Archive for May, 2007

EU citizens and social housing

Published
by
NL
on 29/05/2007
in Allocation, Housing law - All and secure-tenancy
. 0 Comments

Head of Legal had an interesting post in response to my post on Hodge’s outburst (the ramifications of which rumble on, including the BNP noting gratefully that they win whether the ideas become policy or if they are not carried through. Unfortunately true. Well done Margaret).

EU workerHead of Legal, I think, suggested that Directive 2004/38 (pdf) overrode most of the current restrictions on EU citizens being workers or workseekers in order to have benefit and housing entitlement. In particular, he suggested that they would be entitled during the first 3 months in any case and also when not workseekers, because they retain the right to reside if they become incapable of work or become vocational students. (Apologies for any misrepresentation).

I’ve had a quick look at the Directive and I’m not so sure that it does change matters much. Taking it point by point:

1. Right of residence for initial 3 months. This is given by Art 6. But Art 24(2) allows a derogation from the general rule such that there is no social assistance for this 3 month period. England has indeed made such a derogation – see Allocation of Housing and Homelessness (Eligibility)(England) Regs 2006 SI No 1294. So, there is no housing eligibility for anyone whose only right of residence is via Art 6.

2. A right of residence longer than 3 months is provided for in Art 7. The right of residence is only for workers or self-employed, or self-sufficient or self-sufficient students only (plus family members). Art 7 provides that workers remain workers if:

  • a) Temporarily unable to work through illness or accident;
  • b) Subject to involuntary unemployment after one year employment and are registered jobseekers;
  • c) Subject to involuntary unemployed after a fixed term job of less than a year or during first 12 months and are registered jobseekers – this lasts for no less than 6 months (but not necessarily any longer. The UK says 6 months);
  • d) Are in vocational training related to previous employment.

These get housing assistance, pretty much as before. The vocational training point is interesting, but won’t cover many people. I suspect that it won’t extend to much in the way of studentdom. There could be some clashes on this. It is also worth noting the ‘temporarily’ in a).

I suspect that ‘training v student’ aside, the only issues may be how long is ‘temporary’ in a) and the length of time that can be spent as a workseeker in b) before losing worker status. On the latter, see R (ex p Mohamed) v Harrow LBC [2005] EWHC 3194 (Admin), which said 15 months was too long. (I think this was probably decided before any implementation of the directive, though).

3. Head of Legal raises equal treatment under Art 24. This is of course the case, but Art 12(2) provides that the right of residence remains subject to being a worker/self-employed/self-sufficient. Equal treatment applies to those who qualify. But the self-sufficient are, by definition, not entitled to housing or welfare assistance.

Head of Legal could well be right that there won’t be much checking of a right to residence generally, but there usually is on applying for benefits and certainly is when seeking housing assistance from the local authority. Until a full right to residence is gained under Art 16 (5 years residence), the qualifications to entitlement I set out in the ‘Hodge’ post pretty much stand, in my suddenly rather unhumble opinion, with some changes in the details.

The qualification on illness or accident in Art 7(a) does mean that an EU citizen receiving Income Support may be entitled to housing assistance, which was pretty much not the case, but only if this is demonstrably a temporary period due to illness or accident, so it is also likely that an intention to return to work or workseeking will need to be shown.

Of course, when the EU citizen is entitled to housing assistance, non-discrimination applies, as indeed it did before. As both Head of Legal and I observed, this is certainly a problem for Hodge’s view.

By the way, EU Students – vocational ones under Art 7(d) excepted – are not entitled to housing assistance generally and are also not entitled to housing benefit or benefits generally.

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What's mine is yours, unfortunately.

Published
by
NL
on 28/05/2007
in Housing law - All, assured-tenancy and secure-tenancy
. 0 Comments

To everything there is a season and housing issues are no exception. While winter brings a flood of disrepair cases, Spring is the time for relationship breakdown.

Whether involving partners or spouses, this brings its own housing problems, particularly involving joint tenancies. And of course the once-happy couple have a joint tenancy. Prompted by Family Lore on Stack v Dowden, this is a much delayed look at relationship breakdown and joint tenancies.

For social tenancies (housing association or Council), relationship breakdown is a serious issue. The landlord cannot simply transfer the tenancy into the sole name of the remaining person, or at least not legally. This usually comes as an unpleasant surprise to that tenant.

Many social landlords operate a relationship breakdown policy, but these rely on the consent of the departing, no longer resident, partner to giving up their tenancy, so that a new sole tenancy be created for the remaining tenant. This consent is often not forthcoming, or the person has vanished.

If the ex-partner demands to return to the property, there is nothing to prevent them (save where there is a history of threat of abuse or violence).

Or perhaps the person who has had to leave, who might have children with them, say, or health issues or something else that would make them vulnerable for the purposes of a homeless application, actually tries to make such an application.

This person will be told that they are not homeless, that the joint tenancy means they have accommodation available to them and that it is reasonable for them to remain there, (unless, of course, there has been violence, or there is a direct threat of violence). Merely hating the sight of each other does not make it unreasonable for both parties to remain in the property.

Should this person then give notice to end the tenancy – which ends it for the remaining occupant as well – they will be deemed to be intentionally homeless and refused the full duty to accommodate by the local authority.

The Court does have a power to make occupation orders under s.33 Family Act 1996, whether the couple are married or not, but while an order to allow one person to occupy the property and the other person be excluded is possible, the Courts are very reluctant to use these powers except in such situations as domestic violence, for the clear reason that making such and order is depriving the excluded person of a valid property right. The Court has regard to ‘the housing needs’ of each party and where there are children, the Court may be keener to give an occupation order to the primary child carer, but this is not certain. The Court can also make an Order for the transfer of the tenancy into a sole name under s.53 of the Act for spouses, civil partners and co-habitants, but, as this is a permanent deprivation of a tenancy right, the Court will need very good reason to make such an order if the application is opposed.

The tenancy can also be transferred for the benefit of a child, under Childrens Act 1989, where there are children involved. As the benefit has to be for the child, not the tenant, any question of the child’s (primary) residence should be clear and sorted.

If the couple are married, the situation is a little better, as another of the few places in which the Court can actually re-assign tenancy rights is in divorce proceedings, under the Matrimonial Causes Act 1973. Taken as a part of the divorce, the Court may be more willing to make an Order as a part of the proceedings. However, this takes time and may be contested, so where there is an immediate housing problem, this isn’t an answer.

It may be that reform of the law on co-habitees property rights would give the Courts the power to re-assign tenancy rights outside of these limited situations, but at the moment, things are very difficult for ex-partners with joint tenancies.

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Circular allusions and problems with names.

Published
by
NL
on 22/05/2007
in Various (non-housing)
. 0 Comments

Via Lawyer-2-be (whose name has apparently been lifted by The Lawyer for its student site, alas), I discovered the gloriously named blog Belle de Jure.

Apparently by an off-duty academic lawyer, it’s off to an entertaining start.

According to a recent post, we are to believe that the name was coined without reference to or knowledge of a certain well known blog to book writer of recent times, whom, in the circular nature of things, I mentioned way back when in the context of a discussion of anonymous blogging, a topic which is currently also troubling Belle de Jure.

Happy to though I am to believe that no reference to the London based courtesan/écrivain of negotiable virtue was intended, surely the Buñuel/Deneuve classic cannot have been overlooked?

MarianneDeneuve, of course, went on to be a model for Marianne, the spirit of the French Republic and thus the rule of Law over Royal despots. Judging by Belle de Jure’s link list, that may be a more acceptable allusion.

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Local housing for local people

Published
by
NL
on 20/05/2007
in Allocation, Housing law - All, Various (non-housing) and secure-tenancy
. 11 Comments

Margaret Hodge has decided that this is a good time to say that too much Council housing is going to economic migrants at the expense of local residents. Allocation policies should be rethought to reward ‘length of residence, citizenship and national insurance contributions’.

Carefully, the Industry Minister has managed to conflate the ‘coming over here taking our housing’ and the ‘un/deserving poor’ knee jerk reactions. Housing for the hardworking poor British, cries the Barking MP. Co-incidentally Barking and Dagenham have made the BNP the second largest party on the local Council.Margart Hodge

The trouble is that Hodge has put her finger on a genuine problem, but, whether through ignorance or calculation, has decided to perpetuate some unpleasant myths about it.

There is a huge shortage of Council housing and people who have lived in an area all or much of their lives are faced with their children finding it impossible to get a affordable place of their own or get a transfer to an adequately sized property. This most certainly breeds anger and resentment when it appears that others are simply walking into homes. I hear it every day and it is, without a doubt, a strongly felt view.

But where Hodge’s soundbites are dangerous is in echoing these resentments rather than a serious look at allocations policy and where the problems actually arise.

Hodge is quoted as saying:

“In exercising that choice as an economic migrant, should they then presume to have automatic access immediately to public social housing?”

But who are these ‘economic migrants’ snaffling Council housing? Who is getting immediate automatic access to housing? Let us see.

People who can’t access Council housing assistance at all include:

  • Asylum seekers
  • Anyone on a work, student, business or marital visa with a ‘no recourse to public funds’ limitation (just about all of them), infact pretty much anyone subject to immigration control.
  • ‘Old’ EU citizens who are not workers or workseekers (so anyone unemployed for roughly over 6 months)
  • ‘New’ A8 EU citizens, if they are not working (for any reason) at any time in the first twelve months of stay, or are not registered on the WRS [Corrected 21/5]. After twelve months continuous work, same as ‘old’ EU.
  • ‘Even Newer’ A2 EU citizens, as with A8.

Who does that leave? Who are these swarms nicking ‘our’ housing? It may well be that what people are seeing is housing of asylum seekers (not by the Council) and some housing by social services of homeless with children who have been refused the housing duty. Sometimes Council stock is used, generally that which can’t be let via the usual route. But the basic point remains true. An ‘economic migrant’ who has pretty much anything less than indefinite leave to remain, or isn’t EU and employed, is going to have severe difficulty getting Council housing.

[Edit 21/5/07 - of course, if Hodge wants to limit EU workers access to, in effect, welfare rights, there is going to be an almighty battle with the EU as well.]

And then the allocation policies are required to give priority to the homeless or those with health or medical needs, overcrowding etc., over measuring time of residence in the area or time on the waiting list. Anyone without those range of needs will be on a lower band and wait for a very long time regardless.

This indicates the real problem. The utter lack of housing stock. No revision of the allocation policy is going to make a significant difference to the pent up anger unless accompanied by a large scale increase in available stock (including repairing currently unusable housing). Of course the Tories started the problem with the double whammy of right to buy and stopping Councils using rent revenue to build more stock. But Labour have presided over the continuation of this policy and are only now showing signs of waking up to affordable housing as a major issue.

Hodge strikes me as displaying typical new Labour instincts in wanting to change allocation policy from being based on ‘need’ to the basis of being ‘deserving’. To then blame ‘economic migrants’ for the shortage of housing stock in pressured areas strikes me as downright irresponsible. Recognising your constituent’s concerns is one thing, parroting them without actually looking into the issue is another. One might even consider it to be a cynical gesture.

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Blawgfest 2007, bon chance…

Published
by
NL
on 16/05/2007
in Various (non-housing)
. 0 Comments

Despite having been thoroughly up for it, one of the side effects of my new found traineeship-ness is that I can’t go to the UK Legal Blawg Conference, organised by Geeklawyer and Ruthie, on 18th May as I’m being inescapably trained.

It looks like a good and interesting time should be had by all. I hope it goes marvellously well and look forward to indiscretions galore afterwards. Any leftover Rioja (fat chance) can be sent my way.

Geeklawyer – make it an annual shindig. Go on, you know you want to.

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Succession in secure tenancies – House of Lords

Published
by
NL
on 16/05/2007
in FLW case note, Housing law - All, Succession and secure-tenancy
. 0 Comments

An eminently sensible House of Lords decision today in Birmingham CC -v- Walker [2007] UKHL 22, maintaining the sensible Court of Appeal decision ([2006] 1 WLR 2641).

At issue was whether a transmission or change of a tenancy in one of the forms set out in Housing Act 1980, s.88.1 as constituing a succession counted as such if it had occurred prior to the 1980 Act – so before the tenancy became a secure tenancy. E.g, if a joint tenancy had become a sole tenancy, as in this case, prior to becoming a secure tenancy, did this count as the one succession allowable?

Working on the sensible basis that a) the 1980 Act wasn’t retrospective in changing the status of a change of tenancy and b) that the rules on succession only applied to secure tenancies and prior to 1980, the tenancy wasn’t secure, the House of Lords dismissed the appeal.

I’d admit to being a bit astonished that Birmingham CC took this to the House of Lords, but there we go.

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Street protests and statistical spin

Published
by
NL
on 13/05/2007
in Various (non-housing)
. 0 Comments

The Constitutional Affairs committee report seems to have galvanised opposition to the reforms, even if met with a profound silence from the LSC/MoJ. What Price JusticeThe Access to Justice Alliance plans a week of action for next week, including demonstrations outside Central London County Court and a meeting at Westminster with the Chair of the committee. One aim, very sensibly, is to ensure the matter doesn’t get lost in the DCA to MoJ transition. Whether the Lord Chancellor will do anything in what is likely to be his remaining few weeks is unclear though.

Meanwhile, the LSC attempts some spin on figures showing a 12.5% increase in civil ‘acts of assistance’ in 2006/7 (an 8% increase in face to face and a 51% increase in CLS Direct phone calls).

According to the Gazette, LSC chief executive Carolyn Regan said:

It is no coincidence that the growth in the number of people helped this year falls within the same period in which a new payment system was introduced for our providers, legal aid lawyers and advice agencies [tailored fixed fees replaced hourly charged rates].

Hmm, tailored fixed fees were introduced well before 06/07, of course, but glossing over that, this would be the new payment system that was scrapped in April 07 would it? A funny way to acknowledge its success.

Ms Regan went on to say:

The current legal aid reforms are specifically about building on this to maximise access to legal aid for the future and to continue increasing the numbers of people helped.

Oh please. The stated aim of the reforms has always been to freeze or reduce the legal aid budget. I know the LSC has to keep on saying these things, but it is something of an exercise in futility.

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Riverside Housing v White, House of Lords

Published
by
NL
on 13/05/2007
in FLW case note, Housing law - All, Possession and assured-tenancy
. 0 Comments

The Court of Appeal judgment in Riverside suggested that if rent increases hadn’t been levied pretty much exactly as per any provision in the tenancy agreement, those increases were invalid. Riverside had levied rent increases later than the date specified in the tenancy agreement. This was a rent arrears possession case and the arrears were reduced considerably by this.

It wasn’t something that came up very often – I’ve not seen a case – but was always worth checking, particularly in ground 8 cases.

Now the House of Lords has allowed Riverside’s appeal and largely overturned the Court of Appeal. (Riverside HA v White and another [2007] UKHL 20) .

Although the case turns very much on the specific detail of Riverside’s tenancy agreement, and so it may be possible to make a similar argument on a different tenancy agreement, it is worth noting that Lord Neuberger’s judgment does suggest that social housing landlords, or at least housing charities as in this case, would not be held to the strict construction of the rent review clauses, unlike a commercial lease (See paras 28 and 29).

The discussion of costs at 41 suggests it can be worth thinking about agreeing key questions to be heard as preliminary issues.

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A Public Apology…

Published
by
NL
on 11/05/2007
in Various (non-housing)
. 0 Comments

… to Oliver Heald MP, Shadow Secretary of State for Constitutional Affairs.

Four posts ago, I wrote a distinctly sceptical response to a comment from Oliver Heald on my post about the report of the Consitutional Affairs Committee on the legal aid reforms. In that response, I a) doubted it came from Oliver Heald in person, b) suggested it was an example of developments in party campaigning and c) doubted I’d get any response.

In what is, in the circumstances, a distinctly good humoured and reasonable reply, Oliver Heald today commented on that post as follows:

I personally posted some comments on a few blogs after the Select Committee report. This was not to recruit new voters – although they are always welcome – but to give support to legal aid lawyers so they know their concerns are being heard. Blogs are very useful in campaigning , as I discovered when we were battling against the Legislative and Regulatory Reform Bill last year.

At Parliament, we are continually raising the legal aid issue.

Oliver Heald MP

Damn. That is me bang to rights.

In mitigation, I can only say that it struck me as highly unlikely that my readership, august and esteemed though it is, would include the Shadow Secretary, or that the Shadow Secretary would be trawling the law blogs in person.

I would like to apologise to Mr Heald for any and all elements of that post that cast doubt upon his authorship of the comment and upon the motives of the commentor.

I place the blame entirely on watching too many episodes of “In the thick of it“.

That said, I remain convinced that party political sourced comments on issue based blog posts will be a developing issue. It has been in the States and already to a limited extent here, but the sophistication involved will grow.

I am delighted to find that the Shadow Secretary is more of an old style campaigner in web 2.0 form. And would also like to say blimey, the Shadow Secretary of State for Constitutional Affairs reads my blog (on occasion).

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Mature entrants article – noted in passing

Published
by
NL
on 09/05/2007
in Various (non-housing)
. 0 Comments

Quite an interesting piece on Lawcareers net on 30+ entrants. The piece naturally holds up a couple of exceptions as examplars, while the individuals concerned rightly note the difficulties, but overall, if one discounts a certain amount of positivity, this strikes me as not a bad piece at all. The comments made by the interviewees ring true to my experience and their advice is realistic, if city focussed.

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