Update: HOUSING

Codes of Guidance

Three new codes of guidance have been issued:

• The Homelessness Code of Guidance (July 2006) published by the Department for Communities and Local Government.
• The Respect Standard for Housing Management (17 August 2006) aimed at encouraging local housing authorities and housing associations to promote the tackling of anti-social behaviour through strong housing management.
• The Code of Practice on Racial Equality in Housing (England) (September 2006) published by the Commission for Racial Equality.

Possession claims

In Church Commissioners for England v Gisele Meya [2006] EWCA Civ 821, the Court of Appeal, in order to construe the validity of a notice requiring possession, had to determine the terms of a periodic assured shorthold tenancy created by s 5 of the Housing Act 1998 on the demise of a fixed term tenancy. Section 5(3)(d) provides that the new tenancy is one under which the periods are the same as those for which rent was last payable under the fixed-term tenancy. The court held that, first, one had to ascertain what was the last payment of rent that the tenant had been obliged to pay and then ascertain the period to which that payment related. In Meya, the rent had been expressed as a yearly figure, but was payable quarterly in advance. The period of the new tenancy was therefore quarterly.

In Carphone Warehouse UK Ltd v Malekout [2006] EWCA Civ 767, initial proceedings for possession of a statutory periodic tenancy governed by the Rent Act 1977 were compromised. The landlord and tenant had, within the terms of the compromise, agreed that the tenant was a statutory tenant notwithstanding that the tenant had been out of actual occupation for some time. In later proceedings, the landlord asserted that the tenant, who remained out of actual occupation, had lost security of tenure. The judge disagreed, and the Court of Appeal upheld his finding, holding that the compromise order created not only an estoppel on a conclusion of law, namely that the tenant was a statutory tenant at the date of the initial compromise, but also an estoppel as to the essential facts and circumstances that existed underlying the conclusion of law. It followed that the landlord could not deny that the tenant, at the time of the compromise, had an intention to return to the premises. With that starting point, there was ample evidence from which the judge could conclude that the tenant subsequently retained that intention.

Fletcher v Brent LBC [2006] EWCA Civ 960 was a homelessness case that raised an issue about the validity of a notice to quit served by a joint tenant. The notice was dated 28 June 2004 and stated that possession would be given up on 'Monday 28 June 2004 or the first Monday after that date being at least four clear weeks after service of this notice'. It was plain that the day given did not comply with s 5 of the Protection from Eviction Act 1977 for failure to give four weeks' notice. The authority argued that the notice was invalid notwithstanding the saving provision. The Court of Appeal held that the words used were sufficient to give the requisite four weeks' notice.

Disrepair

In Charalambous v Earle [2006] EWCA Civ 1090, the Court of Appeal approved diminution in value as a means of assessing damages for disrepair claimed by an occupant of premises held under a long lease (while nevertheless reducing the award made by the judge for lack of proper reasoning). More significantly, the court was asked to consider whether notice of the disrepair was required for there to be a breach of covenant where the disrepair related to a part of the building that was within the landlord's control. Without deciding the point, the court doubted that British Telecommunications plc v Sun Life plc [1996] Ch 69 (in which it was held that no notice was required in those circumstances) was right in the context of modern statutory and contractual regimes governing residential long leases.

In Akram v Adam [2004] EWCA Civ 1601, the High Court held that two protected tenancies of the same flat, separated by a statutory tenancy, can be a series of transactions sufficient to enable a counterclaim for damages under the first protected tenancy to be equitably set off against a rent arrears claim arising under the second protected tenancy.

Succession

A joint tenant who by right of survivorship later became a sole tenant, but did so before the secure tenancy regime was created by the Housing Act 1980, was not a successor within the meaning of s 88 of the Housing Act 1985, as there had been no succession of a secure tenancy '“ see Paul Walker v Birmingham City Council [2006] EWCA Civ 815.

Variation of terms

In R (Kilby) v Basildon District Council [2006] EWHC 1892 (Admin), the court considered whether the terms of a secure tenancy agreement could fetter an authority's statutory entitlement to vary those terms. Section 102 of the Housing Act 1985 provides that the terms of a secure tenancy may be varied in one of three ways but 'not otherwise'. One of those ways is for the landlord to use the variation procedure found in s 103. The court held that a clause in a local authority's secure tenancy agreement, which stated that there would be no variation otherwise than with the agreement of their tenants' representatives amounted to a method of variation not prescribed by s 102. It was consequently void and incapable of preventing a lawful variation under s 103.

Homelessness

In Robinson v Hammersmith & Fulham LBC [2006] EWCA Civ 122 (see 'Accommodating minors', by Jim Shepherd, (2006) 150 1236, 29.09.06) a 17-year-old applicant applied for assistance having been evicted by her mother. The authority referred her case for mediation which was unsuccessful. On the day before the applicant's 18th birthday, the authority decided that she was not in priority need as she would be turning 18 the following day. It duly notified her of that decision in writing on her birthday. On review, the authority upheld its original decision and the applicant's appeal to the county court was likewise dismissed. The Court of Appeal allowed the applicant's appeal. Distinguishing Mohamed v Hammersmith & Fulham LBC [2002] 1 AC 547 and following dicta of Chadwick LJ in Crawley BC v B (2000) 32 HLR 636, it held that, on review, the reviewing officer should have found that the original s 184 decision was unlawful and should have made a decision restoring to the applicant the rights she would have had if the original decision had been lawful. The court also held that it was unlawful for an authority to postpone the making of a decision '“ even for a short period '“ by reference to mediation if that would allow the authority to avoid a duty owed to a 17-year-old applicant. While mediation was to be encouraged, it was wholly independent of the s 184 inquiries process and there was no power to defer making inquiries pursuant to s 184 on the ground that there was a pending mediation.

In R (Lynch) v Lambeth LBC, Admin Court, 18 October 2006, a secure tenant occupied a flat in a building that had no lift. She suffered lower back pain and fibromyalgia and her son had epilepsy, ADHD, Asperger syndrome and learning and behavioural difficulties. She applied for a transfer to ground floor accommodation and subsequently applied as homeless on the basis that it was not reasonable for her to continue to occupy the property. The authority decided that the applicant was not homeless because she was a secure tenant. The applicant requested a review. Prior to the completion of the review, the applicant issued proceedings for judicial review on the ground that the s 184 decision was unlawful and that the review procedure under s 202 of the Housing Act 1996 was consequently not available as a remedy. Prior to consideration of the claim for judicial review, the authority issued a review decision. It found that the original decision contained an irregularity, but nevertheless upheld it. The authority initially failed to notify the applicant (as it was required to do by reg 8(2) of the Homelessness (Review Procedure) Regulations 1999 (SI no 71)) of its intention to uphold the decision and failed to invite representations from the applicant. The authority nevertheless later provided the applicant with an opportunity to make representations. In the event, no representations were made and a negative review decision was finalised, which the applicant duly appealed to the county court. In the High Court, the claim for judicial review and the appeal (heard together) were dismissed:

• A defective s 184 decision was capable of being reviewed under s 202.
• The failure to comply with reg 8(2) was remedied by the opportunity to make representations.
• Finally, even if the procedural defect was sufficient to vitiate the review decision, it would not be appropriate to grant relief as the authority would inevitably reach the same conclusion if the decision were quashed.

Conville v Richmond-upon-Thames LBC [2006] EWCA Civ 718 concerned those who are homeless, eligible for assistance, in priority need but intentionally homeless, and an authority's duty to secure that accommodation is available for such applicants for such period as it considers will give them a reasonable opportunity to secure accommodation: s 190(2)(a), Housing Act 1996. The Court of Appeal held that consideration of what is reasonable must be considered from the applicant's standpoint, having regard to his circumstances. The authority cannot take into account considerations peculiar to itself, for instance its resources.

In Putans v Tower Hamlets LBC [2006] EWHC 1634 (Ch), the High Court held that a member of an accession state seeking work did not have the right to reside in the UK:, reg 4(2) of the Accession (Immigration and Worker Registration) Regulations 2004. The applicant was consequently ineligible for assistance and the authority had no power to provide temporary accommodation under Pt VI of the Housing Act 1996 and Sched 3 of the Nationality, Immigration and Asylum Act 2002.

In Couronne v Crawley Borough Council [2006] EWHC 1514 (Admin), a British citizen who had come to the UK from the Chagos Islands failed in a challenge to the habitual residence test applied to jobseekers allowance and homelessness assistance under Part VII of the Housing Act 1996. The High Court rejected assertions that the test amounted to discrimination under the Race Relations Act 1976. It also rejected an argument that Art 8 of the European Convention on Human Rights was engaged as the habitual residence test had nothing to do with promoting respect for private or family life.

In Royal Borough of Kensington and Chelsea v Danesh [2006] EWCA Civ 1404, a former asylum-seeker, who had been housed in Swansea prior to being granted leave to remain, asserted that he should not be referred back to Swansea under the local connection provisions of Pt VII of the Housing Act 1996 as he would suffer violence if the referral was made. He pointed, principally, to racist and offensive abuse directed to himself and his wife. The authority concluded that no violence would be suffered if he was returned to Swansea, as the abuse did not amount to physical violence or the threat of physical violence. The Court of Appeal rejected the applicant's assertion that violence in s 198(3) included the concept of assault, namely words, actions or gestures that caused an individual to fear a physical attack. It held that violence meant actual physical violence.

Housing and community care

In R (PB) v Haringey LBC [2006] EWHC 2255 (Admin), a Jamaican overstayer, who suffered from depression as a consequence of her homelessness, applied for assistance (including housing) under s 21 of the National Assistance Act 1948. The authority refused any assistance, relying on s 21(1A), on the ground that her need for care and assistance arose from her depression which was the consequence of her destitution. The High Court quashed the authority's decision as, among other reasons, it had failed to ask itself the correct test, namely, whether the claimant's need for care and attention arose solely as a result of destitution. In R (M) v Slough Borough Council [2006] EWCA Civ 655, the Court of Appeal held that 'in need of care and attention' in s 21 was to be given a wide interpretation and included those whose need arose from age, illness or disability.