Secure Tenancy

October 6th, 2017 by James Goudie QC in Housing

The Court of Appeal has held in Harris v Hounslow LBC (2017) EWCA Civ 1476 that a secure tenant was not entitled to a statutory review of the local housing authority’s decision to apply for an anti-social behaviour  possession order, because he had applied outside the 7 day period laid down by Section 85ZA(2) of the Housing Act 1985.  Nor can the 7 day period be extended or waived.  The purpose of this mandatory ground for possession (the most serious cases of anti-social behaviour) is swifter relief for victims, witnesses and the community. In the public interest speedy relief is of the essence.  Lewison LJ added (para 27) that “the general application of public law principles must not be allowed to undermine the legislative scheme of this mandatory ground of possession”.

 

Homelessness

August 18th, 2017 by James Goudie QC in Housing

Protection from eviction legislation applies when accommodation is occupied “as a dwelling”. When an applicant for homelessness assistance is being housed by a local authority pursuant to its interim housing duty the occupation of the premises provided is not occupation “as a dwelling”. However, as has been held in Dacorum Borough Council v Bugnall (2017) EWHC 2094 (QB), once the (same) accommodation comes to be provided (even temporarily) in fulfilment of the full housing duty it becomes occupied “as a dwelling”.

 

 

Housing

July 31st, 2017 by James Goudie QC in Housing

The appeal in Ealing LBC v R (H) (2017) EWCA 1127 concerned the lawfulness of the Council’s housing allocation policy insofar as it set aside a small but not insignificant proportion of letting for working households and model tenants. It had been alleged that the former unjustifiably discriminated, indirectly, against women, the elderly and the disabled, and that the letter discriminated, directly, against non- council tenants. The claim was based on ss 19,29 and 149 of EA 2010, Arts 8 & 14 of ECHR and s 11 of CA 2004. The Court of Appeal allowed the Council’s appeal.

 

 

Intentional Homelessness

July 7th, 2017 by James Goudie QC in Housing

 

The case of Alfonso-da-Trindade v Hackney LBC (2017) EWCA Civ 942 concerns becoming becoming homeless intentionally and Section 191 of the Housing Act 1996, which provides (emphasis added):-

“(1)     A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy. Read more »

 

Allocation

June 1st, 2017 by James Goudie QC in Housing

In R (C) v Islington LBC (2017) EWHC 1288 (Admin) Jeremy Baker J has held that the Council’s local lettings policy is lawful. It is not unlawfully discriminatory contrary to the ECHR (paragraphs 64-94) : it is proportionate and justified. For the same reason it is not contrary to Section 29 of the Equality Act 2010 (paragraphs 95-98). The Council had complied with the PSED when it introduced the policy (paragraphs 99-105). Introducing and maintaining the policy was not in breach of Section 11 of the Children Act 2004 (paragraphs 106-115).

 

Improvement notices

May 22nd, 2017 by James Goudie QC in Housing

Wood v Kingston Upon Hull City Council (2017) EWCA Civ 364 concerns an Improvement Notice served by a local housing authority under the Housing Act 2004 (“the 2004 Act”). The appeal to the Court of Appeal, by the authority, arose in the following way.

Mr Wood is the freehold owner of a first floor flat (Flat 4) at 141 Princes Avenue in Hull. Ms Peacock is the freehold owner of the ground floor flat immediately below. The vertical boundary between the two flats is at the mid-point of the joists between the ceiling of the ground floor flat and the floor of Flat 4. Hull City Council took the view that there was inadequate fire resistance between the two flats, and served notice under Section 12 of the 2004 Act on both Mr Wood and Ms Peacock requiring remedial works to be carried out. The notice stated that the ground floor flat had a section of original lath and plaster ceiling which was in very poor condition with some sections missing. That lack of material separation increased the likelihood of unchecked spread of fire into Flat 4 from the ground floor flat in the event of a fire occurring within the ground floor flat. The notice specified two alternative schemes: Read more »

 

Homelessness

May 2nd, 2017 by James Goudie QC in Housing

On 27 April 2017 the Homelessness Reduction Act 2017 received the Royal Assent.

It makes changes to the current homelessness legislation contained in Part 7 of the Housing Act 1996 (“the 1996 Act”), and to the Homelessness (Suitability of Accommodation) (England) Order 2012. It places duties on local housing authorities to intervene at earlier stages to prevent homelessness and to take reasonable steps to help those who become homeless to secure accommodation. It requires local housing authorities to provide some new homelessness services to all people in their area and expands the categories of people who they have to help to find accommodation.

The Act introduces requirements for local housing authorities to carry out homelessness prevention work with all those who are eligible for help and threatened with homelessness. The Act changes the point at which a person is classed as being threatened with homelessness. The Act requires local housing authorities to carry out an assessment of the applicant’s needs, and set out the steps to be taken by both the local housing authority and the applicant in a written personalised plan. New duties are placed on local housing authorities to take steps to prevent and relieve homelessness by helping any eligible homeless applicant to retain or secure accommodation. A new duty is introduced which will be owed in cases where an applicant has deliberately and unreasonably refused to co-operate with local housing authorities. The Act specifies that specified public authorities refer those who are either homeless or at risk of being homeless to local housing authority housing teams. Provision is also made for certain care leavers, to make it easier for them to show they have a local connection with both the area of the local authority responsible for them and the area in which they lived while in care if that was different.

 

Selective Licensing

April 26th, 2017 by James Goudie QC in Housing

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 »

 

Allocation scheme

April 11th, 2017 by James Goudie QC in Housing

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 »

 

Service Charges: No Double Recovery

April 5th, 2017 by James Goudie QC in Housing

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 »