Author Archive for J

Admit nothing. Deny everything

Published
by
J
on 11/03/2010
in FLW case note, Housing law - All and Mortgage possession
. 1 Comment

Ashcroft v Bradford & Bingley Plc [2010] EWCA Civ 223

Mr Ashcroft purchased a property with the aid of a mortgage from Bradford & Bingley in 1990. He failed to make a single payment and an SPO was obtained in April 1991. He breached the terms of the suspension and the property was subsequently sold by the building society in 1992. The proceeds of sale left a shortfall of c.£30,000.

In 1995 (i.e. 3 years later), the society wrote to Mr Ashcroft to ask how he proposed to pay the shortfall. Mr Ashcroft responded with “indignation at the time it had taken the building society to make the demand” but – in Oct 2000 -  and at the suggestion of the society, agreed to make payments of £10 pcm. These stopped in 2004.

In 2008, the society issued proceedings. Mr Ashcroft contended that they were statute barred. He argued that, by s.20, Limitation Act 1980, the society had 12 years to recover the mortgage loan. On any view, the claim was issued more than 12 years after the right to recover the monies arose. However (argued the society), by s.29(5), time starts to run again from the date when the debtor acknowledges the claim.

The Recorder held that the claim was not statute barred, but granted permission to appeal. The appeal was dismissed. The problem for Mr Ashcroft was that he had made the £10 payments, the effect of which was to bring him within the scope of s.29(5), 1980 Act, and start time running all over again.

I’m not sure if the suggestion by the society that Mr Ashcroft pay £10 pcm was a stroke of genius or not. On the one hand, by acknowledging the debt, it got them out of a potentially tricky limitation period. On the other (as Sedley LJ points out in his judgment), they were potentially giving rise to a binding compromise that would leave Mr Ashcroft paying the debt until 2402 (!) but with a defence to any proceedings (such as the present) so long as he made his payments.

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Rent arrears management – boring title, excellent report

Published
by
J
on 10/03/2010
in Allocation, Assured Shorthold tenancy, Benefits, FLW article, Housing law - All, Possession and assured-tenancy
. 0 Comments

Is it too much to hope that – finally – the Government might take steps to ameliorate and / or prevent the use of Ground 8?

During the passage of the Housing and Regeneration Act 2008, the Government gave a commitment to look again at the use of inter alia, Ground 8 in the social housing sector.

A group of scholars was assembled for this purpose: Pawson, Sosenko, Cowan, Croft, Cole and Hunter and, they have now reported. I suggest everyone reads “rent arrears management practices in the housing assocation sector” because, frankly, it is an impressive piece of work, detailing historic, current (and hinting at future) trends.

The authors surveyed all housing associations in England, with some 70% responding to the questions raised. Six particular housing associations were chosen to provide detailed case studies and 106 individual eviction files were considered. The headlines are:

(a) mean rent arrears have been falling across the sector, down to 5.3% of collectable rent in the three years to 2007-08. Traditional associations tended to have higher rates of arrears than those involving stock transfer;

(b) housing benefit claimants have – generally – benefited from improved efficiencies in HB administration, with the average number of days to process a new HB claim down to 25, from 33. However, more than a quarter of associations admitted to having issued proceedings in order to pressure the local authority to process a claim;

(c) the rate of rent arrears evictions fell to 2007-08, but experienced a slight increase in 2008-09. Eviction rates varied across the country, with the Midlands having the highest rates and London the lowest;

(d) the majority of associations treated rent arrears recovery as a “specialist” area with staff who, well, specialised in recovery of such monies. Almost half of associations also employ specialist in-house welfare benefit advice staff to assist tenants;

(e) around 25% of associations admitted using Ground 8, although more than 50% of associations in London used it. The most common reason for using Ground 8 was the level of the arrears or where a tenant fails to make contact with the association to discuss the situation.

The report concludes that, were Ground 8 to be abolished, it would not have a significant impact on the arrears carried by HAs.

One final point – could it be that the TSA has delayed in publishing this report? Some of the terminology and phraseology suggests to me that this was ready for publication towards the end of 2009.

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Don’t forget to file and serve…

Published
by
J
on 03/03/2010
in FLW case note and assured-tenancy
. 9 Comments

Cadogan v Chehab [2009] EWHC 3297 (Admin), (only available on Casetrack) is noted in the current edition of Legal Action, but, so far as I can tell, hasn’t been picked up anywhere else. It’s only worthy of a short note though, which is set out below.

Chehab was the assured tenant of a flat owned by the appellant. The tenancy had arisen upon the expiry of a long leasehold interest. The rent had been agreed at £17,000 p.a. but, in 2008, the landlord served notice under s.13, Housing Act 1988, seeking to increase the rent to £29,120 p.a. and, in due course, the matter was referred to the Rent Assessment Committee.

Both parties put in evidence from a surveyor and were represented by their surveyors in the hearing. Following the hearing, the surveyor for the tenant submitted an additional report. The report was sent to the RAC but not to the landlord (the tenant apparently thought the RAC would forward a copy which, to be fair, it appears to have done with other, earlier, documents). Based partly on that supplemental report, the RAC set the rent at £22,500 p.a. The landlord appealed.

The appeal was allowed. It was wrong of the RAC to have made a decision based on the supplemental report without allowing the landlord to respond. Although the RAC appeared to have a practice of forwarding documents to the other party, it was advisable for the parties themselves to ensure that their documents were provided to the other side.

In addition, the RAC had erred in not taking into account the additional security of tenure conferred on an assured tenant and should have reflected this security in the rental level. The Judge declined to rule on what would happen if, taking that security into account, the RAC set the rent at more than £25,000 (such that security of tenure would be lost, as the tenancy could no longer be an assured tenancy).

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Throwing it out there

Published
by
J
on 03/03/2010
in Assured Shorthold tenancy, Uncategorized and assured-tenancy
. 7 Comments

A friend of NL (who will remain nameless unless he wants to out himself in the comments) has asked if we would post a question about statutory periodic assured tenancies, in order to try and generate a bit of debate (and, perhaps, even work out the answer to this question). We’re always keen to help, so, here is the question. Comments very gratefully received, although, as ever, you get extra marks for showing your working:

Facts

Imagine, if you will, that you have an assured tenancy for a year from 19th January. The agreement provides for a monthly rent payable in advance on the 1st of every month. Upon the expiry of the fixed term, a statutory periodic tenancy arises under s.5, Housing Act 1998.

In that situation, are the monthly periods of the tenancy from the 19th to the 18th or from the 1st to the last?

Why does this matter?

It matters in at least two contexts.

One, obviously, is with regard to the requirement of section 21 (4), Housing Act 1988 that a notice requiring possession served after the end of a fixed term tenancy must require possession after a day which is the last day of one of the periods of the tenancy (although, in practice, one imagines that a notice with a “saving clause” (Lower Street Properties v Jones) would avoid this problem).

The other is in the context of a notice of rent increase under section 13, 1988 Act which is required to propose a new rent with effect from the start of a period of the tenancy starting not less than a minimum period in the future.

This latter situation is more important, since uncertainty in the period could be used to attack (and potentially invalidate) the s.13 notice and lead to an argument that rent has been demanded (and paid) which was not due.

I’ve not provided the reasoning of our correspondent, because I don’t want to influence anyone. I’m sure he’ll join in with comments though.

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The famous five

Published
by
J
on 24/02/2010
in Uncategorized
. 16 Comments

News reaches us here at NL towers about five gateway B cases that are due to be heard shortly. Apparently some or all of the authorities (Manchester, Birmingham, Hounslow, Leeds and Salford), together with the government, were trying to get the cases adjourned pending the decision of the Supreme Court in Manchester CC v Pinnock. Yesterday, the CA refused this application. Does anyone know anything more about this?

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‘Ard en fast rule*

Published
by
J
on 20/02/2010
in ASB and FLW case note
. 2 Comments

James v Birmingham City Council [2010] EWHC 282 (Admin) is a further dispute about the power of the court to vary an ASBO.

A magistrates court may make and ASBO against any person over the age of 10 if it can be proved (to the criminal standard of proof, using the civil rules of evidence) that he has acted in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself and that it is necessary for such an order to be made – s.1(1), Crime and Disorder Act 1998 and R (McCann) v Crown Court at Manchester [2003] 1 AC 787.

At least one incident of ASB in the six months prior to the application must be proved – s.127, Magistrates’ Courts Act 1980. There is, however, no prohibition on the court considering conduct which pre or post-dates the complaint – Chief Constable of West Mercia Constabulary v Boorman [2005] EWHC 2559 (Admin); Stevens v South East Surrey Magistrates’ Court [2005] EWHC 1456 (Admin); Birmingham City Council v Dixon [2009] EWHC 761 (Admin).

Either party may apply for an ASBO to be varied or discharged (s.1(8), 1998 Act), although no order may be discharged during the first two years without the consent of the authority that obtained the ASBO (s.1(9).

The power to vary an ASBO includes a power to extend its duration – Leeds City Council v RG [2007] EWHC 1612; [2007] 1 WLR 3025. Where the variation seeks to impose more stringent obligations (including an extended length) on the defendant, the authority should lead evidence to establish that such an order is necessary – Leeds, above.

Significantly, there is no right of appeal to the Crown Court against a decision of the magistrates’ to vary (or not to vary) an ASBO; one must either seek judicial review or appeal by way of case stated – Langley v Preston Crown Court [2008] EWHC 2623 (Admin).

Birmingham had obtained an ASBO against Mr James in July 2006, to run for a period of 3 years. In December 2008, they applied to vary the ASBO so as to extend the duration, exclusion zone and list of persons that he could not associate with. It adduced evidence of drug related convictions in 2008 in another part of Birmingham. The court was also provided with evidence of convictions for breaches of the ASBO and CCTV footage of Mr James, together with others, hanging around (and obscuring his face) outside of some shops which was said to be further evidence of gang related activity.

The appellant opposed the making of the variation and argued that the authority should (a) apply for a fresh order and (b) prove some further act of ASB within six months of the application for the variation having been made. The DJ rejected both submissions, but stated a case for the High Court. The questions were:

(a) was it correct (on the facts of the case) for him to allow the variation and not require the authority to issue fresh proceedings?

(b) was it correct that an application for a variation did not require proof of further ASB within 6 months of the application being made?

The appeal was dismissed and both questions answered “yes”. There was no requirement to prove further ASB on an application for a variation. The power in s.1(8), 1998 was expressed in very wide terms and did not oblige the court to consider any particular type of evidence.

Some variations would, of necessity, not be predicated on further ASB (i.e. the defendant got a job in the exclusion zone). This was so regardless of the type of variation being sought.

The only question for the court was whether such a variation was necessary in order to properly protect the public. If the existing ASBO was not achieving that end then, in principle, it should be varied.

In deciding whether a variation was necessary, the court would need to have evidence before it to justify each variation and, in most cases, the evidence would be of further ASB, but, as a matter of law, it was not necessary to prove any such acts. S.127, 1980 Act merely required that the application be  made within 6 months of event or circumstance which allegedly rendered the original order inappropriate.

It was entirely proper for the variation to be made. There was no suggestion that the authority was seeking to defeat a right of appeal and the new complaints were closely linked to the ASB which underpinned the original order. It made sense to extend the original order and not require the authority to seek a fresh order.

On the facts of the case, one thing did, however, trouble the court. It appeared that the appellant had been in prison for most or all of the six months leading up to the variation application. If that was true, then any of the allegations against him could not have been true and it may have been that the DJ proceeded on a false factual basis. However, nether party was able to confirm the date of his imprisonment and so the court was unwilling to find that the DJ had erred on this basis.

* Jonathan Manning of Arden Chambers for BCC, Victoria Osler of Arden Chambers for Mr James. My attempt at humour. Sorry.

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Perhaps you should get a move on?

Published
by
J
on 17/02/2010
in Allocation, Housing law - All and Uncategorized
. 0 Comments

R (Joseph) v LB Newham [2009] EWHC 2983 (Admin)

We noted the permission decision in this case back in September 2009 when I expressed the view that, if Newham lost this case then some fish-based humiliation was due to them. Well, the claim for judicial review has now been allowed and I stand by my view. A woeful display by LB Newham, I think you’ll all agree.

Mr Joseph was the secure tenant of LB Newham in a one-bed property and had been since 1992. The property was now severely overcrowded, as he lived there with his wife and two children. Under the terms of the allocation scheme, he was entitled to a two-bed property. However, Newham reduced his priority (s.167(2A), HA 1996) on account of an alleged overpayment of HB (which had not been repaid) from 1998/1999.

Mr Joseph had made quite clear that he disputed this debt (albeit it hadn’t properly tried to appeal the 1998/1998 determinations) but Newham – remarkably – hadn’t tried to take any steps to enforce their alleged right to recover this money. They had just held the debt over his head, like the Sword of Damocles, presumably hoping that the debt would get paid if Mr Joseph ever wanted to transfer.

Mr Joseph (acting in person) sought judicial review of the decision. His primary case appears to have been that the debt was now statute barred. Whilst s.75, Social Security Administration Act 1992 did empower the authority to recover overpayments, it was required to do so within 6 years of the cause of action accruing by virtue of s.9, Limitation Act 1980. It was unlawful and irrational to take statute-barred debts into account.

Newham don’t actually appear to have addressed the issue of why they didn’t take any enforcement action against Mr Joseph. They just appear to have bleated on about the unfairness of the situation and that a strict limitation period would encourage tenants to withhold their debts and wait for them to become barred.

HHJ Thornton QC was having none of it. The debts were indeed statute barred and it was irrational, unlawful and contrary to Mr Joseph’s legitimate expectations to take statute-barred debts into account. Claim allowed and a declaration granted that:

“it is unlawful for Newham to apply its property-related debt policy when operating its choice-based housing allocation scheme to debts created by the requirement to repay overpaid housing benefit where those debts are irrecoverable by virtue of section 9 of the Limitation Act 1980…”

I suspect that I probably do more work for authorities than most of the NL team but I am amazed that Newham ever let this case get to court. Why on earth would you fight this case over under £900, in circumstances where you’ve done nothing to recover the money since 1999? I can only presume that Newham must have thousands of pounds of old debts owing and thought this was an important case to fight but, having lost the case, it’s now just exposed the flaw in its position to all those people who it claims owe it money.

Congratulations to Mr Jospeh. A well-deserved and just victory. Newham – hang your head in shame. A very unattractive way to deal with your alleged debts got exactly what it deserved.

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One for the surveyors…

Published
by
J
on 14/02/2010
in Uncategorized
. 0 Comments

Re Flat 3, 49-51 Cheval Place, London, SW7 1EW LRA/123/2009

Certain qualifying tenants of flats are, pursuant to the Leasehold Reform, Housing and Urban Development Act 1993, entitled to acquire an extended lease of their flat in exchange for a statutorily calculated premium. In addition, the leaseholder is required to pay the landlord’s costs of, inter alia, the valuation of the tenants flat

This Upper Tribunal (Lands Chamber) appeal involved abortive proceedings for an extended lease. The surveyors for the landlord had charged a fixed fee for each ’stage’ of the work, which the landlord had then paid.

The LVT did not allow the fixed fee but allowed a sum equal to the value of the work actually done. The landlord appealed to the Upper Tribunal.

The appeal was dismissed. Whilst the landlord had agreed to pay a fixed fee and it was true to say that clients (whether landlords or tenants) preferred to negotiate fixed fees, the fixed fee in this case was higher than the actual value of the work to be done. The value of that work had been agreed at “X” and the LVT had awarded “X”.

In addition, the fixed fee clearly included an element of work that could not be recovered from the leaseholder in any event as it related to advice on tactics. Accordingly, the LVT could not be said to have erred.

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The end of the road

Published
by
J
on 09/02/2010
in Housing law - All
. 3 Comments

The Supreme Court has refused permission to appeal in Birmingham City Council v Qasim et al (our notes on the Court of Appeal and county court decisions are here and here, respectively).

As our friends at the UKSC blog previously noted, it would be helpful if the Supreme Court would publish such information itself so that everyone would know of such decisions, rather than waiting for the information to trickle out.

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When does a tenancy begin?

Published
by
J
on 05/02/2010
in Assured Shorthold tenancy, FLW case note and assured-tenancy
. 0 Comments

Lynch v Kirby, QBD, 28.1.10 before Nicola Davies QC sitting as a Deputy Judge is – according to Casetrack – in the process of being written up. I became aware of it as a (very) short note on the Garden Court bulletin last Monday. I doubt that it’ll set the legal world on fire as it appears to turn on its facts. Still…

It looks like a landlord agreed to let a room in a premises to a tenant if he (the tenancy) could obtain housing benefit. The tenant entered into occupation on 20.2.1997 and obtained HB some six weeks later, backdated to the start of the tenancy. The landlord contended that the tenancy did not actually start until HB was in payment. The tenant said that the tenancy commenced upon occupation.

Why was this important? Well, prior to 28.2.1997, if you wanted to grant an AST, you had to serve on the tenant a notice under s.20(2), Housing Act 1988 before the tenancy was entered into. For tenancies after 28.2.1997, this requirement was removed and the AST became the default model from which one opted-out. Hence the importance of establishing when the tenancy commenced.

The High Court held that the tenancy had been made on 20.2.1997 and, hence, was fully assured.

As ever, more details as soon as we have them.

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