Practical Law

The Court of Appeal has held that a local authority review officer was entitled to substitute a decision that was less favourable than the original when carrying out a review under section 202 of the HA 1996, since the appellant’s circumstances had changed.

What is apparent from the outcome of this case is that the council’s reviewing officer undertook a careful consideration of all the relevant issues when applying the statutory test in section 175(3) of the HA 1996 as to whether the accommodation provided was not only adequate in the short term but whether it was reasonable for the appellant and her daughter to continue to occupy the accommodation.

The Court of Appeal has upheld an appeal against an earlier decision that had held that a reviewing officer had erred in finding that a claimant with medical and mental health conditions was not vulnerable, because if he were made homeless, he would have support from his family.

The appellant had applied for housing assistance and was informed that he was homeless within the meaning of Part VII of the HA 1996 but was not vulnerable and in priority need as:

• His existing medical conditions could be dealt with by medication.
• The evidence suggested that, with the help of his wife and son, he was able to cope with day-to-day living and would be able to fend for himself as well as an ordinary homeless person (as set out in R v Camden London Borough Council ex p Pereira [1998] EWCA Civ 863).

The decision of the Court of Appeal to uphold the approach taken by the authority will provide some comfort to local authorities that unless their vulnerability decisions are unlawful or peverse they should be upheld by the courts.

LHAs entitled to charge nominal or peppercorn rent when providing accommodation under section 206 of the HA 1996 (R (Yekini) v London Borough of Southwark [2014] EWHC 2096 (Admin))

The High Court has held that a local housing authority was able to charge a nominal or peppercorn rent when providing accommodation under section 206 of the HA 1996 in the case of a Zambrano carer who was eligible for housing assistance but unable to meet her rent as she was ineligible for housing benefit.

The claimant had made an application in February 2012 for housing assistance for her and her child under the HA 1996. The council housed her in hostel accommodation but, in March 2013, terminated Y’s licence to occupy the accommodation due to outstanding rent arrears. It also stated that it had no power to allow Y to stay in housing on the basis of a nil or peppercorn rent under section 206(2)(a) of the HA 1996.

The High Court held that section 206(2)(a) of the HA 1996 did allow a local housing authority to charge a nil or peppercorn rent where it felt that such a course was appropriate in the circumstances.

POSSESSION AND ENDING A TENANCY

 Possession cases involving Equality Act 2010 should be assessed using Article 8 “seriously arguable” criteria (Aster Communities Ltd v Akerman-Livingstone [2014] EWCA Civ 1081 )

The Court of Appeal has held that possession cases involving the Equality Act 2010 (EqA 2010) should be assessed using the Article 8 “seriously arguable” criteria. The appellant (AL) had a severe duress stress disorder and was owed the full homeless duty under section 193(2) of the Housing Act 1996 (HA 1996). The council secured him temporary accommodation with a housing association (AS) and went on to offer him permanent accommodation. AL was unable to cope with the decision between the properties offered and the council held that it had discharged its housing duty.

AS brought possession proceedings, which AL defended based on a breach of section 15 of the EqA 2010 (which states that disability discrimination is an offence and can only be justified where it is a proportionate means of achieving a legitimate aim). The county court held that AL did not have a “seriously arguable” case (the legal hurdle imposed by Manchester City Council v Pinnock [2010] UKSC 45 and London Borough of Hounslow v Powell [2011] UKSC 8 in possession cases where Article 8 of the European Convention on Human Rights is relied on) and granted an immediate possession order. AL appealed.

The Court of Appeal dismissed the appeal stating that the circumstances of the case were not sufficient to outweigh the interest of the social landlord and a court in possession proceedings should approach a defence based on disability discrimination under section 15 in the same way as one based on Article 8. Although there are differences between the two approaches, both were concerned with proportionality. The Supreme Court has granted AS  permission to appeal this decision.

NTQ valid despite claims of undue influence and a lack of mental capacity (Beech and another v Birmingham City Council [2014] EWCA Civ 830)

The Court of Appeal has held that Birmingham City Council was entitled to rely on a notice to quit (NTQ) signed by an elderly secure tenant despite allegations of undue influence and that she lacked the mental capacity to understand and sign the NTQ.

W was the secure tenant of a council property, which she shared with her daughter and her daughter’s husband (together, B). B had enquired about the possibility of being added to the tenancy but were told by the council that this was not possible. W went into hospital and then moved to a care home on a permanent basis. The council visited W and during the visit she signed a NTQ giving up her secure tenancy. However, B refused to vacate the property and the council refused to allow them to stay on the basis that they had no legal right to do and were granted an order for possession by the County Court.

B appealed arguing that the court should have found that the NTQ was procured by the undue influence of a council employee and that the council’s reliance on the NTQ was unlawful as a formal assessment of W’s mental capacity had not been made before it was signed and given to her.

The Court of Appeal dismissed the appeal holding that the relationship between W and the council employee was not a relationship of trust and confidence but was instead a contractual and property relationship and as such there was no evidence of presumed undue influence.

SOCIAL HOUSING: GENERAL

 Welsh Government publishes consultation on draft guidance dealing with notifiable events in relation to registered social landlords

On 19 August 2014, the Welsh Government (WG) published a consultation on draft guidance on “notifiable events” for registered social landlords (RSLs). The draft guidance includes what should be considered to be “notifiable events”, the information required when notifying the WG of an exceptional event and what the WG will do with the information provided.

Revised directions capping service charges a social landlord can charge come into force

On 11 August 2014, the Department for Communities and Local Government published the outcome of its consultation on protecting local authority leaseholders from unreasonable charges. As a result of the consultation responses received, the DCLG has issued revised service charges directions that cap the charges that a leaseholder will pay for future major improvement works on tenanted stock that is wholly or partly funded by government (these revised service charge directions are the Social Landlords Mandatory Reduction of Service Charges (England) Directions 2014 and the Social Landlords Discretionary Reduction of Service Charges (England) Directions 2014).

DCLG consults on proposals to require publication of social housing assets

On 11 July 2014, the DCLG published a consultation on proposals to require English local authorities and other social landlords to publish the values of the social housing assets that they hold. If brought into effect, the proposals being consulted on would require authorities holding social housing stock to publish the most recent and subsequent valuations of their social housing stock every year.

RIGHT TO BUY

 Order made increasing right to buy maximum discount for houses

The Housing (Right to Buy) (Maximum Percentage Discount) (England) Order 2014 has been made and came into force on 21 July 2014. The Order increased the maximum percentage discount for a house under the right to buy from 60% to 70%.