Part 3 of the Housing Act 2004 (“the Act”) provides for the selective licensing by local housing authorities of private sector housing in an area which may be as large as the whole of the local housing authority’s district. In general, where an area has been designated as subject to selective licensing no house in that area which has not been licensed may lawfully be occupied under a tenancy or licence. The issue in the appeals to the Upper Tribunal (Lands Chamber) in Waltham Forest LBC v Khan (2017) UKUT 153 (LC) was whether a local housing authority which has designated an area as subject to selective licensing may have regard to the planning status of a house when considering an application for a Part 3 licence. Each appeal concerned converted flats created without the benefit of planning permission by the respondent, Mr Khan, who subsequently applied to the local housing authority for a Part 3 licence for those flats. In each case the London Borough of Waltham Forest granted a licence for a period of 1 year only with the intention that during that period the planning status of the flats should be regularised. In each case on appeal to the First-tier Tribunal (Property Chamber) (“the FTT”) the period of the licence was increased to 5 years on the grounds that the respondents’ compliance with planning requirements was irrelevant to the question of licensing. The local housing authority appealed against the FTT’s decisions. The appeals were allowed.  It was legitimate to have regard to planning status. Read more »

In R (XC) v Southwark LBC [2017] EWHC 736 (Admin) Garnham J held that the housing allocation scheme operated by the Council under Part VI of the Housing Act 1996 as amended is lawful.  The relative priorities included priority for working households who are making a contribution to the local economy.  The scheme is indirectly discriminatory, but the critical question is whether the discrimination is justified as being proportionate to achieving a legitimate objective.  The scheme has the legitimate aim it set out: the creation of sustainable and balanced communities and encouraging residents to make a contribution to the local community.  The priority “stars” have a rational connection to that objective.  The real question was whether the scheme is the least intrusive measure which could be used without unacceptably compromising the objective.  Garnham J concluded that, looking at the scheme as a whole, it was.  It involved discrimination in order to achieve the stated aims, which are authorised by primary legislation and follow statutory guidance.  Garnham J said, at paragraph 90: “Those who fall outside the groups given preference are, inevitably, exposed to a detriment.  But that is integral to any reasonable preference scheme”.  Nonetheless, two things must be shown: that the measure adopted is the least intrusive which could be used without unacceptably compromising the objective; and that a fair balance has been struck between securing the objective and its effect on the rights of the class of which the claimant is a member.  Garnham J said, at paragraph 97: “Here the Council has devised a scheme which seeks to address the needs of all the classes of applicant in its area.  It has made provision for those with priority need, for the homeless and the vulnerable, and for those who need to move on medical or welfare or hardship grounds. It is entitled, consistent with the Secretary of State’s Guidance, to favour those in work and those who volunteer”. Read more »

In Sheffield City Council v Oliver (2007) EWCA Civ 225 the local authority was unsuccessful in its appeal from an Upper Tribunal (Lands Chamber) decision concerning the funding of major refurbishment works to several blocks of flats of which it is the freeholder.  Most of the flats were let as social housing.  Some, including the respondent’s, were let on long leases. A service charge provision required the respondent to pay a reasonable part of the costs incurred by the local authority in repairing and improving the structure and exterior of her block. The cost of the refurbishment project was more than £11 million.  The local authority had received government funding of almost £3 million from a community energy programme.  However, only part of the estate, which included the block in which the respondent’s flat was situated, fell within the qualifying area. The local authority claimed some £4,400 of community funding for work done specifically to her property. However it decided to recoup the costs of the works from her through the service charge without deducting the sum received in funding.  It considered that the funding should be treated as a contribution to the project as a whole and allocated equally among all long leaseholders, not just among those who were strictly eligible.  The Upper Tribunal held that the service charge provision in the respondent’s lease did not permit that course; that each leaseholder had only to contribute to the cost of works on his own block, not to the estate as a whole, and that the respondent should be credited with the amount of funding attributable to her property. It concluded that the cost of the government-funded work had not been “incurred” by the local authority within the meaning of the lease.  The issue was whether, on a proper construction of the lease, the local authority had to give credit for the third-party funding. Read more »