2015 03 Housing

Wednesday 1 April 2015

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Akerman-Livingston v Aster Communities Limited [2015] UKSC 15 (Lord Neuberger, Lady Hale, Lord Clarke, Lord Wilson and Lord Hughes): the threshold to apply in considering a discrimination defence in possession proceedings. The Appellant, Mr Akerman-Livingston, had been diagnosed with Prolonged Duress Stress Disorder or Complex Post Traumatic Stress Disorder as a result of childhood abuse. As a result of his mental health, he fell within the definition of a disabled person within s6 Equality Act 2010. He became homeless in 2010 and applied to his local housing authority for assistance. In due course it was accepted that he was owed the main housing duty under s193(2) Housing Act 1996, and in performance of this duty, the local housing authority placed him in accommodation provided by the Respondent, Aster Communities Limited, under a non-secure tenancy. Mr Akerman-Livingston was made a number of offers of accommodation which he rejected. As a result the local housing authority wrote to him indicating that the s193(2) duty been discharged. Following this Aster Communities served a Notice to Quit on him and issued possession proceedings. At the first appearance, proceedings were adjourned to allow Mr Akerman-Livingston to seek representation. At the second hearing, Mr Akerman-Livingston sought to defend proceedings relying on Art.8 ECHR and the Equality Act 2010. In respect of the latter limb of the defence he sought to argue that his eviction would be in breach of ss15 and 35 Equality Act 2010, on the basis that his refusal of the offers of accommodation was the result of his mental health problems, and so he was being treated unfavourably as a result of a matter arising in consequence of his disability. The matter was then adjourned again for a longer, contested hearing. Following a number of adjournments, and a further homeless application, the possession proceedings came before HHJ Denyer QC at the Bristol County Court, for consideration of whether Mr Akerman-Livingston could rely on the Art.8 ECHR and the Equality Act 2010 defence. The judge took the view that the same threshold should be applied in determining whether both limbs of the defence should proceed, and that neither limb was seriously arguable. Mr Akerman-Livingston appealed arguing that a discrimination defence should not be treated in the same way as an Art.8 defence. The judge’s decision was upheld by the High Court and the Court of Appeal. The Supreme Court dismissed a further appeal by Mr Akerman-Livingston on the facts, while accepting that the point of law on which he relied was correct and that the approach of the lower courts was wrong. There are a number of important differences, the Court said, between the protection offered by Art.8 ECHR and s15 Equality Act 2010. The right to equal treatment protected by the Equality Act 2010 provides an additional protection for occupiers over and above Art.8. The traditional structured approach to proportionality should be applied in the context of an Equality Act 2010 defence: discrimination arising from a disability would not be justified where there were lesser measures available to a landlord to fulfil his or her aim and the vindication of his or her property rights will not be automatically taken to trump the right of a disabled person to have due allowance made for the consequences of his or her disability. And, unlike Art.8 cases, where disability is in issue, the burden of proof lies on the landlord to establish that the treatment of the disabled person is justified under the Equality Act 2010. As such the same approach should not be taken in considering Art.8 ECHR and Equality Act 2010 defences. In respect of discrimination defences the court should ask whether the defence is “genuinely disputed on grounds that appear to be substantial”, CPR 55.8(2) and not whether the defence is “seriously arguable”. Where such a defence is raised the court should adopt a structured approach considering: (i) the importance of the landlord’s aims or objectives is recovering possession; (ii) whether there is a rational connection between those aims and the eviction; (iii) whether those aims might be achieved by less intrusive measures; and (iv) whether the eviction is proportionate in the wider sense i.e. whether eviction strikes a fair balance between the need to accomplish the landlord’s objectives and the disadvantages caused to the disabled person. These cases will not be suitable for summary disposal except where the landlord can establish: (i) that the defendant has no prospect of establishing that he or she is under a disability; (ii) it is plain that possession is not being sought because of something arising in consequence of the disability; or (iii) the claim and its enforcement are plainly a proportionate means of achieving a legitimate aim. Such cases are likely to be rare as they will normally entail disputes of fact requiring disclosure and the testing of expert evidence. Click here for the judgment.

The Allocation of Housing (Qualification Criteria for Right to Move) (England) Regulations 2015: regulations providing that where a local housing authority includes a local connection requirement as a qualifying criteria within its allocation scheme, that requirement should not be applied to existing tenants of social housing seeking a transfer where: (i) they have a reasonable preference because of a need to move to the local authority’s district to avoid hardship; and (ii) the need to move arises either because the tenant works or has been offered work in the district of the authority and has a genuine intention to take up the offer (except where the work is voluntary or short-term in nature). In force 20 April 2015. Click here for the regulations.

Uddin v Islington LBC 10 March 2015, CA (Pitchford, Lewison and Ryder LJJ): liability under s11 Landlord and Tenant Act 1985 for rising damp. The Claimants, Mr and Mrs Uddin, were awarded damages at first instance for the Defendant, Islington LBC’s, failure to remedy rising damp arising from the lack of a damp proof course (DPC) within their home. Islington appealed disputing liability. The Court of Appeal dismissed the appeal. Where rising damp was caused by the lack of a DPC, the first point to consider was whether the damp had resulted in disrepair: the mere existence of damp was not disrepair. Where the damp had resulted in damage or deterioration, such as defective plaster, then the landlord would be liable to remedy that damage, and that obligation might include installing a DPC to prevent the damage recurring. To that extent an inherent defect, such as a lack of a DPC, could give rise to liability. In view of this, though there were gaps in the evidence, the judge had been entitled to make the findings he did. Judgment not yet available on line. Based on Lawtel note (£).

Najim v Enfield LBC [2015] EWCA Civ 319 (Longmore, Kitchin and Floyd LJJ): whether mistaken belief as to future event precludes finding of intentional homelessness. The Appellant, Mrs Najim, held an assured shorthold tenancy of a property in North London, together with her husband. The couple were evicted from the property in April 2011 following possession proceedings brought on the basis of a notice under s21 Housing Act 1988. The landlady’s stated reasons for seeking possession, given in a letter in April 2010, were that the Najims had withheld rent in respect of works at the property which had not been agreed, that they had removed furniture, and that she wanted to return to the property. The rent that had been withheld totalled £715.94 which had been spent instead on a new washing machine, fencing in the garden and tiles for the bathroom.In the event, the landlady did not move back into the property following the eviction and instead, re-let it to new tenants. The Najims applied to the Respondent, Enfield LBC, as homeless but were found to have made themselves homeless intentionally. This decision was upheld on review but quashed on Mrs Najim’s appeal. The judge at first instance found first that Enfield should not have taken into account that the landlady had re-let the property. If this factor were left out of account the reviewing officer might have concluded that the landlady’s wish to return to the property was the operative cause of the Najim’s homelessness. And second, that the reviewing officer had failed to consider whether the eviction was the reasonable consequence of the withholding of rent c.f. paragraph 11.11 of the Code of Guidance. The Court of Appeal allowed Enfield’s appeal. Faced with a number of possible causes of homelessness it was for the reviewing officer to determine the operative cause. The reviewing officer was not restricted to considering the reasons given by the landlady in the 2010 letter and was entitled to consider developments between the date of the letter and the eviction. As such, the reviewing officer was entitled to conclude that by the time of the eviction, the landlady no longer wished to return to the property and that the failure to pay rent was the operative cause underpinning her actions. It was implicit in the review decision that the reviewing officer had considered that the eviction was a reasonable result of the Najim’s default and she had been entitled to reach that conclusion. And the fact that the Najims did not appreciate that withholding a comparatively small amount of rent might lead to homelessness did not mean that they had acted in good faith. To have acted in good faith an occupier should have been unaware of a relevant fact at the time of the deliberate act which led to his or her homelessness. The relevant fact must be a fact existing at that time, rather than a future event which may or may not occur or a misplaced belief as to the likelihood of some future event. Judgement not yet on Bailii. Click here to access via Lawtel (£).

R (MT) v Oxford City Council [2015] EWHC 795 (Admin) (HHJ Sycamore sitting as a Judge of the High Court Judge): The Claimant, MT, had a learning disability meaning that he was unable to meet his personal care needs. In October 2011 he applied to Oxford, the Defendant, as homeless. His application under Part VII, Housing Act 1996 was refused because he lacked the capacity to make such an application. A referral was made by the Defendant to the County Council for accommodation under s21 National Assistance Act 1948. In October 2013, MT, through a litigation friend, sought judicial review of the refusal to provide assistance under Part VII, Housing Act 1996. HHJ Sycamore dismissed his application. The decision of the House of Lords in R v Oldham Metropolitan Borough Council [1993] AC 509 was binding: a homeless applicant must have the capacity to accept or reject an offer of accommodation to qualify under the Act. Accommodation would notionally be available to MT under s21 National Assistance Act 1948. The fact that MT might qualify for accommodation under this statute but not under Part VII, Housing Act 1996 owing to the fact that he lacked capacity did constitute discrimination contrary to Art.14 ECHR. Judgement not yet on Bailii. Click here to access via Lawtel (£).

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