Tag Archive for 'temporary accommodation'

On the Naughty Step

Published
by
NL
on 21 September 2008
in Housing law
. 22 Comments

Or an RSL behaving badly, again. And this time it’s personal…

21 Press House, Press Road LON/00AE/LSC/2007/0292 [pdf], an LVT decision. The landlord, Stadium Housing Association, were facing an application over hefty service charges made on an shorthold assured tenancy which was Part VII temporary accommodation for Brent Council.

How did Stadium Housing decide to defend the case? By attacking the integrity of the Tribunal. Stadium pointed out that the chair, Nik Nicol, was a member of the Housing Law Practioner’s Association (yes, Hlpa!). Stadium, via their counsel Mr Grundy, alleged that:

the purpose of Hlpa was to promote the interests of tenants [...] and it was as plain as a pikestaff that an “ordinary member of the public” would perceive members of Hlpa as biased in favour of tenants.

Nik Nicol pointed out that he was not just a member, but had been on the executive of Hlpa for 9 years and helped to write the constitution. In addition, another member of the sitting Tribunal, Mel Cairns, was also a founder member of Hlpa and is currently on the committee.

Stadium, it was pointed out, had utterly failed to understand the difference between ‘promoting the rights of tenants’ (Hlpa aim) and promoting the interests of tenants. Finding in favour if a tenant without basis in evidence and law would not be promoting the rights of the tenant. In addition Hlpa’s code of conduct commits its members to professional behaviour. There could be little that was more unprofessional than judicial bias, which was what was being suggested.

Hlpa’s stated objectives were notably similar to those of most RSLs and would not look out of place on Stadium’s website, so it would be hard to see how a member of the public could perceive bias.

Mr Grundy’s submissions would mean that no member of Hlpa could ever hold judicial position, simply by that membership and that would make a mockery of the rigorous selection process. There was no bias or appearance of bias.

Just why Stadium might have taken this utterly ridiculous approach is clear in the rest of the Judgment. They were levying a walloping £129.72 per week service charge. However:

  • It was improperly apportioned under the tenancy agreement
  • Services had been changed without notification or consultation
  • Stadium could provide no breakdown of the charge
  • Charges weren’t audited, despite Housing Corp requirements
  • The charge was very high in comparison to others, for no reason, but it was usually paid by Housing Benefit, so nobody cared (except the applicant, who was working).
  • The contract was not individually negotiated so the Unfair Terms in Consumer Contract Regulations were engaged
  • The applicant was being asked to pay a charge for things that “no assured shorthold tenant in the private sector would even think of paying, even if the landlord were minded to try to impose it”.
  • On reasonableness of other charges, there was simply no evidence provided of the actual costs incurred by the respondent. The Tribunal wasn’t prepared to guesstimate on no evidence.

The result, service charges of £42.75 per week payable, a drop of £87 per week. This amount to be retrospective. No subsequent changes to the service charge made by the respondent were valid.

Oh dear, oh dear. Probably best not to impugn the professionalism of the Tribunal when it is your utter lack of professionalism that is about to come to light.

This challenge to service charges for temporary accommodation under Part VII is worth bearing in mind when, for example a client is facing a ‘rent arrears’ possession from temporary accommodation, if a service charge component is levied, at least. Stadium are far from alone in their cack-handed handling of the charge.

Fair and commonsense reviews

Published
by
NL
on 1 May 2008
in Housing law
. 1 Comment

So, then

Omar v City of Westminster [2008] EWCA Civ 421

Briefly, the facts were that Mr Omar made a homeless application to Westminster. His household consisted of his wife and his infant son who had just been born and was, at the time of the application was under special care at Kensington & Chelsea hospital. The son was discharged on 28 December 2006. Westminster accepted a duty on 15 January. The family were given temporary accommodation in a hotel. On 19 February Westminster offered a two bed property in Walthamstow E17 for temporary accommodation under s.193 HA 1996. Mr Omar refused the offer, stating that his infant son had a further hospital appointment at Kensington & Chelsea. Mr Omar provided a letter from January 2007 confirming post discharge weekly appointments and another letter confirming an appointment on 21 February.

Westminster wrote on 23 Feb 2007 discharging duty to accommodate under s.193(3) and 193(5). A review was requested of both suitability of the offer and decision to discharge on the basis that Mr Omar relied on the medical support in the Westminster area and family support in the area. Further medicial information was received from the hospital on 4 May 2007 with a current prognosis. Westminster’s review was negative. The decision letter mixed past and present tenses in addressing the situation, but takes as a main basis the report of 4 May 2007 from Kensington and Chelsea Hospital on the then current care and prognosis for the baby.

At s.204 Appeal, the Judge found that:

  1. As to the suitability of the property, the reviewer was entitled to consider the position at the review date - subsequent to the first decision.
  2. As to the decision to discharge duty, the review had to be limited to the facts at the date of the decision, but that in this review, the reviewer had so limited themselves.
  3. There was, in any case, no point in sending the matter back for further review as the same decision was bound to be reached.

The Court of Appeal, in LJ Waller’s sole judgment, reversed this and directed the matter back for further review.

The Court take an avowedly commonsense appproach:

It seems to me that the question of what facts may be taken into account on the review will depend on what is being reviewed and must, unless there is some compelling legislative provision which dictates to the contrary, be dictated by what fairness requires.(25)

Thus where the decision-making process effectively continues up to the end of the review, it is fair to consider the facts as they are at the date of the review. But when, as here, the decision is final at a certain date, and, as per Osseily v Westminster City Council [2007] EWCA 1108, duty is discharged at that time, not somehow postponed until the end of the review; then it is the facts at the date of the initial decision which are at issue (even if what those facts are comes to light later on - it is fine for the reviewer to find things out later about that point).

Having set out its commonsense goal, the judgment performs some remarkable acrobatics to show that this view is either compatible with, or distinguishable from previous cases: Mohamed v Hammersmith and Fulham LBC [2002] 1 AC 547; Sahardid v Camden LBC [2005] HLR page 11; and in finding support in Robinson v Hammersmith and Fulham LBC [2006] 1 WLR 3295.

These paras, 27-31 are well worth reading as a masterpiece of teleological analysis.

In this case, the County Court Judge was:

  • wrong to separate suitability of accommodation and the discharge of duty decision
  • wrong to hold that on suitability facts up to the date of review should be considered, because duty had already been discharged
  • wrong on the review decision letter, which was clearly fundamentally based on the later information of 4 May, so the argument that no other decision was possible on the facts fell.

The general principle for any review under Housing Act 1996 (suitability of accommodation, housing duty, suitability of offer of permanent accommodation, presumably) is, as far as I can see, as follows:

The ‘cut off date’ for what facts should be properly considered by the reviewer depends on what is being reviewed.

Where the review is effectively a continuation of the decision-making process, the facts continue to be relevant up to the date of the review. An example would be a review of suitability requested by someone who had at the same time accepted the property and is in occupation.

Where the decision is a final one, no facts relating to a point after that date are relevant to the review. So a discharge of duty or, as far as I can see, where an offered property is no longer available after refusal (but there has been no discharge of duty), that date of first decision is the cut off point for relevant facts on review. But remember, this is the date to which the facts relate, not the facts known to the decision-maker on that date. Any facts that subsequently come to light that concern that date are relevant to the review.

Report to come…

Published
by
NL
on 1 May 2008
in Housing law
. 1 Comment

I previously mentioned a Garden Court report on Omar v Westminster. There is also a brief Times report here.

The full judgment is now out on Bailii and is interesting.

Omar v City of Westminster [2008] EWCA Civ 421 (03 March 2008) on reviewing suitability of s.193 temporary accommodation.

I’ll get to it tomorrow (or later today, now).

Non-secure tenants

Published
by
NL
on 9 April 2008
in Housing law
. 0 Comments

Just a quick comment on Westminster CC v Boraliu [2008] EWCA Civ 1339, which is not on Bailii yet. I was alerted by Housing View at Sweet & Maxwell.

This was Court of Appeal decision on the effect of Schedule 1, Housing Act 1985 on exclusions from otherwise secure tenancies.

The case concerned paragraph 4, which provides that a tenancy is not secure if it was granted in pursuance of any function under the homelessness provisions of the Housing Act 1996, and also paragraph 6, which provides that a tenancy is not secure if the dwelling-house has been leased to a landlord with vacant possession for use as temporary accommodation and the lease is subject to a term that the lessor of the property - who cannot be a body capable of granting secure tenancies - can obtain vacant possession on expiry of a specified period or when required.

The Appellant - who had won the appeal to a CJ - had been placed in temporary accommodation in a flat that the local authority had leased from a Housing Association. The tenancy agreement said it was non-secure tenancy under para 6. The appellant refused alternative temporary accommodation and duty was discharged. The LA brought possession proceedings under para 4.

The appellant contended that the paragraphs were mutually exclusive, so that para 4 (the homeless exclusion) didn’t apply when a sub-leased property was used. In this case para 6 didn’t apply as the LA could grant secure tenancies.

The Court of Appeal held Paragraphs 4 and 6 of Sch.1, 1985 Act, are not mutually exclusive. Each exclusion had a clear purpose, so that its operation was not restricted by the potential applicability of another paragraph.