2012 01 Housing

Wednesday 1 February 2012

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City of London v Samede and others [2012] EWHC 34 (QB) (Lindblom J): The defendants were part of the Occupy encampment on the courtyard and highway adjacent to St Paul's cathedral. The City of London, acting as highway authority and owner of part of the land, sought possession of the land covered by the encampment. The defendants claimed that, under their rights under Human Rights Act 1998 Schedule 1 Articles 10 and 11, any eviction would be disproportionate. The High Court granted a possession order and injunctions. A stay was added, in order to give an opportunity for an application to be made to the Court of Appeal. (click here for transcript).

Some of the Defendants were represented by Michael Paget.

R(on the application of Moore) v Wandsworth LBC [2012] EWHC (Admin): The claimant's father and mother had both died. They had been, in turn, the secure tenants of the family home. The claimant had no statutory right to succeed but applied for a discretionary tenancy under section 5 of the council's allocation scheme. The allocation scheme set qualifying criteria and provided that decisions would be taken jointly by the area manager and re-housing manager. The claimant's application was refused by the area manager on the basis that he did not satisfy the qualifying criteria. The High Court allowed a claim for judicial review and quashed that decision as the re-housing manager had not been involved, it was procedurally unfair, and there had been a failure to take account of material considerations. (no free transcript available).

Pimlott v Varcity Accommodation Ltd [2012] EWHC (Admin) (Wyn Williams J): The claimant was an assured tenant (AT) paying rent of £347pcm. A notice was served under Housing Act 1988, s. 13 seeking a rent of £550pcm. The claimant referred the notice to a Rent Assessment Committee which fixed the rent at £495pcm. The claimant appealed to the High Court asserting that the Committee had erred in law in taking into account, as a comparable, a rent of £620pcm paid locally under an assured shorthold tenancy (AST). On dismissing the appeal the High Court held that the committee had not erred in law by considering the rent paid under an AST but, even if it had, in this case worked to the claimant's advantage because she had a AT which would normally have attracted a higher rent than an AST by virtue of its better security of tenure. (click here for transcript).

Sun Street Properties Ltd v Persons Unknown [2011] EWCA Civ 1672: The defendant protestors had occupied the claimant's empty office building. The claimant brought a possession claim against trespassers and an sought abridgement of time for service from 2 days to 45 minutes, and was granted a possession order by telephone from a duty judge at night without any practical notice to the occupiers. A High Court judge declined to set aside that order given the absence of any arguable defence. The Court of Appeal granted permission to appeal to enable it to determine whether, on an application to set aside such an order, the matter should be considered solely as one of principle or whether the judge had been right to enter into the merits. The case has now settled.

Some of the Defendants were represented by Stephen Knafler QC and David Renton.

R (on the application of DM) v Doncaster MBC [2011] EWHC (Admin) 3652 (Langstaff J): The claimant's husband was in his 80s and had dementia. He was taken to a police station, then to a care home under the Mental Capacity Act 2005. Doncaster MBC charged for the accommodation. The application for judicial review claimed that accommodation under the Mental Capacity Act 2005 should be free. On dismissing the claim the court held the accommodation was provided pursuant to the National Assistance Act 1948 section 21 for which Doncaster MBC was obliged to charge and there was no equality or human rights legislation which compelled a different outcome. (no free transcript available).

Wacey-Germaine v United Kingdom [2011] ECHR 2325: The applicant applied to Luton Council as homeless in 2006. It was accepted by the Council that the applicant was owed the main housing duty under Part VII Housing Act 1996. The Council provided non-secure temporary accommodation. In 2009 the Council served notice to quit, claimed possession referring to rent arrears of over £9000. The applicant raised an Article 8 human rights defence based on her personal circumstances. An order of possession was made at a summary hearing, and permission to appeal refused leading to possession. The question asked was the interference with the applicant's right to respect for her family life or home, within the meaning of Article 8(1) of the Convention, necessary in terms of Article 8(2)? The UK Government offered 5000 euros in satisfaction of her claims for damages and costs which the applicant accepted settling the case. (click here for transcript).

Chesterfield BC v Bailey [2011] EW Misc (CC) 18 (Mr Recorder Tidbury): Mr and Mrs Bailey were joint tenants of the Claimant. Their relationship ended and Mr Bailey left then five years later served notice to quit intended to end the joint tenancy. The claim for possession was dismissed as the notice to quit was defective. The tenancy agreement required four full weeks' notice expiring at midday on a Monday but the notice was expressed to expire on Monday 4 October 2010. The Claimant could prove it had received the notice on Monday 6 September 2010 but it could not show that the notice had been received before 12 noon that day and failed to establish the notice requirement so as to recover possession. The recorder also stated that even if the notice had been valid it would not have been proportionate to make a possession order having regard to the defendant's rights under Article 8. (click here for transcript).

Hurst v United Kingdom [2011] ECHR 2080: The applicant's son had been a council tenant. Another tenant on the same estate, Mr Reid, was the subject of repeated complaints to the council and the police about his violent and threatening behaviour. The council brought possession proceedings and the applicant's son gave evidence in support of that claim. On the day that a possession order was made, Mr Reid killed the applicant's son. The questions posed were (1) did the relevant public agents know or ought they to have known of the existence of a real and immediate risk to the applicant's son's life and did they fail to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk? and (2) was the applicant's right of access to court for the determination of her civil rights disproportionately restricted having regard to the availability to her of any civil remedy in damages against the police and/or the local authority? (click here for transcript).

Sharif v Camden LBC [2011] UKSC 2011/0117. The Supreme Court has granted Camden permission to appeal ([2011] EWCA Civ 463) concerning homelessness duties. The Court of Appeal decided in performing the main housing duty a local authority had to provide accommodation for the applicant "together with" other household members and that that duty could not be performed by spitting the household into neighbouring self-contained properties.

Brumwell v Powys County Council [2011] EWCA Civ 1613 (Laws and Pitchford LJ, Lloyd Jones J): Mr Brumwell had been employed as the resident warden at a caravan park owned and operated by Powys County Council. In 1998 Mr Brumwell entered into three new agreements with the council. These were entered into the intention of avoiding his acquiring the right to buy the warden's accommodation. When the agreements determined, he claimed a new lease as a former tenant of the council. A judge rejected that application and held that under the agreements he ran the caravan site as a mere agent of the council. He appealed, contending that the agreements had been 'shams' and that he was the council's tenant. The Court of Appeal dismissed the appeal. (click here for transcript).

Benesco Charity Ltd v Kanj and others [2011] EWHC 3415 (Ch) (Peter Smith J): A possession claim was brought on the basis that the defendants were trespassers pursuant to CPR Part 55. A defence was filed with a witness statement claiming a tenancy or sub-tenancy. A judge granted possession at the first hearing where the issue for the judge had been whether the claim was "genuinely disputed on grounds which appear to be substantial": CPR 55.8(2). The High Court allowed an appeal and held a defendant is entitled to trial of their defence and the content of a witness statement should not be rejected at a summary stage "unless the evidence is incredible". (click here for transcript).

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