“Analysis” on Radio 4 yesterday was presented by Richard Reeves of Demos and was entitled “Anti-Social Housing.” The thesis is that social housing has failed everyone. Thanks to the Iplayer, you can listen online here.
Archive for February, 2009
R (Ariemuguvbe) v LB Islington (2009) QBD (Admin) 24/02/09 [just on Lawtel, not on Bailii yet - what's up with Bailii?] concerned the meaning of ‘household’ for the purposes of Part VI Housing Act 1996.
A. had applied to Islington as homeless and Islington had accepted the full housing duty. A. and her family were temporarily accommodated in a three bed property. The family comprised A., her husband, her five adult children and three grandchildren. The five adult children were all subject to immigration control.
A. then applied under Part VI for permanent accommodation. Islington offered a two bedroom property on the basis that it was inappropriate to take the five adult children into account for allocation purposes as a) they were subject to immigration control and b) they were not dependent children and could make their own arrangements. Islington further argued that as the children were subject to immigration control and could not work, the provision of housing accommodation would be a breach of the no recourse to public funds condition set on their entry to the UK.
A. applied for judicial review, arguing that Islington were not entitled to exclude her children on the basis that they did not form part of her household to whom housing accommodation could be provided.
Cranston J held:
Local Authorities had a considerable discretion in the exercise of their statutory powers of allocation under s.159 HA 1996, Holmes Moorhouse v Richmond upon Thames (2009) UKHL 7 [Our note here]. However, it was clear that s.160(3) of the Act did not prevent allocation of accommodation to someone whose household contained a person who was not eligible, R (Kimvono) v Tower Hamlets LBC (2001) 33 HLR 78 QD (Admin). There had been no subsequent steps by parliament to change this since that judgment.
But, given that there was no definition of ‘household’ in the Act or in relevant accommodation policy, the LA was entitled to interpret ‘household’ on its normal everyday useage and it was its decision whther the five adult children were members of A.’s household.
Further, the LA was entitled to have regard to the ‘precarious’ immigration status of A.’s children and that provision of accommodation would amount to recourse to public funds for individuals subject to immigration control, Kimvono, and Begum v Tower Hamlets (2003) UKHL 5 applied.
The LA was entitled to reach the decision it did. It had not failed to apply its allocation policy but adopted an appropriate interpretation of ‘household’ given the circumstances of the family.
For A. Edward Fitzpatrick, instructed by Duncan Lewis.
For Islington, Terence Gallivan, instructed by Islington Legal.
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Cambridge City Council v Joyce
No link for this one, but it was noted on Lawtel this morning and has been reported as [2009] All ER (D) 234 (Feb). Mr Joyce was a secure tenant of one of Cambridge’s properties. His tenancy contained conditions not to harass anyone or to do anything on or around the property which would annoy others. He became subject to a restraining order not to contact or take photos of his neighbours. Presumably this didn’t have the desired effect as an injunction was taken against him to prevent him committing an annoyance or using surveillance equipment on his road, or from using violence or intimidating behaviour, and finally not to enter some of the Council’s buildings. That can’t have worked either as Cambridge subsequently began possession proceedings against Mr Joyce, claiming that he had breached the injunction 23 times. Mr Joyce does not appear to have attended at Cambridge County Court when HHJ O’Brien found that eleven of the breaches were proved on the balance of probabilities and three of them were proved beyond reasonable doubt (it’s not clear to me if this is three of the eleven or if there were 14 proved in total, but absolutely nothing turns on it). The Judge considered medical evidence (Mr Joyce is in a wheelchair) and the lack of remorse on his part. He relied on the three breaches proved beyond reasonable doubt in ordering possession to be given up within 28 days and imposing a sentence of 21 days’ imprisonment, suspended on two conditions*:
- Possession given up within the 28 days, and
- No more breaches of the injunction to be committed.
Mr Joyce appealed against the committal order. He appeared in person and argued that Cambridge had engineered with his neighbours to get the eviction order and he had been prevented from disclosing documents proving that Cambridge had a vendetta against him.
The Court of Appeal (Arden, Richards and Rimer LJJ) dismissed his appeal. Not clear who delivered the judgment but the Court held that the Judge had not taken any irrelevant factors into account, the sentence was limited and the two conditions would have to be complied with in any event.
* So not quite the case of “Go to Jail. Go directly to Jail” that the post title implied, but I couldn’t think of anything else.
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The Court of Appeal are in the middle of hearing the appeal in R(Weaver) v L&Q – yesterday and today, (Housing Associations as public bodies for JR/HRA purposes). As ever, news on the judgment will be posted as soon as we have it.
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Cheval Bridging Finance Ltd v Bhasin and others [2009] EWCA Civ 1613.
Mrs Bhasin had lived at 9 Long Acre Drive since May 1975. Initially, she was a tenant of the local authority but, in c.1988, she purchased the property under the “Right To Buy” scheme and it was registered in her sole name.
Some years later, she married Mr Bhasin, who moved in to the property and, in 2003, she took out a mortgage with I Group for some c.£210,000 in order to fund the development of an “granny flat” for her mother to live in.
In late 2003 or early 2004, Mr Bhasin left the family home and Mrs Bhasin feared that she would not be able to service the I Group mortgage. Her “friends”, Mr & Mrs Hastings offered to help. Mr Hastings told her that he was a solicitor and could not only assist financially, but could also draw up all necessary paperwork to ensure that her interests were protected. Mr Hastings had actually been struck off.
Mr & Mrs Hastings agreed to pay off the I Group mortgage and to take the legal title to the property, but they stated that they would hold the property on trust for Mrs Bhasin. She could live in the property rent free and purchase it back at a later date. Mr & Mrs Hastings funded this arrangement with the aid of a loan from GMAC and, subsequently, Cheval. The loans were secured on the property and, whilst Mr & Mrs Hastings were able to service the GMAC loan, they allowed the Cheval loan to fall into arrears.
In February 2006, Mrs Bhasin started the process of re-purchasing the property. This was proceeding normally until she discovered that Cheval had commenced possession proceedings in June 2006. Cheval had issued against Mr & Mrs Hastings. Mrs Bhasin applied to be joined as a defendant and then issued what appears to have been a fresh claim for damages for breach of fiduciary duty as against Mr & Mrs Hastings.
The possession proceedings came on for trial before HHJ Marcus Edwards in October 2007. He refused Mrs Bhasin’s application to adjourn the trial under s.36 Administration of Justice Act 1970 as there was no evidence that the mortgage arrears could be paid in a reasonable period of time. Mrs Bhasin contended that, when she was successful in her claim against Mr & Mrs Hastings, there would be sufficient funds available to her to discharge the mortgage.
Mrs Bhasin appealed to the Court of Appeal, who granted permission on 11 April 2008 on two points:
(a) did the court have the power to adjourn the possession proceedings (whether pursuant to s.36 or CPR 3.1) pending resolution of Mrs Bhasin’s claim against Mr & Mrs Hastings?
(b) was Mrs Bhasin entitled to rely on s.36 as against Cheval?
The Court of Appeal dismissed the appeal. As to question (a), the court had always had an inherent jurisdiction to adjourn any proceedings. However, in the instant case, the question of an adjournment had fallen away because (i) Mrs Bhasin had won her claim against Mr & Mrs Hastings on 1 August 2008 and (ii) any adjournment – whether under CPR 3.1, s.36 or the inherent jurisdiction – would only have been granted if there was a realistic prospect of the arrears being satisfied. There was (and never had been) any such prospect in the instant case.
Question (b) was also dealt with quite shortly. The Court of Appeal was confused as to why permission had even been granted on this point. Cheval had conceeded that s.36 applied to the present case and there was no reason for the court to go behind that concession.
The Court did express the hope that, despite all this, settlement might still be possible and Mrs Bhasin might be permitted to remain in her home.
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With thanks to Christopher Stockdale at John Barkers of Grimsby, we have had news of another Shorthold Assured Tenancy deposit case, Piggott v Slaven, Great Grimsby County Court 23 February 2009.
This one is of particular interest as the issue at stake was whether there was deposit at all, or just an advance payment of rent. There are a couple of side issues – one on transfer of deposit from one tenancy to another and the other on technical validity of notice. This is a County Court decision by a District Judge, so no precedents set, but the logic on the deposit question looks good to me.
The facts were that Ms Slaven had signed a six months AST on 14 Feb 08 at a weekly rent of £105 to be paid weekly in advance. On 24 June 08 the landlord, Mr Piggott served notice under s.21 (stated as s.21(1)(b)) with possession required on 27 August. An accelerated possession claim was issued on 9 September.
Before taking this tenancy, Ms Slaven was the tenant of another property at which her landlord was also Mr Piggott. A deposit of £600 was paid by Ms Slaven to Mr Piggott for that tenancy in April 2005. Ms Slaven defended on the basis that this £600 had been retained by Mr Piggott as deposit for the tenancy of the new property (there being no interruption between the tenancies) and that this deposit has not been put in a scheme, therefore the s.21 notice was invalid, or of no effect. Ms Slaven claimed the 3 x deposit penalty.
Mr Piggott said that the money was taken as advance rent and was therefore not a deposit so the HA 2004 provisions did not apply and the s.21 notice was valid.
At hearing, there was dispute over the amount of money and whether or not it was a deposit. The DJ found that there had been an amount of £525 taken by Mr Piggott, which had been described as advance rent.
On the deposit issue, the DJ noted that s.212(8) HA 2004 describes a deposit as meaning:
Any money intended to be held (by the landlord or otherwise) as security for -
(a) the performance of any obligations of the tenant, or
(b) the discharge of any liability of his arising under or in connection with the tenancy.
On ‘intended’ there is no indication in HA 2004 whether this is an objective or subjective test. But in view of the policy aim of protecting the tenant, it was surely not intended that the LL could avoid the scheme simply by saying that he did not intend to hold the money as security.
In the present case, any money over the first week’s rent was clearly being held as security against any potential future breach of rent liability, or other condition, by Mr Piggott, as it was not set off against the first five weeks rent liability. It was therefore, objectively, intended to be a security and was a deposit.
The deposit had not been put in a scheme as per s.213(1) and (6) HA 2004, and, by s.215(1) the s.21 Notice was not valid. 3 x deposit payment ordered and the return or protection of the deposit.
Arguably then, any money from the tenant held by the landlord over and above the immediate payments of rent due is construable as a deposit, where the landlord has not clearly indicated that it will not be used in relation to any breach of tenancy condition or tenant liability.
It is interesting to note that there is no issue at all about the deposit being ‘new’ and caught by the scheme, although no money had physically been given to Mr Piggott by Ms Slaven at or around the beginning of the tenancy (in fact he had returned £75 to her at the time). However, as this was a different property, it is not quite the same situation as a ‘renewed’ tenancy of the same property.
There was also an issue over the validity of the s.21 notice, which was in form 21(1)(b) when, it was alleged, it should have been in form 21(4). The DJ decided there was no need to find on this, but ‘would have taken a lot of persuading’ that the technical fault was important, when ‘the intention of the party serving the notice was clear to the party receiving it’. Call me an old pedant, but the technical requirements are just that and shouldn’t be waved away on the basis that ‘everyone knew what it meant’. But, as ever, one has to convince the particular DJ on the day.
[For all tenancy deposit case posts click here]
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A case appearing on my radar, though one that may not excite many readers is Landlord Protect Limited v St Anselm Development Company Limited [2009] EWCA Civ 99. A case concerning whether a landlord has imposed an unreasonable condition for a consent to assign.
The relevant covenant in the lease was as follows:
…not to assign part or parts only of the demised premises and not to underlet or part with possession or assign the whole of the demised premises without the consent in writing of the Landlord first had and obtained but such consent shall not be unreasonably withheld in the case of a respectable and responsible assignee or sub-tenant being offered. (emphasis mine).
A slightly odd clause because it would appear to permit the landlord to unreasonably refuse consent where no respectable and responsible sub-tenant was offered which would appear to be contrary to s.19 of the Landlord and Tenant Act 1927. Nevertheless, no-one seems to have worried about the wording of the clause in this case.
The parties to the case were in fact the existing tenant (St Anselm Development) and the proposed assignee (Landlord Protect Ltd). The proposed assignee was (as is often the case) a company with no assets. The landlord (not unreasonably) wanted someone to guarantee the rent and so demanded (as a condition of assignment) that a director of the assignee gave a personal guarantee.
So far, so not very surprising, but the landlord wanted to guarantee to continue even if there was a subsequent assignment unless a “reasonable alternative security is provided by the assignee pursuant to such subsequent assignment”. In other words the director would be saddled with guaranteeing a subsequent tenant’s liability unless he could come up with another guarantor (or other security) to stand in his place.
But hang on – if you have been following so far the following objection occurs – any further assignment is going to require the landlord’s consent again. The landlord could not necessarily require that the new assignee provides security if the assignee is an individual or company with reasonable credit. What the landlord is asking for is to be given more security into the future than the lease would normally permit them.
That is what the assignee thought and they refused to agree (or their director refused to agree) a guarantee in those terms.
There’s a slight (unnecessary) complexity in that the sale agreement between the parties required the assignee to use all reasonable endeavours to obtain the landlord’s consent. Since they thought that they had done so (because they thought the landlord was being unreasonable) they claimed to be unable to complete the purchase. As a result the existing tenant sued them for failure to complete.
Despite this small detour, the issue to be decided by the court was simply: was the landlord unreasonable in requiring the additional guarantee condition? The Court of Appeal thought so and agree with the assignee.
At paragraph 17 Stanley Burnton set out the following useful propositions:
1. It will normally be reasonable for a landlord to refuse consent or impose a condition if this is necessary to prevent his contractual rights under the headlease from being prejudiced by the proposed assignment or sublease.
2. It will not normally be reasonable for a landlord to seek to impose a condition which is designed to increase or enhance the rights that he enjoys under the headlease.
Neither seems particularly world-shaking but it is always useful to have things like that set out clearly.
Does this relate to housing? Not, alas, very much. I do encounter issues of consent to assign for assured shorthold tenancies from time to time, but most consents to assign I meet in residential housing cases apply to long leaseholds where the rent is usually low and guaranteeing its payment is usually not a principal concern of the landlord.
Has any reader dealt with consents to assign a shared ownership lease I wonder?
I had a small qualm about whether a covenant of the kind proposed would not actually be void by virtue of s.25 of the Landlord and Tenant (Covenants) Act 1995, but since neither eminent counsel (both QC’s) or the Court of Appeal seem to have batted an eyelid over this point, I suspect its not an issue.
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The quarterly statistics for quarter 4 2008 on possession claims and orders are out [pdf]. Unsurprisingly, it is the mortgage repossession figures from the CML that got the headlines, being up significantly on 2007 – albeit by less than initially forecast by the CML. The mortgage possession claims issued actually dropped in quarter 4 2008 (although they had been at 38-39,000 for each of the previous three quarters of 2008, as opposed to 33-36,000 per quarter in 2007).
Meanwhile, landlord possessions are pretty static, or even slightly down. On the seasonally adjusted figures:
Mortgage possession
Claims brought
4.2007 – 36,444
4.2008 – 26,008
Order made
4.2007 – 25,555
4.2008 – 29,095
46% of orders suspended.
Possession taken (according to CML on first charge claims)
2007 – 26,200
2008 – 40,000 (Est)
Landlord possessions
Claims brought
4.2007 – 36,343 (6,344 via Accelerated Procedure)
4.2008 – 35,162 (5,049 via Accelerated Procedure)
Possession orders
4.2007 – 27,752 (5,006 via Accelerated Procedure)
4.2008 – 27,344 (4,068 via Accelerated Procedure)
41% of possession orders were suspended
The figures for the individual courts are immensely variable, but noticeably, the inner city courts generally saw rises.
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There have been two recent cases on closure orders of passing interest. The first, less important case was reported in The Guardian’s Society pages. The hearing appears to have been an amusing event, attended by “a large group of sex workers and their maids”, at which the police officer giving evidence could give no direct evidence that the premises were associated with the occurrence of disorder or serious nuisance to members of the public, because there was no such record on the police computer. Not surprisingly, the judge refused to confirm the Closure order. After the hearing, apparently one of the maids asked the police sergeant “I don’t want to rub it in, but when can we have our keys back?”. One does feel for the local priest, though, who has had to put extra bars on the church doors to stop drug dealing (closure order on the church, anyone?).
More importantly, though, in Hampshire Police Authority v Smith [2009] EWHC 174 (Admin), the Divisional Court held that an appeal against a closure order has to be issued within 21 days from the date of the closure order. It does not have to be heard within that timeframe. Section 6(2), Anti-Social Behaviour Act 2003, says that “An appeal against an order or decision to which this section applies must be brought to the Crown Court before the end of the period of 21 days beginning with the day on which the order or decision is made”. Although s 6(2) is not particularly clear, and the closure order only lasts for three months, Wyn Williams J said that the contrary result, where the whole thing would have to be wrapped up within 21 days, would lead to practical problems.
The Crown Court Rules 1982 apply to such civil appeals and there is power under those rules to grant leave to appeal out of time (r 7(5)). The further question raised in the case was whether that power applied to closure orders. It was held that it did not. The policy of the 2003 Act was clear on this issue, particularly when one compares the closure order provisions with those of graffiti removal notices (s 51) and high hedges (s 71), both of which have express powers for appeals to be made out of time (which are not included in the closure order provisions): “If Parliament had intended there to be such a power it would have said so expressly” (at [29]).
All of this is fine and makes sense (at least, it’s difficult to disagree on the face of the provisions). But one must feel for Ms Smith whose family can’t access their property and whose reason for seeking leave to appeal out of time was that her solicitors had not been in receipt of public funding. And she hadn’t attended the original hearing because she hadn’t understood the closure notice as well as being with her one of her children who was in hospital at the time of the hearing.
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A very odd case was noted on Lawtel this morning – AB v Leicester City Council, Court of Appeal, 19.2.09.
AB had applied under Part 7, Housing Act 1996, to Leicester City Council (“Leicester”) for assistance as a homeless person. It appears that, at both the s.184 and s.202 stages, the City Council had rejected the application on the basis that AB refused to provide any personal information so as to enable Leicester to properly assess her application. AB had also refused to allow Leicester to make any enquiries from relevant third parties in order that they might gleam information about her history. I presume that there was also a s.204 hearing at some stage, because I don’t see how else this case could have got to the Court of Appeal.
The Court of Appeal adjourned the appeal. It was concerned that AB was acting in a manner which was contrary to her best interests, particularly in refusing to give any information about herself to Leicester. It may be necessary to appoint a litigation friend to assist AB in these proceedings. However, the Court questioned the value of the appeal proceeding. If AB lost, she could always make a further application under Part 7, whereas, if she won, it did not mean that she would necessarily be provided with permanent housing.
Does anyone have any more information about this – frankly bizzare – case?
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