The substantial issue on the appeal in Dove v Havering LBC [2017] EWCA Civ 156 related to whether the “tenant condition”, pursuant to Section 81 of the Housing Act 1985, was satisfied, in order for the tenancy to be a secure tenancy. The tenancy in this case was a joint tenancy. The first limb of the condition was satisfied because both tenants were individuals. The issue was whether at least one of them occupied the dwelling-house as her only or principal home at the time when the notice to quit would otherwise have taken effect.  Lewison LJ said:-

“17.    There is now a considerable body of learning on what amounts to occupation of a dwelling as an only or principal home. There are two parts to the question: (a) does the person in question occupy the dwelling as a home and (b) if so, does he or she occupy it as his or her only or principal home? Read more »

The purpose of introductory tenancies is to provide what the Housing Act 1996 refers to as a trial period in which the landlord may determine the tenancy without having to establish the grounds for possession required in the case of a secure tenancy. This gives a social landlord an opportunity to form a view about the suitability of the tenant against a background of historic anti-social behaviour without becoming subject to the restrictions imposed in respect of a secure tenancy. The trial period is normally one year but can be extended for a further six months: see ss.125 and 125A.

Although the statutory grounds for possession do not have to be satisfied, the tenant is given a measure of protection by s.128 of the Act which provides that:

“(1) The court shall not entertain proceedings for the possession of a dwelling-house let under an introductory tenancy unless the landlord has served on the tenant a notice of proceedings complying with this section. Read more »

In York City Council v Trinity One (Leeds) Ltd [2017] EWHC 318 (Ch) the claimant LPA sought payment from the respondent property developer pursuant to a s106 agreement to pay a sum of money in lieu of providing affordable housing.  The developer then applied to modify the s106 agreement by removing the affordable housing payment obligation.  The LPA dismissed that application. The dismissal was subject to appeal.  The Judge held that if the appeal was successful that would extinguish the payment liability with retrospective effect.

In R (Osman) v Harrow LBC [2017] EWHC 274 (Admin) the Claimant applied for judicial review of the decision of the Defendant to award the Claimant Band C priority for the purposes of the allocation of housing accommodation. The award was made in accordance with the Defendant’s amended housing scheme (the Amended Scheme) under Part VI of the Housing Act 1996 (the 1996 Act). The Claimant contended that the scheme as amended was unlawful, as is its application to the Claimant, on the grounds that it unlawfully discriminated against those in the private rented sector including the Claimant and her family by denying equivalent priority to those in the public sector contrary to Articles 8 and 14 of the ECHR. Accordingly the Amended Scheme did not secure that a reasonable preference was given to persons occupying overcrowded housing or otherwise living in unsatisfactory housing conditions including the Claimant and her family contrary to Section 166A(3) of the 1996 Act.

The application for judicial review was refused. The Judge concluded that the preference given to the Claimant’s group in the scheme banding was a reasonable preference for the purposes of Section 166A(3) of the 1996 Act, and pursued a legitimate aim and was proportionate for the purposes of the ECHR.

In R (Kensington RLBC) v Ealing LBC [2017] EWHC 24 (Admin) the Judge described the case as a local connection referral case raising an important point of principle with respect to determining upon which housing authority the housing duty falls where there has been a cessation of housing duty by one authority and a new application made to another housing authority.

The Interested Party is disabled and has four children who are dependent upon her. She had been living in Ealing since 2008. From 31 August 2012 she lived in private accommodation at 42 Curzon Road, Ealing, W5 1NF (“Curzon Road”).  In March 2015, she applied to Ealing for housing assistance pursuant to the provisions of the Housing Act 1996 (“HA 1996”), Part VII. Her landlord at Curzon Road had commenced possession proceedings against her and Ealing accepted a main housing duty towards her, pursuant to the provisions of Section 193 of the HA 1996. Read more »

In R (Plant) v Lambeth LBC (2016) EWHC 3324 (Admin), Holgate J said, with respect to Section 21(1) of the Housing Act 1985 (general powers of management):-

“61.    I accept the submission of Mr Goudie QC that this provision confers a very broad discretion upon a local housing authority to manage its houses, without providing any lexicon of the matters which it is to treat as relevant.

62. Thus, although, it is for the Court to determine whether a consideration is legally capable of being relevant, the general principle is that it is for the decision-maker, in this case LLBC, to decide (a) whether to take a relevant consideration into account and, if it does so decide, (b) how far to go in obtaining information relating to that matter. Such decisions may only be challenged on the grounds that it was irrational for the authority not to take a legally relevant consideration into account or, having done so, not to obtain particular information …

63. The test is whether, in the circumstances of the case, no reasonable authority would have failed to take into account the specific consideration relied upon by the Claimant, or to obtain further information. Lord Scarman held in Findlay that this test is satisfied where, in the circumstances, a matter is so “obviously material” to a particular decision that a failure to take it into account would not be in accordance with the intention of the legislation, ‘notwithstanding the silence of the statute’ …”

Holgate J then referred, at paragraph 64, to Lord Brightman’s observations in Pulhofer, and continued:-

“65.    It is also important to keep in mind the point that Parliament has entrusted the general function of managing the housing stock within the Borough to a democratically elected body, which can be expected to well understand the potentially competing interests of the residents of one estate in comparison to others.”

With respect to Article 1 of the First Protocol to the ECHR, and the loss of a secure tenancy and the Right to Buy, Holgate J said:-

“183 … I agree with the submission of Mr Goudie QC that it is an intrinsic feature of a secure tenancy that it is granted subject to statutory termination on a number of grounds (and not merely redevelopment) which, by definition, will cause the secure tenant to lose the potentiality of choosing to rely upon a right to buy his home at some point in the future. Indeed if that should happen, the suitable accommodation which must be available to him may, or may not, carry with it a statutory right to buy.

184. It follows that the “possession” which is held by a secure tenant does not include an absolute right to exercise a right to buy, irrespective of whether he continues to have a secure tenancy of that dwelling. Instead, the potential exercise of that statutory right to buy is conditional upon the tenant continuing to hold the secure tenancy of his property. That tenancy may be brought to an end by the operation of the 1985 Act, which includes the redevelopment ground. This limitation which is placed upon the continued existence, and exercise, of the right to buy is imposed upon the tenancy with its bundle of rights and obligations (the “possession”) by the legislation which created the legal notions of a secure tenancy and a right to buy. This analysis applies irrespective of whichever of the statutory grounds in Schedule 2 is relied upon in order to bring the tenancy to an end. The limitation placed by the 1985 Act upon the exercise of the right to buy, namely that the secure tenancy continues to subsist, is important because the argument raised … relates to persons who have not yet exercised the right to buy but may do so in the future. …”

“186.  … Here the secure tenants have not yet exercised the statutory provisions which enable them to own their properties. Those statutory provisions, which insist upon the continuing subsistence of the secure tenancy if they are to be relied upon, subjected the tenant’s rights from the outset of the secure tenancy to restrictions or qualifications which might subsequently be enforced against him. Accordingly, A1P1 is not engaged …”

Housing benefit is “a means tested benefit provided under section 130 of the Social Security Contributions and Benefits Act 1992 and subordinate regulations”. Its “purpose is to help claimants with their rental costs”. There is “a prescribed mechanism for determining in each case the appropriate maximum housing benefit”.

The two conjoined appeals in Birmingham City Council v SoS for Work and Pensions and Birmingham City Council v SA (2016) EWCA Civ 1211 about entitlement to housing benefit were concerned with the power of a housing authority such as the City Council to determine that the net eligible rent payable in respect of accommodation, and thus the amount of housing benefit payable in respect of that accommodation, be restricted. The City Council contended that the Upper Tribunal (Administrative Appeals Chamber) adopted an incorrect approach under Regulation 13(3) of the Housing Benefit Regulations 2006 (S.I. 2006/213) (“the 2006 regulations”), in the form substituted by paragraph 5 of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 (S.I. 2006/217) (“the consequential provisions regulations 2006”), when considering, in the case of claimants in “exempt” accommodation, whether their rent was “unreasonably high by comparison with the rent payable in respect of suitable alternative accommodation elsewhere”. In particular, the City Council submitted that the Upper Tribunal erred in effectively applying, as criteria of comparability, the availability and amount of public funding which would have enabled the landlords in question to reduce the rents they charged.

When granting permission to appeal, Sales L.J. observed that the appeal raises this issue: whether, under Regulation 13(3)(b) it was “appropriate to take into account the degree of public subsidy received by the owner of the accommodation occupied and by the owner of any other accommodation said to be a suitable alternative; and in particular, how the [2006 Regulations] should be applied for the purposes of comparison in relation to accommodation owned by a charity, by a registered social landlord and by a private landlord”. A “registered social landlord” would include, for example, a housing association.

The Court of Appeal allowed the City Council’s appeals in both cases. There was, said Lindblom LJ, with whom Black and Beatson LJ agreed, a danger of overcomplication.  He said (para 30):-

“The concept whose meaning is in dispute in this appeal – the concept, in regulation 13(3)(b), of the rent payable for the claimant’s dwelling being “unreasonably high by comparison with the rent payable in respect of suitable alternative accommodation elsewhere” – envisages, I think, a relatively straightforward procedure which is neither unduly burdensome nor unduly complex. On its face, it requires a simple comparison between rents.”

Lindblom LJ continued:-

“40.    It seems to me therefore that the concept of a rent being “unreasonably” high in regulation 13(3) is that the rent is unreasonably high for the claimant to have to pay, rather than unreasonably high for a particular landlord to charge. An “unreasonably high” rent under regulation 13(3) will be a rent higher than the rent one could reasonably be expected to pay in what Evans L.J. in ex parte Gibson described as the “relevant active market in property of the relevant description, type or class” – the “ascertainable market rent”. I see no justification for reading into this concept artificial constraints on the relevant market in which that other accommodation exists, or on the market rent for such accommodation. If there is a “relevant active market” and an “ascertainable market rent” for suitable, alternative accommodation – supported by evidence of the range of rents being paid for accommodation of the appropriate type, occupied with the appropriate security of tenure, in the appropriate general location – the comparison between rents must be objective, realistic and complete.

41. To manipulate the comparison of rents by excluding, for example, all but the levels of rent payable for suitable alternative accommodation which happens to be provided by a landlord in the private sector without the benefit of subsidy, or some other external source of funding, will render the exercise subjective, unrealistic and partial. It shifts the comparison from one between rental levels for accommodation of sufficiently similar type and tenure in the relevant area to one between rents only in one part of the market, and then, within that part of the market, to rents charged by landlords who happen to be funded in a particular way. This is to distort the market, and to produce a false and unreliable comparison. The same may be said of an approach that modifies the comparison of rents by making hypothetical adjustments for the individual circumstances of a particular landlord. Again, this is liable to produce a flawed comparison by reducing or eliminating real disparities between rents for relevant accommodation in the relevant market. Discovering the reasons why a particular landlord came to lose or to forego public funding, exploring the possibility of its being able to charge a lower rent if it were to operate in a different way, or speculating about its circumstances changing in the future, may not always be an impossible or even a difficult task. Such questions may not, in every case, require detailed scrutiny of a landlord’s accounts, or close investigation of the way it runs its business. Here, in the Upper Tribunal’s view, they did not. But they bring to the exercise of comparing rents under regulation 13(3)(b) a degree of artificiality which, in my view, is not merely unnecessary but also inappropriate.
42. I think this understanding of regulation 13(3) sits well with the legislative intent. It recognizes the aim of protecting the public purse from excessive payments of housing benefit in cases where rents are, comparatively, “unreasonably high”. And it does not offend the purpose of protecting claimants from homelessness.
43. In a case where a claimant was paying a rent that was, comparatively, “unreasonably high” – except where paragraph (4) applied and suitable alternative accommodation was not available to him – the authority would be able to reduce his eligible rent by an “appropriate” amount. Claimants within one of the special categories in paragraph (4), as SA and SS were, would be protected against any deduction in their eligible rent, in two ways: first, by the requirement that suitable “cheaper” alternative accommodation is, in fact, “available”; second, that it is reasonable to expect him to move from the accommodation he is in. In exercising the discretion in paragraph (3), the authority is not obliged to reduce the eligible rent by the full amount of the difference between the rent the claimant was paying for the accommodation he was in and the rent he would pay for suitable alternative accommodation elsewhere. The requirement is simply that, in judging what an “appropriate” reduction would be, it must have regard, in particular, to the cost of the suitable alternative accommodation. In Mehanne the House of Lords emphasized the breadth of the authority’s discretion (see paragraphs 8 to 13 in the speech of Lord Bingham, at p.544C to p.546C; and paragraphs 19 to 27 in the speech of Lord Hope of Craighead, at p.547B to p.549F). Relevant considerations could include any personal or financial circumstances of the claimant bearing on his “housing situation” (paragraph 13 in Lord Bingham’s speech).
44. It follows, in my view, that the Upper Tribunal fell into error in the approach it took in the appeals of SA and SS. Its comparison of rental levels under regulation 13(3)(b) was not a true and full comparison between the rent payable by SA and SS for their accommodation in Roshni’s refuge and the rent payable for other accommodation of comparable type and tenure in the “relevant active market”. It effectively applied as criteria of comparability the availability and amount of public funding, or subsidy, which would enable the landlords in question to reduce the rents they charged. In undertaking the comparison, it adjusted upwards the real rent being charged by the only landlord whose accommodation it ultimately relied upon as comparable – “comparator 3” – to arrive at a range of hypothetical rents, on different assumptions of its own as to the percentage proportion of the landlord’s “accommodation costs” recouped from, respectively, subsidy and rent. This was not, in my view, an exercise consistent with the requirements of regulation 13(3).
45. The Upper Tribunal was clearly anxious to reflect in its decision the fact that Roshni was a charity, providing – without the benefit of public funding – accommodation for women who had suffered domestic violence, and that, without subsidy, charities of this kind could not afford to operate refuges, leaving “victims of violence either homeless or at risk at the homes they wished to leave” (paragraph 33 of the interim decision and paragraph 3 of the final decision). It was aware of the very high demand for Roshni’s accommodation. It found that Roshni was meeting a need which “funded charities” were not able to meet or meet in full. And it was satisfied that Roshni had lost public funding as “the result of cutbacks and not of any failings on its part” (paragraph 35 of the interim decision and paragraph 13 of the final decision). All of these considerations it saw as relevant to the comparison of rents under regulation 13(3)(b). I do not think it was right to do so. Where concerns such as these go to the risk of vulnerable claimants finding themselves without accommodation suitable for them, the legislative scheme allows for them – in the discretion given to the authority under regulation 13(3), and in the provisions in regulation 13(4) and (9)(b). Where they go to the difficulties of private sector landlords – charities among them – providing accommodation in refuges without the advantage of public subsidy, the legislature has not identified them as relevant to the comparison of rents under regulation 13(3)(b). And in my view they do not bear on that exercise.”

The Housing Act 1985 does not permit a second succession to a secure tenancy to members of a deceased secure tenant’s family. In Holley v Hillingdon LBC (2016) EWCA Civ 1052 the Court of Appeal considered when a proportionality defence can be raised to a possession claim.  Length of residence might form part of an overall ECHR Art 8 proportionality assessment.  However, it was unlikely to be a weighty factor.  Briggs LJ (with whom Arden and Underhill LJJ agreed) said:-

9. “… The general principles which govern the application of Article 8 to a claim for possession by a local authority of property forming part of its social housing stock from a person with no other right to be there are well settled, by the twin decisions of the Supreme Court in Manchester City Council v Pinnock [2011] 2AC 104 and Hounslow London Borough Council v Powell [2011] 2AC 186.

10. The application of those principles to a claim for possession against a surviving member of the family of a deceased secure tenant by succession occupying the property (after notice to quit) as a trespasser are fully set out and explained by this court in Thurrock Borough Council v West [2012] EWCA Civ 1435; [2013] HLR 5, in the judgment of Etherton LJ, at paragraphs 22 to 31. The general principles set out at paragraphs 22 to 26 need no repetition. In outline, the local authority will usually be seeking eviction as a proportionate means of achieving a legitimate aim because it will thereby vindicate its own unencumbered property rights, and enable it to comply with its duties in relation to the distribution and management of scarce social housing stock.”

“15. … I consider that the true analysis is as follows. First, a person seeking to rely on Article 8 will need to demonstrate a minimum length of residence in order to show that the property in question is their home, so that Article 8 is engaged. Secondly, the period of residence, however long, will not on its own be sufficient to found an Article 8 proportionality defence in the second succession context because, if it would, then it is hard to see how the English statutory prohibition of second succession could be compatible with the Convention.

16. Thirdly, length of residence may form part of an overall proportionality assessment, in the sense that all the circumstances of the case may need to be reviewed, and their effect considered in the aggregate. But fourthly, and precisely because Parliament has lawfully excluded second succession to members of a deceased secure tenant’s family, length of residence is unlikely to be a weighty factor in striking the necessary proportionality balance. A long period of residence may therefore form part of the circumstances, viewed as a whole, but is, in itself, of little consequence.”

“23. …  the concept of a discretionary succession policy is a misnomer. The provisions in Part IV of the Housing Act 1985 which deal with succession to secure tenancies do not require, or for that matter permit, local authorities to formulate and apply discretionary policies for conferring rights of second succession on persons living in the house of a secure tenant who is already a successor, upon that tenant’s death. There is, quite simply, no such entitlement. By contrast, Part VI of the Housing Act 1996 confers a wide discretion upon local authorities as to the allocation of social housing among persons applying for it, and requires that discretion to be exercised in accordance with an allocation scheme which it is required to formulate and publish.

24. A housing authority allocation scheme may make particular provision in relation to priority for members of the family of deceased secure tenants who do not have succession rights, but they are not required to do so. …”

A local housing authority may refuse to accept an application for assistance under Section 183 of the Housing Act 1996 only where it is a further application based upon exactly the same facts as a previous application: so held by the House of Lords in R v Harrow LBC, ex p Fahia [1998] 1 WLR 1396.  This test has been considered in R (Abdulrahman) v Hillingdon LBC (2016) EWHC 2647 (Admin), where the Judge said:-

“39.    In my judgment it is not appropriate to subject a local authority’s decision not to accept an application under Part VII of the 1996 Act to the same sort of analysis as may be applied to a contract drafted by solicitors, to an Act of Parliament, or to a court’s judgment. It is also important that the letter or letters by which such decisions are communicated should be considered as a whole.”

Nonetheless, the Judge held that the authority had acted irrationally in deciding that the test was satisfied. There were new facts relevant to an application for assistance. The changes relied upon were not fanciful or trivial. The new application was not based upon “exactly the same facts” as the earlier application. They were indeed clearly different.

The Housing Act 1996 places no limit on the number of times an applicant may make a Part VII homelessness application. In R (Hoyte) v Southwark LBC [2016] EWHC 1665 (Admin) the Court applied the House of Lords decision in R v Harrow LBC, ex p Fahia: an applicant cannot make a further application based on “exactly the same facts” as an earlier application.  If an application is “not identical” to an earlier one, there is no short cut of “non-statutory” inquiries. The statutory process must be followed.

However, the decision as to whether there are any new facts is one for the local housing authority. It is challengeable only on judicial review grounds.