2014 10 Housing

Saturday 1 November 2014

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Nzolameso v Westminster CC [2014] EWCA Civ 1383 (Moore-Bick, Black and Vos LJJ): circumstances in which a local authority may place a homeless applicant outside of their district. Ms Nzolameso lived in a four-bedroom house in Westminster with her five children. The family had lived in the area for over four years, their support network was based in the locality and the children attended school there. Following the introduction of the ‘benefit cap’ in 2012 Ms Nzolameso became unable to afford the rent and applied to Westminster CC as homeless. Westminster accepted that it owed Ms Nzolameso the main housing duty and made her an offer of temporary accommodation in Bletchley near Milton Keynes. Ms Nzolameso refused and Westminster made the decision that, having refused an offer of suitable accommodation, the duties owed to her had come to an end. The decision was upheld on review and on appeal. On a second appeal to the Court of Appeal it was argued on behalf of Ms Nzolameso that s208 Housing Act 1996 required a local authority to provide an applicant with accommodation within its own district in so far as reasonably practicable, and that this required the local authority to check what accommodation was available within the area at the time that the offer was made. Broader considerations such as the financial pressures on the local authority, it was said, were not relevant to this question. And there was no evidential basis in the instant case for a finding that it was not reasonably practicable to provide accommodation in the area. The Court of Appeal rejected these arguments. In deciding whether it was reasonably practicable to accommodate Ms Nzolameso in the area, Westminster was entitled to have regard to the financial and administrative pressures on its resources, the general shortage of housing in the area and the demands likely to be made on it. Requiring a local authority to investigate the availability of suitable accommodation within the area and in neighbouring areas at the time of the offer would amount to an unreasonable and disproportionate burden. What is reasonably practicable within the meaning of s208 is a matter for the local authority subject to review on Wednesbury grounds. While the court should be astute to ensure that local authorities give proper consideration to their duty under s208, the reviewing officer in this instance would have been aware of the resources available to Westminster and did not need to describe them in detail in the decision letter. Jan Luba QC appeared for Ms Nzolameso. Click here for the Judgement.

Scott v Southern Pacific [2014] UKSC 52 (Lady Hale, Lord Wilson, Lord Sumption, Lord Reed and Lord Collins): whether interest of former home owner in sale and rent back transaction was an overriding interest in context of Land Registration Act 2002, providing defence to possession proceedings by mortgage lender. The case involved the relatively recent trend of ‘sale and rent back’ transactions. The Financial Services Authority (as it was) intervened in this market by way of regulation in 2009 and such transactions are now very rare but from around 2008 onward, in the region of 50,000 transactions took place. The transactions would generally involve a firm buying a property from a home owner in financial difficulty at a discounted price and renting the property back to them, typically under a 6-12 month tenancy, although the former home owners were often told that they would be able to stay for years. The purchases were often financed by mortgages secured against the properties and in a number of cases the purchasers defaulted on the mortgage leading to possession proceedings brought by the mortgage lender against the former home owner. Mrs Scott, the Appellant, was one such former home owner. Her appeal was brought by way of a test case. She sought to defend possession proceedings arguing that she had an interest in her former home whose priority was protected by virtue of s29(2)(a)(ii) and paragraph 3, Schedule 2 Land Registration Act 2002. It was argued on her behalf that this interest, to which the mortgage lender was subject, had existed from the moment of the exchange of contracts arising by virtue of the assurances made by the purchaser to the effect that she would be able to stay in the property indefinitely following the purchase. This, it was said, was a proprietary interest and not a mere personal equity. The Supreme Court dismissed her appeal. In order for an unregistered interest to override a registered disposition under the 2002 Act, it must be proprietary in nature. Prior to the acquisition of the property the purchaser was not in a position to grant equitable rights of a proprietary character. Accordingly Mrs Scott had acquired no more than personal rights against the purchaser, which were not binding on the mortgage lender. In view of this finding it was not necessary to decide a secondary point, which had been the principal issue in the courts below: whether the contract for the sale of land should be seen as an indivisible transaction with the conveyance and the mortgage. On this point there was some divergence, with the majority (Lady Hale, Lord Wilson and Lord Reed) finding that the arrangement in this case could not be characterised as an indivisible transaction. Click here for the judgment.

Ajilore v Hackney LBC [2014] EWCA Civ 1273 (Gloster, Underhill and Floyd LJJ): priority need homeless appeal. Mr Ajilore came from a troubled background and suffered from a long term addiction to class A drugs. He applied to Hackney LBC as homeless after his mother obtained an injunction excluding him from the family home. His case was that he was vulnerable on the basis that if he were to become street homeless (a) he was at risk of suicide as a result of depression and (b) he would be at risk of relapsing to cocaine abuse. He was found not to be vulnerable. This decision was upheld on review. The reviewing officer relied on statistics relating to incidences of self-harm and drug use among the homeless population. In doing so, the reviewing officer misinterpreted the former statistics, overstating the prevalence of self-harm among homeless people. The decision was upheld on review and on appeal. The reviewing officer had been entitled to reach an adverse decision on the material before him. Though it was accepted that he had misunderstood the statistics, the error was not central to his decision. Click here for the judgment.

AA v Southwark LBC [2014] EWHC 500 (QB) (HHJ Anthony Thornton QC sitting as a deputy judge of the High Court): an unlawful eviction case with some quite unusual facts. AA was the secure tenant of Southwark LBC. He fell into arrears and in 2006 Southwark obtained a possession order. In 2013, following a series of warrant suspensions over the preceding years, Southwark obtained a final warrant which was executed. AA was evicted and his possessions were taken from his home and destroyed. Despite more than six years having elapsed since the possession order, Southwark did not obtain the permission of the court prior to the issue of the warrant. HHJ Anthony Thornton QC found that the warrant had been obtained by an abuse of process and that the eviction was unlawful. In addition he found that the employees of Southwark who had been involved in the process had conspired to evict AA at all costs and had sought to cover up their actions. This amounted to misfeasance in public office. In the circumstances, the destruction of AA’s possession had been negligent and constituted an unlawful interference with goods. Further there had been a breach of AA’s Art.8 rights. Click here for the judgment.

The Allocation of Housing and Homelessness (Eligibility) (Wales) Regulations 2014 SI 2014/2603 (W.257): new regulations governing eligibility for allocations and homelessness assistance under Housing Act 1996 for applicants in Wales. The regulations are in force from 31 October 2014 and apply to applications made on or after that date. The regulations repeal and replace the Homelessness (Wales) Regulations 2006 and (in part) the Allocation of Housing (Wales) Regulations 2003, becoming the principal legislation governing eligibility in Wales. The effect of the regulations is to bring the rules on eligibility in Wales in line with those in England. Click here for the regulations.

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