2014 08 Housing

Monday 1 September 2014

Share This Page

Email This Page

Aster Communities Limited v Jonathan Akerman-Livingston [2014] EWCA Civ 1081 (Arden, Black and Briggs LJJ): a defence to a possession claim based on the Equality Act 2010 must be “seriously arguable” to proceed beyond the initial hearing. Mr Akerman-Livingstone, the Appellant, was placed in temporary accommodation owned by Aster Communities, pursuant to the main housing duty. Mendip District Council, the local housing authority, made Mr Akerman-Livingstone a number of offers of permanent accommodation. However Mr Akerman-Livingstone was “a very sick man” and was unable to cope with the process. As a consequence he refused the offers. As a result of these refusals Mendip indicated that the main housing duty had come to an end. Aster Communities then brought possession proceedings seeking to evict Mr Akerman-Livingstone. He sought to defend proceedings relying on s15 Equality Act 2010, arguing that the bringing of proceedings amounted to discrimination arising from disability. The judge at first instance held on a summary basis that Mr Akerman-Livingstone’s defence was not “seriously arguable”, and that a trial was not necessary. The judge proceeded to make an outright possession order. Cranston J dismissed Mr Akerman-Livingstone’s appeal. The Court of Appeal dismissed a second appeal. By analogy with those cases where an occupier seeks to defend possession relying on Art.8 ECHR, an occupier will only be permitted to rely on an Equality Act 2010 defence where that defence is “seriously arguable”. If the defence does not meet this high threshold, the court may decide the matter summarily and a trial will not be required. Note: the Supreme Court, exceptionally, granted Mr Akerman-Livingstone permission to appeal and a stay of execution, the day after judgement was handed down in this case. The appeal will be heard in November. Jan Luba QC appeared for Mr Akerman-Livingstone. Click here for the Judgement.

Kanu v Southwark LBC [2014] EWCA Civ 1085 (Aikens, Kitchin and Underhill LJJ): a priority need homelessness decision. Mr Kanu, the Respondent, suffered from a number of health conditions, including hepatitis B, back pain affecting his mobility, high blood pressure, haemorrhoids and a mental disorder which involved suicidal ideations. He applied to Southwark LBC as homeless having been evicted from his previous accommodation, which he had occupied with this wife and adult son, which was required by the landlord for redevelopment. Mr Kanu and his wife were both interviewed by Southwark. In due course a decision was made that Mr Kanu was not vulnerable within the meaning of s189(1)(c) Housing Act 1996, and so did not have a priority need. The decision concluded that Mr Kanu’s various health problems were well controlled by medication and through the assistance of his wife and son. This decision was upheld of review but quashed on appeal as, among other reasons, the reviewing officer had failed to have regard to the Public Sector Equality Duty under s149 Equality Act 2010. A fresh review was undertaken which included consideration of further medical evidence indicating the Mr Kanu suffered from major depression and psychotic symptoms, and expressing the view that, in isolation, Mr Kanu met the Pereira test, ((1998) 31 HLR 317). Again, the reviewing officer upheld the finding that Mr Kanu did not have a priority need. Though Mr Kanu might be vulnerable as an individual applicant, the availability of support from his wife and son meant that the Pereira test was not satisfied. With regard to s149 Equality Act 2010, the decision accepted that Mr Kanu may be disabled and indicated that inquiries had been made into his medical conditions as a consequence, but that s149 did not override the underlying decision that he was not vulnerable. The decision was quashed on appeal. The Court of Appeal allowed Southwark’s appeal. The reviewing officer had given adequate consideration to whether Mr Kanu’s support network would remain available if he was street homeless, pursuant to Hotak v Southwark LBC [2013] EWCA 515. Further, in cases of disability, s149 Equality Act 2010 does not compel a local housing authority to do anything over and above that which is required by s189(1)(c) Housing Act 1996. Nor can it give rise to a finding of vulnerability in circumstances where the statutory criteria are not met. Click here for the judgment.

Bank of Scotland v Rea [2014] NI Master 11 (Master Ellison): a decision of the High Court of Northern Ireland, of application to the practices or mortgage lenders in England and Wales. In a series of joined cases the Defendants, whose homes were being repossessed, sought to challenge the practice of the Bank of Scotland whereby the bank would unilaterally consolidate (i.e. capitalize) the mortgage arrears, thereby increasing the Contractual Monthly Installment (CMI), while simultaneously relying on those arrears for the purposes of possession proceedings. In the words of Master Ellison, by “double-billing” in this way the Bank was “having its cake and eating it”. Master Ellison held the practice to be unlawful as it was inconsistent with s36 Administration of Justice Act 1970 and s8 Administration of Justice Act 1973, unconscionable, and a breach of the implied term of the mortgage contract that the exercise of the discretion to capitalize arrears should not be exercised in a manner so unreasonable that no lender acting reasonably would have so acted. Click here for the judgment.

Homelessness statistics: on 31 July 2014 the Department of Communities and Local Government released revised homelessness statistics showing that as of 31 March 2014, 58,440 homeless households had been placed in temporary accommodation, a 6% increase on the same date in 2013. Of these, 440 were households with children who had been placed in B&B accommodation for more than the statutory limit of six weeks: a decrease of 42% since the same date in 2013. Click here for the statistics.

We are top ranked by independent legal directories and consistently win awards

+ View more awards