The Housing (Management Orders and Financial Penalties) (Amounts Recovered) (England) Regulations 2018, SI 2018/209, coming into force on 6 April 2018, set out how a local housing authority (“LHA”) must deal with any surplus monies recovered under management orders under Sections 110(5A) and 119(4B) of the Housing Act 2004 (“the 2004 Act”) and any financial penalties received under Section 23(8) of the Housing and Planning Act 2016 (“the 2016 Act”). The Legislative Context is that Section 26 of, and Schedule 3 to, the 2016 Act amend Chapter 1 of Part 4 of the 2004Act to enable interim or final management orders to be made to be made in respect of property let in breach of a banning order made under Section 16 of the 2016 Act. A banning order is an order that may be made by the First-Tier Tribunal where a landlord or property agent has been convicted of a banning order offence specified in Regulations under Section 14(3). The effect of a banning order is to ban a person from letting housing in England and/or engaging in English letting agent or property management work. Under a management order the LHA takes over the management of a property and receives any rent paid by its occupiers in place of the landlord. Under Sections 110 and 119 of the 2004 Act the LHA is entitled to retain monies to cover relevant expenditure related to the management of the property and any compensation payable to third parties. These Regulations make provision about how a LHA must deal with the amount of rent recovered under a management order made under Sections 107(2A) or 113(3A) or (6A) of the 2004 Act (management orders relating to property let in breach of a banning order) after relevant expenditure and any required compensation has been deducted (“the surplus”). The surplus may be retained by the LHA to fund its enforcement functions connected with the private rented sector. If the surplus is not used for that purpose the LHA must pay it into the Consolidated Fund. Read more »

The appeal in Brown v Hyndburn Borough Council (2018) EWCA Civ 242 raised a question of general importance as to the extent of the powers conferred on local housing authorities under Part 3 of the Housing Act 2004 (respectively “Part 3” and “the 2004 Act”) to include as part of the licence required in the case of any house to which that Part applies conditions regulating the management, use or occupation of the house concerned. The issue is one of statutory interpretation of Section 90 of Part 3, and requires review of the statutory architecture and objectives of the 2004 Act, and, in particular, its Parts 1 and 2.

The context in which the question arose was that the Appellant is a private sector landlord acting in conjunction with 346 other property owners who are all members of the Hyndburn Landlord Association, the representative body for landlords in the Hyndburn area founded by the Appellant and other landlords. The Respondent, Hyndburn Borough Council, is the local housing authority for the district. Read more »

CLG has issued Guidance on 22 February 2018 on how local authorities should exercise their homelessness functions in accordance with the Homelessness Reduction Act 2017 from 3 April 2018. Local housing and social services authorities must have regard to this guidance when exercising their functions relating to people who are homeless or at risk of homelessness. This guidance will be in force from 3 April 2018 when the Homelessness Reduction Act comes into force.

Chapter 1 states the purpose of the Code and the relevant equality duties that housing authorities need to consider in carrying out their duties.  Chapter 2 gives guidance on housing authority duties to carry out a homelessness review and publish a homelessness strategy. Chapter 3 gives guidance on housing authority duties to provide free advice and information about homelessness and the prevention of homelessness, and to ensure they design advice to meet the needs of particular vulnerable groups. Chapter 4 gives guidance on the duty on specified public bodies to refer service users that may be homeless or threatened with homelessness to a local housing authority. Chapter 5 gives guidance on contracting out homelessness functions. Chapter 6 gives guidance on how to determine whether a person is homeless or threatened with homelessness according to legislation. Chapter 7 gives guidance on the provisions relating to an applicant’s eligibility for homelessness services. Chapter 8 gives guidance on the categories of applicant who have a priority need for accommodation if they become homeless. Chapter 9 gives guidance on determining whether an applicant has become homeless intentionally under homelessness legislation. Chapter 10 gives guidance on the provisions relating to an applicant’s local connection with an area and explains the procedures for referring an applicant to another housing authority. Chapter 11 gives guidance on the initial assessments required to determine the duties owed to a person applying for homelessness assistance; personalised housing plans and the reasonable steps to be taken to prevent or relieve homelessness. Chapter 12 gives guidance on duties owed to applicants who are threatened with becoming homeless, to try and prevent their homelessness. Chapter 13 gives guidance on duties owed to applicants who are homeless, to try and relieve their homelessness. Chapter 14 gives guidance on how the prevention and relief duties come to an end. Chapter 15 gives guidance on housing authority duties and powers to secure accommodation for applicants; how they arise and are brought to an end, including under the main housing duty. Chapter 16 gives guidance on the various ways in which housing authorities can secure suitable accommodation for applicants. Chapter 17 gives guidance on housing authority duties to ensure that accommodation secured for homeless applicants is suitable. Chapter 18 gives guidance on procedural requirements related to homelessness applications and the notification of decisions. Chapter 19 gives guidance on the procedures to be followed when an applicant requests a review of decisions reached on their homelessness application. Chapter 20 gives guidance on the duties and powers housing authorities have to protect the personal property of an applicant who is homeless. Chapter 21 gives guidance on providing homelessness services to people who have experienced or are at risk of domestic violence or abuse. Chapter 22 gives guidance on providing homelessness services to care leavers. Chapter 23 gives guidance on providing homelessness services to people with an offending history. Chapter 24 gives guidance on providing homelessness services to former members of the armed forces. Chapter 25 gives guidance on providing homelessness services to victims of modern slavery. Annex 1 gives guidance on considering housing applications from persons who are subject to the habitual residence test.

CLG has also published the Government response to the Consultation on the Code of Guidance.https://local-government-law.11kbw.com/wp-admin/admin.php?page=readygraph-app

In Haringey LBC v Simawi (2018) EWHC 290 (QB) the Council refused to allow the Defendant to succeed to a secure tenancy on the basis of the “no second succession rule”.  The Defendant contended that this rule, contained in Sections 87-88 of the Housing Act 1985 (“HA 1985”), is incompatible with Articles 8 and 14 of the ECHR. In summary, it was contended that the relevant sections of  HA 1985 treat differently a tenant whose partner dies and a tenant whose marriage/civil partnership with his/her partner had broken-down. In the former case, the tenant is treated as a successor under Sections 87-88 of HA 1985. In the latter case, if the tenancy was assigned under a property assignment order made in matrimonial proceedings, then the person remaining in residence would become a tenant de novo. In consequence, the Defendant contended that a child who would otherwise satisfy the succession requirements of HA 1985 is treated less favourably if his/her parent was a sole tenant because of death than as a result of relationship breakdown. Read more »

In Jelson Ltd v SoS for CLG and Hinckley & Bosworth BC (2018) EWCA Civ 24 the Court of Appeal has restated (1) that national policy and guidance does not dictate exactly how a decision-maker is to go about identifying a realistic and reliable figure for housing need, against which to test the relevant supply, (2) that responsibility for the assessment of housing need lies with the decision-maker, and that (3) the scope for a reasonable and lawful planning judgment is broad.

Paragraph 49 of the National Planning Policy Framework states that housing applications should be considered in the context of the (paragraph 14) presumption in favour of sustainable development and that policies for housing supply should not be regarded as up to date if the Local Planning Authority is unable to demonstrate a five-year supply.

In Hallam Land Management Ltd v SoS for CLG and Eastleigh Borough Council (2017) EWHC 2865 (Admin) Supperstone J ruled (paragraphs 22/23) that where there is a shortfall the SoS is not required in every case to determine the precise extent of the shortfall.  The key question is whether the housing land supply is above or below five years. Read more »

In Haringey LBC v Ahmed (2017) EWCA Civ 1861, where the Council claimed possession of a property, the Court of Appeal held, in allowing the Council’s appeal against the dismissal of its claim, that a Judge had been wrong to find that a husband who had taken sole responsibility for securing accommodation for his family had acted as agent for his wife when entering into a secure tenancy in their joint names. The Judge’s finding that the wife had not been involved in, or informed about, the tenancy meant that the usual characteristics of an agency were absent, in the absence of agency, the husband had been the sole tenant.  Therefore, when he left the property, the wife could not defend possession proceedings on the basis that she was a joint tenant. Read more »

In Hotak v Southwark LBC (2016) AC 811 the Supreme Court ruled that “vulnerable” for priority need purposes connotes “significantly” more vulnerable than ordinarily vulnerable as a result of being rendered homeless.  But what is meant by “significantly” in this context?  The Court of Appeal has attempted to answer that question in joint appeals Panayiotou v Walsham Forest LBC and Smith v Haringey LBC, (2017) EWCA Civ 1624.  It means “at risk of more harm in a significant way”. That is an evaluative judgment in relation to any given set of facts: paragraph 64. Read more »

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”.

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”.