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 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.
Rent Repayment Orders and Financial Penalties (Amounts Recovered) (England) Regulations 2017 made
The Rent Repayment Orders and Financial Penalties (Amounts Recovered) (England) Regulations 2017 came into force on 6 April 2017. The regulations apply to local housing authorities in England only, and make provision for the use of funds recovered under rent repayment orders.
Housing and Planning Act 2016: fifth commencement regulations made
The Housing and Planning Act 2016 (Commencement No 5, Transitional Provisions and Savings) Regulations 2017 brought various provisions of the Housing and Planning Act 2017 into force on 10 March 2017 and 6 April 2017.
RIGHT TO BUY
Enfranchisement under the Leasehold Reform Act 1967: determining the appropriate day (Clifton v Liverpool City Council)
The Upper Tribunal (UT) has considered the correct approach in ascertaining the ”appropriate day” for calculating the rateable value of a house as part of an enfranchisement claim under the Leasehold Reform Act 1967 (LRA 1967).
The tenant argued that the appropriate day was not 23 March 1965 pursuant to section 4(1)(a) of the LRA 1967 because since this date the property had been converted from two houses into one, and so the appropriate day should be a later date when the new property was entered onto the valuation list. This would mean the purchase price to buy the freehold would have been determined pursuant to section 9(1) of the LRA 1967 which calculates the price payable as the open market value of the freehold interest of the land without the house, and generated a lower purchase price than the alternative valuation basis under section 9(1A) of the LRA 1967.
The landlord, a local authority, argued that the tenant had failed to rebut the assumption that the appropriate day would be 23 March 1965, as there had not been a substantial change in the identity of the hereditament following the conversion of the property. Therefore, the appropriate day to calculate the rateable value should remain 23 March 1965, which would, in this instance, result in a valuation under section 9(1A) of the LRA 1967.
The UT found there was not sufficient evidence to displace 23 March 1965 as the appropriate day, and provided useful guidance on determining the appropriate day for practitioners involved in enfranchisement claims under the LRA 1967.
National Assembly for Wales consults on principles of the Abolition of the Right to Buy and Associated Rights (Wales) Bill
The National Assembly for Wales has issued a consultation on the general principles of the Abolition of the Right to Buy and Associated Rights (Wales) Bill, which purports to abolish the right to buy and rights to acquire in Wales.
LOCAL AUTHORITY HOUSING DUTY
Supreme Court confirms that section 202 review procedure under HA 1996 does not engage Article 6 of the ECHR (Poshteh v Royal Borough of Kensington and Chelsea)
The Supreme Court has dismissed an appeal against a decision by a reviewing officer that a final offer of property was suitable for the applicant and it was not unreasonable for her to accept that offer.
The applicant (P) who had been imprisoned and tortured in Iran had been offered a flat by Royal Borough of Kensington and Chelsea in discharge of its housing duty under Part VII of the Housing Act 1996 (HA 1996). P refused the final offer on the basis that she had suffered a panic attack as a result of the visit and one round window appeared to her like a cell window, which triggered flashbacks to her time in prison. On review, the reviewing officer had concluded that the property was suitable and in all the circumstances it was reasonable for her to accept it. P appealed unsuccessfully to the County Court and the Court of Appeal and finally to the Supreme Court.
The Supreme Court dismissed the appeal and confirmed the decision of the reviewing officer that the property offered was suitable and it was reasonable for her to accept it. The Supreme Court’s judgement held that:
- Article 6.1 of the European Convention on Human Rights did not apply as duties imposed on housing authorities under Part VII of the HA 1996 did not give rise to “civil” rights or obligations. This was in line with the previous Supreme Court decision in Tomlinson and others v Birmingham City Council  UKSC 8.
- The reviewing officer had applied the correct test when considering whether there was a real risk that the appellant’s mental health would be damaged by moving into the accommodation offered.
SECURE TENANCIES AND OCCUPATION
Court of Appeal confirms long-term partner not entitled to succeed to secure tenancy as she had not resided with the deceased secure tenant for 12-month period (Turley v London Borough of Wandsworth and another)
The Court of Appeal has held that a condition in section 87(b) of the Housing Act 1985, that required that the long-term partner of a secure tenant had to have resided with the secure tenant throughout the 12-month period before the secure tenant’s death in order to succeed to the tenancy, was not manifestly without reasonable foundation. It considered that even if the situations of common law spouses and married or civil partnership spouses were analogous for the purpose of Article 14 (prohibition of discrimination) of the European Convention on Human Rights, the difference in treatment between them was justified and proportionate. On this basis, the court dismissed the appeal of the appellant, who was the long-term partner of a deceased secure tenant as she did not fall within the definition of a family member and was not entitled to succeed to the tenancy.
As the court acknowledged, the comparatively brief interruption in the appellant’s relationship with the secure tenant after a long period of living together had the consequence of depriving her of the right to succeed to the tenancy of what had been her home for many years but that bright-line rules, which will sometimes have hard effects, are not unlawful for that reason. Certainly, it did not consider the council could be blamed for insisting on applying the statutory rules, given the acute shortage of social housing. The council at an early stage, before the commencement of the proceedings, had offered the appellant a three-bedroomed flat in exchange for her current home, which offer had been rejected.
Joint tenants’ sporadic weekly occupation of council property does not constitute “principal home” status for a secure tenancy (Court of Appeal) (Dove and another v London Borough of Havering)
The Court of Appeal has held that joint tenants of the landlord council were not secure tenants under section 81 of the Housing Act 1985, given that they occupied their home on a sporadic weekly basis and provided no evidence of an intention to occupy as a principal home.
NOTICE TO SEEK POSSESSION: PROCEDURE
Notice to seek possession under an introductory tenancy can consist of multiple documents (Court of Appeal) (London Borough of Islington v Dyer)
The Court of Appeal has held that a notice to seek possession of premises occupied by an introductory tenant issued under section 128 of the HA 1996 can consist of multiple documents.
In considering the appeal, the Court of Appeal recognised that there is no prescribed form for a section 128 notice, and so the issue turns on whether the documents in question could reasonably be described as a notice. Rejecting the reasoning of the County Court, which had attached importance to the names used to describe the documents, the Court of Appeal allowed the appeal and held that read together, the notice and the information leaflet constituted a valid notice under section 128.
The court emphasised that due to the lack of statutory provision each such case will be decided on the objective facts of the case, and whether a reasonable recipient would understand that multiple documents were intended to be read together. This serves as a reminder to councils that notices in such situations must be unambiguously drafted and as clear as possible.
Guidance on civil penalties under the Housing and Planning Act 2016 published
The Department for Communities and Local Government (DCLG) has published statutory guidance on civil penalties under the Housing and Planning Act 2016 (HPA 2016). The guidance applies to England only.
The guidance provides background on civil penalties, and aims to help local housing authorities (LHAs) determine appropriate sanctions for offences and ensure that correct procedure is followed.
Guidance on rent repayment orders under the Housing and Planning Act 2016 published
The DCLG has published statutory guidance on rent repayment orders (RROs) under the HPA 2016. The guidance applies to England only.
RROs can be made by the First-tier Tribunal when a landlord has committed a specified offence, and require a private landlord to repay rent that has been paid by a tenant, or pay an LHA an amount that has been paid as universal credit for rent purposes.
The guidance on RROs aims to assist LHAs in using their powers to seek an RRO against private landlords. It provides a background on RROs, guidance on how to use the new powers under the HPA 2016, and criteria for applying for an RRO.
Guidance on obtaining and using tenancy deposit information published
The DCLG has published guidance for LHAs in England on obtaining and using tenancy deposit information.
This non-statutory guidance published by DCLG aims to help LHAs identify private landlords by means of obtaining tenancy deposit information, in order for LHAs to accurately target prevention and enforcement programmes against those landlords who may be committing offences.
The guidance provides background on tenancy deposit protection schemes (TDPs), and provides a step-by-step guide to requesting information.
HOUSE OF COMMONS LIBRARY BRIEFING PAPERS
Between March and May 2017, the House of Commons Library published the following briefing papers and notes relevant to social housing practitioners:
- Anti-social behaviour in social housing (England).
- Homelessness Reduction Bill 2016-17: Progress in the Commons and Lords.
We have published the following Ask that may be of interest to social housing practitioners:
- Variation of a secure tenancy under the Housing Act 1985: is there a minimum period of consultation required and is a local authority obliged to reconsult on any variation to the agreement that is made following consultation?