Update: housing

At last, Schedule 11 of the Housing and Regeneration Act has come into force, with the effect, among other things, that secure and assured '“ including assured shorthold and demoted assured shorthold '“ tenancies continue until a warrant for possession is executed and existing tolerated trespassers are deemed to have become tenants under a replacement tenancy provided the requisite conditions are satisfied (see 'Practice trends: housing law', Solicitors Journal 152/45, 25 November 2008).

Whereas previously tenants could apply for retrospective revival of the tenancy so that they could bring a claim against their landlord for breach of tenancy, including the period in which they were a tolerated trespasser, now they can apply to the court for an order that the replacement tenancy is treated for the purpose of the claim as the same tenancy as the original tenancy, continuing uninterrupted.

Landlords can also make such an application. No guidance is given on the exercise of the discretion by the court on whether to grant such an order and it is expected that the existing case law will continue to be relevant.

The Housing (Replacement of Terminated Tenancies) (Successor Landlords) (England) Order 2009 (SI 2009/1262) also came into force on the same day, making provision for the situation when the landlord that obtained the possession order has transferred its interest in the premises.

Public body

One of the biggest issues in the last few years has been whether the actions of RSLs (or, now, 'registered providers' of social housing) are amenable to judicial review. The Court of Appeal has now turned its mind to this issue in R (Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587 (see Solicitors Journal 153/25, 23 June 2009), holding that the housing association had acted as a public authority for the purposes of s.6 of the Human Rights Act 1998 and was therefore amenable to judicial review when serving a notice of possession.

This opens up the possibility of human rights challenges and judicial review claims being brought against 'registered providers' and used as the basis of a defence to a claim for possession by a registered provider, in line with the guidance set out in Kay v Lambeth Borough Council [2006] UKHL 57. The circumstances of the landlord will then have to be considered, to see if it can be said to be acting as a public body.

One of the most significant differences between the grounds for possession applying to secure and assured tenants is the mandatory nature of ground 8 (one of the grounds for possession used in respect of assured tenancies). It is envisaged that challenges will be brought against the use of ground 8 under both gateway (a) and gateway (b) (see 'How do you solve a problem like Article 8?', solicitorsjournal.com, 1 September 2008). As there can often be no other means of defending the claim, those acting for tenants may well seek to rely on the lack of discretion available to the court in contravention of Art.8 and any breach of policy on rent arrears.

A further question which is now likely to arise is whether the new framework of the Housing and Regeneration Act 2008 within which 'registered providers' of social housing carry out their functions renders such landlords public bodies for the purposes of judicial review.

Succession

In Freeman v Islington LBC [2009] EWCA Civ 536 the Court of Appeal was concerned with the question of whether the appellant 'resided' with her father at the premises for the requisite 12-month period so as to enable her to succeed to his tenancy.

It was held that she had not, despite spending seven days a week at the premises, as 'residing' was a narrower test than 'living with' and some degree of 'homemaking' was required.

Although this decision appears to be limited to the issue of succession, whether it will have a wider effect remains to be seen. The Court of Appeal did not consider the authorities under the Housing Acts 1985 and 1988 on 'only or principal' home as they were said not to be concerned with the 'key phrase' (i.e, 'residing with'), but does that mean that the decision has no relevance to those cases? Even if it is found to be relevant, there is still the question of whether it really takes matters much further.

When ascertaining a person's 'principal' home, the attitude of the court has been to consider which of the properties could properly be considered their main 'home' and if a person is found to have made their home somewhere else, the courts have been unwilling to find that they retained security. What may prove interesting, however, is the observation on the cases on succession that a narrow construction had been favoured for the policy reason that one should not give benefits to those whom one cannot fairly say were intended to benefit by the legislation.

In these days of scarce social housing and increasing demand, should a narrow construction be taken in 'only or principal home' cases on the basis that those who have more than one home are not those who were intended to have the benefit of social housing?

Possession

The policies and assurances of local authorities in respect of non-secure tenancies are likely to come under closer scrutiny in light of the decision in McGlynn v Welwyn Hatfield District Council [2009] EWCA Civ 285. In that case, the local authority had written to the tenant stating that they did not take action for possession unless they were satisfied that there had been a 'significant' breach of the tenancy agreement. The Court of Appeal found that it was seriously arguable that the tenant had a legitimate expectation that the local authority would not seek possession without first satisfying themselves that there had been such a breach, and they had failed to do so.

There are some local authority non-secure tenancy agreements that provide a form of security for their tenant '“ for example, stating that they will only seek possession if they are satisfied that there has been a 'serious' breach of the tenancy agreement.

It is also the practice of some local authorities to write to a tenant who has been the subject of a complaint in similar terms. As a result of this decision, any action then taken to recover possession of the premises needs to be looked at very carefully.

While the Court of Appeal made clear that there does not have to be a 'judicial investigation', it must be the case that what is appropriate will depend on the facts of each case.

The case has yet to be fully heard as the appeal was against the making of the possession order at a summary hearing but it does raise some interesting questions: must a local authority give the accused tenant an opportunity to comment on complaints? Can a local authority be satisfied of a breach of the tenancy agreement if the complaint comes only from one source? Do they have to investigate the source of the complaint, as there may be a complex history between the complainant and the accused, which would potentially cast doubt on the veracity of any complaints?

Perhaps the most practical and likely result of this will be that social landlords will change the terms of their non-secure tenancy agreements and cease to act in a manner which could be alleged to give rise to an expectation on the part of the tenant.

Negligence

The Court of Appeal in X v Hounslow LBC [2009] EWCA Civ 286 has rejected the argument that the local authority were subject to a duty of care. The authority was not under a duty to transfer the respondents to temporary emergency housing, despite knowing that they were at risk from others in the area. The local authority was doing no more than carrying out its statutory duties, which did not give rise to a duty of care.

The Court of Appeal shied away from imposing the additional burdens in negligence that the High Court felt was placed on them, which would potentially have exposed local authorities to numerous claims.

In the light of the view of the House of Lords in Glasgow City Council v Mitchell [2009] UKHL 11 (see Solicitors Journal 153/7, 24 February 2009), the decision is perhaps not surprising.

Children Act 1989

Local authorities are not able to escape the statutory duties which have been placed on them, however. Social services cannot 'pass the buck', when it comes to their duties to house children under s.20(1) Children Act 1989, to their homelessness department, by ensuring that housing was provided under s.17.

In R (on the application of G) v Southwark London Borough Council [2009] UKHL 26 (see Solicitors Journal 153/20, 26 May 2009), the House of Lords referred to their earlier decision in R (M) v Hammersmith & Fulham Borough Council [2008] UKHL 14 and, indeed, the decision is not surprising in light of the comments in that case that local authorities should not be able to avoid the more onerous duties on imposed on them by s.20 of Children Act 1989 simply by providing housing under s.17: the duty under s.20 was to do more than provide a 'roof over their head'. The references to the local authority 'passing the buck' and 'side-stepping' the issue make clear that once a child is found to be owed a duty under s.20(1), the local authority will be held to it, regardless of whatever other assistance may be offered by alternative departments.

Future cases

There are likely to be questions of interpretation in respect of the Housing and Regeneration Act 2008 as it settles into practice. We will have to wait and see if the House of Lords are petitioned in respect of Weaver, the Court of Appeal having refused permission for a further appeal.

It will also be very interesting to see what occurs in the case of De-Winter Heald v Brent which has been granted permission to appeal to the Court of Appeal. The Local Authorities (Contracting Out of Allocation of Housing and Homelessness Functions) Order 1996 SI No. 3205 will come under scrutiny, with the court examining the extent to which local authorities can contract out their review functions under Housing Act 1996.