Archive for January, 2009

Ask and ye shall receive

Published
by
J
on 27/01/2009
in ASB, FLW case note, Housing law - All, Licences and occupiers, Possession and secure-tenancy
. 14 Comments

Yesterday evening I asked for more information about Dixon v Wandsworth LBC (No 2) [2009] EWHC 27 (Admin) and, by the next morning, two copies of the transcript had made their way to my inbox. My gratitude to The Chief and to William Flack of Flack & Co, who are acting for Mr Dixon. Without wanting to get too carried away, this looks like it could be a significant case and I’m going to deal with it in some detail.

The facts

In April 1993 Mr Dixon (then aged 17) and his sister became the joint secure tenants of Wandsworth at a 2 bed flat in SW11. In October 2005, the sister served a Notice to Quit on the claimant, with the result that the joint tenancy came to an end – see LB Hammersmith & Fulham v Monk [1992] 1 AC 478.

Wandsworth then appeared to have considered re-housing Mr Dixon in his own 1 bed flat. That offer was withdrawn after Mr Dixon was cautioned for possession of cannabis and convicted of possession of cocaine. Possession proceedings were then issued, seeking recovery of the 2 bed flat. Those proceedings were expressly pleaded on the basis of the NTQ served by the sister and a possession order was granted.

The first set of proceedings

After the possession order was made, but before it was executed, Mr Dixon applied for further housing from Wandsworth under Part 6 Housing Act 1996, but was told that, because of inter alia his drug conviction, he was now treated as ineligible for social housing – see s.160A(7), Housing Act 1996. He challenged that decision by way of judicial review but was unsuccessful. See Dixon v LB Wandsworth (No 1) [2007] EWHC 3075 (Admin). The Court of Appeal refused permission to appeal, both on the papers and after an oral application.

These proceedings

Mr Dixon then applied to set aside the warrant of possession, contending that, were it to be executed, it would amount to a violation of his rights under Art. 8, ECHR. By consent, the application was transferred from the Wandsworth County Court to the High Court.

The law – according to the High Court

Before dealing in any substance with the arguments of the parties, the High Court set out what it regarded as the law.

The starting point was that a Notice to Quit given by one joint tenant would have the effect of terminating the tenancy, regardless of whether or not the other joint tenant(s) supported that move. This had been settled law since Doe d. Aslin v Summersett (1830) 1 B&AD 135 and had been confirmed in LB Hammersmith & Fulham v Monk [1992] 1 AC 478.

That rule of law had not, however, developed with any consideration of the rights of the parties under Article 8. In Qazi v LB Harrow [2004] 1 AC 983, the House of Lords had directly confronted this point and had concluded that Article 8 could not be used to defeat a private law contractual and proprietary right to possession. There was no infringement of Article 8 in recovering possession pursuant to a Notice to Quit.

That position had been further explained by Kay v LB Lambeth; Price v Leeds CC [2006] UKHL 10. One of the points in that appeal had been whether or not Qazi (and Monk) needed to be reconsidered in light of the decision of the European Court of Human Rights in Connors v UK 40 EHRR 189. Qazi was explained as meaning that, although Article 8 was engaged, domestic law would supply sufficient justification for the purposes of Article 8(2) in most cases.

There were, in effect, two gateways. Gateway A was a challenge to the underlying legislation such that it either had to be reinterpreted so as to comply with the requirements of the Human Rights Act 1998 (or a declaration of incompatibility granted) and Gateway B was a challenge, on judicial review grounds, to the decision to seek possession. Challenges could not be taken on the basis of individual personal circumstances.

In Doherty v Birmingham CC [2008] 3 WLR 636, Kay was revisited but not overruled. An unqualified right to possession could be challenged if the decision to seek possession was one that no reasonable person would consider justifiable.

The ‘new’ factor in the present case was the decision of the European Court of Human Rights in McCann v UK 19009/04. The European Court had found that possession proceedings predicated on an unqualified right to possession were in accordance with the law and pursued legitimate aims. However, they could not be said to be proportionate or necessary in a democratic society. Article 8(2) required an individual assessment of the eviction by a court and could not be met by a blanket presumption that domestic law had struck the correct balance.

That was the critical point of difference between the House of Lords and the European Court. The House had received written submissions on McCann before deciding Doherty and had concluded that it was not open to them to permit individual circumstances to stand as a free-standing defence. Judicial review-style defences were the only ones permissible.

The decision: Gateway A

When considering the compatibility of the rule in Monk with Article 8, McCann was of limited assistance. McCann had involved a local authority improperly procuring a Notice to Quit, whilst, in the present case, the Notice to Quit had been given freely by a private individual. All Wandsworth were doing was exercising their common law rights, as a result of the service of the notice.

It was not open to Mr Dixon to contend that the rule in Monk was incompatible with Article 8. That issue had been decided, against Mr Dixon, in Qazi. It was unclear what sort of modification Mr Dixon would want made to the rule in Monk. Why should an unwilling tenant be forced to remain in a joint tenancy against their will? Would the new rule apply equally to the public and private sector?

McCann was, at best, merely a persuasive authority. It had been doubted in the House of Lords and was factually distinguishable from the present case. There was no basis for contending that the rule in Monk was incompatible with Article 8.

The decision: Gateway B

Any challenge under Gateway B had to be on the basis that no reasonable person would consider the decision to seek possession justifiable. Although some of their Lordships in Doherty had suggested that this might need to be widened, none had actually done so.

The Court was not to substitute its own view of the proportionality of the eviction. Whilst there was no evidence to show that Wandsworth had carried out any proportionality assessment, the totality of the evidence was such that, had the assessment been carried out, Wandsworth could properly have concluded that it should seek possession.

What to make of this

I have some sympathy for the Judge, but this is a decision which side-steps the major issue. It was the ratio of McCann which mattered, not the facts. If, as the European Court held in McCann, a right to possession which does not afford a court the opportunity to examine the proportionality of that eviction is incompatible with Article 8, then surely all mandatory grounds (NTQ, s.21, Housing Act 1988, Ground 8, Housing Act 1988 etc) are incompatible with Article 8.

The House of Lords does not accept this premise and does not agree that an individual examination of the proportionality of the eviction is necessary, but has not yet properly said so. McCann and Connors cannot stand with Qazi, Kay and Doherty and, at some stage, their Lordships are going to have to bite the bullet and decide what to do about this.

I am less sympathetic however to his treatment of the proportionality question under Gateway B. On the one hand we’re told that a court cannot simply come to its own conclusion on proportionality, but on the other, the court decides that, if Wandsworth had ever done such an assessment, they would have been entitled to decide that they should proceed. Surely the landlord should do a proportionality assessment before each and every eviction. Permission to appeal has been sought on this point.

Finally, I’m not entirely convinced that this decision is compatible with Hillingdon v Collins & Another [2008] EWHC 3016 (Admin), discussed by us here. I’ll need some more time to reflect on that though, but, if there is even a slight difference, surely the Court of Appeal should grant permission… is it too much to hope that the Court of Appeal might then explain what Doherty actually means in practice?

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Desperately Seeking Dixon

Published
by
J
on 26/01/2009
in ASB, Housing law - All, Possession and secure-tenancy
. 5 Comments

Garden Court chambers have a note of a case called Dixon v Wandsworth LBC [2009] EWHC (Admin) 27. It isn’t on Bailii, Lawtel or Casetrack. I know that some Garden Court people read this blog and if anyone has more information about it (or a transcript) please let us know.

Mr Dixon and his sister were joint secure tenants of LB Wandsworth. His sister gave NTQ and left the property. LB Wandsworth then obtained a possession order. Mr Dixon applied to set aside the order or to prevent execution of the warrant on the basis that the rule in LB Hammersmith & Fulham v Monk [1992] 1 AC 478 violated his rights under Art. 8, ECHR.

The High Court rejected the application. There was no need to reconsider the decision in Monk and, in any event, the decision of the council was reasonable and proportionate.

As I say – anyone with more information should feel free to contact us.

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The Basildon Endgame

Published
by
NL
on 26/01/2009
in FLW case note, Homeless, Housing law - All, Licences and occupiers, Possession and Regulation and planning
. 0 Comments

As people may well have noticed from the news on TV and in the press, the last Court of Appeal hearing in the drawn out saga of the (unlawful) Essex traveller sites resulted in a defeat for the travellers. Basildon District Council v McCarthy & Ors [2009] EWCA Civ 13 was the Court of Appeal hearing of Basildon DC’s appeal against a High Court decision that, in effect, evictions could not proceed against individual households until individual consideration of their circumstances had been carried out. Some 63 caravan pitches were at issue.

Previous litigation over planning permission had been exhausted and, for the occupants, it was admitted that they occupied the land unlawfully.

What was at issue in this case was the lawfulness of the Local Authority pursuing evictions under s.178(1) of the Town & Country Planning Act 1990, which were proposed to be en-mass for the unlawful pitches.

For the occupants, Jan Luba QC submitted that:

the duty on the council to look for alternative sites, to meet need, continues. Particularly in the absence of such a search, it was incumbent upon the council to consider the claim of each occupant not to be evicted, one by one and plot by plot. The personal circumstances of each of them should be considered. The council’s aim was for site clearance, which, it is submitted, did not have regard to individual cases and was unlawful. [para 11.]

The occupants relied on Circular 18/94, Gypsy Sites Policy and Unauthorised Camping, in which it was stated at paragraph 10:

The Secretaries of State expect authorities to take careful account of these obligations [Children Act 1989 and Housing Act 1985] when taking decisions about the future maintenance of authorised Gypsy caravan sites and eviction of persons from unauthorised sites.

and on Circular 01/2006, Paragraph 40 of which requires local authorities to have regard to their statutory duties, including those under Part VII of the Housing Act 1996 and the Race Relations Act 1976; and Paragraph 43 provides:

Where there is clear and immediate need, for instance evidenced through the presence of significant numbers of unauthorised encampments or developments, local planning authorities should bring forward DPDs containing site allocations in advance of regional consideration of pitch numbers, and completion of the new GTA [...] Where there is an urgent need to make provision, local planning authorities should consider preparing site allocation DPDs in parallel with, or in advance of the core strategy.

Basildon’s argument was that it would perform its duties under Part VII, which had been stayed pending the outcome of these proceedings. ‘Need’ was not the same as demand, and ‘need’ had to be shown to be in the district rather than the east of england as a whole. The Council’s detailed examination in its report of December 2007 had considered individual circumstance and demand. In LJ Pill’s lead judgment at para 43

I have set out the contents of the officers’ report and minutes in some detail. Having considered these as a whole, it does not appear to me that the Committee failed to address the correct issues when deciding whether to take action under section 178. Need and the absence of alternative sites in the District was recognised, as it had been in the Secretary of State’s planning decisions. On the other hand, it does not follow from a claimant’s wish to live on a site in Basildon District that he is entitled to have one there. The council was entitled to regard the situation of the sites in the Green Belt as a factor of substantial weight when doing the exercise they acknowledge was required. However, both when considering whether planning permission should be granted and when making an assessment under article 8 of the Convention, such personal circumstances as the proximity of family members may also be a factor. I accept the formulation of Ouseley J in O’Brien v Basildon District Council [2007] 1 P&CR 16. Ouseley J stated, at paragraph 171, that “the question of local connection could be a live issue in the assessment of needs.” He also stated that the Green Belt factor is also “a matter for legitimate debate.

The Council argued that demand for the east of england was clear, but not the allocation to Basildon. As the Sec of State had refused temporary planning permissions and upheld enforcement on consideration of individual cases, there was no reason to uphold a failure under Para 43 of the guidance.

Held – at paras 70-71:

The procedure which has been followed, the refusal of planning permission, consistently supported by the Secretary of State, the taking of enforcement action under section 172 of the 1990 Act, and the flagrant disregard of enforcement orders upheld by the Secretary of State, can legitimately form the basis for a decision to take action under section 178 of the 1990 Act. In taking that decision, the persistent breaches both of planning control and the criminal law are factors which may be taken into account. The council was not required to act as if the decisions on the enforcement notices had not been taken.

Given the planning context, I do not consider that the council has erred in law in failing to give further consideration to alternative sites at the time the decision to take action under section 178 was taken. As appears from Circular 01/2006, sites are to be provided through the development plan process. I have referred to that process and to the Secretary of State’s comment on its current stage. In his planning decisions, the Secretary of State has plainly been mindful of factors in favour of the claimants and has declined to grant planning permission. Temporary permissions, contemplated in paragraphs 45 and 46 of the Circular have been refused by the Secretary of State, mindful of all the factors involved. I agree with the approach to this issue of Keene LJ in O’Brien, including his reference to the planning system being development plan-led and the likely exacerbation of controversy by by-passing the system. Whether an attempt should be made to bring forward DPD allocations (paragraph 43 of Circular 01/2006) may be the subject to debate but failure to do so does not, in my judgment, and in this particular context, render a decision to act under section 178 unlawful.

And, LJ Lloyd on the Part VII HA 1996 issue:

[A]lthough the question of homelessness was embarked upon at an earlier stage, it has, properly, been in abeyance until now, and that if the council’s decision stands, as a result of the appeal, the housing department will engage with those affected, to see which of them wish to apply under section 183 of the 1996 Act, and the council will comply with its duties under the Act in relation to those who do so apply. None of that had to be addressed as a pre-condition of proceeding to enforcement under the 1990 Act. Officers will take the necessary steps to comply with Part VII of the 1996 Act as part of the process of deciding how and when to carry out their delegated functions under the council’s decision.

Appeal allowed. The evictions under s.178 can proceed.

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Allocations/Homelessness

Published
by
Dave
on 23/01/2009
in Allocation, FLW case note, Homeless, Housing law - All and secure-tenancy
. 6 Comments

Alam v LB Tower Hamlets[2009] EWHC 44 (Admin) is one of those interesting cases that you get in allocations – well, interesting because a council like LB Tower Hamlets should probably know better than to have an obscure clause in its allocations scheme which surely will be challenged sooner rather than later (that it took three years is mildly surprising). It’s also interesting because most allocations cases, like Ahmad, usually turn on the meaning of reasonable preference. This case turned on the meaning to be ascribed to one of the allocations groups in LBTH’s scheme and may be of interest to those in Aweys. Group 2, termed community priority, included “Those assessed by the Council as Homeless under the Housing Act Part 7 and other Homeless households who have an assessed priority need”. Now for entirely separate reasons, I have a passing interest in LBTH’s scheme and that also puzzled me, so good for Robert Latham, who acted for Mr Alam. The problem lies in the extent and meaning of the reasonable preference categories in s. 167(2)(a)-(b).

Anyway, the facts: Mr Alam was found by LBTH to be homeless, but not in priority need. There was no question of intentionality. He took the non-priority need finding to the County Court on appeal but was unsuccessful. He remained in the s.188 accommodation, a guest house. Prior to receiving the s 184 decision letter, he made a Part VI application. LBTH placed him in Group 3 (“Community Mobility”), not Group 2. The problem for Mr Alam was that, in bidding for one bed properties, he would always be outbid by somebody within Group 2 (or Group 1), however much priority he had in Group 3.

LBTH’s argument before Timothy Brennan QC, sitting as a Deputy High Court Judge, was that (a) although Mr Alam was homeless prior to the s 184, he was not homeless thereafter and thus not entitled to reasonable preference; (b) if that was wrong, Mr Alam had a reasonable preference by being placed in Group 3 (and with a high priority within that group). Robert Latham argued that the split definition of Group 2 meant that the first category (ie “Those assessed by the Council as Homeless under the Housing Act Part 7″) referred to the s 167(2)(a) reasonable preference category (People who are homeless within the meaning of Part 7); and the second bit of Group 2 (ie “other Homeless households who have an assessed priority need”) related to some of the s 167(2)(b) categories. The problem with that construction, as the Judge rightly pointed out, was that “substantially the whole of the second category is already contained within the first category” (para 44). An alternative, and if I may say, somewhat wild construction was that the first category reflected s 167(2)(a)-(b), and the second category referred to those with findings under the Housing Act 1985, ss 65(2)/68(2). The Judge preferred the second construction, in my view wrongly, but frankly LBTH really made their own bed here and their subsequent complaint that this meant that all homeless people would be in Group 2 was met with a judicial “yeah, so what; that’s what you’ve said” ([55]). Equally, and more salubriously, he noted that Group 2 applicants would be prioritised on different bases.

The Judge made one important obiter comment at this point ([47]), which is worth bearing in mind:

Neither of the Claimant’s constructions gives any obvious weight to the priority required to be given to those falling within s 195(2) (those who are not homeless, but who are threatened with homelessness which is likely to occur within 28 days). Given the purpose of the scheme in allocating priorities among those who need accommodation, and recognising that decisions about the allocation of housing are unlikely to be made and fully brought into effect within as short a period as 28 days, I would be inclined, if the point arose, to construe ‘homeless’ in this part of the scheme purposively, so as to include those who are ‘threatened with homelessness’ in the statutory sense. However I have not received detailed argument on the position of those who are threatened with homelessness and I do not need to decide the point.

The Judge rejected LBTH’s arguments, although (and with respect) his judgment is not necessarily the model of good structure. But he rejected LBTH’s first submission on the basis, which surely must be correct, that one’s status as “homeless” does not depend on whether one is actually entitled to assistance under Part 7 ([51]). At [15]-[18], he gave short shrift to the argument that Mr Alam was no longer homeless after the s 184 decision, making clear that Mr Alam had no enforceable right to stay in the guest house; temporary accommodation was not accommodation in which it was reasonable to remain; and, if he was wrong on those points (and he probably was), at [17], he said: “I hold that it is indeed necessary to imply into the statutory scheme the qualification that the provision to the Claimant of merely temporary interim accommodation did not involve loss of his status of homelessness within the meaning of Part 7. There may be cases of fact and degree which would dictate different results. I am satisfied that in the present case the accommodation which was made available to the Claimant at Mile End Guest House did not have a sufficient degree of permanence and security to justify a conclusion that the Claimant has lost his status of homelessness by reason of s 175(1)(a) or (b).” At [27], he also made the point, back on the correct path, that

[T]he concept of homelessness does not involve any consideration of whether the individual is intentionally homeless (which the Claimant was not) or in priority need (which the Claimant was not), nor of whether a local housing authority owes him any particular duty to house him consequent on him being homeless (which, as a result of the Claimant not being in priority need, it did not). Those factors are relevant to the existence and extent of the duty which may be owed to him, but not to the question whether he is homeless within the meaning of Part 7.

He went further (and further than he needed to), again in my humble opinion correctly, by saying that the status as “homeless” does not necessarily depend on a formal s 184 decision, but might be raised in other matters such as a Part 6 application – he doesn’t refer to s 183 but that would support his construction. As to LBTH’s second argument, he rightly made the point that if Mr Alam was entitled to be in Group 2 under the council’s scheme, then he should have been placed in it.

Quite a lot was going on here and a lot is at stake for LBTH – it will be interesting to see if they appeal.

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How to get round the s.17/s.20 debate.

Published
by
J
on 22/01/2009
in Community care, FLW case note and Housing law - All
. 1 Comment

The housing/social services relationship is one of the “hot topics” in housing law at the moment and, before we come to R (on the application of A) v Coventry City Council [2009] EWHC 34 (Admin), a bit of background is needed.

A bit of background

There are two principle sections in the Children Act 1989 which are of interest to housing lawyers. Section 17 contains a power to provide a “range and level of services” to children “in need”. This can include money or accommodation. Section 20, by contrast, is a mandatory duty to provide accommodation for children “in need” who appear to the local social services authority to require accommodation as a result of, inter alia, being lost or abandoned or the person who usually provides accommodation being prevented from doing so.

The fact that one is a (broad) power and one a (narrow) duty is not the only differences between ss. 17 and 20. Persons accommodated under s.17 are – in general terms – ineligible for the various ‘leaving care’ support packages provided by local social services authorities, whilst those accommodated under s.20 are (again, in general terms), likely to benefit from a range of support services pursuant to the Children (Leaving Care) Act 2000.

There is a view amongst those who practice in this field that some local social services authorities try to use s.17, rather than s.20, to assist homeless children, due to potential long-term cost savings. I express no view on this, save to note that there are a number of reasons (some good, some not so good) why a local authority (and, indeed, a homeless child) might prefer to use s.17 as opposed to s.20. The cases on this point have tended to focus on the question of whether or not the child needed accommodation (s.20) or merely “help” with finding (or retaining) accommodation (s.17). See our note on G v Southwark, here, for more details.

The facts

In February 2007, “A”, then aged c.15 3/4  was apparently thrown out of his family home by the partner of his father. He went to stay with the mother of a friend who was already caring for his elder brother. He has remained there ever since, cared for (and funded) by the mother of his friend.

Proceedings were issued with a view to ensuring that A obtained financial support from Coventry City Council after his 16th birthday in line. A’s case was that he had been (or should have been) accommodated pursuant to s.20, and so was (or should be) entitled to the various support that came with that. Coventry CC contended that this was, in effect, a private fostering arrangement and hence fell outside the scope of s.20. The s.20 duty was said never to have arisen.

After a lengthy discussion of the relevant factual background, Deputy Judge Anthony Edwards-Stewart QC concluded that – on the facts – Coventry CC had allowed A and the mother of his friend to believe that they would provide financial support. In those circumstances, the law deemed the arrangement to be under s.20. In any event, Coventry CC could not properly have concluded that there was a private fostering arrangement. A’s father had taken no active steps in relation to his accommodation. A had merely been left in the care of another adult, with no provision made for his long-term well-being or funding arrangements. This was far too uncertain to amount to a private fostering arrangement.

It was declared that A had been accommodated pursuant to s.20 (the transcript says s.22, but I think that is a typo) and an order made for payment of the appropriate monies.

G v Southwark

There is a lengthy discussion of the decision in G v Southwark. You’ll remember that, in that case, Longmore LJ and Pill LJ had approved the “needs accommodation / help with accommodation” between ss.17 and 20. Rix LJ dissented and held that a child could be said to require “accommodation” even if that accommodation was then provided by a third party. The provision of accommodation by a third party did not absolve the local social services authority of the s.20 duty, rather, it demonstrated that s.20 was fulfilled.

The Deputy Judge favoured the approach taken by Rix LJ, although he accepted that he was bound to follow the majority judgment in G v Southwark.

The clever bit

One might have thought that this would bode well for Coventry. However, The Deputy Judge was able to side-step the accommodation / help with accommodation debate in G v Southwark by relying on London Borough of Southwark v D [2007] EWCA Civ 182 to find that failure to expressly refer to s.17 will – depending on the facts – allow the parties and the court to assume that s.20 was used:

“If the authority is facilitating a private arrangement, it must make it plain to the proposed foster parent that s/he must look to the parents or person with parental responsibility for financial support. The authority must explain that any financial assistance from public funds would be entirely a matter for the discretion of the local authority for the area in which the foster parent is living. Only on receipt of such information could the foster parent give informed consent to acceptance of the child under a private fostering agreement. If such matters are left unclear, there is a danger that the foster parent (and subsequently the court) will conclude that the local authority was acting under its statutory powers and duties and that the arrangement was not a private one at all” D at [49]

G v Southwark is in the Lords very shortly. Lets see what their Lordships make of this because, at the moment, the argument based on D appears to offer an attractive route around the decision in G v Southwark. Whether or not this is a good thing is a matter of debate – I, for example, think G v Southwark is rightly decided. NL, for example, disagrees and sides with Rix LJ. What is frustrating is that all of these social services/housing cases are turning on their own facts, rather than on any general statements of principle and a greater use of the argument in D will only encourage this trend. Of course, cases must be fought on their own facts and of course it would be wrong to have mechanical judgments which took no account of individual circumstances but it cannot be in the best interests of either vulnerable children or local social services authorities that there is confusion in this area of the law.

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Not another review …

Published
by
Dave
on 22/01/2009
in Assured Shorthold tenancy, Housing law - All and Regulation and planning
. 0 Comments

Yes, it’s true, another review has been published, this time of the regulation and redress in the UK housing market. And yes, if you’re wondering, this was what the Law Commission did in their Issues paper on proportionate dispute resolution and further analysis. The author this time is Professor Colin Jones, whose biog does not suggest that he has ever been particularly interested, if at all, in this issue although that may be a little unfair. Actually, what he has done here is quite respectable to a point and worthy (in contrast to the disastrous Rugg and Rhodes report – for our review, see here).

Prof Jones has mapped out the complex, diverse accountability space (as the Law Commission put it) and – shock, horror – has demonstrated that: it is too complex; needs to improve its transparency and be universal; needs to have a single web gateway to complaints schemes; and certain elements of self-regulation need beefing up to be compatible with principles of natural justice (eg estate agents redress schemes). Most particularly – shock, horror again – he notes that lettings and management agencies have no, or insufficient, mechanisms for aggrieved occupiers to claim redress, and suggests that they should come within the provisions of the Consumers, Estate Agents and Redress Act 2007 (which was the derivation of this inquiry). None of this is startling or new, as implied, but he does map out the different schemes which currently operate against a set of “natural justice” criteria borrowed from the OFT and that is interesting because some schemes are found wanting against that set of criteria. He also seeks and claims to demonstrate from pretty rough and ready statistics levels of dissatisfaction primarily with estate agents, and the private rented sector.

He makes some strong criticisms of existing mechanisms, which are likely to chime with those experienced in these fields. eg

The complexities of regulation of private landlords mean that they can be subject to registration, licensing or accreditation schemes that can vary by location and status. Trhe result is that the meaning of these terms has become stretched and difficult for a housing professional, never mind a lay person, to comprehend the layer differences

But my favourite is this:

[The changing landscape of redress in the housing market] is likely to cause some confusion for customers although there is no evidence to demonstrate there is a problem. The system may not be a maze if you are in it but to the outsider looking in it seems unnecessarily complex with consequent fears of a lack of consumer confidence and opportunities for unscrupulous practice.

So that’s what’s good. But, it’s disappointing after all that work that the Law Commission did in developing criteria to judge dispute resolution mechanisms to find it written out (and not referred to). It’s also disappointing that sometimes in the crucial chapters on consumers’ views that Prof Jones often equates dissatisfaction with grievance. Those with a passing interest in the disputing literature are likely to shake their heads at this point.

But really, the basis for the assertion of high levels of dissatisfaction is, as Prof Jones accepts at one point (para 7.2), unclear. As this is so important in our consumer focused world, it is the most disappointing part of the report. So, for example, at para 7.11, he states that “the [Ombudsman for Estate Agents] statistics suggest that as relatively few make a formal complaint to the organisation either this is quite a low level unhappiness, perhaps niggling concerns, or there is a lack of awareness of consumer rights or a lack of confidence in the process”. The assertion is that there are high levels of dissatisfaction and low levels of complaint. The data sources for each are limited, and there is no discussion of the key issues – the transformation of grievance to dispute as well as the role of (and access to) professionals in that process. I don’t necessarily blame Prof Jones for this, but I do blame CLG and BERR who commissioned the report.

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In passing…

Published
by
NL
on 21/01/2009
in Homeless, Housing law - All, Licences and occupiers, Possession and assured-tenancy
. 0 Comments

A couple of quick notes from the HLPA meeting this evening.

Aweys v Birmingham is listed for the Lords next week (homeless at home and allocation policy differences in priority between homeless at home and those with no accommodation available, as if you didn’t already know).

There were mentions of a handful of post-Doherty public law defence cases that have settled, although terms weren’t detailed. While we wait for Bedfordshire CC v Taylor and others (former subtenants) and McGlynn v Welwyn & Hatfield DC (non secure tenancy) in the Court of Appeal, which will be a couple of months for the latter and who knows when for the former, anecdotal evidence of settling is interesting. I’m not wholly surprised. Settling actually makes sense for the ‘landlord’ when the defence is even vaguely plausible so that the alternatives are either the risk of losing and having an occupier (not tenant) who can only be got out when it is reasonable to do so, or, more likely, adjournment pending current Court of Appeal and then maybe possible Lords appeals.

That said, there was also a mention of a failed case, so, in the post-Doherty confusion, one takes one’s chances. No mention of LB Hillingdon v Collins in the High Court, though, as a post-Doherty decision.

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Local Housing Authorities to build new homes… perhaps

Published
by
J
on 21/01/2009
in Allocation, Housing law - All and secure-tenancy
. 0 Comments

Local government finance is a fascinating area. Honestly.

Those local housing authorities which still retain housing stock are required keep records of their housing income and expenditure. They also operate a Housing Revenue Account (“the HRA”). The HRA is required to balance each year and, if there is a surplus, that surplus is paid to the Government and used to cover shortfalls in the HRA of other local housing authorities – see, generally, Part 6 of the Local Government and Finance Act 1989.

Section 313 Housing and Regeneration Act 2008 introduced a new s.80B into the 1989 Act. It would provide for the Secretary of State (or the Welsh Ministers) to disapply parts of the 1989 Act so that, for example:

(a) local housing authorities could keep any surplus, with the intention that the surplus be used to fund new homes – see CLG press release New Legislation for Greener, More Affordable Housing, Nov 16, 2007; or

(b) any newly built, purchased or renovated properties would be exempted from the provisions of the HRA, so that, again, any surplus could be used to find new homes – see CLG press release New Freedoms to Increase Council Housing, Jan 21, 2009.

The Government is now consulting on example (b). The consultation document is here and runs until April 17, 2009.

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No no she's not dead, she's, she's restin'!

Published
by
J
on 21/01/2009
in FLW case note, Housing law - All, Possession and Trusts and Estoppel
. 13 Comments

Newport City Council v Charles [2008] EWCA Civ 1541, The Times, 11 Aug 2008 [now on bailii]

The transcript for this (factually remarkable but legally straightforward) case has only just been produced, hence the delay in covering it.

The appellant, Mr Charles, lived at 1B Marlborough Rd, Newport. That property had been granted to his mother on a secure tenancy some years previously. She died in January 2003 and, upon her death, Mr Charles made anonymous enquiries of the local housing authority to try and discover what was likely to happen. He discovered that it was unlikely that he would be permitted to remain in occupation and, therefore, simply did not tell the local authority (or, indeed, any other relevant governmental body) that his mother had died. He continued to pay the rent in her name and even forged a letter from her giving him authority to deal with the tenancy.

In 2007, the local authority became aware of the deception and instituted proceedings for possession on the basis of Ground 16 (under occupation). The only problem with that was that Ground 16 requires the NSP to be served within a year of the death of the tenant.

Both the District Judge and the Circuit Judge did not see this as a problem. In their view, Mr Charles was estopped from contending that his mother died in January 2003 and time only started to run from when the local authority became aware of her death. Mr Charles appealed to the Court of Appeal.

The Court of Appeal – with evident distaste – allowed the appeal. Whilst the conduct of Mr Charles may have been sufficient to give rise to an estoppel, the problem was that the local authority sought to use the estoppel as a sword and not a shield and, unless the estoppel was a proprietary estoppel, that was impermissible.

The estoppel was not proprietary. The estoppel did not give rise to any interest in land. The local authority was already the landlord and freehold owner and did not need an estoppel to establish those propositions. The estoppel was an estoppel by representation and that was insufficient to found a claim under Ground 16. To hold otherwise would have involved re-writing the law of estoppel and this was a matter for Parliament and not the Court of Appeal.

(with apologies to Monty Python for the title)

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Right to Buy leases and service charges

Published
by
J
on 21/01/2009
in FLW case note, Housing law - All, Leasehold and shared ownership and right-to-buy
. 0 Comments

Leicester City Council v Masters LRX/175/2007 (links to a .pdf)

Pursuant to the Right to Buy provisions, the respondent purchased a leasehold interest in his flat in April 2005. As readers will know, where someone is purchasing a leasehold interest under the RTB provisions, the local authority will serve a notice under s.125 Housing Act 1985, setting out the anticipated level of service charge expenditure for the first five years of the lease. Save for increases for inflation, the s.125 notice operates to cap the level of service charge recovery during those first five years. .

In 2006, the local authority carried out a number of items of works which had been identified in the s.125 notice and sought to recover some £2,234.24 from the respondent. It appears (although the report is slightly unclear on this point) that some of this included a payment towards a reserve fund.

The respondent contended – successfully – before the LVT that there was no power under the lease nor under the s.125 notice to require him to make contributions towards a reserve fund. The local authority appealed.

The Lands Tribunal allowed the appeal. The terms of the lease did, correctly understood, permit the local authority to establish a reserve fund. One had to have regard to all the factual background, including the fact that the s.125 notice had made reference to a reserve fund and that the establishment of a reserve fund was in the best interests of both parties.

I’m not quite sure what to make of this, mainly because I didn’t find the factual background very easy to follow. Comments gratefully received.

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