Issue 157 - 16th November 2009

Monday 16 November 2009

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The Latest Housing Law News

Possession proceedings: on 12 November 2009 possession proceedings statistics for England and Wales for the third quarter of 2009 were published. The provisional figures show increases in claims made and orders made in landlord possession proceedings and an increase in the number of mortgage possession claims leading to possession orders being granted. The Pre-Action Protocols are having a "negative impact on the quality of" the seasonally adjusted figures which would otherwise show a reverse trend. For the national figures, click here. For the tables by local authority area and court, click here.

Mortgage default and help for homeowners: the Council of Mortgage Lenders (CML) announced on 12 November 2009 that the number of UK homes actually repossessed had increased to 11,700 in the third quarter (from 11,400 the previous quarter) but reduced its estimated national annual totals for repossessions to 48,000 (2009) and 53,000 (2010) respectively. For the CML statement, click here. It should be noted that the large majority of secondary lending is not by CML members and figures do not include repossessions by those lenders. For the latest quarterly figures on the Mortgage Rescue Scheme in England, click here. They show that in the last quarter, 74 households accepted an offer from a Registered Social Landlord to sell and rent back their homes - taking the total since the scheme's launch in January 2009 to only 92. It would seem that the equivalent Mortgage Rescue Scheme in Wales is proving proportionately more successful. Not least that may result from the pilot scheme being operated by county courts in Carmarthenshire where the Legal Services Commission has granted authority to assist with Mortgage Rescue under a fixed fee payment and where the courts are working with a specifically designed local protocol and using a template court order designed by DJ Terry Lewis. For more details see the LSC's Focus magazine Issue 62 (October 2009) p17. For a copy, click here. In England, the Justice Secretary has confirmed that before the end of the year a consultation paper will be issued on proposals to reverse the decision in Horsham Properties Group Ltd v Clark [2008] EWHC 2327 (Ch) and require all lenders to take court proceedings before selling a mortgage defaulter's home. For the statement, click here.

A new era for social housing: on 10 November 2009 the Housing Minister announced that the Government had decided to exercise its statutory powers to bring all social housing tenants (in local authority and RSL housing) under one regulator, the Tenant Services Authority (TSA), from April 2010. For the announcement, click here. It has also published a summary of responses to the Housing and Regeneration Act 2008 (Registration of Local Authorities) Order 2009 consultation held earlier this year. For a copy, click here. The Order (under section 114 of the 2008 Act) will be published before Christmas.

New standards in social housing: also on 10 November 2009, the Government issued Directions to the TSA in exercise of powers given by section 197 of the 2008 Act. The directions require the TSA to issue national statutory standards regulating social housing rent levels (for RSLs) and both the quality of housing and degree of tenant empowerment. For a copy of the Directions, click here. The TSA responded on 12 November 2009 by publishing consultation drafts of all the new National Standards (including those covered by the Directions). For copies, click here. The new standards will sweep away over 50 'live' Housing Corporation Circulars and Good Practice Notes. The TSA also published a draft of its proposed statutory 'guidance' on social housing management. For a copy, click here. A third document deals with consents to disposals by landlords of social housing stock. For a copy, click here. Responses to the consultation documents should be submitted by 5 February 2010. The final standards will be published in March 2010 and will come into force on 1 April 2010.

Representation of tenants: on 12 November 2009 the Local Democracy, Economic Development and Construction Act 2009 received Royal Assent. In Part 1 Chapter 4, the Act gives the Secretary of State power to establish and fund a national representative organization for tenants (likely to be known as National Tenants' Voice). The Chapter took immediate effect on Royal Assent. For copies of the Bill and debates upon it, click here.

Housing and anti-social behaviour: last week the Government launched a new round of £15m funding for the establishment by local authorities and social landlords of Family Intervention Projects (FIPs) designed for social housing tenants facing eviction or other enforcement measures as a result of anti-social behaviour. For details of the scheme and the available funding, including a case study of the scheme operated by the RSL, Poplar Harca, click here.

Finding a Housing lawyer: prospective clients seeking to identify an appropriate solicitor or barrister to take a Housing case may be helped by publication last week of Chambers UK 2010: A client's guide to the UK legal profession. The directory can be searched for free on line (subject category 'Social Housing') and includes peer and customer feedback on solicitors firms and barristers. To conduct a search, click here.

Accommodation and support for asylum seekers: on 12 November 2009 the Home Office published Reforming Asylum Support: Effective support for those with protection needs outlining the way in which it proposes to re-cast the former NASS scheme for accommodation and support for asylum seekers. It proposes re-enactment of section 55 of the 2002 Act to prevent access to accommodation for those who did not claim asylum as soon as practicable after they arrived but to repeal section 9 of the 2002 Act which provided for the withdrawal of support for families. The consultation period closes on 4 February 2010. For a copy of the consultation paper, click here:

The Latest Housing Case Law

13 November 2009
R (Ethos Recycling Ltd) v Barking and Dagenham Magistrates Court
[2009] EWHC 2885 (Admin), [2009] All ER (D) 162 (Nov)
The claimant was a waste recycling company. Its neighbours and other residents complained to the local council about the nuisance caused by dust it generated. The council issued an abatement notice under Part III Environmental Protection Act 1990. The claimant appealed on the ground that the council had not obtained the consent of the Secretary of State before issuing the notice (section 79(10) of the 1990 Act). The District Judge rejected that point and the claimant sought a judicial review. The Divisional Court rejected the claim. The Act only required the council to obtain consent before instituting summary 'proceedings'. The service of the notice was not caught by that requirement (but a prosecution for any breach of it would be).

12 November 2009
Heron v Plymouth CC
[2009] EWHC Admin, [2009] All ER (D) 149 (Nov)
Mr Heron was made subject to an ASBO in 2004 which he had repeatedly breached. In 2009 the council applied for it to be varied and enlarged so as to ban him from most of the city centre and to impose additional prohibitions. The magistrates' court made the order sought and Mr Heron appealed. The Divisional Court set aside a general prohibition ('not to behave in any way causing or likely to cause harassment, alarm or distress') because prohibitions should be precise and targeted. It also overturned a more specific provision because it was neither simple nor clear. But the remaining prohibitions, including the city-centre exclusion, were upheld.

6 November 2009
New v Gromore Ltd and others
[2009] EWHC 2807 (Ch)
The claimant had a six monthly tenancy of a former local authority garage situated near a block of flats. He was a sculptor and used the garage to store moulds used for reproducing his work. The tenancy agreement stated that it was an agreement "for use as a private garage or for storage". The landlords contended that this prohibited the 'business-related' use he was making of it. The High Court rejected that contention. It awarded damages in trespass to the clamant for the loss he had suffered when a company to which his landlords were proposing to sell the garages took possession of the site and demolished them. For a copy of the judgment, click here.

6 November 2009
R(Smith) v Portsmouth CC
[2009] EWHC 2882 (Admin)
The claimant was a council tenant in a sheltered housing scheme with a resident warden. In July 2009 the council changed the service provided to an on-call mobile night-time warden scheme. The claimant sought judicial review of that decision. A trial was fixed for December 2009. He applied for an interim injunction requiring the council to maintain the old scheme pending trial. The High Court refused the application. Although seemingly powerful medical evidence had been submitted by the GPs of the claimant and other residents, their reports had not been based on possession of the full facts about the alternative services. On the other hand, medical evidence submitted by the council, that the risks to the health of residents from the changed arrangements would be "minimal", was "cogent and compelling".

20 October 2009
R(Clue) v Birmingham CC
[2009] EWCA Civ 1169
The claimant had been unlawfully in the UK with her children. She could not access housing under Housing Act 1996 Parts 6 or 7. However, to avoid infringement of her human rights, the council was obliged to provide her with services, including accommodation, but was unable to recover the cost from central funds, It decided that it could perform its obligations by paying for the family to return to Jamaica and resettle there. The High Court quashed that decision and the council appealed. A week before the appeal was to be heard, the claimant was granted leave to remain in the UK and the appeal became academic. The Court of Appeal agreed with both parties that the issues raised by the appeal required determination, with the Home Office made a party to the proceedings. It adjourned the appeal, having identified specific questions that needed to be addressed about legal responsibility for accommodating such families.

14 October 2009
Bello v Ideal View
[2009] EWHC 2808 (QB)
Mr Bello was tenant under a 50 year lease granted in 1969. It provided for a rent review after 25 years i.e. from 1994. The landlord did not activate the rent review clause for many years after 1994 and the increased rent did not actually become payable until after an arbitrator's award which took effect in September 2007. The landlord sued for the increased rent and for the arrears back to 1994. The tenant claimed that the delay was a bar to recovery. The judge rejected that defence and the High Court dismissed an appeal. Time had not been 'of the essence' under the review clause and recovery was not statute-barred by the Limitation Act 1980 because the increase had not become payable until 2007.

14 October 2009
R(M) v Burnley, Pendle and Rossendale Magistrates Court
[2009] EWHC 2874 (Admin)
The claimants were school-aged brothers. At ages 10 and 11 they had been made subject to three-year ASBOs. Seven months before they expired, the family moved to a new area and the police applied to the magistrates' court to vary the terms of the ASBO to reflect the new location. The boys opposed the application and a trial was fixed. Neither claimant attended the trial. One was at school (to which he had been taken by the education authority despite its knowledge of the trial date). The other had been unable to attend, as the justices accepted, because his mother was indisposed as a result of personal upheaval. In their absence, the orders were made as sought. The High Court quashed the varied ASBOs. The magistrates had been wrong, on the facts, to proceed in the absence of the claimants.

Housing Law Articles

Gone but not forgotten
(commentary on Swindon BC v Redpath)
D. Powell
[2009] 13 November Inside Housing p27
For a copy of the article, click here.

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Housing Law Consultations

Closing on 26 November 2009
The consultation exercise on proposed changes to the Approved Document for Part J (Combustion appliances and fuel storage systems) of the Building Regulations. For a copy of the consultation paper, click here.

Closing on 4 February 2010
The Home Office consultation on support arrangements for asylum seekers. For a copy of the consultation paper, click here:

Closing on 5 February 2010
The TSA consultation on all the new National Standards for Social Housing Management. For copies of the consultation paper, click here.

Housing Law Events

[This week] 17-19 November 2009
Lettings & Homelessness
A CIH Conference.
For the details, click here.

[This week] 18 November 2009
Housing Law Update
The HLPA meeting
For the details, click here.

27 November 2009
Annual Conference
Social Housing Law Association
For the details, click here.

30 November 2009
Crime & Anti-Social Behaviour
A NHC Conference in Harrogate
For the details, click here.

2 December 2009
Residential Landlord & Tenant
A Professional Conferences event
For the details, click here.

4 December 2009
Social Housing Management Conference 2009
A Lime Legal event (Manchester).
For the details, click here.

9 December 2009
Social Housing Management Conference 2009
A Lime Legal event (London).
For the details, click here.

15 December 2009
The Housing Law Conference
An HLPA event
For the details, click here.

16 December 2009
Housing Disrepair
A LAG training day.
For the details, click here.

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