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 November 2016.
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.
SECURE TENANCIES AND SUCCESSION
Court of Appeal confirms no second succession to a secure tenancy and council’s allocation policy lawful (Holley v Hillingdon London Borough Council)
The Court of Appeal has confirmed that members of a deceased secure tenant’s family are not permitted to a second succession to a secure tenancy under the Housing Act 1985. In its consideration of when a proportionality defence can be raised in a housing possession claim, the court considered that the length of residence might form part of an overall proportionality assessment under Article 8 of the European Convention on Human Rights. However, it was unlikely to be a weighty factor given that Parliament had lawfully excluded second succession to members of a deceased secure tenant’s family.
The court also dismissed the appellant’s ground of appeal that the council’s second succession policy was unlawful because it did not contain or permit the exercise of any residual discretion as to allocation of public housing. The court did not need to decide that question. The appellant’s eviction on the facts of the case would not be unlawful because in view of the drastic shortage of three-bedroomed council accommodation, his case that he should be allocated the property came nowhere near the degree of exceptionality that was required to give him a real prospect of success under a residual discretion however widely framed.
SOCIAL HOUSING ALLOCATION
Council’s decision on social housing allocation does not breach Article 8 ECHR (Jones v Luton Borough Council)
The High Court has dismissed a claim that Luton Council’s decision not to allocate a two bedroom property in accordance with its social housing allocation policy was unlawful.
The judgment presents an interesting examination of the concepts of “family” and “dependency” in the context of both a social housing allocation policy and Article 8.
Council’s housing allocation policy that took account of spent convictions was unlawful (YA v London Borough of Hammersmith and Fulham)
The High Court has considered a judicial review application by Y, a care leaver, challenging the council’s decision to refuse to enter him on its housing register. Y had a number of spent convictions under the Rehabilitation of Offenders Act 1974 including theft, assault, criminal damage, robbery, burglary and fraud offences.
The court held that the council had acted unlawfully in basing its decision not to enter Y on the housing register on the offences that he was convicted of and it was not lawful to base a decision on the conduct constituting those offences. However, Y’s claim that the housing policy was discriminatory against care leavers under Article 14 of the European Convention on Human Rights was held to be justified and so that element of Y’s claim failed.
SUSPENDED POSSESSION ORDERS
Court of Appeal gives guidance on approach to making suspended possession orders on discretionary grounds (City West Housing Trust v Lindsey Massey and Vincent Roberts v Manchester and District Housing Association)
The Court of Appeal has upheld the decisions of district judges in two cases where suspended possession orders were made in proceedings brought by the respective housing associations against two tenants whose properties were being used for the cultivation of cannabis. It did so on the basis that, under Part II of Schedule 2 of the Housing Act 1988, the court has a discretion as to whether to suspend a possession order and that the exercise of discretionary judgment by a judge is subject to appellate review only if the judge has:
- Applied the wrong legal principle.
- Reached a conclusion that no reasonable tribunal properly informed as to the law and facts could have reached.
- Had regard to factors that were irrelevant.
- Failed to have regard to factors which were relevant.
Although the tenants concerned had lied to the court about the circumstances in which they had breached their tenancy agreement, the district judge in each case was persuaded that the tenant would comply with the terms of their tenancy if conditions were imposed. The district judges in both cases had carefully considered the matters before them, and the conclusions which they came to were not capable of being upset by an appellate court.
The court set out useful clarification and guidance on the approach to be taken by the court when it is exercising its discretion and considering whether to grant a suspended possession order rather than an outright order for possession in such cases. The guidance will also be applicable to secure tenancies under section 85 of the Housing Act 1985 which mirrors the legislation in relation assured tenancies in section 9 of the Housing Act 1988.
Accommodation provided pursuant to section 190 Housing Act 1996 duty is not “settled residence” (Huda v London Borough of Redbridge)
The Court of Appeal has dismissed an appeal in which the appellant claimed that his occupation of temporary accommodation was capable of being settled for the purposes of demonstrating that he was no longer intentionally homeless. The decision provides useful clarification as to when a person will be able to divest themselves of their “intentionally homeless” status.
Homeless applicant successfully challenges LHA decision not to accept her third application for priority housing under the HA 1996 (Hoyte v London Borough of Southwark)
The High Court has upheld a challenge by the claimant of the local housing authority’s (LHA) decision not to accept a further application from her as a homeless applicant under Part VII of the Housing Act 1996. It did so on the basis that it was irrational or unreasonable for the LHA to decide that the circumstances when the claimant made her application were exactly the same as those which led to its earlier decision that the claimant was not in priority need of housing. The court was satisfied that the new evidence provided to the LHA was not evidence of an existing situation and could not be considered by any reasonable authority to be based on exactly the same facts.
Repeat applications are an increasing problem for LHAs. Such applications require the input of considerable resources to complete the inquiries (including interviewing applicants) and the reviews but what this decision shows is that, in relation to such applications, LHAs will have to carefully consider whether evidence that is presented is new evidence that should be considered as part of its assessment or evidence only of an existing situation. What is essential is that when considering a repeat application, careful consideration is given to the new evidence and whether the new application is based on different facts to previous applications.
High Court rules that LHA failed to undertake housing needs assessment as required by section 192 of HA 1996 (R (Smajlaj) v London Borough of Waltham Forest)
The High Court has held that a council (W) failed to carry out its duties under section 192 of the Housing Act 1996 (HA 1996) by failing to undertake a housing needs assessment.
The claimant (S), was a victim of human trafficking and had applied to W as homeless. In support of her application, S had provided medical evidence outlining her suffering from post-traumatic stress disorder and the fact that she was receiving ongoing counselling and support from a charity offering support to those who were victims of trafficking (HBF). W concluded in its section 184 eligibility decision that S was not in priority need but did not deal in detail with the supporting medical evidence or evidence from HBF as to the detrimental effect of S having to seek shared housing outside of London (because of her limited housing benefit entitlement). S appealed the decision and also requested accommodation pending her review decision under section 192, which W refused to provide. S then judicially reviewed this decision.
The High Court allowed S’s judicial review application holding that:
- W had acted unlawfully by failing to carry out its duties under section 192 and was required to undertake a housing needs assessment.
- W had neglected to consider S’s need for self-contained accommodation (as evidence had suggested that was required to alleviate her mental health issues) and her shortfall in housing benefit eligibility entitlement that would enable her to obtain this and also HBF’s statement that it could not continue supporting S if she were to move into accommodation outside London.
This decision is a useful reminder to housing practitioners of the importance of ensuring that each application is looked at individually and that all evidence concerning an application is examined and evaluated as part of an overall assessment of the applicant’s needs and eligibility under the HA 1996.
House of Commons Communities and Local Government Committee publishes report on homelessness
The House of Commons Communities and Local Government Committee has published its Third Report of Session 2016-17 on Homelessness.
The report covers a number of issues including:
- Homelessness legislation and local authorities’ duties to provide accommodation for people who are homeless.
- Vulnerable groups and people with multiple complex needs.
- Cross government working, including the need for a cross-departmental strategy with a common approach to addressing homelessness.
Housing (Wales) Act 2014 (Commencement No 8) Order 2016 made
The Housing (Wales) Act 2014 (Commencement No 8) Order 2016 has been made by the Welsh Ministers. The order will bring into force a range of provisions of Part 1 of the Housing (Wales) Act 2014 on 23 November 2016 relating to the regulation of private rented housing, and fully brings into force provisions of Part 1 that have only partially been brought into force by previous commencement orders.
Housing (Wales) Act 2014 (Commencement No 7) Order 2016 made
The Housing Act (Wales) 2014 (Commencement No 7) Order 2016 has been made. The Order will bring into force a number of provisions in the Housing (Wales) Act 2014 on 23 November 2016. The majority of the provisions brought into force are in Part 1 of the Act, relating to the regulation of private rented housing. Of particular interest to local authorities will be the coming into force of section 75(3) of the Act, which imposes a duty on authorities to secure accommodation for applicants in priority need when the duty in section 73 (duty to help secure accommodation for homeless applicants) comes to an end, and section 129, relating to service charges for social housing.
Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2016 made
The Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2016 have been made. The Regulations amend the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 so that persons granted leave to remain in the UK on grounds under Article 8 of the European Convention on Human Rights (the right to respect for private and family life), who are not subject to a condition of no recourse to public funds, are eligible for allocation of social housing and homelessness assistance.
DCLG confirms banning orders under the Housing and Planning Act 2016 to be introduced on 1 October 2017
The Department for Communities and Local Government has confirmed that it proposes to introduce the power for local authorities to apply for a banning order under the Housing and Planning Act 2016 on 1 October 2017.
HOUSING AND PLANNING ACT 2016
Local Government Association guide to the Housing and Planning Act 2016 published
The Local Government Association has published a guide to the Housing and Planning Act 2016. The guide sets out:
- A background to the legislation.
- The role of the LGA and local government in shaping the provisions in the Act and forthcoming regulations that will made under the Act.
- An analysis of the key provisions in the Act and their implications for local government.
HCA’s regulating the standards document updated
The Home and Communities Agency has updated its regulating the standards document.
- Sets out the approach that the HCA takes to regulation and what providers can expect from it as the social housing regulator.
- Has been updated to take account of the changes to the Rent Standard as a result of section 23 of the Welfare Reform and Work Act 2016, which introduces, for a period of four years, a 1% annual reduction to the rent payable by social tenants to registered providers of social housing in England (see DCLG publishes information for local authorities on exemption from new social housing rent regime under Welfare Reform and Work Act 2016). The document states that the HCA expects providers to ensure that they have considered their adherence to the new rent regime before certifying compliance with its Governance and Financial Viability Standard.
- Confirms that when the Housing and Planning Act 2016 comes fully into force bringing into effect changes to the HCA’s consent powers, a revised version of the document will be published along with quarterly updates to reflect other legislative changes coming into effect during the remainder of the financial year.
HOUSE OF COMMONS LIBRARY BRIEFING PAPERS
Between June and November 2016, the House of Commons Library published the following briefing papers and notes relevant to social housing practitioners:
- Applying as homeless from an assured shorthold tenancy (England).
- Comparison of homelessness duties in England, Wales, Scotland and Northern Ireland.
- Homelessness Reduction Bill 2016-17.
- Paying for supported housing.
- Statutory Homelessness in England.
- Households in temporary accommodation (England).
- Empty Dwelling Management Orders (EDMOs).
- Social housing: the end of “lifetime” tenancies in England?.