2012 12 Housing

Tuesday 1 January 2013

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Richmond upon Thames LBC v Kubicek [2012] EWHC 3292 (QB) (Leggatt J): This appeal concerned the circumstances in which is it permissible for a county court hearing an appeal under section 204 Housing Act 1996 to receive evidence on and decide a question of fact relevant to the review decision. The appellant, Mrs Kubicek, made a homeless application following an incident of domestic violence at the hands of her husband. The application was refused; the council found that she was not homeless on the basis that it was reasonable for her to continue to occupy the family home with her husband. The decision maker was unconvinced that Mrs Kubicek was at risk of further domestic violence from her husband as, among other things, he had answered her phone on her behalf on a number of occasions when contacted by the council. The decision was upheld on review. On appeal Mrs Kubicek sought to raise a point of fact, that the phone calls which the council relied on had never taken place. HHJ Jakens admitted a witness statement from Mrs Kubicek to this effect ruling that the court has the power on an appeal under section 204 in exceptional circumstances to admit oral evidence and decide a question of fact. The judge directed a trial of this preliminary issue of whether the phone calls had been made but granted the council permission to appeal against her order. In the High Court, Leggatt J allowed the council’s appeal. A decision based on a mistake of fact can be challenged on an appeal on a point of law only in the limited circumstances set out in E and R v Home Secretary [2004] EWCA Civ 49, [2004] QB 1044. The criteria set down in that case were not satisfied. If the criteria in E and R had been satisfied then the judge should have gone on to consider whether the criteria set down in Ladd v Marshall [1954] 1 WLR 1489 were satisfied before admitting the new evidence. These criteria were also not made out. (Click here for the judgment.)

Birmingham City Council v Ashton [2012] EWCA Civ 1557 (Mummery, Patten and Treacy LJJ): An appeal by Birmingham City Council from the decision of HHJ Owen QC to grant a suspended possession order in possession proceeding brought against Mr Ashton, a secure tenant, on grounds of anti-social behaviour. The Court of Appeal allowed the appeal. The Court observed that the factors set out in s85A(2) Housing Act 1985 are highly relevant in deciding whether to suspend an order and ruled that the judge in this instance had failed to properly address the risk of future harm. The Court pronounced the view that Sheffield County Council v Shaw [2007] EWCA Civ 42; [2007] HLR 25 is not authority for the proposition that a suspended order should be granted in all cases where the tenant’s prospects of reform are "better than fanciful". (Click here for judgment.)

Carthew v Exeter County Council CA (Civ Div) 04/12/2012 (Thorpe LJ, Etherton LJ, Baron J): Second appeal from a s204 appeal. Mrs Carthew and her partner (P) purchased a property in joint names. In 2008 they agreed that Mrs Carthew would sell her interest in the property to P. Subsequently Mrs Carthew transferred her interest to P. She continued to live in the property paying rent to P who paid the mortgage and other outgoings. The relationship was a turbulent one, breaking down on a number of occasions. In 2010 it broke down completely. Mrs Carthew applied as homeless to the council who deemed her to be intentionally homeless on the basis that that she had transferred her property rights to P in circumstances where the relationship breakdown was foreseeable. On appeal the Court of Appeal took the view that while it was permissible for the council to take into account whether the relationship breakdown was foreseeable, the decision was flawed as the council had not considered whether she could have afforded to reside in the property had she not transferred her interest. (Judgment not yet available.)

The Housing Act 1996 (Additional Preferences for Armed Forces)(England) Regulations 2012: Regulations amending s167A Housing Act 1996 with the effect that Local Authorities within their allocation schemes must provide additional preference (i.e. ahead of others who should be accorded reasonable preference) to certain members of the armed forces and their families, who have urgent housing needs. These regulations were issued pursuant to the Housing Act 1996 as amended by the Localism Act 2012. Came into force on 30 November 2012. (Click here for regulations.)

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