contact third parties about her status. The authority refused her application. She appealed, contending that unless an authority could be positively satisfied that an applicant was not eligible it had to proceed on the basis that she was eligible and then provide her with assistance. The Court of Appeal took the unusual step of adjourning the appeal so that the claimant's representatives could explore the possibility of appointing a litigation friend for the claimant as her litigation was potentially being conducted in a manner contrary to her best interests.

18 February 2009
Mitchell v Glasgow City Council
[2009] UKHL 11
Mr D and Mr M were neighbours and council tenants. Mr D caused serious anti-social behaviour. That was well known to the council landlord. Mr D had smashed the windows and door of Mr M's home. The council called Mr D to a meeting and told him that a notice seeking possession would be served and any further act of nuisance would lead to his eviction, Mr D went straight from the meeting to confront and kill Mr M. The victim's family claimed compensation from the council for not evicting Mr D earlier and for not warning Mr M about the meeting that was going to take place. The House of Lords dismissed the claim. It held that - in the absence of an indication by the council's words or actions that it had assumed responsibility for Mr M's safety - it would not be fair, just and reasonable to impose on the council a duty to take care to avoid injury or damage to him. For a copy of the judgment, click here.

18 February 2009
Grender v Dresden
[2009] EWHC (Ch) 214
A developer constructed an estate of residential housing for sale. After all the houses had been sold, the Residents' Association acquired the roadways and verges of the estate from the developer. The Association was a limited company with objects including the maintenance of the roads, footpaths and verges. Over the subsequent 45 years, the original trustees of the Association sold-up and moved away and meetings of the company became inquorate. The claimants sought the assistance of the Court as to how the company could act. The judgment of the High Court contains an analysis of how company and trust law operates in this, not at all unusual, situation. For a copy of the judgment, click here.

16 February 2009
Austin v Southwark LBC
[2009] EWCA Civ 66
Mr AA was a secure council tenant. He lost his tenancy on breach of a suspended possession order. For the next 15 years he lived in his home as a tolerated trespasser. In 2005 he died. His brother, Mr BA, applied in the original possession claim to be appointed to represent the estate of Mr AA. The application, if successful, would be followed by an application by the estate to retrospectively revive the tenancy (in exercise of the court's powers under Housing Act 1985 section 85) so that the tenancy might pass by succession. The Court of Appeal held that Mr AA's opportunity to revive the tenancy died with him and did not vest in his estate. For a copy of the judgment, click here.

12 February 2009
Hampshire Police Authority v Smith
[2009] EWHC 174 (Admin)
On 30 August 2007 a magistrates' court made a "crack house" closure order in respect of a residential property occupied by Ms S, her partner and three children. On 8 October 2007 she submitted notice of appeal seeking a hearing in the Crown Court. That was 18 days beyond the 21 day time limit stated in section 6(2) of the Anti-Social Behaviour Act 2003. The Divisional Court held that the time limit was strict and that even if the delay had been caused by difficulty obtaining legal aid (as Ms S contended) there was no power to extend it and the appeal could not be heard. For a copy of the judgment, click here.

10 February 2009
R(Liverpool CC) v Hillingdon LBC
[2009] EWCA Civ 43
A young male asylum seeker applied to Liverpool for accommodation. It decided that he was an adult and referred him to the Home Office. They held him in secure accommodation in the Hillingdon area. An immigration judge refused the asylum application, dealing with the application on the basis that the applicant was a child. The Home Office released him from the secure unit and he approached Hillingdon for assistance. It gave him temporary accommodation but on discovering he wished to live in Liverpool, Hillingdon sent him back to that council's area. The Court of Appeal held that Hillingdon had acted unlawfully. It had failed to satisfy itself about the age of the young man or carry out a welfare assessment under Children Act 1989 (assuming that he was a child). It had wrongly treated his wish to go to Liverpool as determinative of its responsibilities. For a copy of the judgment, click here.

10 February 2009
Ugiagbe v Southwark LBC
[2009] EWCA Civ 31
The claimant was an assured shorthold tenant with a fixed term (one year) tenancy. When that expired, the landlord told her to leave and she later did so. She then applied for homelessness assistance. The council decided that she had become homeless intentionally even though it accepted that she had been in ignorance of the landlord's need to obtain a possession order. It found that she had had advice that she should go to the council's HPU for assistance before leaving which she had not done. Had she taken that step, she would have been advised not to leave without a court order. The decision was upheld on review and in the county court. The Court of Appeal allowed an appeal. The claimant had been in ignorance and had acted in "good faith". She had not ignored the advice given but simply decided not to approach the HPU because she had not, at the time, wished to be treated as homeless. For a copy of the judgment, click here.

6 February 2009
Dumble v Metropolitan Police
[2009] EWHC (Admin), [2009] All ER (D) 66 (Feb)
Following service of a closure notice, a magistrates' court made a three-month "crack-house" closure order in respect of Ms D's home. She appealed contending that the conditions for the order had not been made out and that the order infringed her right to respect for her home. The Divisional Court dismissed the appeal. Although there had been no nuisance in the gap between service of the notice and the making of the order, that was only to be expected. The local court had been entitled to find that the conditions for making an order were satisfied. Although the order interfered with Ms D's right to respect for her home, the interference was legitimate and proportionate.

Housing Law Articles

Don't let it be misunderstood
(Mortgage Pre-Action Protocol)
DJ Robert Jordan
[2009] March/April ROOF 41

Stemming a rising tide?
(Mortgage Possession Claims)
T. Bailey and G. Williams
(2009) 159 New Law Jo 221

Lore of the land
(Temporary Accommodation)
S. Povey
[2009] March/April ROOF 38


Housing Law Events

26 February 2009
Public Sector Housing Law
A Jordans Publishing Conference
For the details, click here

3 March 2009
Housing & Regeneration Act 2008
A CIH Training Event in Manchester
For the details, click here

13 March 2009
Gypsy & Traveller Law Update
A LAG Training Course
For the details, click here

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

25 March 2009
Mortgage Possession: Preventing Homelessness and Protecting Homeowners
A Lime Legal Conference
For the details, click here.

30 March 2009
Defending Possession Proceedings
A LAG Training Course
For the details, click here

30 April 2009
Homelessness & Lettings
A Lime Legal Conference
For the details, click here

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