Housing

August 5th, 2013

Article 8 ECHR Cases

The courts continue to clarify the position following the decisions of the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2 AC 18 on the application of Article 8 ECHR to defend possession proceedings.

For a recent, standard, application of the cases see: Secretary of State for Transport v Blake (unrep., ChD, 31 July 2013).

In R (CN) v Lewisham London Borough Council [2013] EWCA Civ 804 the Court had to reconsider the line of authority which held that section 3 of the Protection from Eviction Act 1977 did not apply to temporary accommodation provided by a local authority to avoid homelessness and that Article 8 required no different approach: Mohammed v Manek (1995) 27 HLR 439; Desnousse v Newham London Borough Council [2006] EWCA Civ 547; [2006] QB 831. The Court held that they remained good law and binding authority. Neither case was inconsistent with Patel v Pirabakaran [2006] EWCA Civ 685; [2006] 1 WLR 3112 (about the application of the 1977 Act to mixed residential and business lettings), nor was Pinnock authority for requiring proceedings in all cases before evictions, or Powell an extension to temporary accommodation. The courts could assess proportionality on judicial review; that was sufficient protection for Article 8 and Parliament had a wide margin of appreciation in the area. Possession proceedings were not required before a person could be evicted from temporary accommodation held under licence by sections 188 or 190(2) of the 1996 Act.

The European Court of Human Rights has again applied the Article 8 right to a home in the context of proceedings between private parties. In Brezic v Croatia (App. No. 7177/10) the applicant had been the possessor of a flat in a building owned by a privatised enterprise. The company brought possession proceedings, successfully, and the national courts did not consider the issue of proportionality of granting possession. The Court found a breach of Article 8 as the flat was her home and the grant of possession was an interference with it. Because there had been no consideration of proportionality the interference could not be held to be necessary and there was a breach of Article 8.

In Malik v Fassenfelt [2013] EWCA Civ 798 the claimant sought a possession order against persons said to be squatting on his land. The County Court accepted the argument of the defendants that Article 8 applied, even though the case was an entirely private one, but held that the order was proportionate. On appeal, the claimant did not pursue the Article 8 issue, and so a majority of the Court of Appeal (Toulson and Lloyd LJJ) assumed that Article 8 was engaged but upheld the order for possession as proportionate and that only in exceptional circumstances would eviction of squatters be disproportionate. By contrast, Ward LJ expressly considered the Article 8 issue, and held that it did apply to cases involving private landlords, so that the rule in McPhail v Persons Unknown [1973] Ch 447 that there was no jurisdiction to extend time to a trespasser, could no longer apply.

Homelessness

A reviewing officer was lawfully entitled to conclude that a heroin addict with depression who had previously been imprisoned was not vulnerable within the meaning of section 189(1)(c) of the 1996 Act, article 5(3) of the Homelessness (Priority Need for Accommodation) England Order 2002 or R v Camden London Borough Council ex p Pereira (1999) 31 HLR 317, such as to require priority need for housing: Johnson v Solihull Metropolitan Borough Council (unrep., CA, 6 June 2013).

Section 204(2A) of the 1996 Act requires there to be good reasons for delay in bringing an appeal against a refusal of housing outside of the 21 day time limit. Lewis J confirmed that good reasons is an issue of fact, and that the power to extend time was linked to the reasons for the delay, not the merits per se, was not a breach of Article 6 ECHR: Peake v Hackney London Borough Council (unrep., QBD, 11 July 2013).

However, the court should not strike out a section 204 appeal as being out of time at a directions hearing when the claimant had not had any notice that such an application would be need and was not prepared to answer it: Dawkins v Central Bedfordshire Council (unrep., QBD, 4 July 2013). In addition, the factual basis of the refusal to extend time was mistaken. The case was remitted for reconsideration.

A more procedural point was raised in Johnson v Lord Mayor & Citizens of Westminster [2013] EWCA Civ 773, in which the Court of Appeal held that it did not have jurisdiction to entertain an application for an order that a local authority provide temporary accommodation pending an application for permission to appeal to the Court of Appeal against a County Court decision that he was intentionally homeless. Judicial review was the appropriate route.

Possession

Where a possession order is sought against a secure tenant, there must be suitable alternative accommodation available for the tenant when the order takes effect: section 84(2)(c) of the Housing Act 1985. When granting an order for possession the court is not required to specify an exact property; it was permissible to set out the essential characteristics of what would be suitable and to make the order conditional upon such a property being found: Holt v Reading Borough Council [2013] EWCA Civ 641. The Court indicated that a conditional order should include liberty to apply, a time limit and provision for if no suitable accommodation is found. In cases where a tenant is particularly vulnerable or unrepresented, a conditional order may not be appropriate.

For an example of an agreement which created a secure tenancy which prevented the successful bringing of possession proceedings, see: Francis v Brent Housing Partnership Ltd [2013] EWCA Civ 912.

Housing Benefit

In R (MA) v Secretary of State for Work and Pensions [2013] EWHC 2213 (Admin) the Divisional Court declined to quash the elements of the Housing Benefit (Amendment) Regulations 2012 which imposed a reduction in eligible rent of 14% where there is one excess bedroom and 25% where there are two or more, in order to save £500m from the housing benefit budget. The Court accepted that disabled recipients of housing benefit engaged Article 14 ECHR, an instance of Thlimmenos discrimination. The relevant test at the proportionality stage was whether the measure was manifestly without reasonable foundation. There was an absence of a precise class of persons (those who need extra bedroom space by reason of disability), which could be identified in practical and objective terms and sufficiently differentiated from other groups equally in need of extra space but for other reasons. The provision of extra funding for discretionary housing payments and advice and guidance on its use could not be said to be a disproportionate approach to the difficulties which those persons faced. The measure was not manifestly without reasonable foundation. Unusually, the Court also considered that the substance of the public sector equality duty challenge was wrapped up with the justification argument, and both grounds failed as a consequence. The Court indicated that it was unacceptable that Regulations had not been brought in to remedy the illegality found in Burnip v Birmingham City Council [2012] EWCA Civ 629; [2013] PTSR 11, but on assurance that Regulations were being considered no further order was made.

The Court of Appeal has dismissed the appeal in R (Zacchaeus 2000 Trust) v Secretary of State for Work and Pensions (unrep., CA, 31 July 2013). The case concerned a challenge to the Rent Officers (Housing Benefit Functions) (Amendment) Order 2012 on the grounds that it was ultra vires the legislative housing and benefits regime, and was in breach of section 149 of the Equality Act 2010 (the public sector equality duty). The 2012 Order froze housing benefit rates since 2 April 2012 for a year, and imposed uprating by CPI from April 2013. Sullivan LJ dismissed the appeal on both grounds and upheld the judgment of Underhill J below. Elisabeth Laing QC and Christopher Knight acted pro bono for the Trust, instructed Leigh Day & Co.

Schedule 5, paragraph 14(1)(e) of the Housing Benefit Regulations 2006 excludes from account sums paid under agreements made after the occurrence of an injury. The Court of Appeal held in Lloyd v Lewisham London Borough Council [2013] EWCA Civ 923 that this did not include payments made under agreements concluded prior to the occurrence of the injury, such as payment to compensate for loss of income. Such an approach was the only rational interpretation and avoided double recovery.

Legislation

The new First-tier Tribunal (Property Chamber) has come into existence as of 1 July 2013, when it took over the jurisdictions of the Residential Property Tribunal, the Leasehold Valuation Tribunal, the Rent Tribunal, the Rent Assessment Committee, the Agricultural Land Tribunal and the Adjudicator to the Land Registry. To support the new Chamber, a new set of Rules have been issued: the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (SI 2013/1169). They are broadly similar to the Rules of the other First-tier Chambers.

Fee levels have also been set for both the Property Chamber, and the Lands Chamber in the Upper Tribunal: First-tier Tribunal (Property Chamber) Fees Order 2013 (SI 2013/1179) and the Upper Tribunal (Lands Chamber) Fees (Amendment) Order 2013 (SI 2013/1199).

From 2014 the Local Housing Allowance will be recalculated in January of each year, uprated at the lower of the rent at the 30th percentile of listed rents or the previous year’s LHA increased by 1%: Rent Officers (Housing Benefit and Universal Credit Functions) (Amendment) Order 20123 (SI 2013/1544).

Following the accession of Croatia to the EU on 1 July 2013 – and the five year period within which Member States may restrict access to state support – a Croatian is only eligible for housing allocation or homelessness assistance if he is a worker and registered as such under a worker registration scheme: Allocation of Housing and Homelessness (Elgibility) (England) (Amendment) Regulations 2013 (SI 2013/1467).

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