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 May to September 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.
Housing and Planning Bill 2015-16 introduced into Parliament
The Housing and Planning Bill 2015-16 had its first reading in the House of Commons on 13 October 2015. The Bill includes a number of measures likely to be of interest to social housing practitioners including in relation to:
- The extension of the right to buy and the sale of vacant “high value” local authority housing.
- Banning orders in relation to rogue landlords or letting agents.
- “Pay to stay”, that is, high income social housing tenants being required to pay market rent or near market rent in order to remain in their social housing properties.
SECURE AND INTRODUCTORY TENANCIES
Court of Appeal confirms that tenancy not secure as council did not intend to operate introductory tenancy scheme for a single year (Newark and Sherwood Homes v Gorman)
The Court of Appeal has held that a council did not intend to operate an introductory tenancy scheme under section 124 of the Housing Act 1996 for a single year but rather to have it monitored for a trial basis for a year with the option to end the scheme if it did not operate as intended. The appellant (G) had been granted an introductory tenancy in 2011. However, G fell into rent arrears and the council issued a claim for possession. G defended the possession claim on the basis that the council had not elected to operate an introductory tenancy regime, but had instead elected to operate an introductory tenancy regime for a one-year trial period in 1997. This would have meant that his tenancy granted in 2011 must have been secure rather than introductory.
The Court of Appeal dismissed the appeal, as looking at the evidence as a whole, the council had not authorised the implementation of an introductory tenancy regime for a single year in 1997. A report by the council’s housing director and the minutes of a housing management sub-committee meeting instead showed that the council had authorised the introduction of an introductory tenancy regime, which would be monitored by a council committee for a trial period of one year. If, after this period had passed, concerns were raised by the committee about the regime, then the council could use section 124(5) of the HA 1996 to revoke the scheme.
This case highlights the importance of looking at evidence as a whole rather than in isolation. Here, the evidence was key in determining the nature of the tenancy that had been created since the introduction of the regime.
Notifying a tenant that their tenancy is to be secure must occur at date of grant (London Borough of Wandsworth v Tompkins and another)
The Court of Appeal has confirmed that the notification requirement for creating a secure tenancy under Schedule 1, paragraph 4 of the Housing Act 1985 requires a local authority to notify a tenant that the tenancy is to be regarded as secure at the date of grant, and not at some unspecified date in the future. The fact that the agreement that had been signed by the tenants was the appropriate form for the grant of an introductory tenancy could not amount to notification of a secure tenancy under paragraph 4.
The case, which confirmed that using the wrong form of agreement does not alter the statutory function that is being exercised, reiterates the importance of ensuring that the appropriate agreement is used. Although the local authority succeeded in establishing that it was a legal impossibility for the tenants to have been granted, as claimed, an introductory tenancy and that the tenants had never enjoyed anything more than a non-secure tenancy, the time and expense incurred in defending the appellants’ claim could have been avoided if the correct form had been used at the outset.
Appeal against transfer of tenancy dismissed as appellant likely to be in priority need and be housed under Part VII of HA 1996 (Guerroudj v Rymarczyk)
The Court of Appeal has dismissed an appeal against an order transferring a tenancy as the appellant was likely be in priority need and be housed under Part VII of Housing Act 1996. The appellant (G) and the respondent (R) had resided together as a couple under a joint secure tenancy. G and R’s relationship broke down and there were instances of violent behaviour, which culminated in G seeking a non-molestation order and an order that the tenancy be transferred into his sole name. The Family Court found in favour of G as he was able to compensate R for loss of the tenancy (which she would have been unable to do) but suggested that both parties should approach their local authority to see if there was any alternative to the proposed order being made and, if so, to bring the matter back to the court. R duly asked for the order to be rescinded after seeking advice from Shelter, which suggested that because of G’s disability he would be considered to be in priority need and therefore owed a duty under Part 7 of the Housing Act 1996, but she would not. The order was set aside by the Family Court on the basis that R would suffer greater hardship and the flat was transferred to her. G appealed to the Court of Appeal.
The Court of Appeal dismissed the appeal holding that although it was a difficult decision, which was hard for G, there had been an error in the Family Court’s decision.
Practitioners are likely to find this case of interest as it primarily relies on the fact that one party would be more likely than the other to receive local authority assistance under the Housing Act 1996 as they would be considered to be in priority need and this merited the setting aside of the order.
Rent setting: new House of Commons Library briefing paper published
On 7 October 2015, the House of Commons Library published a briefing paper on rent setting in the social housing sector in England. The briefing paper considers the key policy developments in relation to setting social housing rent levels in England since 2002, and examines the government’s policy on rents for social housing for ten years from 2015-2016, which include the introduction of a Consumer Prices Index (CPI) linked calculation for setting rents from April 2015 onwards.
High Court rules on statutory interpretation of section 188 of HA 1996 (Brooks v London Borough of Islington)
The High Court has confirmed that, on a proper construction of section 188 of the HA 1996, the duty imposed by that section came to an end in circumstances where the local housing authority was satisfied that the claimant had refused an offer of suitable accommodation.
Despite the fact that, at the time of the hearing, the issue was an academic one between the parties, the High Court exercised its discretion to deal with the issue as both parties submitted that the issue raised a question of statutory construction that was significant for local housing authorities in relation to the way in which they approach their duty under section 188.
LHA not entitled to conclude applicant wasn’t homeless despite full housing duty being owed by another LHA (Johnston v City of Westminster)
The Court of Appeal has held that a local housing authority (W) was not entitled to find that an applicant (J) wasn’t homeless because another authority (E) had accepted that it owed the applicant the full housing duty under the HA 1996.
The court confirmed W’s review decision to the extent that E had accepted a duty to house J and W no longer owed him any housing duty. However, it also held that the fact that E owed J a housing duty did not prevent him from being considered to be homeless under section 175 as W had concluded.
Authorities should ensure that they fully consider an applicant’s circumstances before concluding that they are not homeless for the purposes of section 175, bearing in mind that just because another authority has accepted responsibility for housing the applicant this is not sufficient to conclude that they are not homeless and no duty is owed.
LHAs not under a statutory duty to carry out a hazard inspection under section 4 of the HA 2004 where complaint about accommodation made (Firoozmand v London Borough of Lambeth)
The Court of Appeal has held that local housing authorities are not under a statutory duty to carry out a hazard inspection under section 4 of the Housing Act 2004 prior to making a section 210 suitability decision, where a complaint about accommodation has been made by a homeless applicant.
Review officer entitled to find it reasonable for housing applicant to accept offer based on medical report evidence (Poshteh v Royal Borough of Kensington and Chelsea)
The Court of Appeal has ruled that a local housing authority was entitled to find that its housing duty to the appellant (who had suffered from traumatic stress while imprisoned and tortured in Iran) had ceased because she had refused accommodation that was otherwise suitable for her.
The authority’s housing review officer had reached a decision, taking into account medical evidence relating to the appellant and was entitled to conclude that the accommodation was not sufficient likely to cause harm to the appellant’s mental health and as such was suitable.
No requirement for a LHA to carry out a best interests assessment before seeking possession under Part VII of the HA 1996 (Mohamoud v Royal Borough of Kensington and Chelsea)
The Court of Appeal has held that there is no requirement for a local housing authority to carry out a best interests assessment before seeking possession under Part VII of the HA 1996 where its duty to the tenant has come to an end.
However, authorities should still ensure that officers are aware of an authority’s duties in relation to looked after children and when reviewing eligibility decisions under the HA 1996.
Housing allocation scheme that established an absolute absolute exclusion from the housing register for those who did not meet residency requirement is unlawful (R(HA) v London Borough of Ealing)
The High Court has held that the London Borough of Ealing’s revised housing allocations policy restricting qualification to those who had five years’ residency in the area was unlawful.
It did so on the basis that the qualifying criteria in the scheme undermined the reasonable preference duty in section 166A(3) of the HA 1996.
When framing their qualification criteria, LHAs should have regard to their duties under the equalities legislation particularly when framing residency criteria; consideration should be given to the position of people (usually women) who are moving into the district to escape violence.
LHA’s allocation scheme suspending applicant’s ability to bid (R (Alemi) v Westminster City Council)
The High Court has held that Westminster City Council’s allocation scheme suspending certain applicants from bidding for social housing for 12 months breached section 166A(3) of the HA 1996 (setting out which groups of people should be given reasonable preference when allocating housing).
Criminal behaviour orders: High Court clarifies matters to be taken into account (Director of Public Prosecutions v Bulmer)
The High Court has ruled on several issues related to criminal behaviour orders(CBOs) under the Anti-Social Behaviour, Crime and Policing Act 2014 giving some clarity regarding the conditions for granting a CBO, in particular the differences between CBOs and ASBOs and the relevant standard of proof.
TRANSFER OF LAND TO THE HCA AND GLA
Regulations made relating to the public sector land programme 2015/16
On 17 July 2015, the Housing and Regeneration Transfer Schemes (Tax Consequences) Regulations 2015 (SI 2015/1540) were laid before Parliament. The regulations provide for the tax consequences of certain transfers of designated property, rights or liabilities from specified public bodies to the GLA (or a company or a body through which it exercises functions in relation to housing or regeneration) and to the HCA under statutory transfer schemes.
RIGHT TO BUY
Regulations made containing updated RTB1 form
On 17 August 2015, the Housing (Right to Buy) (Prescribed Forms) (Amendment) England) Regulations 2015 came into force. The Regulations replace the existing RTB1 form used by tenants wishing to exercise the right to buy, in order to reflect the reduced qualifying period from five to three years as set out in the Deregulation Act 2015.
Order made reducing right to buy discount in Wales
The Housing (Right to Buy and Right to Acquire) (Limits on Discount) (Amendment) (Wales) Order 2015 came into force on 14 July 2015. The Order primarily reduces the existing right to buy and right to acquire discounts in Wales from £16,000 to £8,000. This follows the Welsh Government’s announcement that it intends to abolish the right to buy in Wales completely.
Regulations made amending the Housing (Right to Buy) (Prescribed Forms) (Wales) Regulations 2015
The regulations, which came into force on 19 October 2015, amend Part D of Schedule 1 (qualification and assessment) to the Housing (Right to Buy) (Prescribed Forms) Wales Regulations 2015. The amendment means that a notice claiming to exercise the right to buy will no longer refer to the previous discount of £16,000 but will state that the discount “cannot be greater than the maximum discount in Wales that is in force from time to time”.
House of Commons Library publishes briefing papers on extending the right to buy and comparing the right to buy regimes across the UK
On 9 and 12 June 2015, the House of Commons Library published two briefing papers covering the right to buy extension and a comparison of the right to buy regimes in England, Scotland, Wales and Northern Ireland.
Council should have informed purchasers of restriction on right to buy properties in protected areas
The Local Government Ombudsman (LGO) has criticised South Oxfordshire District Council for failing to inform purchasers of conditions attached to a restriction under section 157 of the Housing Act 1985 (properties in rural areas) when they bought their former council properties under the right to buy scheme. The complainants had attempted to sell their properties and the council had enforced the local restriction forcing them to accept reduced offers when it became known that the council would only grant automatic consent to the sale to a buyer with a local connection.
The LGO recommended that the council should arrange for valuations to establish whether the value of the properties had diminished as a result of applying the full section 157 restriction. If the value was affected, the Council should pay 50% of the difference to the complainants. Authorities who are aware that this restriction applies in their areas should ensure that this restriction and its effects is made clear to any potential purchaser of a property under the right to buy.
Article 6 applies to entitlement to accommodation under Part VII of HA 1996 but existing safeguards mean no breach (Fazia Ali v The United Kingdom)
The European Court of Human Rights (ECtHR) has held that the entitlement to accommodation under Part VII of the Housing Act 1996 (HA 1996) was a “civil right” under Article 6 of the European Convention on Human Rights, however, there had been no breach as the HA 1996 provides a number of procedural safeguards (including the right of appeal to the County Court under section 204) to protect applicants and to enable their civil rights to be judicially determined.
The ECtHR held that Article 6 cannot itself be read as requiring that a judicial review of a HA 1996 decision should include a reopening of the decision with a rehearing of witnesses, when an enquiry into the facts has already occurred and a “determination” of rights and obligations under the HA 1996 made.