Practice trends: housing law

Article 6 (right to a fair hearing before an independent and impartial tribunal) and Art. 8 (right to respect for one's home) continue to raise thorny issues for housing practitioners. In Ali v Birmingham City Council [2008] EWCA Civ 1228, the Court of Appeal confirmed that the statutory processes for the review and appeal of homelessness decisions complied with Art. 6, even though the homeless person did not have an opportunity to challenge factual matters decided against their interests by the local housing authority. Likewise, in R (on the application of Gilboy) v Manchester City Council [2008] EWCA Civ 751 the process for the review of a decision to terminate a demoted tenancy was held to be compatible with Art. 6. In each case, reliance on recent cases of the European Court of Human Rights were felt to be misplaced.

Human rights

Human rights arguments found a degree of success in R (Weaver) v London & Quadrant Housing Trust [2008] EWHC 1377 (Admin). Ms Weaver challenged the right of her landlord, London & Quadrant, to seek possession both on 'conventional' judicial review grounds and on the basis of Art. 8. London & Quadrant denied the claim on its merits and contended that it was not susceptible to judicial review nor was it a public authority for the purposes of the Human Rights Act 1998. The court rejected this, finding that London & Quadrant was susceptible to judicial review on conventional grounds and as a public authority for the purposes of the 1998 Act. The claim failed on the facts. Both parties have appealed to the Court of Appeal.

Doherty has satisfied nobody as regards the application of Art. 8 to possession claims by public authority landlords. Readers may remember that there has been a (increasingly bad-tempered) 'dialogue' between the House of Lords and the European Court of Human Rights on this issue in recent years, with their Lordships proffering Qazi v London Borough of Harrow [2004] 1 AC 983 and Kay v London Borough of Lambeth [2006] 2 AC 465 which were, respectively, criticised by the European Court of Human Rights in Connors v United Kingdom [2004] 40 EHRR 189 and McCann v United Kingdom [2008] LGR 474. The position now seems to be that an occupier of residential property can defend possession proceedings: (a) on any grounds provided for in the relevant statute; (b) by impugning, as a matter of public law, the decision to seek possession, and (c) by contending that the decision to seek possession was disproportionate, within the meaning of the Human Rights Act 1998. What remains to be worked out is how county court judges should assess these questions. Are (b) and (c) to be assessed on a Wednesbury basis or should public authorities have to justify their decisions to a more exacting standard?

Anti-social behaviour

The ex parte process for setting a date for possession in the case of a postponed possession order made on the basis of rent arrears has, in Wandsworth LBC v Whibley [2008] EWCA Civ 1259 been found to be of limited relevance in cases of postponed orders made on the basis of nuisance or anti-social behaviour, and a hearing will usually be required.

North Devon Homes Ltd v Batchelor [2008] EWCA Civ 840 reaffirmed the primacy of the county court judge, who hears the evidence and makes an assessment of the witnesses, in determining whether it is reasonable to make an order for possession. On the facts of this case, a judge who declined to make a possession order against a tenant who used small amounts of cannabis at the property was upheld by the Court of Appeal. The Court of Appeal also proved particularly reluctant to interfere with sentences imposed by county court judges for breaches of injunctions made under s.153A-E Housing Act 1996: Birmingham City Council v Flatt [2008] EWCA Civ 739 and Kirklees Council v Davis [2008] EWCA Civ 632.

Tolerated trespassers

The many problems associated with tolerated trespassers '“ those social tenants remaining in occupation after the end of their tenancies '“ should be partly solved come April 2009, when the Housing and Regeneration Act 2008 provisions on 'replacement tenancies' are expected to come into force. But the problems won't be wholly resolved.

At the beginning of October, the House of Lords heard the appeals in Knowsley Housing Trust v White [2007] EWCA Civ 404 (tolerated trespassers and preserved right to buy on stock transfer), Porter v Shepherds Bush Housing Association [2008] EWCA Civ 196 (entrenched trespassers and revival applications) and Honeygan-Green v LB Islington [2008] EWCA Civ 363 (revival of previous right to buy steps with revival of tenancy). With the partial exception of Porter, none of these situations will be addressed by the Housing and Regeneration Act.

The DCLG is consulting on what should happen to those tolerated trespassers who were secure tenants and whose properties have been transferred to housing associations, not covered in the Act.

Do they get replacement tenancies? If so, are they secure or assured tenancies? Is the right-to-buy preserved or not? There are no promises on when an order will be forthcoming. In the meantime, we will have to see what the House of Lords decisions do to this heavily litigated area.

The Housing and Regeneration Act also opens the possibility of a retrospective revival of tenancy for the full period of 'trespasser-hood', reviving with it the landlord's liability for past breach of repairing obligations during that time. Such a revival is at the discretion of the court.

Whether the exercise of that discretion will resemble the current, very variably exercised discretion on revival of tenancy will have to be seen, but this is likely to be a hot topic.

Disability Discrimination Act 1995

Disability discrimination will not be playing that much of a part in possession proceedings, after the House of Lords' dramatic and hotly debated decision in LB Lewisham v Malcolm [2008] UKHL 43. Only what is in effect direct discrimination (treatment for the reason of the tenant's disability) will do as a defence to possession proceedings and this will be infrequent.

Homelessness

Homelessness continues to be an increasing source of demand. Local Authority gatekeeping often features, despite a clear run of case law showing that it is unlawful, most recently in Birmingham City Council v Abdishakur Aweys [2008] EWCA Civ 48. The other major issue in Aweys, the treatment of the 'homeless at home', will be revisited, as Birmingham City Council are appealing to the House of Lords in January 2009. Eligibility to housing assistance for otherwise

ineligible EU citizens where their children are at school in the UK has been referred to the European Court in LB Harrow v Ibrahim [2008] EWCA Civ 386 and in Teixeira v London Borough of Lambeth [2008] EWCA Civ 1088. This may take some time.

Also to be appealed in the Lords is Manchester City Council v Moran [2008] EWHC Civ 378, which decided that women living in women's refuges were not necessarily homeless and could be considered as having accommodation available to them.

Legal aid reforms

As proposals to move housing cases into tribunals and away from the county courts have been at put on hold for the moment, the biggest question for many housing practices is the present and future of public funding. Many firms and not-for-profits are feeling the pressure of the fixed fee Legal Help scheme, with some not-for-profits going under.

But the future is even more uncertain, with more areas facing the proposed introduction of CLACS and CLANS, where only one provider receives an LSC contract. The track record for CLACS and CLANS is already chequered, with one partner in the Gateshead CLAC going into liquidation, Cornwall pulling out of a proposed CLAN and evidence that other Local Authorities are taking a very thoughtful look at whether they want to participate. However, the scheme goes ahead, with the next round due to be announced in 2010.

For most housing practices outside those areas, the largest change is the LSC's stated intention to only award contracts to providers who can offer a complete Social Welfare package. According to the LSC's current consultation, contracts will only be awarded to providers who can offer

housing, debt and welfare benefits from initial advice through to specialist representation. As only a handful of firms in the whole country can currently meet this hurdle, the LSC expects there to be mergers, but it is also, in the first round, open to bids by consortia of independent practices and not-for-profits. The conditions for a consortium mean that the arrangements must involve considerably more than just cross-referral agreements. Whether the LSC will only contract with one supplier in each area isn't clear, but that is certainly the preferred option, so the era of the monopoly supplier could well be approaching. How to manage the possible conflicts of interest where there is no-one else to refer a matter to will be a new challenge for firms.

As the plans will be implemented in 2010, practices are under pressure to be looking at arrangements now and at how bids will be funded. Given that the bid will likely involve business arrangements between private practices and not-for-profits, there are added complications involving the rules on financial relationships in the Code of Conduct.

Coming in 2009?

2009 already promises to be a busy year for housing lawyers. Birmingham City Council v Forde (CFAs and disrepair proceedings) LB Brent v Hodson (Ground 16, reasonableness and suitable alternative accommodation), Stokes v LB Brent (evicting travellers), Alexander-David v Hammersmith & Fulham LBC (possession against a minor), G v Southwark (the role of social services in securing accommodation) and Austin v Southwark (reviving a tenancy at the request of the estate) are all eagerly awaited and will, no doubt, provoke further comment and debate.

Whatever happens in case law, demand is not letting up and, given the current pressures on social housing, it can only increase. But there are big changes ahead in how the sector operates and it is an open question whether the demand will be met.