For a three bed house, the upper limit will be £340 per week
For a four bed house, the upper limit will be £400 per week

LHA will be limited to between £250 and £400 a week depending on property size. LHA rates will be set using the bottom 30 per cent of rates instead of the median and they will be linked to the consumer prices index rather than the retail prices index, leading to smaller increases.

In London, this is likely to have a very significant impact on those renting privately (and potentially on those in temporary accommodation, whether provided by LA, RSL or a private leasing arrangement, where rents charged are ridiculously high, if that gets changed too.)

In addition, from April 2013 anyone who has been on Jobseekers Allowance for more than 12 months will see a 10% reduction in housing benefit. According to Grant Shapps this is designed to target people “choosing not to work as a lifestyle thing”.

For Shelter’s response, see here.

Meanwhile, Iain Duncan Smith is proposing that new steps should be taken to ‘free up’ under-occupied social housing:

We have tons of elderly people living in houses which they cannot run and we’ve got queues of desperate people with families who are living in one and two-bedroom houses and flats,.

He also raised proposals for Council tenants in areas with low work to be able to move to areas with high work, apparently by putting such people at the top of the housing list in the new area. After all, areas with high work availability are also notorious for the amount of unoccupied social housing in those places.

But, they can also make what counts as a silly procedural error of considerable significance.  One such procedural error was the subject of a judicial review application in R(Adow) v Newham LBC, before McCombe J on 14.04.10, as yet unreported (link is to PDF of judgment provided by Pierce Glynn).  In summary, they have been getting an external doctor to do their allocations medical assessments and have done so for a while.  Well, there’s nothing wrong with that (as a matter of law at any rate, although it can raise its own issues as Ealing/Locata found).  It was probably a cost-effective solution to a personnel issue.  The problem for Newham is/was that their allocations policy states that allocations medical assessments are to be done in-house by an officer as part of a particular team.  They did not alter this element of their policy before contracting with that doctor.

They were, therefore, the subject of a successful judicial review on that ground, which was also successful on relief.  Ms Adow was living in a one-bed Newham flat, with her Mum and a number of children. Her GP and a consultant paediatrician said that she should have medical priority.  Newham’s external doctor said no.  JR was therefore initiated but Newham did not file an acknowledgement of service.

The summary I have found is not particularly adequate, but it does make clear that Newham admitted that, at the relevant time, they did not have a person who could lawfully make the relevant decision.  In a witness statement, they assured the Court that the issue would be resolved but it was also recognised by the court that the authority had not abided by the relevant administrative rules.  Ms Adow had also been re-housed by this point.

The summary says that the Court granted a declaration against Newham because, in the circumstances of the instant case, they had failed to abide by the law; if there had been frank compliance with administrative procedures and a clear admission from the outset by them, then a declaration would not be necessary; however, they had acted with a lack of candour which was simply not acceptable.

Newham’s position is now hugely problematic – any allocations medical assessments for priority which any external doctor has done for Newham in at least the past three months are judicially reviewable at least; and what are they going to do with prospective applicants?  It’s an unfortunate mess.  One way out might be to seek to ratify their actions prospectively and retrospectively.  Prospective is fine, I think; but retrospective?  That raises an interesting question which, I’d say, would also be likely to end up in the administrative court …

[Edit: The transcript for this case appears here.  There is little new to add to the above and to the comments.  However, two points are worth noting:

(1) It does appear that Newham sought both to obscure their policy in correspondence with the Claimant's solicitors (para 9) and then really did not engage with the JR claim at all until the last minute - their reason for not doing so in part was that they were shifting to a paperless office:

I have been told frankly, and I acknowledge the proffering of the explanation with gratitude, that some of this resulted from the council's system of trying to minimise paper in their office and scanning everything into a computer system and then for the paper or the relevant non‑paper to be directed to the proper officer or employee within the council. (para [12])

One feels for David Carter, counsel for Newham, in these circumstances.

(2) There is, in my experience, always an awkward moment at the end of such a hearing when costs are being discussed.  If I’m successful, and in truth it doesn’t happen that often, I wonder at my brilliance (self-delusion is wonderful).  Coming back down to earth/reality, though: costs.  In this case, costs were awarded on a standard basis, not an indemnity basis, partly it appears because counsel for Ms Adow did not press for indemnity costs.  Note to self … ]

First, John Healey, the shy and self-effacing Housing Minister, announced his intention to make unlawful sub-letting a criminal offence. That said, the DCLG press release rather jumps the gun by describing the sub-lettings as fraudulent. In the smaller print, the ‘shop a sub-let and win £500‘ campaign and the £4 million of Govt support for Councils to ‘crack down’ on sub-letting appear to be less than dramatically successful. Precisely one ‘reward’ has been handed out, in West London, although we are assured that ‘further claims are in the pipeline’. The overall crackdown has resulted in Councils and PRPSHs (nee RSLs) recovering 350 properties nationally, ‘nearly half of which’ have been allocated to new tenants. Still, a further 27,000 ‘leads’ have been passed on to housing bodies by the Audit Commission and DCLG through matching tenancy records with electoral rolls, HB claims, etc..

Secondly, the great Crown Estate sell off may have hit a road bump or several. Not only has the Treasury Estate Committee been more than a little critical of the Estate’s handling of the consultation process, but a Judicial Review pre-action protocol letter has been sent on behalf of two of the tenants setting out the failings of the consultation process and asserting that to go ahead with the sale would be unlawful. It starts with R (Wainright) v Richmond upon Thames LBC [2001] EWCA Civ 2062 on the principles of fair consultation, and goes on in detail and at length from there. The solicitors, Hansen Palomares, have issued a press release. We have a copy of the press release and the pre-action letter [links to PDFs].

Oh, and for anyone waiting on tenterhooks for our report on Salford City Council v Mullen [2010] EWCA Civ 336 (AKA the Famous Five), it is coming shortly, honest, but there is a lot to digest and, in the case of Manchester CC, a certain amount of bewilderment as to just what the hell they thought they were doing to get through.

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.

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.

Essentially, Mr Bauer-Czarnomski applied for an allocation in 2004.  He was placed in Band D, the lowest band on the Locata scheme.  His parents both have serious mental problems which necessitated him in giving 24 hour care to them.  This had a damaging impact on his own health as was noted by his doctor in a medical report in 2006.   Now, here’s where it gets interesting.  Locata get its own medical report from, you guessed it, Dr Keen who did not see or communicate with Mr Bauer-Czarnomski.  Dr Keen accepted the GP report but then went on to advise on priority, essentially saying that the current accommodation was adequate.  As Collins J put it, the council were wrong to rely on that advice which was not a matter for Dr Keen who

“… appears to have approached it on the basis that the physical condition of the house and the fact that there was an independent bedroom was sufficient to mean that the conditions of the housing were not such as were affecting his health within the meaning of the policy.  That, in my judgment, was manifestly wrong.  Conditions must extend to the conditions involving those who are living at the house, the effect of their actions and so on.”

Perhaps taking account of the Shala decision, an opinion was sought from a psychiatric adviser who agreed with Dr Keen and went on to say that, in his view, there were other households in a more unpleasant situation.  As Collins J again pointed out, that was not a matter for him to determine.  The point was that Mr Bauer-Czarnomski’s physical and possibly mental health was being adversely affected by the conditions because of the disabilities of his parents.  Collins J said that Band D was clearly wrong and quashed that decision, saying that he should have been placed in either Band B or C.

Mr Bauer-Czarnomski raised a further issue that reliance should not have been placed on the views of a doctor who had not contacted him and had no knowledge of his case beyond the written medical report.  Collins J said that he did not think it was essential for the medical advisor to see the individual “… certainly if he does not dissent from the medical views given in the report that is presented”; suggesting that it may be if there is dissent.  The problem was that Dr Keen and the psychiatric advisor went beyond their remit giving opinions on the appropriate band to put him in, which was a matter for the council – a fairly basic administrative error and not one which really should have come before the High Court.

Mr Bauer-Czarnomski got his costs with a warning from Collins J that they are not terribly generous for a litigant in person.  Finally, Collins J said that he wouldn’t put his direction about appropriate band in an order “because if the Council do not take any notice of it, they will be in trouble”.

Ms Osei argued (a) that the local authority had fettered its discretion by making the issue of the rent arrears the absolute priority consideration without regard to her personal circumstances and the danger she was in; and (b) the lettingss agency failed to give adequate reasons.  It should be said that Newham also put in a supporting witness statement.

Lord Carlile QC, sitting as a Deputy Judge, held that Ms Osei’s circumstances had been taken into account and the agency had been satisfied that Ms Osei’s case was not such an exceptional one as to enable her debt to be disregarded.  Certain of the correspondence had not been “felicitously phrased, and suggested a restrictive approach by the agency to debt” but, applying Holmes-Moorhouse (presumably Lord Neuberger’s judgment in relation to section 202/204 decision letters, discussed in NL’s post on that case), such letters were not to be read as statutory provisions and the decision-letter clearly set out Ms Osei’s domestic situation as well as the regard had to that situation.  On the inadequate reasons point, it was held that there is no particular form for the giving of reasons “… and having regard to the knowledge that [Ms Osei] and her solicitors could be taken to have had it was clear that sufficient reasons had been given for the agency’s decisions” (applying R(M) v Hackney LBC [2009] EWHC 2255 – links to our note, see [35] of the judgment).

There’s a lot going on here that requires some background information – hence the need for a transcript!

It is with the latter that we begin
tolata mother and daughter inheritance tax and succession with a will
Just how much can you stuff into one short question? And without giving us any idea what is actually going on?

rehousing on asthma grounds lambeth
I’m resisting the temptation to make the obvious joke about Asthma Grounds being a surprisingly pleasant low rise estate. If your current housing is having an impact on your asthma, you may get a medicial priority, but as far as I recall from Lambeth’s allocation scheme, it is not likely to be a high priority. You should see a local independent housing advisor, as a lot depends on the specific details.

not paid rent from and onwards
Are you boasting imprecisely or complaining without detail?

tenant gas inspection statutory nuisance
If you mean can a gas inspection be a statutory nuisance, no. If you want a gas inspection and the landlord isn’t carrying one out, this is a serious breach of tenancy conditions and potentially the landlord’s repairing obligations if there is a problem – in which case run, don’t walk, to your nearest housing solicitor, local authority tenancy relations team or housing advisor. If, and I am scratching my head over the statutory nuisance here, the issue is another tenant refusing access for a gas inspection in their property which is affecting yours, then their landlord is the first point of contact and possibly the local authority environmental health and/or the gas co.

charging orders declaration of trust deed
Eh? Trying to avoid a charging order or assign the benefit of one?

music 3 am asb warning
Not bloody surprised. And possibly from the same person, we have…

noise abatement order defence student
Being a student is not going to help. There is no ‘young, irresponsible and drunk much of the time’ defence in the statute.

delegated authority to issue possession proceedings
No – not by an agent or another behalf on of the landlord unless the person is the landlord’s legal representative (meaning a solicitor authorised to sign the claim on the landlord’s behalf). If a power of attorney is involved – maybe and perhaps, but if so only with leave of the court.

will i get evicted for unlawful subletting of shared ownership?
Quite possibly. Depends on the precise terms of the lease, but it is likely to be either a lease or an assured tenancy and under either a sublet is likely prohibited. You appear to know that this is the case as you call it unlawful, If it is, then it is a significant breach of lease/tenancy and the landlord could probably seek possession.

unlawfully evicted illegal subletting
I think the answer is in the question. Unless, of course, you were thrown out without a possession order having been obtained against the tenant who unlawfully let to you…

i am a tennant in a house where the bank have a posession order can i make them an offer on the property uk
You can, of course. There is absolutely no guarantee that they will take any notice of you whatsoever.

quick access to adverse possesion in luton
It is no quicker in Luton than anywhere else. 10 years now. You’ll just have to wait.

plural of criterea
What are they teaching the children in school these days? Any fule no it is criterion.

dyslexics could not understand legal contracts
Words fail me.

southwark housing act regarding repair before tenancy commence
There is a legal requirement that a property be fit for human habitation when it is let as a furnished property, but this is a pretty low threshold in any event. Otherwise, repairs are not enforceable (assuming that they are repairs for which the landlord is liable under the tenancy agreement and s.11 Landlord and Tenant Act 1985) until the tenancy has begun. However, it is worth checking Southwark’s tenancy agreement, allocation policy and other documents for any statements of the minimum standard of housing to be provided. These may be useful. Off the top of my head and without them in front of me, I couldn’t say.

the courts have given me a suspended sentance for rent arrears what does this mean
That you got a really, really tough District Judge? I presume you mean suspended possession order – if so, it means make the payments set out in the suspended order or your landlord can ask the court for a warrant to evict you. Until May 2009, it would have meant a lot of other things as well, none of them good, but at least now you remain a tenant.

when did was secure tenancy introduced
1980, it did was.

i have been living as a tolerated trespasser for 6 years can i be evicted
The good news is that you aren’t a tolerated trespasser any more and haven’t been since May 2009 – you have a ‘replacement tenancy’ of some kind. The bad news is that the original possession order is still there, so if you haven’t paid off the rent arrears – if that is what it was – you still could be evicted, but your landlord would probably need to apply to the court for permission to apply for a warrant, as the possession order is over 6 years old.

first essex high court
There may be High Courts outside London now, but this is just a little ahead of its time. The Billericay High Court is not sitting yet…

can sister claim possession of my property
I have absolutely no idea. I am not acquainted with your sister or your property or the relationship between them.

how many weeks make a year
There are limits to our public service remit. Out of curiosity, I googled this. NL is at the bottom of page one – for a post called ‘How many weeks make 8′. Above NL are about 10 links that all say ’52, idiot. I can’t believe you are asking this’. So this person clicked on the link to NL…

There were two broad issues considered by the Court.  First, was the immigration status of the children irrelevant for the purposes of Part VI, given that the children were not at risk of imminent removal?  Second, could the children be considered to be part of Mrs Ariemuguvbe’s household?  The Court of Appeal (Smith LJ giving the leading judgment) held against Mrs Ariemuguvbe on both points.

As regards the first point, Counsel for Mrs Ariemuguvbe relied on the judgment of Collins J in R(Kimvono) v Tower Hamlets LBC [2001] 33 HLR 239 at [23], where it was suggested that the applicant’s children’s immigration status was irrelevant for the purposes of the performance of Part VI duties and could not be taken into account.  That proposition was effectively trumped by Terry Gallivan, Counsel for Islington, who relied on the contrary proposition in Akinbolu v Hackney LBC (1997) 29 HLR 259, 269 as well as that old chestnut R v Sec of State for the Environment  ex p Tower Hamlets LBC [1993] QB 632, 643, neither of which had been cited to Collins J.  In Akinbolu, the CA had said:

The application of the policy by a housing authority to refuse to provide public sector housing to applicants who are illegal immigrants or overstayers could not be said to be outside the proper exercise of its powers under Part II (see by way of analogy Eastleigh BC v Betts [1983] 2 AC 613). In the present case the immigration status of the appellant might well have caused this housing authority, with knowledge of the facts, not to offer the appellant a tenancy.

The Court of Appeal here limited Collins J’s judgment in Kimvono to its facts and made clear that Collins J would not have made the point that he did had the Akinbolu and Tower Hamlets cases been cited to him.  Although Parliament had subsequently amended the immigration provisions of Part VI, what the amendment did was to cordon off those areas where there was no discretion and identify the areas where the Act provides very broad discretion: “Thus the respondent was entitled to take into account the fact that the appellant’s five adult children would not be entitled, if they had applied for accommodation in their own right, to be provided with accommodation by the respondent” (at [22]).

On the second issue, the Court made a number of important points about the way allocations schemes should be read and also the type of information they should contain.  On the former, “… since this is a local authority housing allocation scheme and not an enactment, it has to be read in a practical, common sense, and not in a legalistic way” (at [24])(having just argued to the contrary myself, that puts me in a spot of bother, but there we go).  Schemes should not be read rigidly and this one did not say that points would be awarded for every individual in the household.  It did not follow that the adult children, even if they were part of their mother’s household, had a need to live in the same accommodation as their mother.  Furthermore:

Turning secondly to the legal status of the scheme, since it is only a local authority’s housing allocation scheme and does not purport to be a comprehensive statement of the general law, it does not have to state the obvious: that is to say that the needs of all individuals in an applicant’s household will be taken into account by the respondent only insofar as it would be lawful and/or not contrary to wider public policy considerations for the respondent to meet those needs. If meeting a need of a particular individual would result in an unlawful recourse to public funds, then a local housing authority is entitled — even if it is not bound — to say that that need will not, as a matter of discretion, be taken into account when points are being awarded. ([26])

These points were repeated by Lord Neuberger MR in his short judgment (at [31]).  Now, we know from Lin and others that schemes do need to give the principles on which allocations and prioritisation are based, but when are these “obvious” and, I suppose, “not obvious”.  As NL and I noted, in relation to R (Van Boolen) v London Borough of Barking & Dagenham [2009] EWHC 2196 (Admin) (links to NL’s note), there is a bubbling issue about the extent to which allocations policies need to set out all their terms; it’d be interesting to note whether this issue was canvassed before the CA in this case (hint, hint).

The children were able to lead independent lives and should have been able to make their own housing arrangements  (although those independent lives and housing arrangements were rather dependent on their immigration status).  As Smith LJ put it, subsequent event made clear they were able to lead independent lives as “… both of the adult sons have left the property, one being returned to Nigeria, the other to live in his own home with his new wife” ([29]).  Hmm.

We will come back to the Guidance in a proper post soon, but the stated principle is:

The guidance makes clear that first priority for housing must be given to those in greatest housing need. But it also encourages local authorities to make greater use of the existing freedoms and flexibilities to prioritise needs specific to their local area. It also encourages them to do more to involve and inform their communities when setting their local priorities so that local views are reflected in allocation policies.

By the way, since John Healy became housing minister, every single bloody press release begins “Housing Minister John Healey has today…”. This didn’t happen with Beckett, or even with Flint, and the relentless repetitive self-promotion, even claiming credit for decisions that far pre-dated his reign, is getting more than a little tiresome and perhaps somewhat counterproductive.