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02/12/2008

Catch-up miscellany

Thanks, as ever, to Jan Luba and Nic Madge in Legal Action for putting out notes on cases, including those that don’t make the reports. There were a few of those in December’s Legal Action that are worth a mention – of course, all I have to go on is the LA note. (Hint – anyone sending a report to Legal Action could also think about sending one here, or you could send a report here even if you don’t intend to send it to Legal Action. Full credit given – in a larger type size than LA, at that. Not that there is any rivalry intended, heaven forfend, we just like having new case info and things to speculate about up on the blog).

First up is Birmingham City Council v Qasim (Birmingham County Court 8 October 2008). An admin officer in Brum’s housing department had arranged for 14 tenancies, completely outside the allocation process and with no authority. These had been disguised as mutual exchanges, where there were no exchanges. An audit report found no evidence to show complicity by the tenants in the fraudulent behaviour of the officer.

Birmingham sought possession on three alternative grounds:

1. The grant of tenancy was an unlawful allocation and so a nullity

2. HA 1985 Sch 2 Ground 1 and tenancy agreement – repossess the property where false information given to get the tenancy, or someone has given false information on the ‘tenant’s’ behalf.

3. Ground 6 – mutual exchange for a premium.

One of the Defendants, supported by the others, applied to strike out the claim on the basis that there were no reasonable grounds to bring it.

On the evidence, the Circuit Judge found:

Ground 6 was not available as there were no exchanges

Ground 1 was not available on lack of evidence of false information being given

The CJ then turned to the unlawful allocation. He found that Islington LBC v Uckac [2006] EWCA Civ 340 was the relevant binding precedent and that therefore Birmingham could only obtain possession on one of the Schedule 2 HA 1985 grounds. Accordingly, the possession claim was dismissed.

With all respect, this strikes me as questionable. Uckac simply doesn’t address the unlawful allocation point, and if that point is right, there is no secure tenancy. This is a different point to the rescission argument in Uckac – see paras 25 and 26. I understand that Birmingham are appealing, and for once I would have to say I am not surprised.

Notting Hill Housing Trust v Deol (Brentford County Court 10 October 2008) – confirms that a s.21(4) notice must either expire on the end of the term of the tenancy (periodic) or have a functioning saving clause, ‘after expiry of two months from the service upon you’ won’t do unless the days add up right. Oh and a month is a calendar month, not a lunar month (how desperate was counsel for the landlord?).

R(Hyslop) v Legal Services Commission [2008] EWHC 2294 (Admin) – retention of property (including a long lease) incurs a statutory charge, even where the loss of the property is only ‘theoretical’ due to the claim being hopeless and doomed to fail. As an aside, how does one rack up £6,371 of costs at legal aid rates on defending a ‘doomed to failure’ possession?

Kelly v Westminster City Council (Central London County Court 14 August 2008). A s.204 appeal. On review, Westminster upheld a decision that a 49 year old man who had asthma, back pain, depression and a history of crack cocaine use and of imprisonment was not vulnerable. This was despite the fact that he had at best stayed with friends, or crashed at crack dens while out of prison for intermittent periods since 2005. His homeless application was supported by a letter from a prison officer stating that he was institutionalised and would relapse on release. Westminster, in its wisdom, decided that he was not institutionalised and that he had managed to secure accommodation in the past.

On appeal, the Court found that the findings that Mr Kelly was not institutionalised and could find accommodation were so unreasonable, no reasonable review officer could have made them. The prison officer could not decide on vulnerability, but was capable of assessing whether someone was institutionalised. Staying with friends or in crack dens could hardly be taken as ‘securing accomodation’. In any case Mr Kelly had been recalled to prison because he couldn’t secure accommodation. Decision quashed. What can one say? I mean really…

Melka v Tower Hamlets LBC (Bow County Court 7 July 2008) – Interim accommodation in an area could amount to a local connection/normal residence. There was no rule that interim accommodation could not amount to residence of choice s.199(1)(a) HA 1996. A witness statment from a review officer that stated that an issue had been considered did not rewrite a decision letter that had failed to address a relevant issue.

A post on R(M) v Barnet LBC [2008] EWHC 2354 (Admin), which we had unaccountably missed, will be up in a day or so (make it two) – Children Act 1989 s.17 and s.20 duties.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

25 Comments

  1. The Dark One

    I refer to Notting Hill Housing Trust v Deol. Your post says that “a s.21 notice must either expire on the end of the term of the tenancy (fixed or periodic) or have a functioning saving clause, ‘after expiry of two months from the service upon you’ won’t do unless the days add up right.”.
    My understanding is that if a Section 21 notice is served during the fixed period, and providing the notice runs for 2 months and expires at some point after the fixed term, then the date does not have to tie in with the period of the tenancy and does not have to have a saving clause. This is based on Section 21(1) and (2). Section 21 (4) for periodic tenancies is more stringent in terms of expiry date etc. The book ‘Defending Possession Proceedings” by Madge et al appears to confirm my view (see pages 192-195). What is your view (on the fixed term issue)?
    Thanks

    Reply
  2. simply wondered

    Notting Hill Housing Trust v Deol (Brentford County Court 10 October 2008) – confirms that a s.21 notice must either expire on the end of the term of the tenancy (fixed or periodic) or have a functioning saving clause, ‘after expiry of two months from the service upon you’ won’t do unless the days add up right. Oh and a month is a calendar month, not a lunar month (how desperate was counsel for the landlord?).

    if my experience is anything to go by, the poor bugger probably had no instructions because the landlord had lost all details of the case. they would have got the initial notice wrong by doing elements of the legals in house from a standard template and then be playing catch-up thereafter.

    Reply
  3. Cait

    Fascinated by the Westminster case.
    Aside from *finally* a vulnerability decision getting thrown out on irrationality *cheers* …. does this also suggest that the ability to secure accommodation may become more important again?

    Maybe I’m just too hopeful

    Reply
  4. JHAS

    An unlawful allocation is not a nullity surely? It is unlawful and falls to be quashed on an application for judicial review see R-v- Port Talbot ex p Jones [1988] 2 All ER 207.

    That is subject to the possibility that relief might be refused.Indeed there was a High Court case , the name of which escapes me, involving either an employee or former employee a few years back where relief was refused.

    Thus I think the learned judge was probably right .

    Reply
  5. Nearly Legal

    @Dark One. You are right where the s.21(1)(b) notice is served during the fixed term to expire at the end of the fixed term – the date doesn’t have to be specified. But if the date is specified… I wasn’t clear though and I’ll amend the post.
    What is interesting here was that the notice did include ‘at the end of the period of your tenancy’ but not as part of a saving clause.

    Reply
  6. Nearly Legal

    @JHAS A interesting point, although the situation is quite different to Port Talbot, as here the LA is in effect saying it didn’t grant the tenancy.

    But for this judgment, surely the crucial point is whether unlawful allocation can result in a secure tenancy, because if it is not secure then the whole Uckac point falls away.

    Reply
  7. JHAS

    I don’t have access to Jones at the moment but my recollection was that in that case the allocation was made by a person who did not have delegated authority to make it either.

    The general rule is that a public body is treated to have acted lawfully and with lawful effect until it is shown otherwise. If the Claimant’s argument was right it could lead to bedlam e.g Mrs X has higher priority than Mr A but due to error she is treated as having lower priority and the property is allocated in breach of the allocation scheme to Mr A . That would be an unlawful allocation – but a nullity surely not.

    Reply
  8. JHAS

    Just to follow that up , in Jones I think the Leader of the Council made the application for judicial review of his own authority. This course would equally have been open to Birmingham with the tenants being joined as interested parties .

    Reply
  9. The Dark One

    @Nearly Legal
    Thanks. I was also under the impression that even if a S21(1) notice was served which specified a date, then it didnt have to coincide with the period of the tenancy. S21(1) and (2) dont state that it does and I can’t see anything in Madge et al that says it does either. Just that it has to be in writing, be no less than 2 months, and not expire before the end of the fixed term. So (unlike in S21(4)) no requirement for the mention of Section 21 notices, no need to coincide with period expiry, and therefore no need for saving clause. Please let me know what you think.

    Reply
  10. Nearly Legal

    @Dark One. There is no need for a date for fixed term s.21 notices because the date cannot be before the end of the fixed term, so as long as two months notice is given…

    If a date is specified that is before the end of the fixed term, the s.21 is, in my view, invalid. If a date after the end of the fixed term is specified, then there is surely a possibility that a periodic tenancy has come into being.

    Reply
  11. NL

    @JHAS: Still Port Talbot/Jones is not the same. For one, there was no doubt that the ‘LA’ per se had given the tenancy, albeit unlawfully. Secondly, in the head note, which is all I can find, there is nothing to suggest that JR was the only route available – I could well be wrong based on the full judgment. But I think the main issue stands – can a secure tenancy be granted outside of statute and allocation policy. I think the answer is no, giving no valid contract for a secure tenancy. At best, surely, what is left is a common law tenancy, surely determinable on NTQ, as here.

    Uckac only deals with rescission – voidable contract, not a void contract. The invalidity of the contract was to be an amendment to the Particulars in Uckac. Heaven knows what happened to that, but the point didn’t arise for the Court of Appeal. (para 36 onwards).

    Reply
  12. The Dark One

    @Nealry Legal
    We are both in agreement about S21(1) notices not needing an end date (providing they dont expire before the fixed term). However, if a S21(1) notice does give a date after the fixed term, my view was that S21(2), and also (3) would mean that the notice is valid and any periodic tenancy created is nullified by the notice, providing the court orders possession.

    Reply
  13. Francis Davey

    On the section 21 point, it has to be said that the scheme of the act is difficult, but on a straight reading of the text what appears to be the case is this.

    First, no notice can bring the tenancy to an end – that can only be done by the court – so a s.21(1) notice given within the term merely gives an entitlement to apply to the court, it does not end the tenancy (this is true of any s.21 notice – the tenancy continues even after expiry until ended by the court).

    Second, if a fixed term tenancy comes to an end then, by statute, a periodic tenancy comes into being. The fact that a s.21(1) notice has already been given does not prevent that happening (as the Dark One suggests) nor does the statutory periodic tenancy that then arises prevent the use of the s.21 notice (as Nearly Legal suggests).

    If either of you were right, the s.21(1) scheme would be unworkable: on the Dark One’s analysis the notice would end the tenancy at the moment of the expiry of the fixed term – which would lead to some kind of limbo period akin to the tolerated trespasser – before the tenant was evicted, which is not how the provision is applied and does violence to the scheme, if NL were right then it would be impossible to get possession under s.21(1) because a new tenancy will almost always have arisen before the court orders possession.

    Note: while technically it should be possible to apply for a possession order before the end of the term to take effect on the end of the term, the court of appeal have expressed their doubts about how happy they would be for anyone to do that, hence my “almost” in the last paragraph.

    It seems to me that the only sensible reading of s.21(1) is that I can give a notice with a date after the end of the fixed term and validly ask a court to give me possession on or after that date.

    One of the difficulties one sees with this scheme is that lawyers try to bring the logic of normal landlord and tenant relationships into it – but they were thrown away when the act was passed 8-).

    Reply
  14. The Dark One

    @ Francis Davey
    Thanks for your input Francis. I wasn’t actually suggesting that the S21(1) notice actually ended the tenancy, but that for a S21(1) notice to be VALID it was OK for it to state a date which didn’t coincide with the period of the tenancy (providing it was served during the fixed term and the expiry of the notice wasn’t before the expiry of the fixed term). Your comments appear to confirm my analysis. Thanks

    Reply
  15. Michael

    The Westminster decision is a great relief, particularly for his new neighbours who will be absolutely thrilled to see what’s just moved in next door!

    Reply
  16. Cait

    Michael – Would it be better if he was living in their garden?

    Reply
  17. Michael

    Your garden?

    Reply
  18. JHAS

    NL

    A tenancy granted by a person who did not have delegated authority to grant it is equally ultra vires whether it was done by a dodgy admin officer purporting to do so on behalf of the local authority or someone told to grant it to a councillor who equally did not have delegated authority .

    Whether a tenancy is secure or not is dependent not on whether there was delegated authority but on the landlord and tenant conditions under SEction 80/81 and the exemptions in Schedule 1 Housing Act 1985 either there is no tenancy or a secure tenancy- there is no room for a common law tenancy.

    Hence , the route employed in the Port Talbot case is the correct one for a local authority in such a situation to follow.

    Reply
  19. NL

    @JHAS: OK – point taken on the common law tenancy, but isn’t ‘either there is a secure tenancy or no tenancy’ the crux? If the Jones case did not involve delegated authority, then on your own view, there was no tenancy, and no requirement to go the JR route as possession would be unquestionable.

    I have no idea whether the admin officer in the Brum case had delegated authority – he apparently dealt with voids and admin on transfers, which isn’t decisive either way. But it does mean that a blanket ‘unlawful allocation = secure tenancy quashable by JR or by possession on schedule 2 grounds only’ can’t be so, at least in the absence of delegated authority. it would also mean that Jones is not a precedent for having to proceed via JR, if on its facts, there was no tenancy anyway.

    I’m not sure about the argument from chaos if unlawful allocation was a nullity, or void contract, either – as you point out, an unlawful allocation, even on a mis-awarding of points or preference, would be quashable via JR. The chaos, if such it would be, would therefore practically only be averted by the sheer difficulty and delay of the JR route through the admin court.

    But I’m saving all your argument up for the next unlawful allocation case that lands on me..

    Reply
  20. NL

    @Francis Davey: I’m with Dark One in that I don’t think what I was getting at is quite what you suggest. I have no problem at all with a s.21 issued during the fixed term, with no date specified and thus taking effect at the end of the fixed term if two months notice was given, having continuing effect into a subsequent periodic.

    I also have no problem with a s.21 issued during the fixed term giving two months (or more) notice expiring on a specified date where the specified date is the end of the fixed term having continuing effect into a subsequent periodic. I think this settles the impossible possession because of subsequent periodic point, at least in part.

    But I remain doubtful that, where a s.21 issued during the fixed period but with a specified date of effect that is at some random date after the end of the fixed period (i.e, after a periodic has begun), where the date does not match the end of a period of the tenancy, that s.21 is valid. On reflection, this also means I wonder about s.21s issued during the fixed term with two months notice, but no date specified, where the two months expires at some point after the end of the fixed term (afer a periodic has arisen), unless it is construed to end at the end of a period of the tenancy.

    However, as I seem to be alone in this, and it would be a very stupid landlord that did such a thing when it is completely unneccessary and a saving clause works, I won’t pursue (or even act) on this. Good thing I don’t do much s.21 related work ;-)

    Reply
  21. Francis Davey

    @NL I am sorry to argue with so charming a person as you, but you have to remember that s.21 is my pigeon (indeed the HA 1988 is) – I have spent many days in court thinking about nothing else.

    To steal a phrase from someone else “close reading of the statute” is the important point.

    s.21(1) requires a court to give possession to the landlord of a fixed term assured tenancy after that tenancy has come to an end provided that 2 months notice has been given and that no new AST has come into being *other than* a statutory periodic one.

    All that a s.21(1) notice requires is that it be in writing and it state that the landlord requires possession of the property.

    When can a landlord give that notice: logic would suggest that the landlord could give the notice at any time during the fixed term and gain possession at any time more than or equal to two months thereafter.

    But we don’t need logic, s.21(2) tells us:

    (2) A notice under paragraph (b) of subsection (1) above may be given before or on the day on which the tenancy comes to an end; and that subsection shall have effect notwithstanding that on the coming to an end of the fixed term tenancy a statutory periodic tenancy arises.

    So in this case the drafters anticipated some awkward lawyer suggesting what you do, but anticipated it 8-).

    s.21 is crystal clear that a landlord can wait until the last day of the fixed term, give a notice requiring possession either undated or any date 2 or more months in the future and, at any time after 2 months forever and ever (unless a new fixed term comes into being) obtain possession as of right from the court.

    Should the landlord delay giving the notice until s.5 has bitten and a new statutory periodic tenancy comes into being then our landlord will have to use s.21(4) with all its pitfalls.

    One caveat: if the fixed term was very short, the order for possession cannot of course take effect in the first 6 months.

    I hope that’s helpful.

    Reply
  22. Francis Davey

    @NL I realise that I have to sweep up your “end of period” point since what I have written so far *might* not convince a doubter (though it is implicit in s.21(2), but s.21(3) helps us there:

    “(3) Where a court makes an order for possession of a dwelling-house by virtue of subsection (1) above, any statutory periodic tenancy which has arisen on the coming to an end of the assured shorthold tenancy shall end (without further notice and regardless of the period) on the day on which the order takes effect.”

    In other words, we might well anticipate the order for possession coming to an end in the middle of a period: there is no expectation then that the date given for possession needs to be convenient in any sense (i.e. that it end at the end of a period).

    Bear in mind that the periods of the s.5 tenancy could easily not be in months so to think otherwise would be to contradict s.21(2). When those periods begin is not exactly clear (see my article in the JHL on this point).

    Reply
  23. NL

    @Francis Yup. I realised my view was untenable once I figured out that it also meant that an s.21 with no date specified that expired after the end of the fixed period would be caught. Thusly, my last comment above is my going down in flames moment.

    Obviously there is no requirement for a specified date, but I remain uneasy that this means that *any* date can be specified, subject to notice period. But I’ll just have to live with it…

    Reply
  24. MP

    the amendment was never pursued apparently.

    Reply
  25. NL

    The amendment to the particulars in Uckac? So I gathered.

    Reply

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