Archive for June, 2009

The good, the bad and the aesthetically challenged

Published
by
NL
on 29/06/2009
in Allocation, Housing law - All and secure-tenancy
. 0 Comments

‘Building Britain’s Future’, a broad Government policy direction document, has been put out and must be regarded as an early draft of the Labour election manifesto. As people may well have heard, social housing and the allocation thereof features in the plan.

If you skip to page 82 of the full PDF, the suggestions are laid out in tantalising vagueness. Given the ‘to be announced’ nature of most of the contents (and, one presumes, the election based provisionality of much of it), what is actually in there?

The good -

we will consult on reforming the council housing finance system and allow local authorities to keep all the proceeds from their own council house sales and council rents. We want to see a bigger role and more responsibility for local authorities to meet the housing needs of people in their areas.

OK, only a consultation, but hurrah, finally. A potential end to the the ridiculous strangulation of funding for council housing.

Also good -

While preserving security of tenure we will pursue reforms to tackle these problems.

So hopefully that is the tenure shibboleth off the table.

Not sure if it is good or not, or even workable, but certainly interesting -

we will expand Choice Based Lettings to help residents move nationwide, and we will offer support to tenants who need to move to take up the offer of a new job.

This is an intriguing prospect, and one that, if it is made workable, could certainly be a good thing.

The bad -

we will launch an autumn crackdown on fraud within the sector, freeing up homes for those in need. Further details on this initiative will follow in the next few weeks.

And why is this bad? Not because a crackdown on fraudulent tenancies or sub-letting is bad, far from it, but because this is hardly a central government issue to resolve and the ‘autumn initiative’ smacks of classic knee jerk PR and central ‘targets’. It is unlikely to work, will cost a lot and change little. I may, of course be proved wrong and would be happy to be so. But I doubt it. ‘Autumn initiative’ indeed.

The aesthetically challenged? This is the one I’m sure you’ve all heard about -

we will change the current rules for allocating council and other social housing, enabling local authorities to give more priority to local people and those who have spent a long time on a waiting list.

Where to start? Waiting lists already give priority to time on list, at least those on CBL schemes. If priority is to be given to time on list per se over any other priority, then allocation schemes will become a farce. All those people who have been on the lowest (no hope) band for years are hardly going to get much more hope if they all get increased priority.

And then ‘local people’. What does this mean – really? What is to be the definition of ‘local’? Will it come from the League of Gentlemen? Nick Griffin? A local connection of some sort? Years in the borough? Kids in local schools? Or what?

Until we know, this has an unpleasant ring to it, based, as I noted at the time of Hodge’s expectoration, not upon facts but a tabloid version of them. I await a housing options interviewer saying ‘you be not from around these parts, be you? You be from north of the river. We b’aint be having with your fancy ways round here’ as a valid eligibility decision. But we will have to wait for whatever stroke of genius comes forth on this issue.

My confident prediction is that whatever it is, it will be thoroughly litigated. I would have thought that Gordon ‘British jobs for British workers’ Brown would have learnt that certain ‘dogwhistle’ (as the charming political consultants call them) phrases were dangerous to deploy…

As to what is introduced before the election and what gets to be introduced afterwards, we will have to see. There are certainly some good or intriguing proposals in there and we have to hope that those see the light of day.

[Edit And a £1.5 billion investment:

Extra funding so councils and housing associations can build around 15,500 new affordable homes, of which over 11,000 will be available for social rental and the rest will be affordable housing. More may be built if greater value for money can be achieved.
Extending the Kickstart programme that gets stalled housing sites back on track, with the aim of delivering an additional 13,000 homes, of which 4,000 will be affordable.
Investing in the development of public sector land owned by the HCA, Local Authorities and other public sector bodies to deliver up to 1,250 units of which 500 could be affordable.

What that blurb doesn't say is that £1.5 billion includes diverting funds that had been set aside for renovating existing social housing, according to the Guardian, so Decent Homes funding may be drying up.]

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RSLs support L&Q in Weaver appeal

Published
by
NL
on 29/06/2009
in Housing law - All and assured-tenancy
. 0 Comments

According to Inside Housing, not only is L&Q to seek permission to appeal the Court of Appeal decision to the Lords/Supreme Court (and no surprise there) but the G15 group of the largest RSLs in London are potentially backing them, including funding. To quote Inside Housing:

Steve Howlett, chief executive of Peabody Trust and chair of the G15, said: ‘The G15 will consider how we can support L&Q if it chooses to appeal.’

When asked if this meant contributing to a possible ‘appeal fund’, Mr Howlett replied: ‘Yes – that is something that has previously been discussed.’

Given the ludicrous position that the LSC adopted on funding the Court of Appeal case for Ms Weaver, one would hope that this bloc of RSLs would make it abundantly clear that this is a ‘broader public relevance’ case par excellence and funding will follow.

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Mutual appreciation

Published
by
NL
on 28/06/2009
in Various (non-housing)
. 0 Comments

Tessa Shepperson’s Landlord law blog has been up since February 2006, predating us by four months. The name is slightly misleading – Tessa deals with residential landlord and tenant matters and has much to say of interest for private tenants as well as landlords – see, for example, today’s helpful post on the use of credit unions to avoid banks seizing Local Housing Allowance money from tenants’ current accounts to pay other debts, thus leading to rent arrears. Her blog has also pointed to new tenancy deposit cases that we have gratefully pounced on.

Tessa has just said some nice things about this blog in a post on current housing/L&T blogs and it reminded me both that she has been a friend of this blog since the beginning and that a bit of appreciation of her work wouldn’t go amiss. Tessa writes the blog alongside her business site – her practice is based online – but rather than simply being a promotional device, the blog is always an interesting and useful read, which is both generous and, in my view, shows an astute understanding of web 2.0 marketing…

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Austin to the Lords

Published
by
NL
on 26/06/2009
in Housing law - All, Succession, Tolerated trespasser and secure-tenancy
. 1 Comment

Word reaches us that LB Southwark v Austin (our report on the Court of Appeal here) has been given permission by the House of Lords (or Supreme Court as it will be).

It seems that the time of the tolerated trespasser troubling the Lords is not yet over, as the situation in Austin was not caught by the Housing and Regeneration Act. So one to watch out for.

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The Lords on Aweys coming soon

Published
by
NL
on 25/06/2009
in Homeless and Housing law - All
. 0 Comments

News reaches us that the House of Lords opinions in the appeal of Aweys v Birmingham are to be handed down on 1 July (Court of Appeal report here). [Update, Moran v Manchester CC (our Court of Appeal report here) will also be handed down on the same day as the two were heard together]

We’ll have the decks cleared for those.

In the meantime, here’s a picture for the interlude. (Note to younger readers. There was a time, not that long ago, when there were only three TV channels and programmes didn’t start till lunchtime – and would sometimes then stop until tea. In the interim, they’d put a picture up. And we’d watch it. Amazing, isn’t it?).

Naturally, us being us, you don’t get a picture of ducks, sunset or the Lake District. Instead – decanting…

decant

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Two homes, two MPs and an EDMO

Published
by
NL
on 24/06/2009
in Housing law - All and Possession
. 0 Comments

EDMOs, a remarkable power given to local authorities under Housing Act 2004 to take control of an abandoned or unused residential property and let it (and charge the owner for most of the related costs of doing so), have been used remarkably rarely – I am informed some 29 decisions on orders have been made in the RPT in England since the Act came into force.

Which raises a question or two over the threatened thirtieth order. Married Labour MPs Alan and Anne Keen, who were exposed in the Telegraph expenses porn spreads as both claiming for their joint second home – a flat in Waterloo – to the tune of £30,000 a year for the last four years, are facing a threatened EDMO on their property in Brentford. The Conservative controlled council are threatening an order on the basis that the property has remained unoccupied for 7 months. A Liberal Democrat councillor (and prospective Lib Dem candidate for MP for one of the Keen’s constituencies. I’m not saying which), Andrew Dakers observed:

that the windows at the back of the Keens’s main home were boarded up and that there was paint splashed on the inside of the upstairs windows.

which brings up worrying images of someone’s Lib Dem Counciillor hanging around the back alley (do they have back alleys in Hounslow?) peering in through the windows. People get arrested for less.

Between starting this post and writing this bit, the Keens have responded that the property was not unoccupied, just being renovated (those paint marks and all) – the BBC story has been updated – but apparently will still need to make a formal response to Hounslow Council.

Is it just me, or does this story make all concerned look more than somewhat ridiculous? EDMOs are not used, despite their real potential utility. How many EDMOs has Hounslow sought before this, one wonders – and as far as my cursory searching told me, the answer was none, but I have been corrected – there were two in 2008.

Given that the property has only been allegedly unoccupied for seven months, was apparently known to be the MP’s, and has councillors personally commenting on the state of its rear windows, that it seem be cynical publicity seeking on the part of the Tory Council and on the part of Mr ‘hiding in the shrubbery’ Dakers, the prospective Lib Dem MP, while the Keens are hardly covered in expenses glory on their two homes arrangements. Lovely.

For any Local Authority people reading this, we are genuinely curious as to why EDMOs aren’t used more often. Why not? Do let us know in the comments or in private email.

Update: The property has been squatted by a group apparently intending to make it a ‘refugee centre’. (Thanks Jim). I think this ends the EDMO, as the property has to be unoccupied – lawfully or otherwise – for it to go ahead. But I guess the Keens have other more pressing problems…

433276Photo from Indymedia.

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Kay re-stated

Published
by
NL
on 23/06/2009
in FLW case note, Housing law - All, Licences and occupiers and Possession
. 1 Comment

And the question of what Doherty actually means rumbles on.

Central Bedfordshire Council v Taylor & Ors [2009] EWCA Civ 613 was the Court of Appeal hearing of an appeal from a Circuit Judge’s decision to make an outright possession order and, in particular, to refuse to make findings of fact as a basis for an appeal based on Article 6. The appeal had a complicated history, the original decision was made before Doherty in the Lords was handed down and the grounds for appeal prepared in anticipation of the Lords decision, then revised afterwards from being based in the minority decision in Kay to argue a Doherty gateway B public law basis.

Since then, the Court of Appeal has decided on Doran v Liverpool CC [2009] EWCA Civ 146 (our report) and McGlynn v Welwyn Hatfield BC [2009] EWCA Civ 285 (our report), further shaping the landscape.

The facts in the case were not dissimilar to Kay. In 1993, Bedfordshire CC (as was) had leased land and dwellings to Luton for 3 years with a sublease to a housing association for assured shorthold tenancies. Lengthy negotiations over a new lease fell through and in 2007 Bedfrdshire commenced possession proceedings. Some occupants of the properties defended on the basis interference with Article 8 rights such that it was a breach of Art 6 to bring possession proceedings. The dismissal of this defence was what was appealed.

The issue before the Court of Appeal was given as how should County Court judges approach situations similar to Kay, post Doherty. Has the position changed such as to afford a possible defence to such a situation. Is it arguable that circumstances were such as to impose on the Council a duty to consider the personal circumstances of the appellants? And is the test something like Wednesbury rationality or something wider?

In the main judgment, Waller LJ considers Doran and McGlynn, in particular in view of their holding that a public law consideration wider than the Wednesbury rationality test was appropriate and, in McGlynn, an arguable defence based on the Council’s failure to carry out reasonable further investigations. But these cases concerned termination of a lease or licence (McGlynn), or statutory duties (Doran, Doherty). In this case, as in Kay, the occupants are trespassers and the Council has an undoubted right to possession.

The question is therefore has the decision in Doherty impacted on Kay. Waller LJ adopts Toulson LJ’s analysis of the decisions in Doherty set out at paras 15-22 and 48-52 of Doran, to the effect that the public law defence is not to be confined to traditional Wednesbury grounds – ‘there is no formulaic or formalistic restriction of the factors which may be relied on’ and personal circumstances are not necessarily irrelevant. However, this does not address the situation where the facts are so close to Kay.

The Council submitted that Doherty did not suggest that the decision in Kay, on the facts, would have been any different. In regard to trespassers, an authority with immediate right to decision had no obligation to consider the personal circumstances of the occupants. Even on the view of the minority in Kay, it was unarguable that a council acting reasonably would have done otherwise than seek possession.

The Secretary of State, intervening, suggested that the matter should be remitted to the County Court so that the appellants’ arguments could be fully considered and the appropriate facts found. However, it would be wrong to remit if it would serve no purpose or, if there was to be a remittance, without guidance.

For Waller LJ, Lord Hope’s ‘further explanation’ in Doherty of his statement of gateway b in Kay is noted, but his endorsement of the Qazi principle that ‘a defence to a possession order which does not challenge the law under which it is sought but is based only on the personal circumstances should be struck out’ at para 42 of Doherty is to be taken as saying that Kay would still be decided the same way. Lord Hope’s qualification of that principle must be seen in the context of the facts and law of Doherty.

While the re-interpretation of para 110 does have general application in its loosening of the restrictions on the factors able to be considered in review, Doran itself concerned similar facts to Doherty. Where Waller LJ differs from the view of Toulson LJ in Doran is on Toulson’ holding that the facts at issue were those at the point of the original decision and indeed that the decision to seek possession is the relevant decision to challenge. Waller LJ instead holds that a council may make a series of decisions as facts become known to it, up to the point of the hearing itself. If any of those decisions was shown to be ‘unreasonable’ it could be attacked.

But in the present case, this makes little difference. Where the facts are similar to Kay, a court, post-Doherty, will actually be in much the same position as it was even before the convention became law [para 42].

Waller LJ accepts that whether the decision of a local authority is ‘reasonable’ post-Doherty goes beyond the question of what is rational. A local authority should take account of the personal circumstances of an occupier known to it. But it does not follow from this that there will ever be circumstances in which it will be unreasonable to seek possession against trespassers in situations similar to Kay, where, as here, the occupants are not initially known to the authority or have any relation with it. The law allows for a period of time to bring the possession order into effect and this is sufficient.

Even where the local authority was aware of the personal circumstances of the occupiers, their obligation to take account of them could never make it unreasonable to take proceedings for possession [para 45] as the authority has an absolute right to possession. Personal circumstances are only relevant to postponing execution. There was therefore no reason to remit the case to the County Court. Appeal dismissed.

Lloyd LJ concurs. The proper decision for review in this case was the decision to pres for trial of the possession claim, once the circumstances of the occupiers had become known to authority. Accepting for the moment the appellants’ account of the facts and their circumstances, it would still make no difference. Following Lord Bingham at para 47 of Kay (and Lord Bingham was in the minority) where the pleaded facts give no special claim to remain, there is no duty to accommodate and the authority has an unqualified right to possession, possession orders would necessarily be made. There was no need to remit in this case and appeal dismissed.

Richards LJ concurred.

So there we are, for the moment at least. Post-Doherty defences do not apply to a Kay situation, where the local authority (or public body, including RSLs, post Weaver) does not have any relation to the occupiers, the occupiers are trespassers and the authority has an unqualified right to possession. Unlike termination of a lease or licence, or where a statutory duty is involved, the defence cannot succeed, with the possible exception, pace Lord Bingham, of where the facts give rise to a special claim to remain.

Now, what would this mean for ‘failed successor’ cases? McCann involved termination of a tenancy and a case like that would clearly potentially have a public law defence in Doherty form, but a failed successor? Or ’successor’ to a tolerated trespasser (prior to 20 May 2009)? We’ll have to see, but the argument is surely that Kay would apply, absent some particularly egregious behaviour by the authority.

My guess is that this will be headed to the Supreme Court, but for the moment, public law defences would seem limited to those who have or had some contractural or statutory relation to the authority in their accommodation.

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He can look after himself

Published
by
NL
on 22/06/2009
in Community care, FLW case note and Housing law - All
. 0 Comments

R (Shoaib) v LB Newham [2009] All ER (D) 198 (Jun) [only available as an All ER note as yet] was a Judicial Review of a decision to terminate s.21 National Assistance Act support to Mr Shoaib.

Mr Shoaib had claimed asylum in 2004. His claim had been rejected in 2006 and with it NASS support (as it was then). A fresg asylum claim was made and Newham decided to provide s.21 support. Mr Shoaib suffered from epilepsy. His support was reviewed on a number of occasions. On the last occasion, the social worker, who had not had details of Mr Shoaib’s medical condition provided to him, decided that Mr Shoaib ‘was able to look after himself’ and therefore not in need of s.21 support.

Mr Shoaib sought judicial review on grounds that:
1. the social worker had misdirected himself in law by limiting the definition of care and attention.
2. further investigation should have been carried out into Mr Shoaib’s medical condition. The effect on the frequency, severity and impact of his epilepsy should support be refused had not been properly taken into account.

Held
1. The social worker had not misdirected himself but applied the correct test, i.e. whether the person concerned needed things to be done for him which he could/should not be able to do for himself. There was ample material to indicate the claimant could look after himself.
2. The claimant’s medical condition was not at the serious end of the spectrum and would not have warranted s.21 support even if it had been fully brought to the social worker’s attention.

Claim dismissed.

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Would you credit it?

Published
by
J
on 22/06/2009
in FLW case note, Housing law - All and Mortgage possession
. 0 Comments

Some of you might have seen in the news recently some rather confused reports that HHJ Halbert at Chester County Court was dealing with various attempts by people to write off debts owed under credit agreements, see, for example, this from the BBC or this from the MoJ.

We here at NL were not too sure what to make of these reports but, thanks to our friends at Garden Court North, we’ve managed to shed some light on matters.

HHJ Halbert has given judgment in a case called Southern Pacific Personal Loans Ltd v Walker (12 March 2009, Chester County Court) and has determined that Southern Pacific (“SP”) cannot enforce a particular loan against Mr & Mrs Walker. The reasoning is, one imagines, of general application to SP loans.

The case will be heard in the Court of Appeal shortly and therefore I’m only going to summarise the case so far.

The Consumer Credit Act 1974 sets down various conditions which must be fulfilled in order for a “regulated agreement” (one to which the 1974 Act applies) to be enforced. Since April 2007, an improperly executed agreement can be enforced with the leave of the court. In respect of any loans granted prior to April 2007, an improperly executed agreement was not capable of being enforced against the borrower.

The conditions include inter alia stating the full amount of the credit.

In Walker, SP loaned £17,500, to which was added £875 “broker fee”, giving a “total amount financed” of £18,375, on which interest was charged. The loan documentation referred only to £17,500 as the “amount of the credit”. Hence, it was argued on behalf of Mr & Mrs Walker that the full amount of the credit was not correctly stated and, hence, the loan was unenforceable.

HHJ Halbert accepted this argument, with the result that, unless the Court of Appeal decide differently, Mr & Mrs Walker would appear to be in the clear.

Of course, the importance of the case isn’t just that it relates to Mr & Mrs Walker but is likely to significantly affect most SP 1974 Act loans, and, one suspects, the loans granted by many other such lenders.

[Edit 12/11/2009 - judgment reversed in the Court of Appeal. See here.]

(with thanks to Andrew Byles at Garden Court North and Jonathon Davidson at Jackson and Canter solicitors).

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Take it as is or not at all

Published
by
NL
on 22/06/2009
in Disrepair, FLW case note, Housing law - All, right-to-buy and secure-tenancy
. 0 Comments

Ryan v London Borough of Islington [2009] EWCA Civ 578 concerned Ms Ryan’s Right to Buy under Part V Housing Act 1985 and whether or not it had been deemed to be withdrawn.

Ms Ryan was the secure tenant of a an Islington property. In January 2003, she served notice of RTB and after two months Islington admitted the RTB, stating that valuation would be as of January 2003. In June 2003, Islington noted that specialist works were required – filling a crack in the rear wall, indicating subsidence. The valuer’s report of the same month noted sloping and springy floors, damp to a ceiling and walls, but did not mention subsidence. Value was given at £160,000 as at January 2003.

In August 2003, Islington served the s.125 notice, given a price of £122,000, with the £38,000 discount. It cited the floor and damp, but not the subsidence, as defects of which Islington was aware. The notice gave estimated charges (i.e the 5 year cap) on major works of £5,500 in total for Ms Ryan, £22,000 for the block. Ms Ryan was given 12 weeks to respond. The notice told Ms Ryan that she should request a revaluation by the district surveyor if there was any dispute over the defects identified (s.128).

In October 2003, Islington’s surveyor identified the subsidence and that underpinning works and subsequent structural works would be required. Ms Ryan’s case was that she was told at this time that the works would be carried out by March 2004. Islington insisted that the works had not been authorised at this time and that Ms Ryan had not formally told the works would be done.

Ms Ryan accepted the s.125 offer in November 2003 and IsIington proposed completion by July 2004. This didn’t happen and in September 2004 Islington served notice to complete under s.140. Ms Ryan’s solicitors raised the outstanding works and asked for a suspension. Islington served a further notice to complete within 56 days under s.141 in November 2004, warning that the claim to RTB would otherwise be deemed withdrawn under s.141(4). There was no completion. In May 2005, Ms Ryan began disrepair proceedings. Islington started works in November 2005, which were not fully completed by the time of the trial of the claim in July 2008.

Ms Ryan got an order for specific performance and damages for disrepair, but her claim for a declaration that her RTB application was not withdrawn and her claim for damages in the loss of the RTB claim were both dismissed. Ms Ryan appealed.

The main issue for the Court of Appeal was whether the structural defects were a ‘relevant matter’ for the purposes of s.141 Housing Act 1985 such that raising them stopped the effect of the notice to complete. Ms Ryan also disputed the Recorder’s dismissal of her claim for damages. There were a couple of disputed findings of fact, which the Court declined to interfere with.

Held:
1. Structural defects were not a matter relevant to the grant for the purposes of s.140. These were matters relating to the conveyance or to the proposed lease. Secondly, “relevant ‘outstanding’ matters in section 140(1)(b) means matters that have not been ‘agreed or determined’ within the meaning of section 140(1)(a), a phrase deriving from section 138(1), which refers to the landlord’s obligation to make a grant ‘as soon as all matters relating to the grant have been agreed or determined ….’ “. Thirdly, there is nothing in the RTB legislation that obliges a seller to put the property in repair before sale. Ms Ryan could pursue breach of s.11 L&T Act 1985 or tenancy agreement, but she could not make the repair effectively a condition of sale. (But see the discussion of the total destruction of the demise at para 60).

Assuming that the subsidence was a structural defect within the meaning of s.125(4A) – which Islington argued otherwise – then the proper point for it to be raised was at the time of the s.125 Notice, by request for a revaluation by the district surveyor.

2. The claim for damages on the basis of a lost right to purchase the flat was dismissed in the court below but without sufficient reasons being given. That said, Ms Ryan had failed to provide sufficient evidence to establish that the condition of the property prevented her from obtaining a mortgage. There was just one brief discussion with a mortgage advisor, which was not conclusive. Ms Ryan’s case that the damages were foreseeable by Islington as resulting from the failure to repair was not attractive. While Islington assumed the burden of the repairing obligations with the secure tenancy, it did not also assume an obligation to compensate her “in remote circumstances in which, because of its failure to perform its repairing covenants, Ms Ryan was unable to complete a purchase of the flat under the ‘right to buy’ provisions. Any such purchase was not in contemplation when the secure tenancy was granted, and so that could not have been the kind or type of loss for which Islington ought fairly to be taken to have accepted responsibility.” [para 73].

The appeal was dismissed.

So, apart from the familiar lesson that some local authories will not carry out repairs until disrepair proceedings have begun, if then, it is also clear that any dispute about the condition of the property and structural defects should be raised at the time of the .s125 notice, if they coudn’t be before. Disrepair is not a reason to delay the purchase process, if anything it counts only in the valuation. But also note Islington’s argument that disrepair, including subsidence, were not structural defects for the purposes of s.125(4A) as ’structural defect’ was something inherent in the design or construction of the property from the beginning, such that they would not fall under disrepair. The Court made no finding on this argument, but it will no doubt be run again.

In this position, assuming Ms Ryan could get a mortgage, her contributions to the works would have been capped under the s.125 notice, so that she would not have had to pay a contribution for them, which might be a consideration for others.

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