2014 11 Housing

Monday 1 December 2014

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R (Jakimaviciute) v Hammersmith & Fulham LBC [2014] EWCA Civ 1438 (Richards, Tomlinson and Bean LJJ): whether power to exclude classes from an allocation scheme subject to the duty to give reasonable preference. Pursuant to the changes to the Housing Act 1996, Part 6, made by the Localism Act 2011, Hammersmith and Fulham LBC adopted a new allocation scheme in April 2013, ostensibly exercising the power under s160ZA(7) Housing Act 1996 to exclude from the scheme homeless applicants placed in long term, suitable, temporary accommodation under the main homelessness duty. Ms Jakimaviciute, who fell within this class, challenged the scheme by way of judicial review. Permission was refused in the High Court, but granted by the Court of Appeal, who retained the case. The Court found the scheme to be unlawful. The power under s160ZA(7) to designate classes of people who qualify for an allocation is subject to the duty under s166A(3) to secure reasonable preference to the five statutory categories set out in that section, including (under s166A(3)) ‘people who are homeless (within the meaning of Part 7’. The disqualification in Hammersmith and Fulham’s scheme was fundamentally at odds with this requirement. No reasonable authority could have concluded that the criterion, which excluded 87% of homeless applicants, gave this group reasonable preference. Click here for the judgment.

Sims v Dacorum Borough Council [2014] UKSC 63 (Lord Neuberger, Lady Hale, Lord Clarke, Lord Wilson, Lord Carnwath, Lord Toulson, Lord Hodge): whether service of a notice to quit by one of a pair of joint tenants infringed the other’s ECHR rights. Mr and Mrs Sims were the secure joint tenants of Dacorum BC. It was an express term of their tenancy agreement that either joint tenant could bring the tenancy to an end by giving four weeks notice in writing. This reflected the common law rule affirmed by the House of Lords in Hammersmith and Fulham LBC v Monk [1992] 1 A.C. 478, to the effect that the service of a notice to quit by one joint tenant is sufficient to determine a periodic joint residential tenancy. Mr and Mrs Sim’s marriage broke down. Mrs Sims left the property and later, unilaterally, served a notice to quit on Dacorum, thereby bringing the joint tenancy to an end. Subsequently Dacorum obtained a possession order. Mr Sims appealed against the possession order. The Court of Appeal dismissed his appeal. The Supreme Court dismissed a further appeal. In view of the express contractual term which Mr Sims had voluntarily signed up to the service of the notice and the making of a possession order did not infringe his rights under Art.8 and Protocol 1, Art.1 ECHR. Click here for judgment.

R (CN) v Lewisham LBC and R (ZH) v Newham LBC [2014] UKSC 62 (Lord Neuberger, Lady Hale, Lord Clarke, Lord Wilson, Lord Carnwath, Lord Toulson, Lord Hodge): an unsuccessful challenge to the decisions in Denousse v Newham LBC [2006] EWCA Civ 547, [2006] QB 831 and Mohammed v Manek and Kensington and Chelsea LBC (1995) 27 HLR 439. In Manek the Court of Appeal had held that s3 Protection from Eviction Act 1977 (the prohibition on eviction without due process of law) did not apply to temporary accommodation provided under the homelessness provisions contained in Housing Act 1985 (which preceded the analogous provisions under the Housing Act 1996). Such accommodation was not “occupied as a dwelling”, as it was only provided pursuant to a temporary agreement while inquiries were made into the individual’s homeless application. Therefore it was not necessary for a Local Authority to obtain a court order in order to lawfully evict an applicant from such accommodation. In Desnousse, the Court of Appeal held that the decision in Manek applied equally to temporary accommodation provided under the Housing Act 1996. In the instant case, CN was eight years old. His mother, JN, made a homeless application to Lewisham. They were placed in temporary accommodation under s188(1) Housing Act 1996 while inquiries were made. In due course Lewisham decided that they were in priority need but had made themselves homeless intentionally. They were given 28 days in which to leave the accommodation. Following several extensions of the accommodation, judicial review proceedings were issued on behalf of CN seeking an order that Lewisham should continue to provide accommodation until a possession order had been obtained. Permission was refused by the High Court but granted by the Court of Appeal. ZH’s case involved similar facts. The Court of Appeal dismissed the Appeal. On appeal to the Supreme Court it was argued on behalf of the Claimants that Desnousse and Manek could no longer be regarded as good law following the decisions in Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104 and Hounslow LBC v Powell [2011] UKSC 8, [2011] 2 AC 186, in particular the proposition that “any person at risk of being dispossessed of his home should in principle have the right to raise the question of the proportionality of the measure and to have it determined by an independent tribunal in the light of Art.8”, Pinnock [45]. To be read compatibly with Art.8, it was argued, s3 PEA 1977 should be interpreted so as to encompass temporary accommodation. The Supreme Court held (Lady Hale and Lord Neuberger dissenting) that Desnousse and Manek remain good law; s3 Protection from Eviction Act 1977 does not apply to temporary accommodation provided under s188, s190(2), s200(1) or s204(4) Housing Act 1996. Such accommodation is not “occupied as a dwelling”. It followed that the notice requirements under s5 Protection from Eviction Act 1977 also do not apply. The procedural requirements of Art.8 did not require a different intepretation. Any Art.8 challenge could be raised by way of an appeal under s204 or through judicial review proceedings. Click here for the judgment.

Telchadder v Wickland Holdings Limited [2014] UKSC 57 (Lady Hale, Lord Wilson, Lord Reed, Lord Toulson and Lord Carnwath): notice requirements under Mobile Homes Act 1983. In 2006, Wickland Holdings, the Claimant, granted Mr Telchadder, the Defendant, a licence to site his mobile home on its caravan park. The licence agreement was subject to the Mobile Homes Act 1983 and incorporated paragraph 4, Schedule 1 of that Act which provides that the owner is entitled to terminate the agreement if the court: (a) is satisfied that the occupier has breached a term of the agreement and, after service of a notice to remedy the breach, has not complied with the notice within a reasonable time; and (b) considers it reasonable for the agreement to be terminated. It was a term of the agreement that Mr Telchadder would comply with the rules of the caravan park and not cause nuisance or annoyance to other residents. Wickland sent Mr Telchadder a number of letters complaining of anti-social behavior in breach of the agreement. In particular a letter of 15 August 2006 referred to Mr Telchadder dressing up in military clothing and making unwanted approaches to other residents, intimidating them. There were no further incidences of nuisance behavior until July 2009, following which, in September 2009, possession proceedings were issued. There were further incidences of nuisance behavior in the intervening period between the issue of proceedings and the trial which took place in 2011. The trial judge held that Mr Telchadder has breached the licence agreement, that the letter of 15 August 2006 constituted a notice under the Act, that Mr Telchadder had failed to comply with the notice within a reasonable time and that it was reasonable to make a possession order, taking into account that Mr Telchadder had mental health problems and learning difficulties amounting to a disability, and that he might have to sell his mobile home as a consequence. The Court of Appeal dismissed Mr Telchadder’s appeal. The Supreme Court, unanimously, allowed a further appeal. The majority (Lord Wilson, Lady Hale and Lord Toulson) held that a notice was only required in instances where the breach in question was capable of being remedied. An example of a breach incapable of remedy might be the use of rented premises as a brothel (as in Rugby School (Governors) v Tannahill [1935] I QB 87). Whether the breach of a negative convenant, such as an obligation to refrain from nuisance behaviour, is capable of being remedied will depend on whether the mischief resulting from the breach can be redressed. This is a value judgment dependant of the facts of the given case. Mr Telchadder’s actions were not so serious as to be irremediable, and were capable of being remedied by his committing no further acts of nuisance behaviour for a reasonable period of time. In this context the word ‘within a reasonable period of time’ in paragraph 4 should be read as ‘for’.Where an occupier complies with a notice for a reasonable period of time, the notice will cease to have any effect and the occupier will ‘rid himself of its overhanging effects’. On the facts of the case, Mr Telchadder had complied with the notice of 15 August 2006 for a reasonable period of time and had thereby remedied his breach. Click here for the judgment.

Lawal v Circle 33 Housing Trust [2014] EWCA Civ 1514 (Sir Terence Etherton, Patten and Gloster LJJ): an unusual case involving art.8 arguments at the warrant suspension stage, the power to reopen an appeal and the compatibility of s89 Housing Act 1980 with Art.8. Mr Lawal, the First Defendant, was 76 years old. He was the tenant of Circle 33, the Claimant. He was originally granted the tenancy in 1976 and his family had lived at the property ever since, though Mr Lawal himself had spent considerable periods of time away in Nigeria. On 25 May 2011, Circle 33 served a notice to quit, expiring on 26 June 2011, on the basis that Mr Lawal was not occupying the property as his only or principal home and had thereby lost his security of tenure. Possession proceedings were issued in January 2012. Following a three day trial, at which Mr Lawal and his daughter (the Second Defendant) represented themselves, HHJ May found that Mr Lawal had failed to occupy the property as his only or principal home and that the tenancy had been validly terminated. She duly made a possession order. The Second Defendant made reference to Art.8 ECHR when making submissions to the judge but the Defendants’ Art.8 right were not addressed in the judgment. The Defendants sought to appeal on the basis that Art.8 had not been considered. Arden LJ refused permission at an oral hearing but suggested that the Defendants should investigate the possibility of making an application to the county court to vary or rescind the possession order, at which point Art.8 should be considered. The Defendants instructed solicitors and duly made an application to set aside the possession order and suspend the warrant which had subsequently been obtained. HHJ Mitchell dismissed both applications. In relation to the warrant he held that by s89 Housing Act 1980, the court lacked the jurisdiction to postpone possession for longer than six weeks which had, by that time, elapsed. He went on to consider Art.8 in any event finding that on the facts, possession was not disproportionate. The Defendants appealed against this decision arguing that it was a misdirection to find that the court lacked the jurisdiction to suspend. It was conceded on behalf of the Defendants that this ground must fail in light of s89 Housing Act 1980 and the comments of the Supreme Court in Hounslow LBC v Powell [2011] UKSC 8, [2011] 2 AC 186 to the effect that s89 could not be ‘read down’ by virtue of s3(1) Human Rights Act to allow possession to be postponed for longer than six weeks. The point was raised in order that a declaration of incompatibility in relation to s89 might subsequently be sought from the Supreme Court.In addition, the Defendants sought to re-open the appeal against HHJ May’s order under CPR 52.17, in order to circumvent the s89 Housing Act 1980 limitation. The Court of Appeal accepted that the Defendants’ Art.8 rights should have been considered at trial and that Arden LJ was probably wrong in refusing to grant permission to appeal against HHJ May’s order. However, the stringent criteria in CPR 52.17 were not satisfied meaning that the appeal would not be reopened. The Court went on to reject an argument raised by the Claimant that it was an abuse of process to seek to raise Art.8 at the warrant stage, while reiterating the point made in JL v Secretary of State for Defence [2013] EWCA Civ 449, [2013] PTSR 1014that the cases in which it would be permissible to do so were limited. Jan Luba QC and Catherine O’Donnell appeared for the Defendant. Click here for the judgment.

Cutler v Barnet LBC (QBD) 31 October 2014 (Supperstone J): failure to consider an oral application for relief from sanctions in possession proceedings. The Defendant was the secure tenant of the Claimant. The Claimant instituted possession proceedings asserting that the Defendant had ceased occupying the property as her only or principal home. During the course of proceedings the Defendant failed to comply with an ‘unless order’ in relation to disclosure, and at a subsequent hearing her claim was struck out. An oral application was duly made at the hearing for relief from sanctions. HHJ Mitchell refused to consider the application, finding that he lacked the jurisdiction to do so since a formal application notice had not been filed. The High Court allowed the Defendant’s appeal. The court had the jurisdiction under CPR 23 to consider an application for relief from sanctions which had not been made formally in writing. The failure to consider the application, debarring the Defendant from defending the possession claim, amounted to a breach of Art.6 ECHR. Alex Grigg appeared for the Defendant.Transcript not yet online. Based on Lawtel note.

Greenwich LBC v Tuitt (CA) 25 November 2011 Ex tempore (Treacy, McCombe, and Vos LJJ): an anti-social behavior case. The Defendant, Ms Tuitt, was the secure tenant of Greenwich, the Claimant. Greenwich instituted possession proceedings relying on allegations of nuisance behaviour perpetrated by the Defendant’s son spanning several years, including criminal damage and assault. The judge at first instance found that the allegations of nuisance behaviour were made out and proceeded, with reference to s85A Housing Act 1985, to make an outright possession order. The Court of Appeal dismissed the Defendant’s appeal. The conclusion was one which was open to the judge on the facts. In particular she had taken into account that the misconduct was not directly attributable to the Defendant. There had been no error of law. Transcript not yet online. Based on Lawtel note.

Mortgage and landlord possession statistics: the latest DCLG possession statistics were published on 13 November 2014. From 2002-2008, the number of mortgage possession claims in the county courts in England and Wales increased from 62,862 to 142,741. However from 2008-2013 this figure has fallen 62% to 53,659. Contrastingly from 2002-2010 the number of landlord possession claims fell from 194,645 to 134,961, but the figure has since increased by 26% to 170,451 in 2013. The estimated proportion of these latter claims which have progressed to an order, warrant or repossession by county court bailiffs has also increased: the estimated percentage of claims leading to an order, warrant or repossession in 2010 was around 68%, 36% and 21% while, the corresponding figures from the third quarter of 2014 were 72%, 39% and 21%. Click here to access the statistics.

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