2011 11 Housing

Thursday 1 December 2011

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Berrisford v Mexfield Housing Co-operative Ltd [2011] UKSC 52 (Lord Hope (Deputy President), Lord Walker JSC, Lady Hale JSC, Lord Mance JSC, Lord Neuberger JSC, Lord Clarke JSC, Lord Dyson JSC): On allowing the appellant’s appeal the Court held that as a matter of contractual interpretation, an occupancy agreement between a mutual housing association and one of its tenant members, where the contract was for a commonly tenancy where the term was expressed as to be "from month to month until determined" could not be determined simply by the service of a notice to quit. The Court held that this agreement, although non capable of being a tenancy by virtue of its uncertain duration, was treated as a tenancy for life at common law. It took effect as a 90-year lease determinable either on the member tenant's death or in accordance with its express termination provisions. In providing reasons the court held it was a long established principle of law that an agreement for an uncertain term could not be a tenancy, (Lace v Chantler [1944] KB 368; Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386). However under section 149(6) of the Law of Property Act 1925, the agreement was a tenancy for life at common law and was to be treated as a term of 90 years determinable on the appellant's death subject to the express determination provisions provided for in the agreement. (Click here for transcript).

Bubb v Wandsworth LBC [2011] EWCA Civ 1285 (Lord Neuberger (MR), Jackson LJ, Gross LJ): On dismissing an appeal the Court held that when considering a homelessness appeal pursuant to section 204 Housing Act 1996 the exercise carried out by the county court judge was substantially the same as that of the High Court in a judicial review claim and it was not for the judge to make his own findings of fact. The decision of a local authority, that a letter offering permanent accommodation to a homeless person had been received, could not be impugned. Although the appeal was dismissed the Court accepted the argument that, in a homelessness appeal, the county court judge should apply a "sliding scale of review", when assessing whether local authority decisions as to the facts had been rational and fairly reached. Ms Bubb is seeking permission to appeal from the Supreme Court. (Click here for transcript).

Ms Bubb was represented by Stephen Knafler QC.

Abed v City of Westminster [2011] EWCA Civ 1406 (Ward LJ, Lloyd LJ, Kitchin LJ): The Court of Appeal on dismissing the appeal held that the Issues as to whether a local authority had properly assessed the suitability of accommodation and an applicant's needs before making an offer of accommodation were to be raised and considered when the local authority reviewed its offer decision and not at a later stage. The Court held R v Newham LBC Ex p Ojuri (No3) (1999) 31 HLR 452 QBD was a helpful indication of the nature of the duty of a local authority to provide accommodation, but it could not be taken as a precedent that if a local authority had failed to discharge a duty, in making an offer of accommodation, its decision was unlawful and wholly ineffective such that it was not capable of review under the extant statutory regime. The court held that Ojuri reflected the time when the only mechanism to challenge an offer of accommodation was by way of judicial review and certain of the observations in it were of no relevance where there was a statutory review process. The making of an offer of accommodation also required fairness for a local authority. The review procedure was a continuation or supersession of the original decision and inadequacies or unlawfulness in an original decision such as a failure to make an assessment of needs, could be properly addressed at the review. (Click here for transcript).

Holmes v Westminster City Council [2011] EWHC 2857 (QB) (Eady J): On dismissing the appeal the Court held that a judge was entitled to grant, on a summary basis, a local authority's claim for possession against a non-secure tenant who had not shown substantial grounds to establish the need for a hearing to find the facts that the local authority alleged had taken place. The tenant appealed against a decision to strike out his defence to a claim for possession brought and to make a possession order on a summary basis. The Respondent had provided the Appellant, who had a history of mental health problems, with homelessness assistance in the form of a non-secure tenancy. H failed to attend two appointments for the inspection of his accommodation. The Respondent discharged its statutory duty under Housing Act 1996 section 193 to provide the Appellant with accommodation and sought possession. On review, the Respondent withdrew its section 193 decision. It was then alleged that the Appellant had assaulted two of the Respondent’s housing officers and it renewed a possession claim. The Appellant asserted no positive case disputing the allegations of assault in his defence which was struck out. The question for the court in relation to Article 8 in a homelessness case was whether the making of an order for possession was legitimate and proportionate. The Court held the Recorder's determination of the claim for possession at first instance, on a summary basis, was in accordance with the public policy requirements under CPR Pt 55, namely that there should be a summary determination wherever possible. In assessing the proportionality of granting the claim, in the light of the available evidence, the court was bound to take into account the competing rights and interests of the persons involved. (Click here for transcript).

Mitu v Camden LBC [2011] EWCA Civ 1249 (Rix LJ, Sullivan LJ, Lewison LJ): On allowing the appeal the Court held that a local authority officer reviewing an application for accommodation by an individual was obliged by regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 to give the applicant notice of what he was minded to decide and why, and to afford the applicant an opportunity to make further representations. (Click here for transcript).

Saxon Weald Homes Ltd v Chadwick [2011] EWCA Civ 1202 (Mummery LJ, Davis LJ, Dame Janet Smith): On dismissing the appeal the Court held that a letter from a landlord to its tenant stating that his probationary tenancy had been completed and that he was now an assured tenant was a notice for the purposes of the Housing Act 1988 Schedule 2A paragraph 2 and could be relied upon by the tenant albeit that the landlord had previously indicated that it was seeking possession of the property. (Click here for transcript).

Jones v Kernott [2011] UKSC 53 (Lord Walker JSC, Lady Hale JSC, Lord Collins JSC, Lord Kerr JSC, Lord Wilson JSC): On allowing the appeal the Court held that following the decision in Stack v Dowden [2007] 2 AC 432, where a property was bought in the joint names of a cohabiting couple, who were both responsible for any mortgage, but without any express declaration of their beneficial interests, the presumption that the beneficial interests coincided with the legal estate could be rebutted by evidence of a contrary intention. Where that evidence did not show what shares were intended, it was for the court to decide what shares were either intended or fair. (Click here for transcript).

The Localism Act 2011: The Localism Act 2011 received Royal Assent on the 15 November 2011. Part 7 of the Localism Act 2011 is concerned with the reform of social housing in England and Wales. It introduces changes to the legislation governing the allocation of social housing as well as changes to homelessness legislation, tenure reform, housing finance, housing mobility, the regulation of social housing and a number of other housing matters. The overarching policy objective of the Localism Act 2011 is identified at paragraph 3 in the summary to the Explanatory Notes which states:

“The Localism Act contains a wide range of measures to devolve more powers to councils and neighbourhoods and give local communities greater control over local decisions like housing and planning.”

For a copy of the Act (Click here).

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