2013 03 Housing

Monday 1 April 2013

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London Borough of Brent v Cheryl Tudor [2013] EWCA Civ 157 (Arden, Jackson and Beatson LJJ): a ground 16 case. Ms Tudor lived with her mother in a six-bed property in Brent. Ms Tudor’s mother died and she succeeded to the tenancy, remaining there with her two brothers and two nephews. Brent LBC, brought possession proceedings against the family pursuant to ground 16, schedule 2 Housing Act 1985, arguing that the property was more extensive than was reasonably required, that it was reasonable for the court to make a possession order and that suitable alternative accommodation was available. HHJ McDowell dismissed the possession claim. Brent appealed. The grounds of appeal focused primarily on challenging the judge’s findings of fact and reasoning. After considering the authorities on appeals against findings of fact and the duty to give reasons, the Court of Appeal dismissed the appeal. (Judgment available here.)

Fareham Borough Council v Terry Miller [2013] EWCA Civ 159 (Patten, Black and Kitchin LJJ): a case turning on the effect of a notice to quit. Mr Miller was a long-term, vulnerable, drug user with a series of convictions arising from his addiction. He was granted a non-secure tenancy under Part VII of the Housing Act 1985. Fareham served a notice to quit dated 20 April 2011. On 19May 2011 – during a period when Mr Miller was in prison – one of the council’s senior housing officers met with Mr Miller’s probation officer and Drug Intervention Worker and agreed to give Mr Miller “one more chance” on his release before pursuing possession proceedings. Within four days of release, Mr Miller had reoffended and was recalled on licence. Fareham initiated possession proceedings. Mr Recorder Wood dismissed the claim on the basis that the decision following the 19 May meeting had the effect of revoking the notice to quit reinstating the original tenancy on the same terms, or, alternatively that Fareham were estopped from relying on the notice. Fareham appealed. The Court of Appeal allowed the appeal. It was not possible in law to revoke the notice; it had the effect of determining the contractual tenancy irrespective of the council’s intentions at that time. Since the contract had been terminated the estoppel argument could not succeed. Further no new tenancy had arisen subsequent to the service of the notice. (Judgment available here.)

Chishimba v Royal Borough of Kensington and Chelsea (CA) 25 March 2013 (Richards LJ, Elias J and Lewison J): homelessness appeal raising issues of causation and intentional homelessness. Ms Chishimba applied as homeless to Kensington with the aid of a fake passport. She was granted a non-secure tenancy pursuant to the main housing duty. The deception was subsequently discovered and Ms Chishimba was given notice to quite on the basis that she was an overstayer and illegible for assistance. A possession order was made. Subsequently Ms Chishimba was granted leave to remain and she made a renewed homelessness application. Kensington found that Ms Chishimba had made herself intentionally homeless through her use of the counterfeit passport. Her appeal to the County Court was dismissed. The Court of Appeal allowed a second appeal. Her ineligibility for assistance was the effective cause of her homelessness. It was not reasonable for her to remain in the property since there was no justification for her occupancy. Jan Luba QC and Ed Fitzpatrick represented Ms Chishimba. (Judgment not available online yet. This summary is based on the Lawtel note. A fuller note will be included in next months update).

El-Dinnaoui v Westminster County Council [2013] EWCA Civ 231 (Hughes LJ, Richards J and Sir Alan Ward): a homelessness appeal that succeeded on a rationality challenge. Mr El-Dinnaoui was accommodated by Westminster together with his wife and three children pursuant to the main housing duty under s193 Housing Act 1996. An offer of accommodation was made of a flat on the 16th floor of a tower block. Mr El-Dinnaoui refused the offer on the basis of Mrs El-Dinnaoui’s fear of heights; a fear supported by medical evidence and illustrated by Mrs El-Dinnaoui’s physical collapse upon visiting the flat necessitating an ambulance being called. Westminster made the decision that Mr El-Dinnaoui had refused an offer of suitable accommodation and that the s193 duty had come to an end. The decision was upheld on review and on appeal to the county court. On appeal to the Court of Appeal, the court upheld the appeal. “In the teeth of the medical evidence”, Westminster could not rationally conclude that the property was suitable. (Judgment available here.)

Birmingham City Council v Janet Beech [2013] EWHC 518 (QB) (Keith J): a possession claim in the High Court raising issues of undue influence, art.8 and art.14. Mrs Beech lived with her mother Mrs Warren, a secure tenant of Birmingham City Council. For the purposes of ss87-89 Housing Act 1985, Mrs Warren was successor since the tenancy had vested in her solely on the death of her joint tenant husband some years previously. Mrs Beech requested that her name be added to the tenancy. This was refused. Mrs Warren moved into a care home and, at the behest of Birmingham, signed a notice to quit. Birmingham brought possession proceedings against Mrs Beech. Keith J allowed the possession claim. The notice to quit was not procured through undue influence. The bringing of the claim was not unlawful on public law grounds. A defence based on art.8 did not, applying Thurrock v West [2012] EWCA Civ 1435, reach the “seriously arguable” threshold. Finally, it had been argued for Mrs Beech that the succession regime under ss87-89 Housing Act 1985 was incompatible with art.8 and art.14 since Mrs Beech – the child of a married couple with a joint tenancy – was precluded from succession whereas the child of a single parent (and sole tenant) would have been eligible. Keith J described this as an “interesting argument” but not one that fell for consideration on the facts. Mrs Beech would not have been eligible to succeed in any event since she had not lived at the property in the 12 months leading up to the Mrs Warren’s death and the tenancy had not been secure at the relevant time. Stephen Cottle represented Mrs Beech. (Click here for the judgment.)

Parshall v Hackney[2013] EWCA Civ 240 (Mummery, Patten and Treacy LJJ): an adverse possession case. A dispute arose over a small (2m x 4m) piece of land in Chelsea. In error, the land had been included within the registered title of two separate properties by the Land Registry. The Parshalls made an application in 2008 to rectify the register by excluding the land from the title plan to Ms Hackney’s property. The application was resisted on limitation grounds. Further, it was argued on behalf of Ms Hackney that she had acquired a possessory title to the disputed land by adverse possession. The Court of Appeal rejected these arguments and allowed the appeal. There had been no adverse possession. The fact that the title had been registered (albeit with two different owners concurrently) meant that it had not been unlawful to take possession. Further, the Limitation Act 1980 does not apply to the statutory right to apply to rectify the land register. (Click here for ICLR summary of judgment.)

Homelessness: the Latest DCLG data on statutory homelessness was published on 22 March 2013. From 1 October to 31 December 2012 13,570 applicants were accepted as being owed the main homelessness duty; a 6 per cent increase than the same quarter of 2011. In the 2012 calendar year there were 53,450 acceptances; up 10% from 48,510 in 2011. (Click here to access the data.)

“Tough new rules” on social housing for migrants: The Government has announced its intention to introduce new statutory guidance for councils, requiring local authorities to amend their allocation policies to restrict the ability of migrants to access social housing. The guidance “will ensure councils require people to have lived in the area for at least 2 years” and will “encourage them to set other local rules for testing a resident’s connection to the area” which may include attending a local school or having family living in the local area. (Click here for more information.)

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