2013 12 Housing

Friday 31 January 2014

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Spencer v Taylor [2013] EWCA Civ 1600 (Leveson, Macfarlane, and Lewison LJJ): requirements of s21 notice where fixed term tenancy has come to an end. Miss Taylor was the assured shorthold tenant of Mr Spencer. She was granted a six-month fixed term tenancy commencing on 6 February 2006. Upon the expiry of the fixed term the tenancy became weekly periodic, with each rental period beginning on a Monday and ending on the following Sunday. On 18 October 2011 Mr Spencer provided Miss Taylor with a notice in standard form, pursuant to s21 Housing Act 1988, requiring possession of the property. The notice stated that Mr Spencer required possession of the dwelling house “(a) after 01/01/2012” or “(b) at the end of your period of tenancy which will end next after the expiration of two months from the service upon you of this notice.” The notes on the reverse of the notice stated that "the date specified in the notice must be the last day of a period of the tenancy, at least two months after the notice is given, no sooner than the earliest day on which the tenancy could ordinarily be brought to an end by a notice to quit.” The 01/01/12 was a Saturday and so was not the last day of a period of the tenancy. Mr Taylor brought possession proceedings. The judge at first instance held that the notice was valid and made a possession order. The Court of Appeal upheld the decision. The lead judgment was given by Lewison LJ. Though the 01/01/12 was not the last day of a period of the tenancy the saving clause (i.e. clause (b)) ensured that the notice met the requirements of s21(4) Housing Act 1988 and was valid. The ambiguity in the notice – the fact that clause (a) and clause (b) provided different dates – was not fatal. Applying that approach governing the validity of Notices to Quit set down in Mannai Investment Co. Limited v Eagle Star Life Assurance Co. Limited[1997] AC 749 the “reasonable recipient” would have known that the date calculated using clause (b) was the correct date since it corresponded with the notes on the back of the notice. In addition, and by way of alternative, the notice also complied with the requirements of s21(1) Housing Act 1988, which unlike s21(4) does not require a notice to expire on any particular day. Section 21(1), the Court held, is not restricted to fixed-term tenancies. The section may also be relied on in respect of a periodic tenancy which has arisen at the end of a fixed term tenancy. Note: this is an important and controversial decision which runs counter to the generally understood position that s21(1) may not be relied on in relation to periodic tenancies. The effect of the decision is that s21(4) will now only be relevant in relation to tenancies which have been periodic since the outset. This reduces the procedural protection available to a large proportion of assured shorthold tenants. Click here for the judgment.

Durrant v Chief Constable of Avon and Somerset Constabulary [2013] EWCA Civ 1624 (Richards and Lewison LJJ and Coleridge J): relief from sanctions under CPR 3.9. Not a housing case but another important case on civil procedure which housing practitioners should be aware of. The police in this case had failed to comply with a direction set by the court for the exchange of witness statements. The directions provided that failure to meet the deadline would mean that the party could not rely on the witness evidence in question at trial. The Court of Appeal applied the robust approach to CPR 3.9 advocated in Mitchell v News Group Newspapers Limited[2013] EWCA Civ 1537 and refused to grant relief from sanctions. The failure to comply with the directions was not trivial and the application for relief had not been made promptly. Click here for the judgment.

R (HC) v Secretary of State for Work and Pensions [2013] EWHC 3874 (Admin) (Supperstone J): eligibility of Zambrano carers for assistance under the Housing Act 1996. HC, an Algerian national, contended that she had a right to reside in the UK pursuant to the decision in Ruiz Zambrano v Office National de L'Emploi[2012] QB 265 on the footing that she was the mother to two dependent children of British nationality and her removal from the country would deprive the children of the genuine enjoyment of their rights as EU citizens. Pursuant to the changes made by the Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012, HC therefore was precluded from assistance under the Housing Act 1996 as a result of her immigration status. She applied for judicial review, challenging the legality of the regulations, together with other regulations denying her access to mainstream welfare benefits. Supperstone J dismissed the application. The regulations did not result in unlawful discrimination and met the requirements of with the Charter of Fundamental Rights of the European Union. Further, the Defendant had complied with the Public Sector Equality Duty in enacting the regulations. Click here for the judgment.

Viackiene v Tower Hamlets LBC (CA) (Unreported) 11 December 2013 (Hallett and Sullivan LJJ and Arnold J): a decision on intentional homelessness. Ms Viackiene was a joint assured shorthold tenant. The other tenant lost his job, stopped contributing toward the rent and the pair fell into arrears. The landlord offered to assist Ms Viackiene in finding a more suitable co-tenant. She declined and in due course was evicted owing to the rent arrears. She applied to Tower Hamlets LBC as homeless. Tower Hamlets determined that she had made herself homeless intentionally. The decision was upheld on review and on appeal. The Court of Appeal dismissed a second appeal. It was open to the reviewing officer to conclude that Ms Viackiene’s homelessness had been caused by her failure to take up the landlord’s offer. Judgment not yet available online. Based on Lawtel note.

Birmingham City Council v Balog [2013] EWCA Civ 1582 (Sullivan, Kitchin and Briggs LJJ): a decision on intentional homelessness. Mr Balog was an assured shorthold tenant. He left his property and, together with his children, applied to Birmingham as homeless. He asserted that the property had been in a state of disrepair and that the tenancy had come to an end and he had been asked to leave. This was not accepted by Birmingham who relying, among other things, on rent arrears in excess of £700, concluded that he had made himself homeless intentionally. The decision was upheld on review. The issue of affordability was considered by the reviewing officer who did not refer specifically to the relevant paragraphs of the code of guidance, but did consider in broad terms whether Mr Balog was able to afford the rent. The decision was quashed on appeal by Miss Recorder McNeill QC. The reviewing officer, she concluded, had failed to have regard to the relevant passages of the code of guidance to the effect that property should not be taken to be affordable if the applicant would be left with a residual income less than JSA. The Court of Appeal allowed Birmingham’s appeal. Adopting a benevolent approach to the interpretation of the review decision, the reviewing officer had taken into account the relevant parts of the code. Click here for the judgment.

Swan Housing Association Limited v Gill [2013] EWCA Civ 1566 (Richards and Lewison LJJ and Coleridge J): disability discrimination as a defence to injunction proceedings. Mr Gill was the assured tenant of Swan Housing Association (Swan). Swan applied for an ASBI under s153A Housing Act 1996 against Mr Gill. At first instance DJ Dudley refused the application. Reference had been made in Mr Gill’s evidence to his having Aspergers Syndrome. Based on this the judge concluded that to grant the injunction would amount to unlawful disability discrimination contrary to ss15 and 35 Equality Act 2010 and that Swan had failed to have regard to the public sector equality duty under s149 Equality Act 2010. The Court of Appeal allowed Swan’s appeal. It was conceded on behalf of Mr Gill that a finding of disability discrimination was not open to the judge since there was no evidence that he was disabled or that the acts complained of arose from any disability. In relation to the other ground of the judge’s decision, a “mere likelihood” of a disability was not sufficient to engage the public sector equality duty. Click here for the judgment.

Tachie v Welwyn Hatfield BC [2013] EWHC 3972 (Jay J): contracting out of homelessness functions. Welwyn Hatfield BC had contracted out its functions under Part VII Housing Act 1996 to an arms-length management organisation. The appellant sought to appeal against an adverse homeless decision under s204 Housing Act 1996 on the footing that Welwyn Hatfield had acted ultra vires its powers in contracting out its functions. The appeal was transferred to the High Court. Jay J dismissed the appeal. Though section 204 was broad enough to encompass such a challenge, on the facts of the case, Welwyn Hatfield had not acted unlawfully. In reaching this conclusion the judge concluded that the decision making process under Part VII – which necessitates housing officers making choices and evaluative judgments subject to review on Wednesbury principles only – could not be characterised as “discretionary decision making”. Click here for the judgment.

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