Archive for July, 2009

Not just suitable but properly so

Published
by
NL
on 31/07/2009
in FLW case note, Homeless and Housing law - All
. 0 Comments

Araya, R (on the application of) v Leeds City Council [2009] EWHC 1962 (Admin)

S.188 Housing Act 1996 accommodation, provided pending s.184 decision or s.202 review of a negative s.184 decision, must be ’suitable’. This means that any accommodation to which a homeless applicant is transferred, must also be suitable. Araya, R (on the application of) v Leeds City Council [2009] EWHC 1962 (Admin) was a judicial review of just such a decision on to give notice on existing accommodation and offer an alternative place, which raises a couple of interesting points.

Ms Araya is a refugee from Eritrea, with two infant children and indefinite leave to remain. She applied as homeless to Leeds. She was placed in emergency temporary accommodation. She remained in this accommodation after a finding of intentional homelessness, a s.202 review, s.204 appeal and, at the relevant time, was awaiting a further s.202 review as a result of the appeal. As it was accommodation pending s.202, this was still s.188 accommodation.

She was accommodated in the Harehills area of Leeds, where there was an Eritrean community and a church she attended on Saturdays and Sundays. In March 2009, Leeds gave 7 days notice on the accommodation and offered a place in a hostel in Bramley, which was supported accommodation.

Ms Araya sought judicial review of the decision:
a) to require the claimant and her family to move from their present accommodation at 56 S Avenue, Harehills, Leeds;
b) that the Mount Cross Hostel, Bramley was suitable accommodation for the claimant and her family;
c) to require the Claimant to move on 7 days notice.
The grounds were that
i) the decision did not properly take account of location;
ii) in all the circumstances there was insufficient notice given to the claimant to move.

On i) while in itself the hostel property was not in itself unsuitable, Leeds had failed to consider the importance of location to suitability.

On ii) 7 days notice was too short, inhumane and showed that the Council had failed to consider Ms Araya’s Art 8 rights.

Overall, even if

the Hostel was not unsuitable, the decision nevertheless has to be taken properly and in accordance with the Act; if flawed, the decision does not do what the Act requires; it is no answer that the end result is the same –’you have accommodation that is suitable’. This is because, he submits, those who apply are entitled to the possibility that there might be property that was even more suitable if the process were carried out correctly. [Para 7]

Ms Araya relied on R v Newham London Borough Council ex parte Ojuri (1999) 31 H.L.R. 452 which held that a flawed decision, that did not fully consider the applicant’s situation, meant that whether other, better, possibilities were available was not considered.

Held:
Such cases turn on their facts. It is true that the process of the assessment of suitability must be properly carried out, regardless of the ’suitability’ per se of the property proffered.

Here Leeds had a clear reason for moving the applicant to the hostel. it was ‘tier 1′ accommodation which meant that she would be supported in her bidding for suitable permanent accommodation, which had been a problem. There was evidence that Ms Araya’s support in the Eritrean community in Harehills, and her church, had been considered by the officer, including transport links, such that the Homeless Code of Guidance had been followed. There had been an offer of alternative accommodation, which was refused.

On the notice point, the Claimant was fully aware she might have to move at short notice. It was emergency accommodation that she had been in for 8 months before the decision. There had been previous efforts to move the Claimant into other tier 1 accommodation. Hostel places became available at short notice. In the circumstances the short notice was not an infringement of Art 8 rights.

Application dismissed.

While such cases are always going to be intensely fact sensitive, this is interesting in that the argument by the Defendant that the accommodation offered was in itself suitable was not taken as being the end of the claim. The process of the assessment of suitability has to be properly conducted, or the risk is that other, better, possibilities would be excluded by the decision.

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Pinnock and Proportionality

Published
by
Dave
on 31/07/2009
in ASB, FLW case note, Housing law - All, Introductory and Demoted tenancies and secure-tenancy
. 11 Comments

The CA have just handed down judgment in Manchester CC v Pinnock[2009] EWCA Civ 852, concerning the evidence that can be taken into account to justify a breach of a demoted tenancy at a review panel, the proper role of the County Court in such a circumstance, and the standard to be applied on a judicial review of a review panel decision. It is significant then in the context of demoted tenancies and demonstrates also that the proportionality standard is subject-specific. Manchester won by the way, although, no doubt Richard Drabble QC will seek leave to appeal as it was conceded that the CA was bound by Gilboy as regards whether the demoted tenancy review process is article 6 compliant (at [23]).

Facts

Mr Pinnock had lived at 65 Meldon Road for 30 years, and lives there with his partner, Christine Walker, and their five children. The five children – Clive, Trevor, Devon, Orreon and Orraine – were involved in various offences and between 1998-2007, the Recorder, who made the demoted tenancy order, which began on 08 June 2007, “listed no less than 32 matters between 1998 and January 2007 involving the family, including sentences for criminal offences, the imposition and breach of ASBOs, an Anti-Social Behaviour injunction granted against Christine Walker and breach of that injunction” ([9]). New terms were included in the demoted tenancy agreement concerning nuisance, annoyance, disturbance, harassment etc. Pretty much the day before the demoted tenancy would have become secure again, Manchester served notice of proceedings for possession and extended the demotion until the Pinnocks gave up possession. The notice referred to two breaches of the amended demoted tenancy: Clive had resisted and/or obstructed a PC; Devon had pleaded guilty to causing death by dangerous driving and driving whilst disqualified and uninsured in the locality of the property. None of the facts at any time suggested that Mr Pinnock had been involved in any such activity.

Mr Pinnock sought an oral review of that decision, at which the review panel took account of more recent serious offences committed by the sons, including conviction of Clive and Devon for burglary; Christine Walker had blamed the police for Devon’s car crash. Mr Pinnock’s defence was that the children no longer lived at the property, to which the council found that “it remains the family home where your sons return on a frequent basis”. As regards Christine Walker’s blaming of the police, “The panel felt that this clearly demonstrated that both you and your partner have failed to address your responsibilities as parents. Furthermore you both appear to refuse to accept the seriousness of your sons’ behaviour …”. The children continued to pose a serious risk to the community.

At the County Court hearing under s 143N, Housing Act 1996, the judge appears to have proceeded on a gateway (b) path a la Kay/Doherty, and found that none of the matters referred to in the possession notice would have been sufficient on their own; the review panel had not ducked the issue of whether Clive and Devon were still living in the property; that the council was entitled to rely on matters after the possession notice which Mr Pinnock knew about and had an opportunity to deal with at the panel.

Submissions

Before the CA, Richard Drabble raised a number of arguments aimed both at the statutory process for review as well as the way it was handled in this case. He argued that the basis for the panel and County Court review was proportionality and that had not been considered (eg alternative remedies). Although the panel/County Court were entitled to have regard to events after the possession notice, that was only if one of the matters in the possession notice was upheld, but none was; the County Court judge had substituted his own decision for that of the review panel.

Andrew Arden for Manchester argued, amongst other things, that the qualified rights under Article 8 had been taken into account by the legislation; the County Court judge did not have jurisdiction to review the panel’s decision on jr grounds (that could only be done in the Administrative Court); it wasn’t necessary for the council to establish that there had been breaches of the tenancy agreement.

Judgment

Stanley Burton LJ, with whom Lloyd and Mummery LJJ agreed, proceeded first on an “apart from authority” basis ([26]-[32]). On that basis, he said that it was the whole process from the outset that needed to be considered in the context of Article 8 rights. When the demotion order is originally made, “… the court has found the removal of security a necessary and proportionate response to the conduct of the tenant or those residing with or visiting him“; and that where there had been conduct serious enough to justify a demotion order (as here), at the second stage, “… very little is required to justify the landlord’s decision to obtain possession. it would be wholly wrong, and inconsistent with the statutory scheme, to scrutinise the landlord’s decision at the second stage with the rigour required of the county court at the first stage”. As regards proportionality at the second stage, he said this

… is not a high test, and I see no real difference at the second stage between it and the domestic requirement, to which I refer below, that the landlord’s decision must not be one that no reasonable person would consider justifiable. If on review the landlord considers for good reason … that it is necessary or appropriate to obtain possession of a dwelling-house let on a demoted tenancy, and its decision is one that no reasonable person would consider justifiable, the requirement of proportionality will be satisfied. (original emphasis)

There then follow pages and pages – a bit of a cut and paste job – from Kay, Doherty, Doran, and Central Beds – with two “simple propositions” at [46]-[47]: in a statutory context like this one, if the provisions are incompatible with Convention rights, the landlord’s decision and that of the County Court is nonetheless lawful (s 6(2)(b), HRA); on a jr, the standards applicable are those applicable in a non-Convention domestic review (Doherty/Doran/Central Beds). Anyone hoping for further pearls of wisdom will be disappointed, I fear.

As regards the role of the County Court, he said that s 143D restricts that Court to considering whether the procedure had been followed. If it has been, the order must follow. He was fortified in this conclusion by three further points: (a) the county court has no power to make a quashing order, so that, if it did find the decision to be legally effective, it might have no alternative but to dismiss the claim for possession (so that the tenancy would become a secure tenancy again under s 143B(4)(b)); the whole process was intended by Parliament to be quick and section 143F(6) was directory rather than mandatory; his conclusion was consistent with the materially identical wording for introductory tenancies. Nobody had suggested here that the correct procedure had not been followed.

Although strictly obiter, therefore, he gives his views on a number of points:
What approach should the administrative court take? the court “should be cautious in the extreme before quashing a decision of a public landlord” (at [58]).
What reasons can be given in a notice? he says that such reasons may extend beyond the tenancy agreement. He is extensive in his interpretation of what can be taken into account:

My provisional view is that the reasons for the landlord’s decision may be anything relevant to its management of its housing estate, provided, of course, that it arises or becomes known after the date of the demotion order and so could not have been taken into account when it was made. If there are relevant reasons that justify the decision (in the sense that it cannot be said that no reasonable person would make that decision for those reasons) the Court should not, in my judgment, normally quash the decision.

What can be taken into account on review? anything that postdates the possession notice, provided that can be fairly done. The question is whether, at the time of the review, the landlord has a good reason to seek possession.

As for this case, he accepted that the review panel had ducked the issue of Devon’s residence, but that did not make the incident irrelevant. Christine Walker’s blaming of the police bore on whether she and Mr Pinnock were able and willing to exercise parental control; Orreon’s conviction for burglary after the possession notice was served was relevant. Even if the judge had jurisdiction, the review decision was not irrational.

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A very short note

Published
by
J
on 31/07/2009
in Housing law - All and Possession
. 1 Comment

The decision of the House of Lords in R (Purdy) v DPP [2009] UKHL 45 (the assisted suicide case) clearly has nothing to do with housing law but, as a general statement of law, para. 34 is very interesting.

… it is obvious that the interests of human rights law would not be well served if the House were to regard itself as bound by a previous decision as to the meaning or effect of a Convention right which was shown to inconsistent with a subsequent decision in Strasbourg. Otherwise the House would be at risk of endorsing decisions which are incompatible with convention rights (per Lord Hope).

Might we see this paragraph relied upon in the (inevitable) future challenges to Kay?

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On the naughty step

Published
by
NL
on 30/07/2009
in Various (non-housing)
. 0 Comments

naughty step badge For this Naughty Step, we’re going trans-atlantic. A warm welcome to the Step for Horizon Group Management, a property owner/management firm from Chicago.

Horizon cannot be said to lack a pioneering spirit (or, as we shall see, a snappy way with a soundbite, catastrophically counter-productive, but snappy). For Horizon are the first firm to bring a defamation claim against a tenant, for a tweet on Twitter.

what is twitterFor those of you looking puzzled or slightly anxious at this point, Twitter is the terribly au courant micro blogging service in which anyone can post a message of up to 144 characters, which will instantly be read by anybody ‘following’ them. Do try to keep up.

For the dedicated, the tweet archive – for yes, in a sickeningly cutesy way, these sub messages for the terminally short of attention span* are called ‘tweets’ – is searchable.

What had this tenant done in 144 characters or less? Amanda Bonnen, for it is she, had tweeted:

Who said sleeping in a mouldy apartment was bad for you? Horizon really thinks it’s okay.

This, it seems was enough for Horizon. No matter that Ms Bonnen had all of 30 followers at this time (her acccount has since been deleted). No, Horizon felt itself aggrieved, nay positively hurt, by the very idea that there might have been mould in the apartment.  As the company said:

no mould was ever found in her (Ms Bonnen’s) unit and was one of several that experienced an overnight leak during roof repairs in late March 2009

In view of that, they should probably consider themselves lucky that British Telecommunications plc v Sun Life Assurance Society plc [1996] Ch 69 and s.11 Landlord & Tenant Act 1985 doesn’t apply in Chicago.

But, rather than ask Ms Bonnen to delete the tweet, or even contact her about it, Horizon reached for its lawyers. As CEO Jeffrey Michael charmingly put it:

We’re a sue first, ask questions later kind of an organisation

Or perhaps a sue first, think later kind of trigger happy landlord. Consider that this was the tweet that at most 30 people saw, and that no-one else would see unless searching twitter archives for ‘Horizon’ when they meant ‘Horizon Group Management’ and being prepared to wade through the many thousand mentions of ‘horizon’ till they found that one and then have their view of the company significantly changed.

But now, by being the first to sue for a defamatory ‘tweet’ which allegedly contained injury in less than 144 characters, their name is everywhere, all across the interweb, mostly in connection with mould and all about suing their tenants. Top work chaps. Even if you get your $50,000, was it really worth it?

* The British law bloggers tweeting contingent excepted. Sometimes 144 characters worth of brevity is the soul of wit. Or follow Charon QC for a wine driven Verfremdungseffekt, where the answer to the question ‘what are you doing now?’ is as likely to be ‘invading France’ as ‘interviewing Lord Falconer’.

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Imputed fairness?

Published
by
NL
on 28/07/2009
in FLW case note, Housing law - All and Trusts and Estoppel
. 0 Comments

Jones v Kernott [2009] EWHC 1713 (Ch) [not on Bailii yet] was an appeal from the County Court on a Trust of Land and Appointment of Trustees Act 1996 case. At issue is the question of fairness and whether and how far a change in common intention can be inferred or imputed.

Ms Jones and Mr Kernott had bought the property involved in joint names in 1984. Both lived there until 1993 when their relationship ended. They were not married. Mr K moved out and in 1996 bought another property in his sole name. Ms J remained in the first property.

Mr K ceased to pay mortgage and other outgoings when he moved out. It was common ground that before he moved out, the parties held the beneficial interest in the property in equal shares. The question was whether and to what extent those shares had changed when Mr K moved out and subsequently bought another property. In the court below, HHJ Dedman had found that the interests had changed and that Ms J was entitled to 90% on the basis that this ‘was fair and just’. Mr K unsurprisingly appealed.

Mr Strauss QC sitting as a deputy High Court Judge found little authority on whether the Court should infer that the parties’ intentions have changed in such circumstances, or impute such a change to them and if so how to quantify the change. On top of that, the main issue as he saw it was whether and if so how far it was open to the court to consider what was fair.

From an extended examination of Chadwick LJ’s judgment in Oxley v Hiscock [2004] EWCA Civ 546, which expressly raises ‘fairness’ on the basis of relevant conduct as the criterea by which share of interest should be assessed, in the absence of express agreement, and Stack v Dowden [2007] UKHL 17, which appears to limit ‘fairness’ and expressly concerned shares in a property in joint names, where Oxley v Hiscock concerned a sole proprietor, Mr Strauss QC extracted the following propositions as to what the current state of play is:

1. Where there is a sole name there is a rebuttable presumption that there is a sole beneficial interest, displaceable by evidence of common intention that both parties should have a beneficial interest. Contribution to purchase price will probably usually suffice.

2. Where there are joint names but nothing more is said, the presumption is of equal beneficial interests. Only in very unusual cases will this presumption be displaced (E.g. Stack v Dowden style separation of finances and unequal contributions).

3. In the latter, where the presumption is displaced and there is no express agreement, the court will quantify them by reference to ‘the whole course of dealing between the parties and taking account of all conduct which throws light on the question of what shares were intended’. The court must not impose what the court itself would consider to be fair (Stack at para 61).

4. It remains the duty of the court to decide what the common intention was or should be taken to have been. In many if not most cases there will be no evidence at all of actual intention, if any, of either party and the court will be attributing a common intention to them.

5. Whatever the beneficial interests at the time of acquisition, a trust may be ‘ambulatory’ – intentions of the parties may change over time. The ‘holistic approach’ of surveying the whole course of dealing should not obscure the fact that initial intentions may change. Following Lord Neuberger in Stack, a structured approach should be followed, to consider first the initial intention and then whether it has altered and to what extent.

6. In relation to the role of ‘fairness’ in the court’s assessment, Baroness Hale’s formulation at para 61 of Stack — ‘the search is still for the result which the parties must, in the light of their conduct, be taken to have intended’ — would seem to rule out fairness. However, Baroness Hale also recognises the Law Commission formulation that the presumed intention is that each party is entitled to the share that the court considers fair. The majority in Stack should be seen as holding that the Court should not override the intention of the parties, so far as that is apparent, in favour of what it considers fair. But, to the extent that the intention of the parties cannot be inferred and must be imputed, that has to involve the court supplying what it considers fair. In the present case, to the extent that there is evidence of conduct from which it is right to conclude that the parties intended their shares to alter, but no evidence as to what that alteration was intended to be, the only available criterion is what is objectively fair.

In fact, where the parties have not indicated in any way what the shares are to be, their actual or subconscious intention may well be that their respective shares, if they cannot reach agreement, should be whatever the court decides is fair. (My comment is that this is, with respect, quite astonishingly unlikely to be the case, in view of the various trust cases I’ve been involved in, but it is a no doubt comforting image for the court…). In any case, the court can’t assume that fairness in division was not an intention of the parties.

Lord Neuberger’s dissent in Stack, referring to fairness as forbidden territory and rejecting imputed common intention, was in the minority and does not limit this view of the majority in Stack.

On the present case, the judge below was right on the evidence to decide that the parties were to be taken as intending that the shares in the beneficial interest should change. The separate finances after 1993 met the Stack test. The judge was right to impute to the parties that changed intention from how they stood at the time they parted. The attribution of a 90% interest to Ms J was justifiable.

Comment
While to some extent the reasoning here is a logical follow on to Stack v Dowden in applying a concept of ambulatory or changing intentions to be inferred from changing conduct, I am somewhat uneasy about aspects of the case and the approach. Firstly, imputing a common intention to the parties where there is no evidence and probably no conscious intention on the part of the parties is difficult enough where one is examining the whole course of dealing (and there are plenty, like Rowena Meager, who side with Lord Neuberger in his opposition to the very idea of imputing intention), but where it is a subsection of the course of dealing, and there was a previous admitted or express shared intention, as here, then the process is surely fraught with the risk of subjective assessment based on the most recent circumstances and a ‘fair’ view of that. Nor am I wholly convinced that, when imputing intention, ‘fairness’ is what there is in the absence of other evidence. If there is so little evidence, or not enough to infer the parties’ intention, could there be enough to establish that this was an ‘exceptional’ case in Stack v Dowden terms?

As an illustration of my unease, let us take the relative contributions and relevant conduct in this case. The property was purchased in joint names. Ms J paid a £6000 deposit, the rest of the £30,000 purchase was by mortgage. In 1986, a loan for £2000 was taken out for an extension ‘which was built and paid for by Mr K’ and added £14000 (or about 50%) to the value of the property. The mortgage payments were shared until Oct 1993 when Mr K left. Thereafter Ms J paid the mortgage solely. A joint life insurance policy was cashed in in 1996, and the proceeds slit, with the purpose of enabling Mr K to buy another property. At trial the property was valued at £245,000, or £218,000 after mortgage. Ms J’s contribution to mortgage payments was held to be about 81.5%. While Mr K had not contributed to the mortgage after 1993, he had also not had any benefit from the property. Moreover, between 1984 and 1993, there had been an admitted shared intention that the beneficial interest should be shared equally.

Now, on any maths, it is clear that Mr K’s contribution to the value of the property across the whole course of dealing is considerably greater than 10%. He paid at least 18% of the mortgage alone, without factoring in the value of the extension. It is hard to see how an intention can be imputed on these facts and this course of dealing that the split should be 90/10, even if he had made no financial contribution to the property since 1993. Alternatively, one might see an argument that he had effectively transferred his interest in the property to Ms J in 1993 or at some point afterwards when he ceased to make any further contributions. But either way 90/10 doesn’t make sense on the reported facts.

The judge below had expressly found that 90/10 was ‘fair and just’, suggesting that fairness was his prime concern. This doesn’t seem to me to comfortably fit even with the analysis of Stack set out in this case, although Mr Strauss QC found to the contrary. The danger is that it is not just the imputed intention that is ambulatory, but the judicial palm trees as well.

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What do you want me to do about it?

Published
by
J
on 27/07/2009
in ASB, Disrepair, FLW case note, Housing law - All and Nuisance
. 0 Comments

Noise abatement notices are governed by Part 3, Environmental Protection Act 1990 (as amended). They are not ‘pure’ housing law but they are frequently used in a housing context, particularly when dealing with noise-related complaints of anti-social behaviour.

In Elvington Park Ltd and another v City of York Council [2009] EWHC 1805 (Admin), Silber J considered the content of a noise abatement notice. The appellants had been convicted by the Magistrates’ Court for causing a  noise nuisance, contrary to s.79(1)(g), 1990 Act, by allowing their airfield to be used for Formula 1 car testing and other motor-vehicle events. They appealed, both to the Crown Court and then to the High Court, against the service of the noise abatement notice. They contended that it was irrational to serve a notice which did not specify the steps that they were expected to take to prevent further noise nuisance.

Section 79(1), 1990 Act provides that it is the duty of every local authority to inspect for statutory nuisances and, where a complaint is made, to take steps to investigate that complaint. If a nuisance is found then, by s.80(1), the authority must serve an abatement notice which must require the abatement of the nuisance and / or require the execution of works or other steps, necessary for the purpose of preventing the nuisance. Failure to comply with a notice gives rise to criminal liability if prosecuted by the authority (s.80(4)).

In the present case, the notice which was served required the appellants to “take the steps necessary to prevent noise from motor vehicles and associated activities causing a statutory nuisance at other premises” without further particulars.

The appellants argued that, having chosen to specify that works or other steps were necessary, it was incumbent on the authority to provide details of the steps that it considered should be taken.

Silber J agreed and held that (at [36]) “… if an abatement notice requires not merely abatement of noise but also steps to be taken, they should be specified but if as in the present case, the notices did not do so, they are invalid.” If this were not the case, then the person served with the notice was liable to criminal prosecution without knowing what was expected of them in order to avoid criminal prosecution.

In light of that finding, it was unnecessary to consider any further challenges to the notice. His Lordship did, however, deal briefly with a second aspect of the irrationality challenge to the notice and dismissed it on the facts of the case.

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Forfeiture and the LVT

Published
by
J
on 26/07/2009
in FLW case note, Housing law - All and Leasehold and shared ownership
. 0 Comments

By virtue of s.81 Housing Act 1996 and s.168 Commonhold and Leasehold Reform Act 2002 a landlord may not seek to forfeit a residential long lease unless the breach (whether to pay rent, service charges, administration charges or other breach of covenant) has been admitted by the tenant or determined by inter alia, an LVT.

In addition, by s.167 Commonhold and Leasehold Reform Act 2002 (and the regulations made thereunder), a landlord may not bring proceedings for forfeiture where the debt owed is less than £350.

In Glass v McCready LRX/122/2008, the LVT managed to confuse itself with the interplay between these two provisions and has had to be put right by the Upper Tribunal (Lands Chamber).

The landlord was the freehold owner of an estate in Enfield, consisting of five blocks, each containing 4 maisonettes. The leaseholders were obliged to insure the properties through an insurer nominated by the landlord and to provide copies of the relevant insurance details to the landlord, etc. In the present case, one leaseholder did not pay the necessary premium and the landlord applied to the LVT under s.168 CLRA 2002 for a determination that the leaseholder was in breach of covenant.

The LVT held that it had no jurisdiction to consder the matter. It held that, because the sum demanded was less than £350, there could be no forfeiture in any event, and so it had no jurisdiction to consider the matter. Alternatively, the insurance premium was a service charge and so the application should have been made under s.81 HA 1996.

The landlord appealed to the Upper Tribunal (Lands Chamber) where Judge Huskinson, with what seems to me to be a rather resigned sigh, allowed the appeal. The obligation was not just to pay a sum of money, but included (a) to place the insurance and (b) to provide a copy of the policy documentation to the landlord. In any event, the mere fact that less than £350 was claimed did not oust the LVTs jurisdiction. There was a conceptual difference between determining whether or not a breach had occured and whether or not the landlord would be able to go on to forfeit the lease (although not cited, see Swanson Grange v Langley-Essen LRX/12/2007 in support of this proposition). The LVT was entitled to determine the former question, even if the landlord would not be entitled to go on to forfeit the lease.

Further, even if the landlord had only been challenging a failure to pay a sum of money there would have been a strong case for treating the application as being made under s.81 HA 1996 and not simply for declining jurisdiction.

So, the LVT got it totally and utterly wrong.

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Shocking lack

Published
by
NL
on 24/07/2009
in Assured Shorthold tenancy, Disrepair, Housing law - All and Regulation and planning
. 17 Comments

And I apologise for the pun in the title, which is in dubious taste.

Normally on NL, we restrict putting our view on matters to a few comments or the odd, albeit caustic, remark. But the events and legal requirements that are set out in this story from the RLA newsletter are such that we even had a bit of a discussion about whether and how Nearly Legal could mount a campaign.

In short, atrocious wiring in a private let resulted in the death of a tenant while running a bath. She was found dead by her five year old daughter. Wiring in the property, done 28 years ago, had subsequently ‘been checked by the landlord’s husband’, who was not a qualified electrician. There had been no professional check on the electrics since 1981.

Now, while there is a clear duty under S.11 Landlord & Tenant Act 1985 to keep the electrics in repair, and dodgy electrics would be a Category 1 hazard under the HHSRS, Housing Act 2004, what there isn’t is any requirement that would be comparable to the requirement for an annual gas safety certificate by a Gas Safe registered engineer.

In reality, there is no requirement for regular, professional inspections of electrical installations in rented residential properties, although there is no end of statute to say that the electrics must not be in disrepair or be dangerous. This only has practical effect once the electrics are dangerous.

Given that the single most life threatenng installations in rented property in general would have to be gas and electric, the absence of a requirement for regular checks along the lines of the gas check is frankly a serious omission from the statutory requirements.

We collectively came to the conclusion that we are not sure how NL would run or front a campaign in any event. And if we were to do so, there might also be other candidates – like educating police about the criminal offence of unlawful eviction (see the comments on this post).

But this is a matter that would be simple to resolve in legislation and one about which any landlords’ protests over the imposition of an additional burden can be safely discounted – whether public, RSL or private landlord. It is something that they should be doing anyway.

In the absence of repair works, a disrepair claim for water penetration is one thing, death by electrocution something else entirely. Anyone from DCLG. or indeed the TSA. reading? A quick, simple and life saving option presents itself…

Landlords – read this and follow it.

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HB means no gas or electricity

Published
by
NL
on 22/07/2009
in Assured Shorthold tenancy, FLW case note, Housing law - All and Unlawful eviction and harassment
. 0 Comments

In the July edition of Legal Action’s housing reports is the otherwise unreported Salah v Munro Willesden County Court April 2009. This was a harassment and unlawful eviction case. Ms Salah began an assured shorthold tenancy of a room on 23 March 2008 for a 6 month fixed term. Ms S applied for HB which was granted but did not cover the full rent, even after appeal. The landlord, Mr Munro had a ‘no HB’ policy, which he decided to enforce in a forthright and utterly unlawful manner. First he told Ms S to leave. Then, in May 08 his brother and girlfriend went to the property and demanded that she leave and return the key. Ms S refused, then went out, taking her key. On her return she found the locks changed and some of her belongings in bags in the street. Some items were missing. She spent a night in hospital after an asthma attack then sofa surfed until being re-admitted 10 days later following a court order.

Mr M continued to harass Ms S — missing furniture was not replaced and he accused her of being a prostitute. After the 6 month term, Mr M disabled the gas and electricity supply to the room, so Ms S had to stay at a friend’s home for a month. The electric was reconnected only once the landlord was notified that Ms S had been granted funding for a committal application. Ms S only stayed intermittently at the property after that. In January 09 Mr M saw Ms S at the property. He called the police who, helpfully, confiscated her keys.

At trial the court awarded:
Unlawful eviction — general damages of £8600. The usual range was £100 to £300 per night. Here £200 was appropriate, for 43 nights.
Aggravated damages — £2000
Exemplary damages — £2000
Special damages (in the absence of receipts) — £1000
Arrears of rent of £750 deducted from the damages — not including the excluded period and with rent assessed at 50% for the period without gas.

No separate award on the harassment, apparently. Anyone from Warnapala & Co, or Mr Bernard Lo, with more information?

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Arm's length discrimination (or not)

Published
by
J
on 21/07/2009
in Allocation, FLW case note, Housing law - All and Licences and occupiers
. 1 Comment

Odham’s Walk Residents Management Ltd v Westminster City Council [2009] EWHC 1712 (Admin)  is not a housing case per se, but is of interest.

The applicant, a TMO, manages an estate of Westminster’s housing stock as Westminster’s agents under contract. The TMO employs caretakers who are provided with accommodation as part of the job.

The agreement under which the TMO manages the properties makes clear that it is the Council’s agent in doing so. The agreement also puts an equal opportunities duty on the TMO and compliance with statutory provisions including the Sex Discrimination Act 1975. However, staff were employed by the TMO not the Authority. The accommodation for the resident staff was, on the other hand, made available by the Authority to the TMO under licence for the specific purpose, which the TMO then sub-licenced to the employee.

Westminster subsequently adopted a  policy that the only accommodation that would henceforth be available to the TMO for such residential staff would be studio flats.

The TMO had an existing caretaker who, because of his family circumstances, needed a 3 bed. The Council refused to provide such a flat and would go no higher than a one bed. It also insisted that its policy would then have to be applied for all future employees.

The TMO applied for judicial review. Arguments on the irrationality of the policy, taking into account irrelevant factors and inadequate consultation were all rejected at permission stage as unarguable on the facts. However, the application was allowed to proceed on the basis of an argument on possible discrimination under Parts 2 and 3 Sex Discrimination Act 1975 (“SDA 1975″) because of its impact on residential staff with families.

The TMO argued that the policy was contrary to s.6 and s.30 SDA 1975 as indirectly discriminatory against women and married persons in both employment and housing. Reference was also made to s.76A SDA 1975 and the duty on all public authorities to have due regard to the need to eliminate unlawful discrimination and promote equality of opportunity between men and women.

Cranson J – with some hesitation – rejected these arguments. One had to have regard to the nature of the legal arrangements between the Council and the TMO (on the one hand) and the TMO and its employee (on the other). The Council did not employe the caretaker, nor did they house him. There was no legal relationship (whether as employer/employee or landlord/tenant) between the caretaker and the Council.

The impugned policy applied as between the Council and the TMO. It did not impact on the nature of the remuneration package (including accommodation) that the TMO could offer to prospective employees. It only limited the sort of accommodation that the Council would be obliged to provide to the TMO for these purposes. If the TMO wanted to arrange for accommodation for a prospective employee, then it could do so. If it wanted a larger property, however, it could not look to the Council to provide this.

That was sufficient do dispose of the application. The 1975 Act contemplated a direct relationship between the person doing the discrimination and the person being discriminated against.

[with thanks to NL for his initial work on this post. Any errors are, of course, the responsibility of J.]

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