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 March to May 2015.
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.
Supreme Court considers intentionality in case of appellant leaving hostel accommodation (Haile v London Borough of Waltham Forest  UKSC 792)
The Supreme Court has allowed an appeal against a decision by a council review officer that the appellant had become homeless intentionally by leaving her hostel accommodation. The Supreme Court held that the decision was deficient as it did not consider the cause of the appellant’s current state of homelessness was her voluntary surrender of her hostel tenancy. The birth of the appellant’s baby meant that the appellant would be homeless, at the time her case was considered by the review officer, whether or not she had surrendered the tenancy because the hostel accommodation was for single persons only. The birth had severed the causal connection between H’s deliberate act of leaving the hostel which resulted in her homelessness and the homelessness which existed at the date of the review officer’s inquiry. It could not be said that she would not have become homeless even if she had not deliberately left the hostel.
This decision is an important one for housing officers and review officers as it requires them to consider the operative cause of homelessness at the time of the decision and review.
Supreme Court considers meaning of vulnerability under the Housing Act 1996 (Hotak and others v London Borough of Southwark and another  UKSC 30)
The Supreme Court has ruled on who will be considered to be “vulnerable” in relation to priority need under the Housing Act 1996 (HA 1996). The appellants were all homeless and had applied for accommodation on the basis that they had priority need but had been refused assistance on the grounds that they either had family support which would prevent them from being vulnerable or they were no less able to fend for themself than an ordinary homeless person.
The issues raised in the appeals were:
- Does the assessment of whether an applicant is vulnerable for the purposes of section 189(1)(c) of the HA 1996 involve an exercise in comparability, and, if so, by reference to which group of people is vulnerability to be determined?
- When assessing vulnerability, is it permissible to take into account the support and assistance which would be provided by a member of the applicant’s family or household to an applicant if he were homeless?
- What effect, if any, does the public sector equality duty under section 149 of the Equality Act 2010 have on the determination of priority need under section 189 of the HA 1996 in the case of an applicant with a disability or any other protected characteristic? This issue was raised in relation to the Kanu case, where it was alleged that there was a failure to comply with the equality duty and have due regard to the applicant’s disability which led to a decision that he was not vulnerable
The Supreme Court:
- Dismissed the Johnson appeal finding that J’s drug problems did not have a significant effect on his situation as he was not misusing drugs and even if he were he would still maintain the support he currently had.
- Dismissed the Hotak appeal (Lady Hale dissenting). This was despite the unusual situation that the ruling meant that it would have been more beneficial for H’s brother to have refused to support him as then he would likely have been considered vulnerable and his brother housed with him by virtue of section 189(1)(c). The Supreme Court did however state that it hoped that, because of the unusual circumstances, the council would reconsider Mr. Hotak’s potential homelessness.
- Allowed the appeal in Kanu quashing the Council’s decision that he was not entitled to assistance under the HA 1996.
This judgment is likely to have a significant long-term impact on how local housing authorities treat applications from potentially “vulnerable” applicants as it makes a number of changes to the existing Pereira test. Local housing authorities should ensure that they are aware of this ruling and its implications when making assessments of vulnerability and the level of support available from third parties. In addition, any decisions made in relation to these provisions should be well-evidenced and clearly based on the facts available and the applicant’s individual circumstances. When considering third party support in particular, authorities should ensure that such support will be provided on a consistent and predictable basis and not simply assume that the support of someone in the applicant’s household is enough to conclude that the applicant is not vulnerable.
Supreme Court finds that LHA’s decision to house applicant outside local district was unlawful (Nzolameso v City of Westminster  UKSC 22)
The Supreme Court has allowed an appeal against a Court of Appeal decision which held that the City of Westminster had properly offered to house an applicant (N) to whom it owed a housing duty accommodation outside its own district.
N and her children became homeless when she could no longer afford her rent as a result of housing benefit changes, after previously being housed by the council in Westminster for four years. In discharge of its housing duty under section 193 of the HA 1996, the council offered N a five bedroom house in Bletchley. She refused, since she had a support network in Westminster, and Bletchley was too far from her children’s schools. The council decided that it had discharged its duty towards N and was no longer required to house her. N appealed this decision (see Legal update, High Court decision holding that Council must continue to provide housing pending Supreme Court decision).
The Supreme Court allowed the appeal and quashed the decision that the council’s duty to house N had been discharged, finding that there was a lack of evidence showing that the council had given any consideration to providing N with accommodation in or nearer to Westminster.
Local housing authorities will be reassured by the fact that the decision does not wholly prevent them from housing individuals outside their areas but it does seem that a decision to do so, which is subsequently challenged, may be subject to close scrutiny by the courts unless authorities are able to clearly demonstrate why they are doing so and the basis for their decision.
Intentionally homeless by withholding rent (Najim v London Borough of Enfield  EWCA Civ 319)
The Court of Appeal has allowed an appeal, upholding a reviewing officer’s decision that the applicants had made themselves intentionally homeless by withholding rent.
The appellant had withheld rent from her private landlord on several occasions and was subsequently evicted. After approaching the council for assistance she was informed that she was not eligible for assistance as she was intentionally homeless. On appeal to the County Court, this decision was reversed and the court held that she was entitled to assistance as the council had failed to consider whether the eviction was a reasonable consequence of withholding of rent (as required by section 191 of the HA 1996).
The Court of Appeal allowed the council’s appeal against the County Court decision finding it was up to the reviewing officer to reach a decision as to why the appellant’s tenancy had not been renewed and they were entitled to hold that withholding rent was the operative cause of the non-renewal and her subsequent eviction.
High Court finds that Garlick decision on homelessness applications by those lacking capacity remains good law (R (MT (by his litigation friend GT)) V Oxford City Council  EWHC 795 (Admin))
The High Court has dismissed a claim for judicial review, after the appellant (MT) sought to review a decision by Oxford City Council to refuse him public housing on the grounds that he lacked capacity to apply for homeless assistance under the HA 1996. MT applied to the council as homeless, but was informed that no duty was owed under section 193 of the HA 1996 because MT lacked the necessary capacity to make such an application, under R v Oldham Metropolitan Borough Council, ex p Garlick  AC 509. The High Court held that in this case there was no “need” for accommodation as MT was still living at home and Garlick remained binding.
Briefing note on homelessness duties published
The House of Commons Library has published a briefing paper comparing local authorities’ homelessness duties in England, Wales, Scotland and Northern Ireland.
HOUSING (WALES) ACT 2014
The following commencement orders and regulations have been made relating to the Housing (Wales) Act 2014:
- The Housing (Wales) Act 2014 (Commencement No 2) Order 2015, which brought a number of provisions into force on 25 February 2015 including the need for local housing authorities to carry out assessments of the accommodation needs of Gypsies and Travellers living in or visiting their area.
- The Housing (Wales) Act 2014 (Commencement No 3 and Transitory, Transitional and Saving Provisions) Order 2015 brought into force a majority of Part 2 of the Housing (Wales) Act 2014, dealing with homelessness on 27 April 2015 (that is, sections 50 to 100, Schedule 2 and Part 1 of Schedule 3). This includes sections covering the meaning of homelessness and threatened homelessness, the duty to house and when it ends and referrals. It also restricts the effect of Part VII of the Housing Act 1996 to England.
- The Housing (Wales) Act 2014 (Consequential Amendments) Regulations 2015 came into force on 27 April 2015 amending Article 3 of the Local Authorities (Contracting Out of Allocation of Housing and Homelessness Functions) Order 1996 to add Chapter 2 of Part 2 of the Housing (Wales) Act 2014 to the homelessness functions that may be contracted out. Schedule 2 to the Order is also amended to add section 95 (co-operation between social services and housing departments) of the Housing (Wales) Act 2014 to the functions that are excluded from contracting out.
- The Homelessness (Suitability of Accommodation) (Wales) Order 2015 came into force on 27 April 2015 and sets out the matters that local housing authorities must take into account in determining the suitability of accommodation as required under section 59 of the Housing (Wales) Act 2014 and when bed and breakfast and private rented sector accommodation will not be suitable.
Effect of anti-social behaviour on others should be borne in mind (City of Lincoln Council v Bird  EWHC 843 (QB))
The High Court has allowed an appeal by the City of Lincoln Council against a County Court decision that it was not “reasonable” to make an order for possession (as required by section 84(2)(a) of the Housing Act 1985 (HA 1985)) in the case of a tenant (B) who had engaged in anti-social behaviour (ASB).
B was a secure tenant. The council had issued possession proceedings on the grounds of ASB (relying on Ground 2 of Schedule 2 to the HA 1985) and breach of a tenancy obligation. The council had also applied for and been granted an ASB injunction (ASBI) under section 153A of the Housing Act 1996. The County Court held that B had engaged in ASB (including verbally abusing council staff and other residents) but refused to grant possession as because it was not reasonable in the circumstances (on the basis of B’s age, health problems, his likely difficulty in finding private housing because he was on the Sex Offenders’ Register and the fact that his behaviour had seemingly improved since the ASBI). The council successfully appealed and the High Court granted a suspended possession order on the grounds that the County Court had failed to address the mandatory considerations regarding “reasonableness” set out in section 85A(2) of the HA 1985, particularly, the current and continuing effect of any nuisance and annoyance on other persons. Evidence of B’s ASB had been heard from a number of people and if the County Court wanted to discount this evidence then reasons needed to be given.
New ground for possession based on anti-social behaviour
The Anti-social Behaviour, Crime and Policing Act 2014 (Consequential Amendments) (Wales) Order 2015 came into force on 19 May 2015. The Order amended section 160A(8) of the HA 1996 to reflect the creation of an absolute ground for possession of a property subject to a secure tenancy on the grounds of anti-social behaviour by a secure tenant. This ground is in section 84A of the Housing Act 1985, which was added by the Anti-social Behaviour, Crime and Policing Act 2014.
Supreme Court holds that possession defence based on the EqA 2010 is different to defence under Article 8 (Akerman-Livingstone v Aster Communities Ltd  UKSC 15)
The Supreme Court has dismissed an appeal against a possession order even though it held that the judge in the County Court had misdirected himself in holding that the “seriously arguable” possession defence threshold under Article 8 of the European Convention on Human Rights applied in the same manner to defences concerning possession in the case of disability discrimination under the Equality Act 2010 (EqA 2010). For more information on the Court of Appeal decision, see Legal update, Possession cases involving Equality Act 2010 should be assessed using Article 8 “seriously arguable” criteria (Court of Appeal).
This decision provides some much needed clarity after the Court of Appeal had rejected an appeal against the County Court decision, and ruled that defences against possession under the EqA 2010 and Article 8 should be dealt with in the same way. The judgment makes it clear that in cases involving EqA 2010 defences it is not simply a case of weighing up the potential interests of each party and generally finding in favour of the local authority landlord except in exceptional circumstances (as is the case arguably under Article 8). Instead a more detailed fact finding procedure needs to take place in order to ascertain whether unfavourable treatment took place as a result of an individual’s disability and whether that treatment was a proportionate means of achieving a legitimate aim.
RIGHT TO MOVE
On 9 March 2015, the government published its response to its consultation on social housing tenants’ right to move, confirming its intention to introduce regulations to remove the residency/local connection requirement for existing social housing tenants seeking to transfer from one area to another in order to be closer to their place of work, or to take up a new job or apprenticeship. The Allocation of Housing (Qualification Criteria for Right to Move) (England) Regulations 2015 were laid before Parliament on 27 March 2015 and came into force on 20 April 2015.
The regulations deal with the criteria used to decide whether people qualify for particular housing under section 159 of the HA 1996. The regulations state that in deciding whether persons qualify for the allocation of housing accommodation, local housing authorities may not apply a local connection criterion (such as residence, employment or family associations) to disqualify social tenants in England who fulfill certain criteria.
SOCIAL HOUSING FINANCE
On 20 March 2015, the Department for Communities and Local Government published a summary of responses and the government’s response to its November 2014 consultation on proposed amendments to the Local Authorities (Capital Finance and Accounting) (England) Regulations 2003 in relation to the use of capital receipts.
Among other things the government’s response confirmed that there were no plans to end the pooling system at this time despite calls to do so.
The DCLG has issued its response to the consultation on proposals to streamline the resale of shared ownership properties. The response confirms that the Homes and Communities Agency will amend the model leases and guidance for future shared ownership properties to remove the pre-emption right following 100% staircasing. Also in the summer of 2015, the government will carry out a review of shared ownership which will focus on potential longer term options for change.
DISCRETIONARY HOUSING PAYMENTS
Council policy on disability living allowance and discretionary housing payments held to be unlawful (R (Hardy) v Sandwell Metropolitan Borough Council  EWHC 890)
The High Court has held that a local authority’s policy of taking into account the care component of disability living allowance when assessing the amount of a discretionary housing payment was unlawful and discriminatory towards those with disabilities.
The decision is a significant one for local authorities, given that many take the care component of the disability living allowance into account as income when calculating discretionary housing payments.
Selective licensing designation upheld despite availability of alternative options (R (Rotherham Action Group Ltd) v Rotherham Metropolitan Borough Council  EWHC 1216 (Admin))
The High Court has refused a challenge to Rotherham Metropolitan Borough Council’s selective licensing scheme, rejecting a claim that the council had failed to consider whether there were other courses of action open to it. The scheme had designated four areas in Rotherham as being subject to selective licensing from 1 May 2015, under section 80 of the Housing Act 2004. The claimant company represented the interests of local private residential landlords and had initially challenged the decision to introduce the licensing scheme on grounds that that the council had failed to consider other courses of action, such as a voluntary landlord accreditation scheme.
The High Court held that there was a mandatory requirement on local authorities to consider alternative options but this did not preclude them from making a designation even if there were other options available.
Designating additional areas as subject to selective licensing
On 27 March 2015, the Selective Licensing of Houses (Additional Conditions) (England) Order 2015 came into force. The Order specifies additional conditions that if satisfied, enable local authorities to designate an area as subject to selective licensing. If an area is so designated, landlords of private rented sector properties there would be required to obtain a licence for their property.
HOUSING ACT 1996 AND CHILDREN ACT 1989: INTERACTION
High Court rules on when authorities will be responsible for conducting children in need assessments and housing homeless families where they have been temporarily accommodated “out of area” (R(AM) v The London Borough of Havering and others  EWHC 1004 (Admin))
The claimant (AM) was a married father who after being found intentionally homeless but in priority need was temporarily housed (along with his family) in the London Borough of Tower Hamlets (Council 1) and then moved to alternative temporary accommodation in the London Borough of Havering (Council 2). Both authorities stated that they were not responsible for conducting children in need assessments of AM’s children because of disputes over where the family was residing at the time, or for housing the family during this time under the HA 1996 regime.
The High Court held that:
- The primary responsibility for conducting the children in need assessment fell on Council 2 which also had the power to accommodate AM’s children, as such, Council 2’s refusal to assess their needs because they did not appear to be “children in need” was unlawful. The High Court quashed Council 2’s refusal.
- Council 1 had breached its statutory duty by failing to give notice to Council 2 that AM’s family had been placed in its area (as required by section 208 of the HA 1996) and failed to make a lawful referral to Council 2 as the relevant children’s services authority.
- The duty to provide short-term housing to AM and his family fell on Council 1 and it had failed to secure accommodation for AM’s family pending a child in need assessment by Council 2.
As noted by this decision (and a number of recent cases) issues are likely to arise where families cross local authority boundaries and are housed “out of area”, a more common occurrence with the reduction of local authority-owned housing stock.
The Department for Communities and Local Government has published advice to local authorities on the new regime for applications for the grant or transfer of a site licence under the Mobile Homes Act 2013.