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 December 2014 to February 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.
HOMELESSNESS AND ALLOCATION SCHEMES
Ruling on the meaning of “other violence” in section 177 of the Housing Act 1996 (Hussain v London Borough of Waltham Forest  EWCA Civ 14)
The Court of Appeal has held that, for the purposes of determining whether it was reasonable for an individual to continue to occupy accommodation under section 175 of the Housing Act 1996, “other violence” in section 177 covered not only physical violence (actual or threatened) but other threatening or intimidating behaviour or abuse.
Allocation scheme not required to include an “exceptional circumstances” provision for those not satisfying qualifying criteria (R (Hillsden) v Epping Forest District Council  EWHC 98 (Admin))
The High Court has held that a local authority was not required to include an “exceptional circumstances” provision for those not satisfying qualifying criteria in its housing allocation scheme despite the applicant claiming that it was required to do so.
The local authority had revised its allocation scheme so that only those with three years continuous residency would be considered to be “qualifying persons” and therefore eligible for allocations. The applicant did not qualify under the new scheme but stated that it included an “exceptional circumstances” provision allowing exceptions to the scheme requirements. The High Court rejected this and stated that the “exceptional circumstances” paragraph only applied to those who already met the necessary qualification criteria and there was no general requirement for authorities to include in their schemes exceptions for those who did not meet the relevant qualification criteria.
Code and draft statutory instruments published dealing with homelessness provisions of the Housing (Wales) Act 2014
In January 2015, the Welsh Government (WG) published a consultation on an amended homelessness and allocation of accommodation code for local authorities. The revised code being consulted on reflects changes to the homelessness regime made by the Housing (Wales) Act 2014 (HWA) and whether it could be strengthened in the light of the changes.
In the same month, the WG also published a consultation on draft secondary legislation covering homelessness to be made under Part 2 of the HWA. The three draft statutory instruments deal with:
- Suitability requirements for housing people under the HWA.
- The process by which authorities should have regard to intentionality when considering homelessness applications.
- The process for undertaking reviews of decision associated with the HWA.
Partner not entitled to succeed as did not meet additional residence requirement (R (Turley) V London Borough of Wandsworth and another  EWHC 4040 (Admin))
The High Court has ruled that the partner of a secure tenant was not entitled to succeed to his secure tenancy as she did not meet the requirement set out in section 87(b) of the Housing Act 1985, namely that as she had not resided with him throughout the 12 months before his death as required by section 87(b) in the case of those who were living with secure tenants as spouses or civil partners.
Cases such as this are likely to become more rare following the changes to the succession regime made by the Localism Act 2011 which remove this residence requirement.
County Court right to grant non-suspended possession order following anti-social behaviour by tenant’s son (The Mayor and Burgesses of the Royal Borough of Greenwich v Tuitt  EWCA Civ 1669)
The Court of Appeal has dismissed an appeal against a decision granting a possession order against a secure tenant whose son had repeatedly engaged in anti-social behaviour. The tenant had appealed the possession order and the decision to not suspend it on the grounds that:
- There had been a failure to take into account T’s lack of personal fault when reaching a decision as to whether to grant the order and then whether to suspend enforcement.
- Inadequate reasons had been given as to why the court concluded that AT’s anti-social conduct would be likely to continue.
- The court was wrong to give the evidence of complaints weight just because of how many had been made.
The court stated that although the tenant was not personally responsible, she had failed to accept responsibility for her son’s actions and had failed to deal with his behaviour making it likely that it would continue.
Statutory damages following unlawful eviction (Loveridge v London Borough of Lambeth  UKSC 65)
The Supreme Court has considered the basis on which statutory damages for unlawful eviction should be calculated. The secure tenant went to Ghana for five months without notifying the council. In his absence the council cleared the flat, sold his belongings and found a new tenant. The County Court had originally awarded the tenant £90,500 under the compensation provisions in the Housing Act 1988, but this had been overturned by the Court of Appeal on the grounds that it had been incorrectly calculated. The Supreme Court reinstated the first instance order.
Draft Anti-social Behaviour (Authorised Persons) Order 2015 laid before Parliament
The draft Anti-social Behaviour (Authorised Persons) Order 2015 has been laid before Parliament. The Order provides for local authorities to authorise a housing provider to issue community protection notices and fixed penalty notices under the Anti-social Behaviour, Crime and Policing Act 2014.
Regulations on review procedure in case of possession based on anti-social behaviour
On 12 December 2014, the Secure Tenancies (Absolute Ground for Possession for Anti-social Behaviour) (Review Procedure) (Wales) Regulations 2014 were laid before the National Assembly for Wales and came into force on 12 January 2015.
The regulations set out how a tenant can seek a review of a local housing authority or housing action trust’s decision to seek possession under the new absolute ground for possession on the basis of anti-social behaviour set out in section 84A of the Housing Act 1985.
Similar regulations applicable to England were published in September 2014.
RIGHT TO BUY AND RIGHT TO ACQUIRE
Right to buy and the right to acquire
In January 2015, the WG published a consultation on proposals to end the right to buy and the right to acquire regime in Wales in order to protect existing housing stock. The consultation initially proposed amending the current legislation to reduce the existing maximum discount by 50% and then to introduce a new Bill ending the right to buy and right to acquire.
Housing benefit and under-occupancy (MR v North Tyneside Council and Secretary of State for Work and Pensions  UKUT 34 (AAC))
The Upper Tribunal (Administrative Appeals Chamber) has upheld an appeal by a local authority against a decision of the First-tier Tribunal that it had unlawfully reduced the claimant’s housing benefit to reflect under-occupancy. The claimant had argued that her dwelling was not under-occupied as her son spent 50% of this time there. The Upper Tribunal however, stated that as her son’s father received child benefit it could not be said that she was responsible for her son under the Housing Benefit Regulations 2006 and therefore qualified for housing benefit in relation to a second bedroom.
HOUSING (WALES) ACT 2014
Housing (Wales) Act 2014: first commencement order made
The Housing (Wales) Act 2014 (Commencement No 1) Order 2014 brought a number of provisions of the HWA into force on 1 December 2014, including Part 4, which contains provisions allowing Welsh Ministers to set standards for social housing and Part 5 which contains provisions relating to the abolition of the Housing Revenue Account subsidy.
Renting Homes (Wales) Bill published
On 9 February 2015, the National Assembly for Wales published the Renting Homes (Wales) Bill.
The Bill is intended to improve the arrangements for renting a home in Wales by replacing the numerous different forms of existing occupation agreements with two main types of periodic and fixed term occupation contracts: a secure contract based on a secure tenancy (which will generally be made by local authorities and other “community landlords”) and a standard contract based on an assured shorthold tenancy.
HOUSING SUPPLY AND LAND DISPOSAL
DCLG review into local authority role in housing supply
In January 2015, the Department for Communities and Local Government (DCLG) published a review on the role of local authorities in housing supply undertaken by Natalie Elphicke, Chairman of Million Homes, Million Lives and Councillor Keith House, Leader of Eastleigh Borough Council.
Key recommendations made by the review included:
- Changing the role of councils from statutory providers of housing to Housing Delivery Enablers.
- Establishing a Housing and Finance Institute to promote and support the sharing of ideas and drive innovation in housing finance.
HCA updates guidance on land disposal
The updated guidance, published in December 2014, is intended to assist private registered providers understand the approach that the regulator takes to reaching a decision on the disposal of social housing dwellings and other land, whether under the General Consent 2010 or where applications for specific consent are made. The guidance does not apply to disposals by registered providers that are local authorities or by arms’-length management organisations (ALMOs), unless the ALMOs are private registered providers.