Housing

May 21st, 2012

Homelessness

In Nzinga Maswaku v Westminster City Council [2012] EWCA Civ 669 the Court of Appeal clarified that in offering a homeless person with alternative temporary accommodation the local authority is obliged to point that if the offer is refused it has discharged its Part VII duties under the Housing Act 1996. It is not obliged to list every possible consequence, including ones which are not expressly mentioned in s.193(5) of the 1996 Act. Nor can failing to list the non-statutory consequences be a matter which breaches regulation 6(2) or 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 as a failure to notify the claimant. Regulation 6(2) is only intended to ensure that the individual is able to make relevant representations to the reviewing officer on the review.

A father who has joint custody of his children, but where the children live primarily with their mother, can be reasonably said not to be in priority need of housing, ruled the Court of Appeal in Said El Goure v Kensington & Chelsea Royal London Borough Council [2012] EWCA Civ 670. The statutory question was whether it was reasonable to expect the children to also reside with him (see s.189(1)(b) of the Housing Act 1996), even though they had a home with their mother, and that question was for the local authority to decide. No error of law had been committed by the reviewer finding that it was not reasonable to so expect. There was no legal test of exceptionality (see the comments of their Lordships in Holmes-Moorhouse v Richmond upon Thames LBC [2009] UKHL 7; [2009] 1 WLR 413) and the local authority had not fallen into the trap of applying one. Moreover, there was no breach of the duty to notify under regulation 6(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 where the local authority had informed the father’s solicitors of his right to make representations in support of the review application.

Housing Benefit

In Burnip v Birmingham City Council & Secretary of State for Work and Pensions [2012] EWCA Civ 629 the Court of Appeal held that it was disproportionately contrary to Article 14 ECHR taken with Article 1 of Protocol 1 for housing benefit payments to be assessed on the basis that only one bedroom was required for two severely disabled girls, and where a spare room was required by disabled recipients of housing benefit to enable an overnight carer to stay and assist them. This had been the law under regulation 13D of the Housing Benefit Regulations 2006 (although it has since been amended by the Housing Benefit (Amendment) Regulations 2010 with effect from 1 April 2011). All of the conjoined appeals had failed before the Upper Tribunal.

The Court of Appeal reached the view that the housing benefit scheme made adequate provision for able-bodied persons, but failed to make equivalent provision for the disabled, whose needs were often more costly. The criteria were apparently neutral on their face, and so the discrimination was indirect, but it could not be objectively justified. The purpose of the statutory scheme was to help people meet their basic human needs for accommodation of an acceptable standard. Cases where a disabled person required an additional bedroom were likely to be relatively few in number, easy to recognise and not open to abuse.

Disability Discrimination

Mr Lalli was disabled. He had learning difficulties and memory problems. He lived as an assured tenant in sheltered housing where the other residents were also disabled and/or over the age of 60. The landlord sought an interim injunction forbidding him from harassing or abusing other residents or from entering the communal lounge between 4pm and 9pm, which it discontinued after Mr Lalli was assessed as being disabled.

In Lalli v Spirita Housing Ltd [2012] EWCA Civ 497 Mr Lalli brought a claim under the Disability Discrimination Act 1995 alleging that in seeking the injunction Spirita had applied a practice, policy or procedure which discriminated against him by making it impossible or unreasonably difficult for him to use the communal lounge. The Court of Appeal, upholding the judge, disagreed. Seeking an injunction had been an attempt to ensure an effective sanction to prevent Mr Lalli’s abusive behaviour towards others, and it did not amount to a practice, policy or procedure anyway. In any event, the discontinuing of proceedings following the diagnosis of disability constituted a reasonable adjustment.

Housing Associations

A housing association formed to take housing stock from a local authority did not operate with a charitable purpose so as to avoid corporation tax on rental income: Helena Partnership Ltd (formerly Helena Housing Ltd) v Commissioners for Her Majesty’s Revenue and Customs [2012] EWCA Civ 569. It was argued that the association had a purpose of benefit to the community, which the Court of Appeal rejected (upholding both the First-tier and Upper Tribunals) on the basis the provision of housing would be of benefit to those other than persons in some relevant charitable need (such as by reason of age or disability) and that in any event the degree of benefit to individuals was substantially more than that to the community at large.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012

The Act gained Royal Assent on 1 May 2012 and preserves the availability of legal aid in cases of judicial review, breach of ECHR rights, claims for the sale or possession of a home (unless the occupier admits that he is a trespasser), applications for homelessness assistance under Parts VI and VII of the 1996 Act, and cases in which the assisted person seeks to remove or reduce a serious risk of harm to him or a member of his family which arises from a deficiency in his rented home: Schedule 1, paragraphs 19, 22, 33-35.

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