Housing law update

Legislation

The Housing Act 2004 continues to be brought into force: Housing Act 2004 (Commencement No 5 and Transitional Provisions and Savings) (England) Order 2006 (SI no 2006/1060) affecting parts 1, 2, 3, 4 and 7 of the Act.

The Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 (SI no 2006/1294) came into force on 1 June 2006. Local authorities may not allocate accommodation under Part 6 of the Housing Act 1996, or provide assistance under the homeless provisions of Part 7 of the Act, to persons from abroad who are ineligible for assistance (ss160A and 185 Housing Act 1996). The regulations prescribe both the classes of persons subject to immigration control, who are nevertheless to be treated as eligible, and those who are not subject to immigration control, but are to be treated as being ineligible. They have been introduced partly to reverse the effect of Abdi v Barnet LBC, Ismail v Barnet LBC [2006] EWCA Civ 383, where the court had held that a national of the EEA not exercising an EU right of free movement in the UK (because they were not economically active) was a person subject to immigration control, but nevertheless eligible for housing under Class I of the previous regulations.

Human rights

Kay v Lambeth LBC; Price v Leeds CC [2006] UKHL 10 is now the leading case on the issue of possession proceedings and human rights. The House of Lords unanimously held that although the enforcement of a right to possession in accordance with domestic law interfered with an individual's rights under Art 8(1) ECHR, in the vast majority of cases domestic law would automatically supply the justification needed by Art 8(2) so as to avoid a violation of Art 8 rights. There was no question of a public landowner being required to plead and prove justification under Art8 (2) in every case. There could, however, be special and unusual cases, such as Connors v UK [2004] HLR 52, ECtHR (which involved gypsies) where it may be possible to seriously argue that the law which gives rise to the right to possession is incompatible with Art 8, in which case - unless the county court can read the law compatibly in accordance with s3, Human Rights Act 1998 '“ it will be necessary for the county court to adjourn possession proceedings so as to enable the occupant to make a claim for a declaration of incompatibility to the High Court.

Possession claims

In London Borough of Islington v Uckac [2006] EWCA Civ 340, Mr and Mrs Uckac applied as homeless under Part 7, Housing Act 1996. In their application they claimed that they had left their previous address in Islington due to overcrowding and they had been given seven days' notice to leave. The authority accepted that the Uckacs were not intentionally homeless and granted Mr Uckac a tenancy '“ he later assigned this to his wife. Islington subsequently sought rescission of the tenancy on the ground of fraudulent misrepresentation (they claimed the couple had been living in Essex) and an order for possession relying on Housing Act 1985, Sched 2, ground 5 (landlord induced to grant tenancy by false statement).The claim for possession was dismissed on the basis that ground 5 is only available where the defendant is the person to whom the tenancy was granted. The authority's appeal was dismissed by the Court of Appeal: the Housing Act 1985 provides an exhaustive code of the grounds on which a landlord may obtain an order for possession against a secure tenancy and it was therefore not open to the landlord to bring such a tenancy to an end by rescission, whether for misrepresentation or on any other ground. Further, the right to possession under ground 5 is only available if the current tenant is the person (or one of the persons) to whom the tenancy was granted;

it was not available where the fraudulent statement was made by the current tenant's predecessor in title, from whom the tenancy had been assigned, even where the current tenant herself had participated in the false statement.

In Harlow District Council v Hall [2006] EWCA Civ 156, the court held that the standard form of suspended possession order then in use in the county courts (Form N28) had the effect of terminating the tenant's secure tenancy on the date set out on the face of the order '“ causing the tenant to become a tolerated trespasser almost immediately even if he complied with the terms of any suspension. In response to this decision the Court Service, issued a new Form N28, the effect of which is to keep the tenancy alive until breach of the terms of suspension, although it would then automatically determine once the tenant failed to comply with them. Further in Bristol City Council v Hassan [2006] EWCA Civ 656, the Court of Appeal held that courts making possession orders were not bound to use the standard forms prepared by the Court Service. While the new Form N28 was valid, the court '“ giving a strong indication that the status of tolerated trespassers was to be avoided in the drafting of orders if at all possible '“ suggested an alternative wording, under which the date when the tenant is to give up possession is postponed to a date to be fixed by the court on an application by the landlord: accordingly, even on breach there would be no termination of the tenancy until a date had been fixed. Under the suggested wording, the landlord would not be entitled to make an application for a date to be fixed for the giving up of possession and the termination of the tenant's tenancy (in accordance with s 82(2)) for so long as the tenant complies with the terms. The court's suggestions have now found their way into the new Form N28A and the amendments to CPR PD55.

In Notting Hill Housing Trust v Roomus [2006] EWCA Civ 407, the Court of Appeal upheld the validity of a notice served under s 21(4), Housing Act 1988, stating that possession of the property was required 'at the end of the period of your tenancy', rather than 'after the end of your period of tenancy' (as per the Act). The term 'at the end of the period of your tenancy' did not refer to the split second at which the tenancy came to an end, but meant after the end of the tenancy.

Protection from eviction

In Pirabkaran v Patel [2006] EWCA Civ 685, the court held that the phrase 'let as a dwelling', in s 2, Protection from Eviction Act 1977, meant 'let wholly or partly as a dwelling' and therefore applied to premises which were let for mixed residential and business purposes. It was also held that an interpretation of s 2 that allowed a landlord to exercise a right of re-entry over mixed-use premises otherwise than by court proceedings would be incompatible with the tenant's rights under Art 8, ECHR.

In Desnousse v Newham LBC [2006] EWCA Civ 547 (which concerned s 3 Protection from Eviction Act 1977), the authority secured accommodation for a homeless applicant, pursuant to its duty under s 188 of the Housing act 1996, by procuring a licence of self-contained accommodation from a private landlord. The inquiries took six months before the tenant was asked to vacate the premises following an adverse homelessness decision. Her application for a final injunction to prevent her eviction without a court order was dismissed by the Court of Appeal on the basis of Mohammed v Manek [1995] 27 HLR 439, CA, which held that a room in a bed and breakfast hotel, provided under similar but earlier homelessness legislation under Part III, Housing Act 1985, was not 'occupied as a dwelling under a licence'. The Court of Appeal held that, notwithstanding legislative changes (including the introduction of the Human Rights Act 1998), the decision in Manek was binding in relation to the 1996 Act. In contrast to the decision in Pirabkaran, and the dissenting judgment of Lloyd LJ, the majority took the view that the interference was proportionate in the light of safeguards available to homeless applicants (built into Pt 7, Housing Act 1996) and the difficulties they considered that authorities would face if the 1977 Act applied to the grant of temporary accommodation under the 1996 Act. Desnousse was, however, only concerned with licences; the court reserved the position as to whether tenancies of such temporary accommodation were also covered by Manek and excluded from s 3, PEA.

Right to buy

In Martin v Medina Housing Association Ltd [2006] EWCA Civ 367, it was held that although a 'withdrawal' of a right to buy claim, within the meaning of the Housing Act 1985 (see s 122(3)), had to be by notice in writing, Parliament had not sought to exclude elementary principles of common law and equity relating to the assertion of abandoned or waived rights or estoppel. In Martin, there had been lengthy inactivity and an express representation to the authority that the tenant did not intend to proceed with the purchase. Prima facie, there was an express abandonment on the tenant's part of the right generated by the serving of the notice under s122.

Where there are competing claims for possession on the one hand and an injunction seeking to enforce the right to buy on the other, the court should hear both at the same time and carry out a balancing exercise by considering each claim on its facts and merits: see Basildon District Council v Wahlen [2006] EWCA Civ 326, where the possession claim was brought under Ground 16 of Sched 2 Housing Act 1985 (under-occupation following succession). The case also provides guidance on the factors which may favour the tenant or the landlord in the balancing exercise.

Allocations

In R (Lin) v Barnet LBC; R (Hassan) v Barnet LBC [2006] EWHC 1041 (Admin) the court held that an allocations scheme which awarded 100 transfer points to any transfer applicant simply for holding that status, thus affording them a significant advantage over any applicant who was not an existing tenant, including those entitled to statutory preference under s 167(2) Housing Act 1996, was unlawful. Similarly, in R (Cali) v Wandsworth LBC [2006] EWHC 302(Admin), the authority's choice-based allocation scheme was held to be unlawful because it did not allow for a composite assessment of household need. This could not be saved by the application of a residuary discretion reserved to council officers as that would in effect amount to allocation beyond the terms of the published scheme.

In R (Cali) v LB Waltham Forest [2006] EWHC 302, the Administrative Court struck down a choice-based lettings scheme introduced by Waltham Forest as it failed to comply with statutory requirements. In particular the banding scheme failed to allow for the composite assessment of a household's preference and the highest band was drawn too narrowly to allow the spread of needs across a household to be taken into account. Any residual discretion could not save the scheme as it was too vague and would amount to allocation on an undefined discretionary basis outside the ambit of the published scheme.

Homelessness

In R (Paul-Coker) v Southwark LBC [2006] EWHC 497 (Admin) the authority's decision refusing to provide interim accommodation pursuant to s 188 of the Housing Act 1996 was held to be irrational. Although the letter of refusal identified the criteria from the leading case of R v Camden LBC ex parte Mohammed [1997] 30 HLR 315, it did little or nothing to apply them to the relevant facts and reach a properly reasoned decision.

In William v Wandsworth LBC; Bellamy v Hounslow LBC [2006] EWCA Civ 535, the Court of Appeal upheld two findings of intentional homelessness (see s 191 Housing Act 1996). In the first (William) the applicant's decision not to use monies available from a re-mortgage to pay mortgage instalments (choosing instead to use the money to pursue a speculative inheritance) was a deliberate act, which caused his homelessness. In the second (Bellamy) the applicant, a former joint owner, was intentionally homeless because she failed to prevent the sale of the premises.

Lee-Lawrence v Penwith District Council, Court of Appeal, 9 May 2006, also concerned intentionality. The court held that the authority was entitled to conclude that an applicant for housing had made himself intentionally homeless by giving up the tenancy of a housing association property as there was no evidence to support his claim that he had never occupied the property. He had the right to live at the property, he was the sole tenant and held the keys. Although there was no direct evidence that he had ever slept there, there was some evidence that he had used the property and had claimed housing benefit as an occupier. In the circumstances, the authority was entitled to infer that he occupied the premises in a fuller sense.

The Court of Appeal in Griffiths v St Helens Council [2006] EWCA Civ 160 held that a local authority's duty to secure accommodation for a homeless applicant under s 193(2), Housing Act 1996, will come to an end under s 193(5) if the applicant refuses an offer of suitable accommodation to be let on a assured shorthold tenancy. A distinction was to be drawn between accommodation offered to meet the continuing duty to secure accommodation imposed by s 193 and accommodation offered to bring that continuing duty to an end. The former included accommodation offered by way of an assured shorthold tenancy. The latter could not as such accommodation would not be a qualifying offer bringing the duty to an end (see s 193(7D)).

In Deugi v Tower Hamlets LBC [2006] EWCA Civ 159, the Court of Appeal partially upheld a judge's order varying a decision, where it was clear that the authority should have found that the applicant was eligible for assistance and in priority need. The judge had been wrong, however, to vary the decision to record that the appellant was owed the full housing duty under s 193(2) '“ it was not open to him to find that the appellant was not intentionally homeless, when the authority themselves had not reached a decision on that issue.

In Slater v Lewisham LBC [2006] EWCA Civ 394, the Court of Appeal highlighted the two-limbed test when an authority considered its duty to be discharged under s 193(7) of the Housing Act 1996 following the refusal to accept an offer of accommodation. The authority had to consider suitability and whether it was reasonable for the applicant to accept the offer. Reasonable to accept, while an objective test, had to be assessed at the time of the refusal and having regard to the applicant's personal characteristics, his needs, hopes and fears. The test was whether a right-thinking local authority would conclude that it was reasonable that this applicant should have accepted the offer of this accommodation.

Anti-social behaviour

Where proceedings are brought for the breach of an ASBO, it is not open to the magistrates' court to rule that the ASBO itself was unenforceable because it was vague, lacking in clarity or too widely drawn. Any issue as to the validity of the ASBO should be raised by way of appeal rather than as a defence to breach proceedings: CPS v T [2006] EWHC 728 (Admin).

Applications for an order under s 1(c), Crime and Disorder Act 1998 (orders on conviction in criminal proceedings), are civil in nature and are subject to the provisions of the Civil Evidence Act 1995: R v Wadmore & Foreman [2006] EWCA Crim 686.

In Manchester v M [2006] EWCA Civ 423, it was held that a judge hearing an application for an interim order under s 1D, Crime and Disorder Act 1998 is obliged to decide whether proper consultation has taken place; the findings on that issue are binding at the full hearing. The judge had been misled into rehearing the question of consultation, which had already been determined at the hearing for an interim order. This constituted a serious procedural irregularity and his dismissal of the ASBO application was set aside.

Jim Shepherd and Dominic Preston are barristers practicing from Arden Chambers. clerks@ardenchambers.com