Tag Archive for 'transfer'

The end of the road

Published
by
J
on 02/04/2009
in FLW case note and Housing law - All
. 2 Comments

X v LB Hounslow [2009] EWCA Civ 286.

When news of X first reached the NL team, the near unanimous response was one of pleasure at the result. Once we obtained a transcript and saw the reasoning of the trial judge, it became clear not only that an appeal would be pursued but that it would be successful. Those feelings were only strengthened by the decision of the House of Lords in Glasgow CC v Mitchell. And we’re been proved right.

The facts of X are truly awful. X and Y are, on any view, vulnerable adults. They both have learning difficulties and have low IQs. In these proceedings, they were protected parties represented by the Official Solicitor. They were married and had two children, aged 11 and 8. They were also secure tenants of LB Hounslow.

Local youths began to befriend X and Y, with a view to taking over their flat and using it as a place to take drugs, have sex, store stolen goods etc. These problems came to a head when the youths detained X, Y and their children in the flat for the weekend and repeatedly assaulted and abused them all. X and Y were forced to perform a variety of sexual acts. X was forced to drink urine and eat dog faeces. He was slashed with a knife and had kitchen cleaner sprayed in his mouth. The family’s possessions were thrown over the balcony. The children were assaulted and abused, as was the family dog.

The social services department had been aware of the problem of local youths exploiting X and Y and had taken some steps to ameliorate the problem but had not requested any emergency re-housing because, at that stage, an assault of this nature was unforeseeable.

X and Y issued proceedings against Hounslow, initially in nuisance and negligence but, at trial, only sought to argue that Hounslow owed a duty of care (and, hence, had breached that duty so as to give rise to liability in negligence) by failing to move X and Y prior to the assault. A claim under Articles 3 and 8 of the ECHR was also raised. The trial judge – in a rather confused judgment – allowed the claim. An appeal was inevitable.

The first question for the Court of Appeal was whether, taking into account the relevant statutory background, Hounslow owed any duty of care. After surveying a range of statutes, (rather like a student who just writes everything they know about a topic without ever actually answering the question) the Court noted that the trial Judge had not actually ever found that there had been any breach of statutory duty, nor had he found any individual in Hounslow to owe a duty of care. Rather, he had jumped straight to the “fair, just and reasonable” test in Caparo v Dickman [1990] 2 AC 605 and had concluded that it was indeed fair, just and reasonable to impost a duty of care.

For the Court of Appeal, the failure to find a breach of any statutory duty was crucial. It was difficult to see how a duty of care could exist merely because of a public law failure to carry out a duty or exercise a power. This was particularly so where, as here, what was actually said was that the failure to exercise a public law duty/power had given a third party an opportunity to cause harm to X and Y.

Following Glasgow CC v Mitchell, in order for X and Y to succeed, they would have to show that the law already regarded Hounslow as being under a specific responsibility to protect them from an identified risk or that Hounslow had entered into a relationship or undertaken responsibilities which gave rise to a duty of care. The relationship here – as in Mitchell – was contractual and there was noting in the tenancy agreement which suggested any duty of care or any assumption of responsibility. In particular, much of what Hounslow had done was in an attempt to discharge their statutory functions and, plainly, that could not give rise to an assumption of responsibility.

Whilst the focus of the judgment had been on the social services department, it was clear that, for similar reasons, no duty could be owed by the housing department. Hussain v Lancaster CC approved.

So – between X and Mitchell, that looks like the end of the road. In order for a landlord to be responsible in negligence for the acts of third parties (even if those third parties are tenants) there will need to be something quite extraordinary. Or an express statement in the tenancy agreement.

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Transferred Trespassers

Published
by
NL
on 01/10/2008
in Housing law - All, Tolerated trespasser and secure-tenancy
. 0 Comments

As it stands, Schedule 11 of the Housing and Regeneration Act will end the existence of tolerated trespassers who meet these conditions:

(i) the home condition is met (ie that the dwelling house remains the ex-tenant’s
only or principal home).
(ii) the ex-landlord is entitled to let the dwelling-house, and
(iii) the ex-landlord and the ex-tenant have not entered into another tenancy after
the date on which the original tenancy ended but before the commencement
date.

This will cover virtually all tolerated trespassers whose landlord has remained the same. They will get a ‘replacement’ tenancy. But what of those where there was a stock transfer, or one RSL was taken over by another, during the period in which the (ex) tenant was a tolerated trespasser? This involves substantial numbers of people, given the major stock transfers of recent years.

At present, the Act will not change their position. It was raised as an amendment during the passage of the Bill, but the amendment wasn’t passed as the Government promised that the Act would give the power to make such a change by order, after further consultation, such that part 2 of Schedule 11 applies to successor landlords. (Somehow, they hadn’t thought to include this issue in the original consultation).

Now the consultation is here. The consultation document can be downloaded from the DCLG here. The closing date is 19 December 2008.

Interestingly, the documents authors state that:

Our preliminary view is that in all the above situations there is a strong case for arguing that it is unfair for a change of landlord, which is outside a tolerated trespasser’s control, to determine whether they have their tenancy status restored or not. There is also a very real risk that if the situation for transferring tolerated trespassers is not remedied, it could lead to further litigation, once the provisions in Schedule 11 are brought into force.

My view (and I will hazard also that of other NL contributors) is that there are issues of both fairness and practicality here. The tolerated trespasser ‘regime’ is already ludicrously complex and needs resolving once and for all, not piecemeal and with a whole set of fresh technicalities on who is in or out. This may well mean doing ourselves out of a whole fresh swathe of work, of course, but I think both tenant and landlord side housing lawyers (and those who do both) would heave a sigh of relief, both for themselves and (particularly) for their clients.

The full document is worth reading, raising issues with (ex) starter tenancies – assured shorthold for RSLs, introductory tenancies (where successor does not have an introductory scheme), secure to assured (LA to RSL transfers), and so on.

There are some particularly difficult questions – for instance on succession rights for an LA to RSL transfer. Some transfers give assured tenancies, but with contractual preservation of ’secure’ rights. What of a replacement tenancy’s succession rights?

What of the Court’s discretion to ‘backdate’ the tenancy for breach of tenancy agreement/s.11 claims (disrepair primarily)?

The full list of consultation questions follows, just so you are prepared to give answers…

Existing landlord practice relating to transferring tolerated trespassers
(1)  What is the usual practice of successor landlords when dealing with
tolerated trespassers? Will tolerated trespassers generally be offered a new
tenancy and, if so, what type of tenancy will they be offered? Does this
differ from the type of tenancy offered to transferring tenants?
(2)  In what circumstances would tolerated trespassers not be offered a new
tenancy?
(3)  Is it possible to identify occupants who have transferred as tolerated
trespassers and who have not been offered a new tenancy (ie who continue
as tolerated trespassers)? If so, is it considered that the numbers are likely to
be significant or relatively small?
(4)  Are there any benefits to landlords in the existing situation and, if so, what
they are?
(5)  Are the benefits to landlords sufficient to outweigh the disadvantages,
particularly for tenants?

Legislating for successor landlord cases
(6)  Should the Government introduce secondary legislation to ensure that
tolerated trespassers whose landlord has changed, but who have not
been granted a tenancy by the new landlord, have their status as tenants
restored?

Change of RSL landlord due to merger or takeover
(7)  Should tolerated trespassers who transfer from one RSL to another RSL (and
who are not granted a new tenancy by the successor landlord) be issued
with the same sort of tenancy as the original one?
(8)  If this resulted in tolerated trespassers receiving an assured tenancy on
starter tenancy terms (because the original tenancy was a starter tenancy),
would this cause difficulties for landlords?
Change of local authority landlord due to boundary adjustment
(9)  Should tolerated trespassers who transfer from one local authority to
another local authority (and who are not granted a new tenancy by
the successor landlord) be issued with the same sort of tenancy as the
original one?

Tolerated Trespassers: Successor Landlord Cases
(10) Where the tolerated trespasser had originally held an introductory tenancy
but the successor local authority landlord does not operate an introductory
regime, should he or she be issued with a secure tenancy?
Change of landlord from local authority to RSL following large scale
voluntary transfer
(11) Where no new tenancy has been signed, should transferring tolerated
trespassers who originally held a demoted tenancy under the 1996 Act be
offered a new demoted tenancy under the 1988 Act?
(12) Where no new tenancy has been signed, should transferring tolerated
trespassers who originally held an introductory tenancy be offered an
assured shorthold tenancy or a full assured tenancy?
(13) Where no new tenancy has been signed, should transferring tolerated
trespassers who originally held a secure tenancy be offered an assured
shorthold tenancy or a full assured tenancy?
(14) Are there any other options in relation to transferring tolerated trespassers
(who have not signed a new tenancy) which might be considered? If so,
please provide details on what these are and the advantages which they
would bring?

Demoted and introductory tenancies
(15) Where the proposals under consideration would result in a tolerated
trespasser being granted a new demoted or introductory tenancy, should
the trial period apply in full, or should they only last for the balance of time
left over from the original tenancy?

Private landlords
(16) Are there likely to be transferring tolerated trespassers in the private rented
sector and, if so, what is likely to be the scale of the problem?
Applying the provisions in Part 2 of Schedule 11 to successor landlord cases
(17) Should newly restored tenants who are already a successor under the
original tenancy be entitled to succeed under the new one?
(18) Where newly restored tenant are not already a successor, should the
succession rules which apply to them be those which are appropriate to the
new tenancy, or the original tenancy?
(19) Should the “termination period” count towards qualification for the
preserved right to buy, as it does for tolerated trespassers issued with new
tenancies under the 2008 Act whose landlord has not changed?
(20) Under part 2 of Schedule 11, where landlords have taken decisions regarding
individuals’ voting rights based on their status as tolerated trespassers,
these decisions cannot subsequently be challenged on the ground that
the local authority failed to include people in the consultation process
whom they should have included, or vice versa. Should this be extended
to successor landlord cases so that similar provisions would apply to any
consultation carried out by either the original or the new landlord during the
termination period?
(21) Part 2 of Schedule 11 gives the court discretion to treat the new tenancy
as the same as the original tenancy so that they can allow claims relating
to the period when the tenants was a tolerated trespasser. This applies to
claims by both landlords and tenants for breach of tenancy agreement, or
for the tenant to claim for breach of statutory duty. Should this be extended
to successor landlord cases for the purpose of a claim involving the new
landlord and the old landlord?
(22) Part 2 of Schedule 11 provides that the possession order and other court
orders made in respect of the possession proceedings will apply as far
as practicable to the new tenancy. Should similar provision be made for
successor landlord cases, so that any orders in the possession proceedings
apply to the new tenancy, so far as practicable?
(23) If so, should this depend on whether the new landlord has been made party
to the proceedings?
(24) In seeking to apply the provisions in Part 2 of Schedule 11 to successor
landlord cases, are there any other issues which we have not identified and
which would need to be considered?

Impact Assessment
(25) Does the impact assessment correctly identify the nature and extent of the
costs and benefits associated with the 4 options which are considered?
(26) Is it considered that any group is/groups are represented disproportionately
amongst tolerated trespassers in successor landlord cases?
(27) Is there any evidence to suggest that the options under consideration would
discriminate on the grounds of race and ethnicity; disability; age; gender and
gender identity; sexual orientation; religion and/or belief?

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Duty to protect update 1

Published
by
NL
on 28/05/2008
in ASB, Community care, Housing law - All, Nuisance and secure-tenancy
. 0 Comments

Update on this case from Friday 24 May. No judgment available yet that I have seen, but there is a further new story on the Hounslow case at 24dash.com, which gives a few more details.

Specifically, the negligent failure found was that housing did not invoke emergency transfer processes, despite a) social services involvement with the family and b) complaints and warnings from neighbours about the youths’ presence and activities in the claimant’s home. It arose from a found lack of communication between social services and housing and lack of appreciation of the seriousness of the situation and failure to give priority in both departments, despite the evidence.

Damage of £97K, suspended pending appeal.

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A duty to protect?

Published
by
NL
on 24/05/2008
in ASB, Community care, Housing law - All, Nuisance and secure-tenancy
. 4 Comments

A case is reported in the Guardian which apparently extends local authorities’ duty to protect tenants from third parties to include vulnerable adults, not only children.

A couple, both with learning difficulties, were terrorised in their flat by a group of youths over two days, during which they were assaulted and abused. Hounslow Council had failed to rehouse the couple, although the threat of attack ‘was foreseeable’.

At the High Court, Hounslow argued there was no duty of care, but Mr Justice Maddison held otherwise. The failure to rehouse was negligent. Damages of £100,000 were awarded. Hounslow were given permission to appeal.

I’m looking forward to seeing the judgment on this one.

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