May 2016 Housing Law update 2016 - Chartered Institute of … Support/Eastern... · 2016-06-24 ·...

www.buckles-law.co.uk

Housing Law update 2016

Chartered Institute of Housing

May 2016

Gail Sykes Partner

T: 01733 888794

E: [email protected]

Legally focused, relationship driven

Disabled tenants and possession claims

A defence will include: A defence under Art 8 ECHR – the right to a family life and a home An Aster Communities Ltd v Akerman-Livingstone [2015] defence A defence under s149 Equality Act 2010 – Public Sector Equality Duty


Aster v Akerman-Livingstone 2015

Supreme Court decision How should a Court handle a defence to summary possession proceedings (a possession claim against an introductory tenant, under s21 Housing Act 1988 or an occupier of temporary accommodation) when a defence under s15 of the Equality Act 2010 is raised? Is the correct approach identical to that a Court should adopt to and Art 8 ECHR defence?



Art 8 ECHR Is possession a proportionate means of achieving a legitimate aim?



S15 Equality Act: (1) a person (A) discriminates against a disabled person (B) if:

(a) A treats B unfavourably because of something arising in consequence of B’s disability; and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim


Aster v Akerman-Livingstone 2015 Mr A-L had chronic and severe mental health problems Aster provided temporary accommodation to allow the Local Authority to discharge it’s duty to him as a homeless person Mr A-L refused all offers of permanent accommodation – the homelessness duty to him having been discharged an NTQ was served Mr A-L defended possession proceedings, claiming that eviction would breach Art 8 ECHR or s15 Equality Act The County Court and Court of Appeal found that an Equality Act defence could be dealt with summarily


Aster v Akerman-Livingstone 2015 The Supreme Court – establishing proportionality under s15 Equality Act may involve treating the disabled person differently and require the landlord to do all that could reasonably be expected to accommodate the individuals disability, it involved a four stage test: i. Is the objective sufficiently important to justify limiting a

fundamental right? ii. Are the means rationally connected to the objective? iii. Are the means no more than necessary to achieve that

objective? iv. Do the ends justify the means?



Summary judgment is not usually appropriate Exceptions will be:

The individual has no real prospect of establishing that he/she is disabled The possession claim did not arise by reason of the individual’s disability It is clearly a proportionate means of achieving a legitimate aim (difficult to establish on a summary application)


So what will be proportionate?

Not defined in the Equality Act 2010 but in EU directives and clarified by CJEU decisions:

An appropriate and necessary means of achieving a legitimate aim It will not necessarily be discrimination if the aim could be achieved by less discriminatory means


Important note

Aster and Ackerman-Livingstone, s149 Equality Act and Art 8 ECHR challenges will apply to all summary proceedings involving a disabled individual:

Temporary accommodation Non successors Joint tenants upon service of NTQ by one JT Mandatory possession grounds

It may also be invoked where discretionary grounds are used


Section 149 Public Sector Equality Duty

Section 149(1) a public authority must in the exercise of its functions have due regard to the need to:

Eliminate discrimination, harassment and victimisation Advance equality of opportunity between persons who share a relevant protected characteristic and those who do not share it Foster good relations between persons who share a relevant protected characteristic and those who don’t share it


Section 149 Public Sector Equality Duty

A positive requirement, but not a duty to achieve a result but a duty to have due regard to the need to achieve the goals set out in section 149(1) of the Equality Act – Dyson LJ, Hotak and anor v Southwark & Johnson v Solihull MBC [2015] What is required to carry out the duty will be fact specific An assessment under s149 must be exercised with rigour and with an open mind


Undertaking an equality impact assessment

In cases where the tenant or a member of their household is disabled it will be necessary to undertake an assessment and to keep it under review

Who will carry out the assessment? When should the assessment take place? The assessment itself – what is needed? It will be necessary to keep the assessment under review – as matters progress or new information comes to light After the assessment – document it!


Tips terminating occupation using summary proceedings

Complete impact assessment (if in doubt assume the individual may be disabled) – keep under review Follow Possession Claim Protocol – especially Part 3 Follow internal policy and procedure Consider less draconian options Document it all


Getting your notices right Which notice?

Assured shorthold tenancies – including starter tenancies – s21 Notice (the latest version is October 2015)* Assured tenancies including assured shorthold where grounds for possession apply – s8 Notice (the latest version is 6 April 2016!) Secure tenancies including flexible fixed term – s83 Notice Introductory tenancies – notice of Proceedings for Possession Pt V Housing Act 1996 Tenancies where security of tenure is lost/licences/non-secure tenancies – notice to quit


Pitfalls Service – allow adequate time and serve all tenants Service – does the agreement allow for valid service at the last known address? Two different notices required – each to be served without prejudice to the other Deceased tenants – what to serve and who to serve? Failure to use latest forms/all or correct grounds for possession Summary possession proceedings but probably all cases – consider ECHR, the Equality Act 2010 and comply with Pt 3 Possession Claims Protocol


Section 21 Notices post Deregulation Act 2015

Cannot be served during the first four months of the tenancy No longer need to worry about expiring the notice on the last day of a period of a tenancy if the tenancy is periodic or statutory periodic Must give two clear calendar months’ notice Cannot expire within six months of commencement* The s21 has a shelf-life – proceedings must be brought within four months “beginning with the date on which the notice was given” Any deposit must be protected within 30 days of receipt in order to serve valid s21*


Notices to Quit 28 days notice required unless the occupation is exempted Check your agreement – 28 days or one month notice required? The agreement will take precedence Regulations set out the information which must be provided when serving an NTQ – don’t be tempted to tamper with the standard form! The notice must terminate the occupation on a last day of a period of the occupation unless the agreement provides otherwise


Mandatory ground for possession Mandatory ASB ground under the ASB Crime & Policing Act Introductory and starter tenancy termination and termination by NTQ Ground 8 of Sch2 Housing Act 1988

ECHR considerations Akerman – Livingstone proportionality assessment required Possession Claim Protocol compliance Grounds for possession set out in the notice must be set out in the Form N119 (section 4(c)) or the PCOL Form 4(a) in accordance with para 6.2SA of the PD to Pt 55 CPR


ASB Crime & Policing Act grounds Does the tenancy allow for use of mandatory grounds? Mandatory grounds based on ASB – special requirements for NOSP

Date and place that conviction*/breach of injunction/breach of noise abatement order etc. was proved and what the conviction was/what the breach of injunction etc. was Notice cannot expire earlier than an NTQ would Review of decision to serve essential


Grounds for possession – s8 and s83 Notices

Adequately particularise all allegations Set out all grounds for possession in full Relying on Ground 2 HA 1985 or Ground 14 HA 1988 with or without other grounds? If planning to issue proceedings “after service of this notice” check that your agreement does not require longer notice Breach of tenancy or ASB grounds? How will you prove each allegation set out in the notice?


Macleod, R (on the application of) v The Governors of the Peabody Trust [2016] R v Weaver v London & Quadrant Housing Trust [2010] – Housing Associations are likely to be public bodies for the purposes of Judicial Review and human rights challenges In Weaver, public funding was a key factor and the provision of subsidised housing a public function – the possibility that not all functions were public remained McIntyre & Another (R on the application of) v Gentoo Group (2010) confirmed Gentoo a public body for Judicial Review


Macleod, R (on the application of) v The Governors of the Peabody Trust [2016] Peabody found not to be a public authority for Judicial Review purposes:

Mr Macleod was a tenant of the Crown Estate Commissioners occupying under a keyworker tenancy and paying rent above social rent levels An LSVT to Peabody took place Mr Macleod challenged a decision regarding mutual exchange Court of Appeal – each case will be decided on its circumstances – Peabody purchased with funds raised on open market and key worker accommodation not strictly social housing – Peabody was not a public body in this case


Jones v London Borough of Southwark [2016]

Southwark recovered the cost of water as additional rent The authority was invoiced by the water supplier and in turn charged its tenants The Court found that Southwark was not an agent for the water company but a re-seller under the Water Re-sale Order 2006 – accordingly there was a limit on what it could charge and the administration costs it could recover Other landlords for some repossession claims will have similar agreements and there are potential overcharges and implications


Derwent Housing Association Limited v Taylor [2016]

Mrs T was Derwent’s sole assured tenant, she lived at the property with her husband Mrs T moved out and served a notice to quit Mr T remained and defended possession proceedings on the basis of the Family Law Act 1996 and Art 8 ECHR and Art 1 of the First Protocol. He claimed that Derwent were under an obligation to protect his rights The Court of Appeal found that the notice to quit terminated the tenancy The Family Law Act only applied when the tenancy was ongoing, the position may be different if Mrs T had not served NTQ


Rutherford & Ors, R (on the application of) v Secretary of State for Work & Pensions [2016] Rutherford – challenge to bedroom tax deductions where overnight care required for a child A – challenge to bedroom tax deductions where a safe room was required as there was a threat of serious violence


Rutherford & Ors, R (on the application of) v Secretary of State for Work & Pensions [2016]

Judicial Review challenges failed – discretionary housing benefit payments were available and being paid this was seen to be a reasonable safeguard Court of Appeal – in both cases the Secretary of State had failed to show an objective and reasonable justification


Wandsworth BC & Tompkins [2015]

Wandsworth granted an introductory tenancy to tenants to whom accommodation was to be offered under s188 Housing Act 1996 When Wandsworth discovered the mistake the tenants were advised that they should have been granted a non-secure tenancy agreement. Wandsworth served notice of proceedings but did not issue a claim within 12 months The Court of Appeal found that the statutory regime in the Housing Act 1996 & 1985 determined what kind of agreement had been created – the tenancy was non-secure


Kensington & Chelsea RLBC v Mohamoud /Wandsworth LBC v Saleem [2015]

The defendants were in temporary accommodation under Pt VII HA 1996 on the ground that they were homeless and in priority need (dependant children) Found to be intentionally homeless and told that temporary accommodation would continue to give reasonable prospects of finding accommodation under s190(2) HA 1996 The defendants argument that there was a failure to comply with s11(2) Children Act 2004 (having regard to the need safeguard/promote welfare of children) – rejected by the CA the Act could not be construed to change the scope of homelessness duties


Hotak v LB of Southwark, Kanu LB of Southwark & Johnson v Solihull MBC [2015]

Periera test in relation to a homeless applicants vulnerability explained and modified by the Supreme Court:

The comparator in relation to vulnerability is an ordinary person* if rendered homeless and not those who are homeless in the area of the authority The test is if the homeless applicant would be significantly more vulnerable if homeless than an ordinary person What is significantly more? Lady Hale suggests anyone who is old or physically or mentally disabled would be at more risk of harm – so a low threshold?


Halie v London Borough of Waltham Forest [2015] Supreme Court decision in relation to intentionality:

Ms Halie was pregnant and left the hostel she occupied as she did not like the smell. A month later she applied as homeless. Before a decision was made under s184 she gave birth, the hostel rules meant that she could not have stayed with her daughter in any event The Court found her unintentionally homeless Important decision in that applicants may be seen as unintentionally homeless even if they leave current accommodation prematurely “I would have been homeless at a later stage”-arguments


R o/a Alemi v Westminster CC [2015] & R o/a HA v Ealing [2015]

Allocations policies found to be unlawful Westminster – those owed a duty under s193 could not bid for social housing for the first 12 months after acceptance of duty – Westminster wanted to house them with private landlords Ealing’s policy – required applicants to have 5 years’ residence to be eligible. It was challenged by a woman fleeing domestic violence. The policy found to breach and discriminated against women and violated Art 14 ECHR it was also discriminatory under the Equality Act 2010 – matter on appeal to CA


The best of the rest

City of Lincoln v Bird [2015] – confirming that an injunction does not necessarily preclude the making of a possession order and the Court must take into account the impact of the defendant’s behaviour on others Brown v Harringay [2015] – breach of ASBI committal proceedings defended without the benefit of Legal Aid. He was sentenced to 18 months in prison. The Court of Appeal found the proceedings to be unfair


Housing and Planning Bill – the headlines Vacant Local Authority high value housing

The Secretary of State may estimate the market value of a Local Authority’s high value stock that is likely to become vacant – the Local Authority will be required to pay the amount to the government High value will be defined by Regulations and may differ from area to area The estimate will be made in the previous financial year, so that over-payments may occur, although they may be offset in later years


Housing and Planning Bill – the headlines Vacant Local Authority high value housing

Local Authorities are under a duty to consider the sale of high value stock when vacant Sale to RP’s is not the answer – the authority will be deemed to have retained the property and the housing treated as likely to have become vacant The bill will always be estimated in a previous financial year, but provision to negotiate discounts and pay in instalments


Housing and Planning Bill – the headlines Rents for high income social tenants

Local Authority high income tenants to pay up to market rent Definition of high income to be set by Regulations – likely to be £30-50,000 and may differ from area to area. Rent levels to taper and those at the top of the scale to pay full market rent Regulations to set how income is calculated



The Local Authority has power to require the tenant to verify income HMRC is authorised to disclose information to the Local Authority for this purpose Those tenants who fail to disclose will pay full market rent Income to be passed to the government – the Secretary of State may make provision that the administration costs are deducted by the Local Authority



Registered Providers may publish a policy in relation to higher rents for high income tenants, charge and keep the funds Where a policy is in place HMRC is authorised to disclose information


Housing and Planning Bill – the headlines Phasing out of tenancies for life

All new secure tenancies to be fixed term with a term of between 2-5 years A few exceptions to be set out in Regulations – unless one of the exceptions apply any periodic tenancy granted will be deemed to be a five year fixed term Review of the decision to grant a fixed term limited to a review of the length of the term Upon review at the end of the term the landlord may renew, terminate or grant a tenancy of more appropriate accommodation


Housing and Planning Bill – the headlines Phasing out of tenancies for life

Succession to new fixed term tenancies limited to spouse/civil partner Family successors – to old secure tenancies will have the tenancy converted to a five year fixed term Family successors to current fixed term tenancies will not necessarily have the term renewed once the balance of the fixed term has expired RTB – may not accrue if tenancy less than three years and not renewed or if longer – minimum discount only is possible


Questions

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Thank you May 2016

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May 2016 Housing Law update 2016 - Chartered Institute of … Support/Eastern... · 2016-06-24 ·...

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Transcript of May 2016 Housing Law update 2016 - Chartered Institute of … Support/Eastern... · 2016-06-24 ·...