Our quarterly housing law update blogs enable readers specialising in housing law to catch up on the most important cases, issues or developments. The post looks at housing law developments from June to August 2017.
Please feel free to submit a comment below or send us an Ask query if you have any views on the developments that are covered or if you think we have missed something that should be brought to the attention of housing practitioners.
Temporary accommodation provided under Housing Act 1996 occupied as dwelling for purposes of Protection from Eviction Act 1977 (Dacorum Borough Council v Bucknall)
On 10 August 2017, the High Court allowed an appellant’s appeal from a possession order made in the county court in favour of the claimant council. The council had served a notice to quit on the appellant in relation to the non-secure temporary accommodation that she occupied under a licence. Initially, the appellant had occupied the accommodation under section 188 of the Housing Act 1996 (HA 1996) but, following the council’s decision on 18 September 2014 that it owed her the full housing duty, the accommodation continued under section 193 of the HA 1996. Following an offer of a permanent property, which offer the appellant refused, the council served a notice to quit and issued possession proceedings in relation to the temporary accommodation. The county court upheld the council’s possession claim on the basis that the accommodation the applicant occupied remained interim accommodation provided under section 188 of the HA 1996 and was not provided as a dwelling within the meaning of section 5(1A) of the Protection from Eviction Act 1977 (PEA 1977). However, the High Court concluded that this was an error. When the appellant was offered the opportunity to continue living at the property on 18 September 2014, pending any offer of alternative accommodation, the council was performing its full housing duty under section 193(2) of the HA 1996. On the basis of the council’s offer and the appellant’s continued occupation, the appellant was occupying the temporary accommodation “as a dwelling” within the meaning of section 5(1A) of the PEA 1977. Therefore, the council’s possession claim failed on the basis that the notice to quit served on the appellant was inadequate.
Although each case will be fact specific, the court was clear that the usual inference that will be made when a homeless applicant is allowed to stay on in temporary accommodation after a local housing authority has accepted it has a section 193 housing duty to the applicant is that the accommodation is being provided under section 193 and therefore its purpose had changed. However, the judge considered that the change in duty does not necessarily change the dwelling/non-dwelling status of occupation, which depends upon the purpose of the occupation, not the duty itself. By way of an example the judge doubted that, if a local authority were to accompany a decision notification with an immediate offer of secure accommodation (which it would be reasonable for the applicant to accept within seven days), it could be said that continued occupation for seven days would be occupation as a dwelling, notwithstanding that it would be being provided in performance of the section 193 full housing duty.
Registered social housing provider granted outright possession order following unlawful sub-let of social housing (Poplar Housing and Regeneration Community Association Limited v Begum and another)
On 4 August 2017, the High Court made an outright possession order under the Housing Act 1988 (HA 1988) and an unlawful profit order (UPO) under the Prevention of Social Housing Fraud Act 2013 (PSHFA 2013), in favour of a private registered provider of social housing following unlawful sub-letting under an assured tenancy. Poplar Housing and Regeneration Community Association Limited (PHARCA), the appellant, was a registered provider for social housing. It granted an assured tenancy to the respondents who, it later found, sub-let the property for profit and in breach of the lease, and had committed drug offences. PHARCA was, however, only granted a suspended possession order under section 9 of the HA 1988.
On appeal, the High Court granted PHARCA an outright possession order. Citing Sandwell MBC v Hensley  HLR 22 and given the “initial fraudulent deceit aggravated by further and subsequent drug related offending”, a suspended order (as opposed to an outright order) was not justified. The High Court identified that there was a dearth of cogent evidence that the respondents’ conduct would not recur.
In determining the sum payable under the UPO, the High Court considered that section 5(6) of PSHFA 2013 did not require the housing benefit the respondents received to be deducted from the profits they had received from sub-letting. Rather, this would be contrary to the intention of the PSHFA 2013 to deprive social housing tenants of “unlawful profiteering” from social housing.
The case will be of particular interest and encouragement to private registered providers of social housing on account of its robust interpretation of Sandwell and section 5(6) of the PSHFA 2013 in respect of the calculation of sums payable under a UPO.
High Court evicts ex-caretaker and family from school bungalow (Hertfordshire County Council v Davies)
In this case, the judgment to which was issued on 21 June 2017, Hertfordshire County Council (council) sought possession of a school bungalow which was owned by the council. The defendant had moved into it with his family in about January 2003 when he became the school caretaker. In June 2015, after a disciplinary hearing, the council dismissed the defendant for gross misconduct. The High Court held that the council was entitled to possession of the bungalow.
Although the defendant raised a number of defences to the claim for possession, it was ultimately clear that the agreement between him and the council amounted to a service occupancy. In those circumstances, there is a substantial body of statutory and common law authority in favour of a local authority seeking to regain its premises even though, in this case, the council no longer ran the school, did not require the bungalow for another caretaker and had no statutory housing functions.
Council’s priority schemes for allocation of social housing is not discriminatory (Ealing London Borough Council v H and others)
On 28 July 2017, the Court of Appeal allowed Ealing London Borough Council’s (Ealing) appeal against an order of the High Court that had quashed two priority schemes in its housing allocation policy on the grounds that the schemes were unlawfully discriminatory (see Legal update, High Court finds Ealing London Borough Council’s allocation scheme preference for working households and model tenants discriminatory).
The Court of Appeal found that:
- The judge in the High Court was not entitled to reject Ealing’s justification defence under section 19(2)(d) of the Equality Act 2010 (EqA 2010) in respect of the priority schemes as his rejection of that defence was based almost entirely on a comparison of Ealing’s allocation policy with those of three other local authorities that were radically different from Ealing’s priority schemes. For similar reasons, the judge was also wrong in finding that for the purposes of Article 14 (prohibition against discrimination) read with Article 8 (right to respect of private and family life) of the European Convention on Human Rights (ECHR), neither of the two priority schemes was justified.
- Ealing’s decision to continue with the two priority schemes pending the completion of a full review of its allocation policy showed that it was alive to the discrimination issues, and the fact that there were complex analyses to be undertaken particularly in relation to the working household priority scheme, in order to assess the impact on protected groups. Therefore no substantive relief for breach of the public sector equality duty under section 149 of the EqA 2010 was required.
The decision will be of particular interest to local authorities that have, or that are thinking of introducing similar policies.
Council’s housing allocation scheme is unlawful on account of unpublished direct offer procedure but does not breach ECHR or Equalities Act 2010 (R (C) v London Borough of Islington)
On 31 May 2017, the High Court held that a council’s policy for making direct offers of social housing to applicants under its housing allocation scheme was unlawful. The procedures for direct offers, particularly in respect of eligibility and assessment criteria, were not discernible from the defendant council’s housing allocation scheme. This prevented the claimant, a deaf mother of three who had suffered from domestic violence, from applying for a direct offer and, if she had been unsuccessful, to understand why and challenge such a decision. The court held that this was unlawful on the basis that the council had:
- Breached the requirement of section 166A of the Housing Act 1996 (HA 1996), which requires local housing authorities to have an allocation scheme for determining priority allocations and the procedure for this.
- Considered allocation of social housing by direct offer in an “undisclosed manner”.
The claimant’s other grounds of claim, that her welfare points award was unlawful and that she had been discriminated against unlawfully contrary to the ECHR and the EqA 2010, were rejected by the court.
The case serves as a reminder that a council’s procedures for determining housing allocation should be transparent and evident to applicants in order to ensure they are within the scope of section 166A of the HA 1996 and, more widely, represent transparent and accountable decision-making. The judgment also contains an interesting discussion of the appropriate standard of review of the proportionality of discrimination under a social housing allocation policy.
ARTICLE 2 RIGHTS
Local authority held to have breached child’s A2P1 right to education where Nzolameso duty applied (R (E) v London Borough of Islington)
On 30 June 2017, the High Court held that a local authority had breached a child’s (E) right to education under Article 2 of the First Protocol of the European Convention on Human Rights (A2P1), and made unlawful needs and care assessments of E.
Due to transitional social housing arrangements made by the London Borough of Islington (LBI), E, who was of school-age, received educational arrangements for only 50% of term-time in the relevant school year. This included a period in which her family was transferred to another borough in order to receive accommodation on a temporary basis. The notice of transfer from LBI made no mention of educational arrangements.
The court found that her A2P1 right had been violated on account of LBI’s failure to make any or effective arrangements for her education. LBI had failed to discharge or satisfy its duty when it made arrangements for her family’s transfer, and liability did not rest with the other borough. The local authority was also found to have conducted unlawful care and needs assessments of E under the Children Act 1989 and the Care Act 2014.
The court provided important commentary as to where a breach of A2P1 can occur through a local education authority’s omission, and applied the duties established in Nzolameso v City of Westminster  UKSC 22 to those under the Children Act 2004. It held, therefore, that a local authority’s duties in this respect require it to:
- Be satisfied that the “receiving authority” has satisfactory educational arrangements in place.
- Continue to be assured of this.
A local authority could only do so by making effective communication with the receiving authority, and not by “the mere fact of a temporary transfer”.
Court of Appeal confirms approach to assessing whether housing applicant is intentionally homelessness under section 191(2) of HA 1996 (Alfonso da Trindade v London Borough of Hackney)
On 6 July 2017, the Court of Appeal upheld the decision of a reviewing officer of the London Borough of Hackney who carried out a review under section 202 of the HA 1996, that confirmed a previous assessment of intentional homelessness made by another officer of the council under section 184 of the HA 1996. The court found that the reviewing officer was entitled to conclude that the appellant had not shown that she was “unaware of any relevant fact” within the meaning of section 191(2) of the HA 1996, and was therefore intentionally homeless within the meaning of section 191(1).
The Court of Appeal confirmed that a housing applicant who seeks to bring themselves within section 191(2) of the HA 1996 where the future has not worked out as expected by them, has to show that at the time of their action or omission to act referred to in section 191(1), they had an active belief that a specific state of affairs would arise or continue in the future, based on a genuine investigation about those prospects, and not on “mere aspiration”. Their belief about their current prospects regarding the future can then properly be regarded as belief about a current relevant fact such that if that belief can be seen to be unjustified by what a fully informed appreciation of their prospects at the time would have revealed, their mistake will qualify as unawareness of a relevant fact for the purposes of section 191(2). ·
The decision provides useful guidance for local authorities on the application of section 191(2) of the HA 1996 for the purposes of establishing whether that aspect of the intentionally homeless test is satisfied, particularly in relation to cases where current prospects of future events are under consideration.
National Assembly for Wales briefing paper on abolishing the Right to Buy in Wales published
In July 2017, the National Assembly for Wales Research Service published a briefing paper on the Abolition of the Right to Buy and Associated Rights (Wales) Bill 2017 (Bill). The Bill aims to restrict, and then end, the Right to Buy (RTB) and the Right to Acquire in Wales. The stated aim of the Welsh Government is to safeguard Wales’ social housing stock by ending RTB in Wales, enabling increased social provision of housing to those unable to afford homes, and to encourage local authorities and housing associations to invest in more social housing.
Welsh Equality, Local Government and Communities Committee reports on abolition of the Right to Buy
On 7 July 2017, the Equality, Local Government and Communities Committee (committee) of the National Assembly for Wales (Assembly) published a report on the Abolition of the Right to Buy and Associated Rights (Wales) Bill.
DCLG: Explanatory note on fire safety checks for high rise buildings published
On 30 June 2017, the Department for Communities and Local Government published an explanatory note on its fire safety checking programme for high rise buildings.
LGA guide to the Homelessness Reduction Act 2017 published
On 9 June 2017, the Local Government Association (LGA) published a guide to the Homelessness Reduction Act 2017 (HRA 2017), aimed at local authorities.
The HRA 2017, which applies in England and Wales, received Royal Assent on 27 April 2017, and will be brought into force by statutory instrument. The HRA 2017 imposes duties on local authorities, including a duty to provide free advisory services on preventing homelessness and securing accommodation (section 2), duties to those who are threatened with homelessness or homeless (sections 4-6), and an extension of an applicant’s right to request a review of their local authority’s homelessness decisions (section 9).
HOUSE OF COMMONS LIBRARY BRIEFING PAPERS
Between June and August 2017, the House of Commons Library published the following briefing papers relevant to social housing practitioners:
- The New Homes Bonus Scheme (England).
- Households in temporary accommodation (England).
- Introducing a voluntary Right to Buy for housing association tenants in England.