Tag Archive for 'secure-tenancy'

Continuity of tenancy

Published
by
NL
on 05/10/2009
in Disrepair, FLW case note, Housing law - All, Tolerated trespasser and secure-tenancy
. 14 Comments

London Borough of Lewisham -v- Litchmore. 2 October 2009, Bromley County Court

Since the beginning of replacement tenancies on May 2009, there have, rather surprisingly, not been any reports on cases involving the Housing and Regeneration Act 2008 Schedule 11 s.21 – when the new tenancy and the original tenancy are to be treated as the same and continuous for the purposes of a relevant claim (for breach of tenancy condition or statutory duty). Now, we’ve heard about one such case.

For an ex-tolerated trespasser with, say, a disrepair claim extending back over the period prior to May 2009, there appear to be two routes to recovering tenancy for the whole period since the possession order and with it the right to claim for breach of condition of tenancy. One is to make a s.85 Housing Act 1985 application to postpone possession or for discharge within the original possession proceedings; the other is to apply within issued disrepair proceedings for an order that the replacement tenancy to be treated as the same tenancy and continuous under s.21(3) Schedule 11 HRA 2008. Of the two, the s.85 application has other benefits for the tenant, for example by altering a previous possession order so that the landlord can’t issue a warrant without notice.

However, there are always complications. In LB Lewisham -v- Litchmore, there was a disrepair counterclaim to a fresh possession claim by Lewisham on the replacement tenancy, but the Defendant had been a tolerated trespasser for some years before the replacement tenancy began in May 2009, as the result of a previous possession order. The disrepair counterclaim was limited by the lengthy period of tolerated trespasser-hood. An application for an order under s.21(3) was made by the Defendant for the replacement tenancy to be treated as the same and continuous. Lewisham opposed the application.

The Court made the Order that the replacement tenancy be deemed the same tenancy and continuous from the date of possession in the original order, so that the counterclaim could include the full period of alleged disrepair. Lewisham were granted permission to appeal.

Interesting to see that a Court is prepared to exercise the s.21 discretion. S.21(3) states:

In proceedings on a relevant claim the court concerned may order that the new tenancy and the original tenancy are to be treated for the purposes of the claim as—
(a) the same tenancy, and
(b) a tenancy which continued uninterrupted throughout the termination period.

Will this discretion be effectively the same as that exercised under s.85 Housing Act 1985?

We’ll keep our ears open for news of Lewisham’s appeal.

[Thanks to Charlotte Collins at Anthony Gold.]

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Webb v Wandsworth LBC – Take 2

Published
by
J
on 29/08/2009
in ASB, FLW case note, Housing law - All, Nuisance, Possession and secure-tenancy
. 0 Comments

We first noted Webb v LB Wandsworth [2008] EWCA Civ 1643 in November 2008 when it was discussed in an Arden Chambers eflash. Earlier this week, the transcript was finally released. Slightly later this week, it was corrected so as to make sense. Thus, 9 months after the decision, we can finally tell you what Sedley LJ was actually saying.

Ms Webb was (and, as far as I know, still is) the secure tenant of the London Borough of Wandsworth. One of her children had been engaging in serious anti-social behaviour in and around Ms Webb’s home. By the time of trial, he was no longer residing with Ms Webb although he was not living very far away and would return to visit Ms Webb. At the date of trial it appeared that there had not been any ASB for about a year. The high point of the case for the local authority was that the son had been arrested (but not convicted) on three occasions for breach of an ASBO.

It was common ground that Grounds 1 and 2 were made out, but Ms Webb contended that it was not reasonable to make an order. Wandsworth argued that it was reasonable to make an order, but that it should be postponed on terms.

The Circuit Judge made a PPO, with terms requiring inter alia, the son not to reside at the property and Ms Webb appealed to the Court of Appeal.

Ms Webb raised the following grounds of challenge:

(a) There was very little behaviour that Ms Webb was personally culpable for. Wilson LJ, giving the main judgment, accepted that this was a relevant factor but, following Bryant v Portsmouth CC [2000] 32 HLR 906, there was nothing objectionable in requiring Ms Webb to take responsibility for the behaviour of her household. In addition, following Manchester CC v Higgins [2006] HLR 261, the existence of the ASBO against the son indicated that it would be reasonable to make an order;

(b) Wandsworth had failed to follow their ASB policy, which, in broad terms, indicated the possession proceedings would be instituted only where other remedies had failed. On the facts, said the court, the policy had been followed. There had been many other attempts to resolve the ASB, including the acceptance by Ms Webb and her son of an Acceptable Behaviour Contract. In addition, his Lordship was not entirely satisfied that a tenant could raise a defence/reasonableness argument based on the terms of an ASB policy

(I break here to note that his Lordship is, with respect, wrong to have any such doubts. An ASB policy is something that a local housing authority / housing association must have, see s.218A Housing Act 1996. The Secretary of State is further empowered to issue guidance on the contents of the same, see s.218A(7). It is, as a matter of public law, not open to public body to simply ignore policies or Government guidance – R (Rixon) v LB Islington (1998)  1 CCLR 340 – indeed, they have “special importance where the behaviour of the tenant’s children is at the root of much of the trouble” – per Brooke LJ in Moat Housing Group v Hartless [2005] EWCA Civ 287, at [102])

(c) The Judge had used the possession order as a means of further sanctioning the son, since it was primarily him and his behaviour that was likely to result in any breach of the terms of postponement. This was entirely legitimate and, whilst the Judge would have been well advised to expressly consider the interests of the other children and the harm that would result to them if the son were to breach the terms of the postponement, this was an ex tempore judgment and the Judge had the relevant evidence before her during her judgment.

(d) The Judge had taken the allegations of breach of an ASBO into account. It was, Wilson LJ held, inappropriate to even consider unproven allegations. They were irrelevant to the question of reasonableness and, as the Judge had taken an irrelevant factor into account, the whole decision had to fall.

Sedley LJ, in a short concurring judgment, went slightly further as regards point (c). To his mind, there is a difference between a court (i) making a tenant responsible for persons who the tenant has a degree of control over and (ii) making a tenant responsible for persons over whom the tenant has no control. The latter is impermissible (Wilson LJ (albeit obliquely) appears to say something similar at [5]. I think you need to read [5] with [24] to understand what Sedley LJ is saying).

In addition, the court should have given express consideration to the Article 8 rights of the other inhabitants of the house before making a possession order. The case appeared to Sedley LJ to be one where it was appropriate to adjourn on terms.

Mummery LJ added nothing of substance but dealt with a minor procedural matter.

This isn’t quite as strong a judgment from Sedley LJ as I’d hoped, but it’s far from bad news. I do think that there is some difficulty in the idea that a tenant should always be responsible for the acts of their visitors/other residents. Why should one adult be responsible for the acts of another adult? In the criminal field, we’ve abandoned any such idea (R v Simon Kennedy [2007] UKHL 38). Surely the time has come to recognise that Bryant has to have some limits? I do think the position as regards liability for the acts of ones children is more complex, but, as regards adults, it seems to me that this might be the start of a (welcome) retreat from Bryant.

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Extending the role of the TSA

Published
by
J
on 07/08/2009
in Housing law - All, Regulation and planning, assured-tenancy and secure-tenancy
. 2 Comments

The Government has just issued a consultation paper (available here) on extending the TSAs regulatory role to local housing authorities. Whilst the document is expressed to be a consultation, the tone of the document suggests that the Government is already minded to take such a step. April 2010 is expressly identified as the likely date for the new regulatory function to commence. The headlines include:

  • the TSA being asked to focus on “landlord services” (repairs, maintenance and customer services) and not wider strategic functions;
  • where the TSA has evidence of poor performance, it will be empowered to commission an investigation and require further information to be provided. Conversely, where there is evidence of tenant satisfaction, the TSA should adopt a “light touch”;
  • the TSA would not regulate ALMOs or TMOs.

It is a significant – and lengthy – document that you’ll need to read properly. Consultation ends on October 30, 2009 and responses should be sent to:

Tenant Empowerment and Local Regulation Team

Communities and Local Government

1/J6 Eland House

Bressenden Place

London

SW1E 5DU

or by email to: CrossDomainOrder@communities.gsi.gov.uk

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Allocations policies: Publication

Published
by
Dave
on 04/08/2009
in Allocation, FLW case note, Housing law - All and secure-tenancy
. 3 Comments

In R (Boolen) v Barking and Dagenham LBC reported on Lawtel, the Claimant applied for judicial review of the the council’s allocation scheme on the basis that

(1) the council had implemented a “local connection” criterion into its prioritisation decisions after bidding had ended, but that local connection criterion was not set out in the policy though “it was averred to”.  It was argued that the lack of publicity given to that criterion and its consequential unavailability to the public meant that the policy was unlawful.  Indeed, on the facts, it appears that the Claimant only found out about the criterion after she had been top bidder for properties and been refused “as the years progressed”.  Readers will remember that this was the one point of success for Ms Lin in R(Lin) v Barnet LBC [2007] EWCA Civ 132 in which the CA held (at [48]) that, where a criterion was “central to the operation of a scheme”, it was required to be included in that scheme.

and (2) that the operation of the local connection criterion effectively imposed a blanket ban on households who did not have that connection.

In an unreported extempore judgment, CMG Ockleton (sitting as a Deputy Judge) refused the application for judicial review.  As regards the first point, the Deputy Judge found that “the exercise of the discretionary element of the policy did not have to be published and set out in the policy itself.  it bore no relation to the central issue of prioritisation and was clearly averred to in the policy itself.  Moreover it was not an important qualification and would, if incorporated into the policy document, have made the policy unwieldy”.  I have set that out from what appears on Lawtel partly because that seems counterintuitive (and, perhaps, if Robert Latham or Jonathan Manning [counsel for the Claimant and Defendant respectively] are reading this, they will let us know what “averred to” in the policy actually means and whether, in Robert Latham’s case, he will seek to appeal).  On the second point, which I think was probably a difficult argument to run in light of Ahmad (links to our note), the Deputy Judge found that this was a question of degree and all applications were reviewed on their merits and properties allocated by reference to prioritisation which was the overriding consideration.

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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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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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Residing, or merely living, with…

Published
by
NL
on 11/06/2009
in FLW case note, Housing law - All, Succession and secure-tenancy
. 0 Comments

Freeman v London Borough of Islington [2009] EWCA Civ 536 was an appeal to the Court of Appeal from a Circuit Judge’s finding that Ms Freeman was not entitled to succeed to her father’s secure tenancy under s.87 Housing Act 1985. At issue was the definition of ‘has resided with the tenant throughout the period of twelve months ending with the tenant’s death…’ [S.87(b)]

The Judge below had found that Ms Freeman had stayed in the flat full time with her father for the 12 months prior to his death, but that she had not ‘resided with’ him.

In brief, Ms Freeman had a flat of her own, which she sometimes let. Between 1999 and 2002 she lived at her flat. From 2002 she started to stay at her father’s flat about 3 days a week to look after him as he needed care. She lived at her father’s flat full time from about June 2004. Her father died in June 2005. Ms Freeman was paying the TV licence, utilities and Council tax on her flat for most of that year, but wasn’t living there. She let friends stay in her flat from early 2005 and let her flat in early June 2005. The only correspondence address she changed was for her credit card. Some belongings remained in her flat, ‘for convenience’. Her father completed an HB application in July 2004 which said he was the sole occupant.

At the Court of Appeal, Ms Freeman contended that precedent cases on ‘residing with’ showed that there was no case where an occupier who had lived with the tenant for 7 days a week had failed in a succession claim..

Islington argued that ‘residing with’ involved an issue about ‘only and principle home, but mainly that the Judge below had been right on the law and on the facts.

In Jacob LJ’s lead judgment, the precedents were considered – the main point taken from Peabody Donation Fund Governors v Grant [1982] 2 EGLR 37 CA, Swanbrae Ltd v Elliott (1987) 19 HLR 86 CA and Hildebrand v Moon (1990) 22 HR 1 CA was that ‘resides with’ carrys the meaning of ‘making their home there’ (Swanbrae), ‘more than live at’ (Swanbrae), ‘having made a home there (Hildebrand). The intention to live with the tenant to nurse him/her does not preclude ‘residing with’ but is not conclusive of it, so regard must be had to the intention of the occupant post death of the tenant to shed light on the nature of the occupation pre-death [para 27].

In this case, the Judge below had not misdirected himself in saying ‘reside at’ is more than ‘living at’ (this was simply a misqutation, which should have been ‘reside with is something more than living at’ per Sachs LJ in Foreman v Beagley [1969] 1 WLR 1387). ‘Residing at’ was not a higher test – there was no significant difference and it was probably a slip in an extempore judgment, where the precise terms had been used in considering the statutory test. Further, in using the phrase ’settled home’, the Judge below had done no more than applying a home-making intention – more than ’staying with the tenant for a limited time and for a limited purpose [para 33]. The Judge’s finding in law and on the facts upheld.

Islington’s points about ‘principal or only home’ did not need to be considered, but it would only be concerned with the facts at the time of death of the tenant, unlike the ‘reside with’ test.

Waller LJ simply considered that the test was whether the claimed successor could fairly say ‘but this is my home and it has been for 12 months’. [para 40]. In this case, the appellant could say it was her home, but not for 12 months.

Hard to say where this case takes us. The Court is clear that simply having another property/tenancy during the 12 months is not an automatic disqualification, which Islington had suggested. Nor is having scant ‘official’ evidence of residence – although depending on the facts of the situation that may or may not go to ‘home-making intention’. However, Swanbrae had shown that living at the property with the tenant wasn’t enough where a ‘permanent’ home elsewhere was maintained (with the claimant’s son in occupation in that case) and the claimant’s stated intention was to ‘move in with her mother as long as was necessary (to care for her)’ – for a limited time and limited purpose. The present case was clearly more borderline in both evidence and intention, but the ‘residing with’ test as it is put forward here – ‘making a home’ or ‘community of family living’ with the tenant (Peabody) – is a highly factual issue, but also a highly interpretative one in often fluid circumstances. Precisely the kind of decision on the facts that the Court of Appeal are reluctant to touch.

The lesson on the would be successors’s advisor’s side is that a simple 12 month residence is not necessarily sufficient to establish succession, evidence of intention to make the property home for the whole of the 12 month period is important.

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Searching around …

Published
by
Dave
on 20/04/2009
in Allocation and Housing law - All
. 0 Comments

NL set a kind of challenge.  There hasn’t been anything interesting I could find, but there is a kind of footnote to allocations by way of a circular issued by CLG under section 169, Housing Act 1996, to honour a commitment made to members of the armed services and to give guidance on the application of s 315, Housing and Regeneration Act 2008 (which redrew the local connection boundary in respect of service personnel). Para 5 of the Circular says that service personnel who are seriously injured or disabled in action should be given a “high priority” in recognition of their service. And para 8 says that where authorities use the additional preference criterion they should add the following: “any applicant who needs to move to suitable adapted accommodation because of a serious injury, medical condition or disability which he or she, or a member of their household, has sustained as a result of service in the Armed Forces”.

Section 315 essentially creates a local connection for service personnel with the areas where they resided or were employed. Where authorities use local connection as a priority tool for Part 6, they are also reminded that serving or former members of the armed forces may have a local connection through previous residence in the district as a result of a former posting in the area while serving in the Armed Forces (para 12(b)).

There we go – I suspect this may have more impact in some areas than others.

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Bits from LAG and nuisance & Art 8

Published
by
NL
on 06/04/2009
in FLW case note, Housing law - All, Nuisance, Possession, Unlawful eviction and harassment and secure-tenancy
. 0 Comments

There are several cases in the latest LAG updates that we haven’t covered and that are interesting. Thanks as ever to Jan Luba QC and HHJ Nic Madge for the LAG reports. There are two brief notes on County Court cases and a more sizeable one on Dobson v Thames Water, a Court of Appeal case on nuisance and Art 8 infringement that we had somehow missed from January and which isn’t discussed at length in LAG.

Southwark LBC v Jackson and Jackson, Lambeth County Court 27 January 2009
Mr & Mrs Jackson were elderly joint secure tenants. Mr Jackson had died, leaving Mrs Jackson as sole tenant. Southwark served Notice to Quit on the basis that the tenancy had ceased to be secure due to failure to occupy as only or principal residence. Possession proceedings were brought on that basis, with alleged unlawful subletting and rent arrears. Mrs Jackson did not attend and an outright order was made, followed by warrant. Mrs Jackson applied to set aside the possession order on the basis that she was not living at the property because repairs had not been completed.

At the hearing of the set aside application, Mrs Jackson argued that the Notice to Quit was invalid, giving only 27 days notice rather than 28, and the saving clause didn’t save it. This had not been raised or noticed at the possession hearing. The Court had a power to set aside the order under CPR 3.1(7). Southwark acknowledged the notice was deficient but argued it should not be set aside just for that reason.

The Court, HHJ Gibson, set aside the PO. If the first Court had considered the deficient notice, the PO would not have been made. To let it stand would be to force the tenant from her home other than in accordance with the law. This would be a breach of convention rights.

In addition the Court observed the initial possession hearing had been dealt with very summarily. The DJ did not appear to consider whether Southwark had made a prima facie case that the tenancy had ceased to be secure. Southwark’s own pleading mentioned the presence of someone who said he was the tenant’s grandson, but there was no address to whether or not he was a caretaker for the tenant. From Southwark’s pleadings, there appeared to be significant doubt about whether the tenant had actually parted with possession, which circumstances would also make the possession order unlawful.

That point, that to give possession on anything less than a lawful Notice is a breach of the tenant’s convention rights, could be useful to raise with a DJ otherwise minded to condone ‘minor errors’ or ‘oversights’ in notice. Likewise, to fail to set aside a PO based on defective notice.

Also useful is the insistence that even an undefended summary possession hearing should involve some scrutiny of whether the prima facie case is sufficiently made out.

Evans v Ozkan and Hussein, Bromley County Court 6 February 2009.
Unlawful eviction and harrassment quantum. Mr Evans was a private assured shorthold tenant. The landlords knew he was on benefits before the tenancy began. After about a month, following a delay in HB, Mr Hussein visited, intimidated Mr Evans and demanded £1000. Soon afterwards, Mr Evans returned home to find some of his belongings on the pavement and the defendants throwing out more. Mr Evans was verbally intimidated by Mr Hussein.The police were called and (helpful as ever in cases of illegal eviction, which is, as they constantly need to be reminded, a criminal offence as well as civil one) arrested Mr Evans. On his release later that day, Mr Evans found many of his belongings smashed on the pavement and smelling of urine. Mr Evans slept in his car and returned the next day to find the locks changed. The Defendants followed him to a pub, threatened him with baseball bats and demanded £1000, or his remaining belongings would not be returned. Mr Evans applied as homeless and was eventually rehoused 63 nights later, during which time he was homeless. He claimed for trespass, harassment and unlawful eviction

The defence was struck out for failure to comply with directions and the Defendants represented themselves at hearing.

HHJ Hallan awarded: general damages of £250 per day that Mr Evans was homeless (£15,750), and interest from the date of rehousing; special damages of £5000; aggravated damages of £1000 and exemplary damages of £2000, with interest from date of eviction. Damages otherwise payable under the Protection from Harassment Act 1997 were part of the aggravated damages. Exemplary damages were levied as the Defendants had sought to avoid the due process of law and its attendant costs (presumably, this would apply to virtually any unlawful eviction?).

And – how did we miss this one? – Dobson v Thames Water Utilities Ltd [2009] EWCA Civ 28. Going beyond the LAG note, this is a claim in nuisance,negligence and under Art 8 of the convention. Following a hearing of preliminary issues, the Court of Appeal was asked how damages for breach of Art 8 should be assessed, given that the claimants’ enjoyment of their homes had been impaired. The Court was also asked whether such damages would be payable in addition to those in nuisance and negligence.

The issue is that, following Hunter v Canary Wharf [1997] AC 655, damages for private nuisance at common law appeared to the Judge in the court below to be based upon these paras in Hunter:

184(1) That damages awarded for nuisance, where there has been personal discomfort, are assessed on the basis of compensation for diminution of the amenity value of the land rather than damages for that personal discomfort.

184(2) That damages for diminution of amenity value are measured by reference to the size, commodiousness and value of the property not the number of occupiers.

184(3) That damages for compensation for diminution of amenity value of the land may be reflected either in diminution of capital value or rental value.

184(4) That damages for diminution in value frequently raise difficult issues of assessment which can usually be resolved by expert evidence. If such assessment is not reasonable or practicable then the principles on which damages are assessed are sufficiently flexible to do justice between the parties by arriving at a sum for general damages for loss of amenity.

Whereas Art 8(3) says that damages for breach of art 8 rights must accord ‘just satisfaction to the injured party’. the Claimants suggested that this would either potentially ‘top up’ an award of damages for nuisance, or enable separate damages for those without a proprietary interest, but resident – a child or foster-child, for instance.

The Court of Appeal held that:

Damages in nuisance are for injury to the property, not the sensibility of the occupier, Hunter v Canary Wharf.

Where this is for ‘transitory’ nuisance such as loss of amenity, the calculation may be based on loss of market value, but this must take the personal experience of all the occupiers into account, not just that of the person with the proprietorial interest. So the actual impact on the occupiers is relevant. (Certainly non-occupation means no damages, unless the property was being sold or rented and suffered a loss in value, or there was physical injury [para 34]).

The award of damages in nuisance is not to compensate other occupiers of the property, only the person who has the right to sue in nuisance.

Where the creator of the nuisance is a public authority, then Art 8 rights will be engaged. However, the Lords decision in Marcic v Thames Water Utilities Ltd [2004] AC 42 means that where no negligence is alleged, not even the owner of the property would have an Art 8 claim, let alone the other occupiers. So this is a limited issue, for nuisance caused by negligent public bodies only.

Under the convention:

where a public authority has been found to have acted “unlawfully” the court “may grant such relief or remedy …as it considers just and appropriate”. No award of damages is to be made unless, taking account of all the circumstances including any other relief or remedy granted in relation to the same act, the court is satisfied that the award is necessary to afford just satisfaction. In determining whether to award damages, or the amount, the court must take into account the principles applied by the European Court under Article 41. [para 41]

Strasbourg case law has given little guidance on the award of damages. This is a test case, where the claim is, in part, on behalf of an identified individual who has not, personally, had ‘reparation’ under english law. However, it is not irrelevant that this person’s parents may be awarded damages under nuisance and what sums they are awarded. This is part of a consideration whether it is necessary to make an award for just satisfaction, or would a declaration of infringment suffice, alongside the award of damages to those with a proprietorial interest. Where the issue is loss of amenity, the effect on the whole household should already have been considered as a relevant factor – see above – and this would be highly significant in considering the amount, if any, of Art 8 damages to the non-proprietorial occupier.

On whether an Art 8 ‘top-up’ of damages over those calculated for nuisance may be made, the Court of Appeal admits the possibility, but considers it very improbable indeed that Strasbourg would make an award above and beyond an award in damages for common law nuisance [para 50]. Normally, such damages should be considered sufficient.

As to co-owners, if both are in occupation, the effect of the nuisance on each of them should have been considered in the assessment of damages, so splitting the award does each justice. Where one co-owner is not in occupation, for a loss of amenity claim, it would be inequitable for them to claim a share of the award.

So, in a nutshell, it will usually be the case that the claim in nuisance and negligence by the person with a proprietorial interest in the affected property will, if the relevant factors are taken into account in calculating loss of amenity, also constitute just satisfaction for the other occupiers for the purposes of Art 8 infringement. This is because the experience of the whole household is a relevant factor for assessing loss of amenity value.

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Carry me out feet first

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NL
on 21/03/2009
in Housing law - All, Possession and secure-tenancy
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Second of the Ground 16 cases is London Borough of Brent v John Hodson [2009] EWHC 566 (QB) [Not on Bailli yet]. This was decided in January but only released in the last day or so. This is an appeal to the High Court on issues of availability of suitable accommodation for determining reasonableness of a possession order.

Mr Hodson was the successor tenant to his father. The property was a two bedroom flat and Mr Hodson, aged 63, now lived there alone. Mr Hodson had lived in the flat with his family between 1968 and the late 1980s and had moved back in in about 2000. Mr Hodson’s father died and March 2007 and Brent brought Ground 16 possession proceedings. Mr Hodson did not want to leave, announcing ‘they would have to carry him out feet first’.

At trial, in July 2008, the Circuit Judge made an order for possession, but did not determine the date of possession. Brent had only that day put forward three suggestions of alternative accommodation and it was not known when any of them would be available for Mr Hodson.

Mr Hodson shortly after accepted one of the flats, without prejudice to his appeal, and at a further hearing a date of possession was ordered of 12 September 2008.

The appeal was on four grounds:

1. The question whether the alternative accommodation offered by the landlord is suitable for the tenant is a question that has to be decided before the court can reach a conclusion on whether it is reasonable to make a possession order. In this case the judge decided it was reasonable to make the order and then turned to consider what sort of accommodation would be suitable for Mr Hodson. What if no suitable accommodation had then been offered?
2. The Court has to be satisfied that suitable accommodation is available when the possession order will take effect to make the possession order. This was not the case on 23 July when the Order was made. In fact Brent had not offered any accommodation to Mr Hodson by that date.
3. As well as the suitability of the specific accommodation, the court should take into account factors relevant to that accommodation in deciding reasonableness; such as character of the property, locale, environment, the tenant’s objection to moving, the loss of space and the forced eviction.
4. The judge had erred in taking the view that moving house at age 62 was something people commonly did when addressing the trauma of a move for Mr Hodson.

Mr Justice Keith held:

On 1, It is important not to put too much stress on the structure of an ex tempore judgment delivered on the day. The mere fact that the judge had expressed his view on suitability of accomodation after he had expressed his view that it was reasonable to make a possession order did not necessarily mean that he did not consider suitability in deciding reasonableness. In fact, the judge began by considering the ground 16 factors, then went on to consider the s.84(2)(c) reasonableness issue. In then turning to suitability, he was giving the reasons for his conclusion.

On 2. the date when suitable accommodation had to be available is a later date – the date of possession – than the date when the order is made. Dyson LJ in Wandsworth v Randall [2008] 3 All ER 393 says ‘there is no requirement that an offer of accommodation shall have been made before the hearing. The requirement is that suitable accommodation will be available’.

In the present case, the Judge had to decide whether the sort of accommodation Brent were prepared to offer was suitable and whether it would be available when the order took effect. The Judge had found that the sort of accommodation was suitable and that the accommodation would be available when the order took effect, but as the judge did not know when the accommodation would be available, he did not decide when the order would take effect. His finding was that suitable accommodation would be available to Mr Hodson when the order took effect, whenever that was going to be.

On 3. as a provisional view, factors like locale, proximity to good shops and so on would be factors to consider going to suitability, as the six factors set out in para 2 of Part IV Sched 2 HA 1985 were not exclusive. But Mr Hodson could have raised this at the later hearing and asked the judge not to set a date for possession as it would not have been reasonable to give effect to the earlier order. He had not done so.

On 4. The judge was bound to take Mr Hodson’s age into effect, but the weight the judge had given his words about people selling up and moving to the seaside should not be exaggereated. He did not say Mr Hodson was of the group who choose to move at this age and he knew how reluctant Mr Hodson was to leave the flat. Even if the judge had wrongly assumed that Mr Hodson’s likely trauma was no different from a person selling up to move, it was clear from the rest of the judgment that he would have reached the same conclusion even if corrected on this point.

Appeal dismissed – although given that the flat offered had now been allocated to someone else, the date of possession was to be deferred until a further county court hearing to assess whether suitable accommodation will be available to Mr Hodson and at what date.

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