Issue 130 - 6th April 2009

Monday 6 April 2009

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The Latest Housing Law News

New landlords for council tenants: today (6 April 2009) many thousands of council tenants will find that they have a new local authority landlord. Some 44 local councils have been replaced by just nine new unitary authorities. Seven areas are affected. Five of those areas now have one unitary council (Cornwall, Wiltshire, Shropshire, Northumberland and Durham) and two areas have been split into two unitary administrative units each (Cheshire will become Cheshire West and Chester and Cheshire East, and Bedfordshire will become Bedford Borough and Central Bedfordshire). For more details, click here.

New Housing Benefit restrictions: today (6 April 2009) is the commencement date for provisions designed to ensure that no new local housing allowance claimants can get housing benefit rates for homes with six or more bedrooms. Existing claimants will gain up to six months transitional protection. For the summary of the changes as presented to Parliament by the Merits of Statutory Instruments Committee, click here.

New help on service charges (public sector): today (6 April 2009) new regulations come into force enabling a local housing authority which is a landlord of a flat under a long lease to purchase an equitable interest in the flat in order to assist the tenant to meet some or all of the costs of service charge payments. The agreement of the tenant to the sale of part of the value of their home is required before service charges can be met in this way. For the regulations, click here. For the explanatory memorandum, click here. Other regulations amend the arrangements for local authority loans to leaseholders in difficulties with service charges. Those loans can now be interest free. For a copy of those regulations, click here.

New help on service charges (private sector): today (6 April 2009) a new statutory Code of Practice comes into force applicable to those landlords and managing agents collecting service charges from private sector tenants. The Secretary of State has approved the Service Charge Residential Management Code 2009 (ISBN 978 1 84219 168 2), published by the Royal Institution of Chartered Surveyors. For a copy of the statutory order, click here. To download a copy of the new Code, click here.

Better enforcement in Housing Law: the remaining provisions of the Regulatory Enforcement and Sanctions Act 2008 were brought into force today (6 April 2009). The Act is designed to improve the standards of enforcement of regulatory law by local authorities and covers enforcement of housing and environmental health standards among others. Part 3 of the Act gives the government power to enable authorities to impose fixed financial penalties (rather than to prosecute) for offences under the Accommodation Agencies Act 1953, the Environmental Protection Act 1990 (Part 3) and the Protection from Eviction Act 1977. For the commencement order, click here.

More new Housing law: last week saw the commencement on 1 April 2009 of another tranche of provisions in the Housing and Regeneration Act 2008, mainly related to the creation of the Homes & Communities Agency. Sadly, they do not include those provisions designed to address the tolerated trespasser issue for which no commencement date has yet been announced. For a copy of the latest commencement order, click here.

Housing Conditions in Scotland: the remaining provisions of the Housing (Scotland) Act 2006 Parts 1 and 2 were brought into force of 1 April 2009. They make provision for housing renewal areas and amend arrangements for the improvement or demolition of poor housing. For the commencement order, click here.

Rough sleeping: two new reports highlight aspects of the current extent of rough sleeping by homeless people. For a copy of the Housing Justice report Rough sleeping: compassion v coercion - church, community & government responses, click here. For the PAFRAS report Underground Lives - an investigation into the living conditions and survival strategies of destitute asylum seekers in the UK based on 56 in-depth interviews with destitute asylum seekers click here.

The Latest Housing Case Law

23 March 2009
Complaint against Medway Council
Local Government Ombudsman
The complainant fled her home in fear of domestic violence and was accommodated in the council's area in a women's refuge. She applied for an allocation of council accommodation and was accorded Band A priority under the council's scheme. In the course of an investigation into how that application was then handled, the Ombudsman found that since September 2002 the council had not had a full published allocation scheme as required by section 167(1) of the Housing Act 1996 and had been operating for over five years with an unlawful combination of a summary scheme and unpublished internal guidance. As the Ombudsman observed, this "raises questions about the legality of those allocations" that the council made during that period. For a copy of the investigation report, click here.

23 March 2009
Complaint against Redbridge LBC
Local Government Ombudsman
The complainant was a single man with a hearing disability. The council accepted that it owed him the full housing duty as a result of his homelessness but placed him only in short stay nightly-let accommodation. Normally, he would have been moved to other temporary self-contained accommodation but that did not occur because of communication difficulties (resulting from the council's failure to arrange sign-language interpretation or a textphone facility). The ombudsman identified maladministration in the council's failure to make reasonable adjustments in its service provision to cater for the disabled. He recommended £500 further compensation in addition to £750 already agreed by the council. For a copy of the investigation report, click here.

26 March 2009
HSE v Ajay Ahuja
Northampton Crown Court (HHJ Corrie)
The defendant was the landlord of over 190 properties across the UK. The Health & Safety Executive served an improvement notice requiring him to issue a tenant with a gas safety certificate in respect of a gas boiler. When he failed to do so, it prosecuted under section 33 of the HSAW Act 1974. On a guilty plea, the defendant was given a two-year conditional discharge and ordered to pay £14,000 costs.
For further details, click here

31 March 2009
Swansea CC v Joyce
[2009] EWHC (Ch) (Cardiff District Registry)
The council claimed possession from the defendant and other gypsies who were occupying council owned or leased land on Swansea Industrial Park. The defendant's defence was that the decision to bring the claim had been made in ignorance of a relevant fact - that the defendant had actually been authorised by a councillor to temporarily park a mobile home on the land in question. She relied on her right to respect for her home under Article 8 of Schedule 1 to the Human Rights Act 1998 and "Gateway (b)" of the decision in Kay v Lambeth LBC. The High Court was satisfied that the failure to advise the relevant committee of the temporary authorisation had meant that it had not taken a relevant matter into account and had produced a decision no reasonable council could have reached. The possession claim was dismissed. For a copy of the judgment, click here.

1 April 2009
Alexander-David v Hammersmith & Fulham LBC
[2009] EWCA Civ 259
Ms A-D applied to the council for homelessness assistance when she was 16 and pregnant. The council provided her with temporary accommodation in a non-secure tenancy on its standard terms and conditions. When it later received complaints from other residents about her conduct, it served notice to quit, brought a possession claim and obtained a possession order. The Court of Appeal allowed Ms A-D's appeal. Because she was not 18 when the tenancy was granted, the effect of the grant was to cast the council in the role of trustee of the tenancy until she reached 18. It could not give a valid notice to quit because to do so would be in breach of that trust. Therefore, it could not determine the tenancy or seek possession. A council that wished to avoid such a result - but wanted to accommodate a teenager - might do so by providing them with non-exclusive possession (because exclusive possession is the necessary hallmark of a tenancy). For a copy of the full judgment, click here.

1 April 2009
McGlynn v Welwyn Hatfield DC
[2009] EWCA Civ 285
Mr McG applied to the council for homelessness assistance for himself and his wife who was pregnant. The council provided him with temporary accommodation in a non-secure tenancy. When it later received complaints from other residents about anti-social conduct, it served notice to quit and, eleven months later, brought a possession claim. Mr McG's defence was that the decision to bring the claim had been unreasonable. He relied on his right to respect for his home under Article 8 of Schedule 1 of the Human Rights Act 1998 and "Gateway (b)" of the decision in Kay v Lambeth LBC. The Court of Appeal was satisfied that on the facts it was seriously arguable that the council's decision to bring the claim was one that no reasonable council could have reached and it remitted the claim for trial. For a copy of the full judgment, click here.

2 April 2009
X and Y v Hounslow LBC
[2009] EWCA Civ 286
The claimants were very vulnerable and disabled council tenants. The council was aware that they were subject to anti-social behaviour. That culminated in an exceptionally serious incident in which both were assaulted in their home. The High Court found that the council had negligently failed to arrange an exceptional emergency transfer to temporary accommodation before the assault. The Court of Appeal allowed the council's appeal. It held that the council did not owe the couple a duty of care and, even if there had been a duty to take reasonable care, that duty would not have been breached. For the full judgment, click here.

2 April 2009
Office of Fair Trading v Foxtons Ltd
[2009] EWCA Civ 288
The OFT took the view that certain of the terms used in Foxtons standard terms and conditions for the provision of services to landlords were "unfair". The High Court directed that the matter should be decided at trial but held that the OFT could not be granted an injunction to prevent Foxtons continuing to use or enforce the terms in individual contracts, even if they were unfair. The Court of Appeal allowed an appeal by the OFT. An injunction in the terms sought could properly be granted by the trial judge if that was the appropriate relief to grant. For the full judgment, click here.

3 April 2009
R(Broxbourne BC) v North & East Herts Magistrates Court
[2009] EWHC 695
The council laid a complaint that the illumination from a property-owner's security lighting was a statutory nuisance to his neighbours contrary to section 79(1)(fb) of the Environmental Property Act 1990. After a trial, the justices dismissed the complaint with costs of over £13,000. Initially, they ordered the costs to be paid from central funds but later directed that the costs should be paid by the council. The High Court allowed the council's claim for judicial review. The trial had been undermined by an irregularity and the dismissal of the complaint had to be set aside. In any event, there was no power to order costs from central funds in civil proceedings and there had been no justification for the order of costs against the council. For the full judgment, click here.

Latest Housing Law Articles

R. Latham
HLPA meetings in 2009
[2009] April Legal Action
For the text, click here

G. Mitchell and S. Pierce
On the edge of the abyss: legal aid from 2010 - Part 2
[2009] April Legal Action
For the text, click here

J. Luba QC and HHJ N. Madge
Recent Developments in Housing Law
[2009] April Legal Action 16

S. Greenwood
Right to possess (Human rights defences to possession claims)
[2009] 3 April Inside Housing 14
For the text, click here

 

Housing Law Events

This Month

23 April 2009
The TSA and Tolerated Trespassers
A HLPA Training Seminar
For the details click here

28 April 2009
Social Housing Conference
Organised by Hardwicke Building chambers
For the details click here.

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

 

Next Month

5 May 2009
Household Formation
University of Oxford Housing Seminar
For the details click here

15 May 2009
Social Housing Law & Practice
A Lime Legal Conference
For the details click here

20 May 2009
Homelessness
HLPA Meeting in London
For the details click here

21 May 2009
Housing Benefit Update for Housing Practitioners
A HLPA London Seminar
For the details click here

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