12 College

Place

Southampton

WELFARE REFORM CASE LAW AND IMPLICATIONS FOR

DECISION MAKERS

CASE LAW

CASE LAW? WHAT CASE LAW? • ‘Bedroom tax’ in operation from 1st April 2013 • Full introduction of Universal Credit postponed

MR & MRS SMITH

MR & MRS SMITH

• Tenancy Agreement: 26th January 1993 • Notice of Seeking Possession: 31st May 2013 • Current Rent: £100.00 per week • Net of Housing Benefit: £14.00 • Arrears: £224 • Protocol complied with; tenants spoken to and have

attended interview

MR & MRS SMITH

MR & MRS SMITH

WHAT DECISION WILL YOU MAKE?

THE HOUSING ACTS

• The requirement of reasonableness:

“In considering reasonableness under…it is, in my

opinion, perfectly clear that the duty of the judge is to take into

account all relevant circumstances as they exist at the date of the hearing.

That he must do in what I venture to call a broad, common-sense

way as a man of the world, and come to his conclusion giving such

weight as he thinks right to the various factors in the situation”

Cumming v. Danson [1942] 2 All E.R. 653

THE HOUSING ACTS

• Housing Act 1988:

(2) On the making of an order for possession of a dwelling-house let on an assured tenancy or at

any time before the execution of such an order, the court, subject to subsection (6) below, may—

(a) stay or suspend execution of the order, or

(b) postpone the date of possession,

for such period or periods as the court thinks just.

(3) On any such adjournment as is referred to in subsection (1) above or on any such stay, suspension

or postponement as is referred to in subsection (2) above, the court, unless it considers that to do

so would cause exceptional hardship to the tenant or would otherwise be unreasonable, shall impose

conditions with regard to payment by the tenant of arrears of rent (if any) and rent […]1 and may

impose such other conditions as it thinks fit.

THE HOUSING ACTS

• Housing Act 1985:

(2) On the making of an order for possession of such a dwelling-house on any of those

grounds, or at any time before the execution of the order, the court may—

(a) stay or suspend the execution of the order, or

(b) postpone the date of possession,

for such period or periods as the court thinks fit.

(3) On such an adjournment, stay, suspension or postponement the court—

(a) shall impose conditions with respect to the payment by the tenant of arrears of rent (if

any) and rent unless it considers that to do so would cause exceptional hardship to the tenant

or would otherwise be unreasonable

REASONABLENESS

What are the ‘relevant circumstances’? • The size of the arrears • The reason why they arose and in particular, whether they

arose due to wilful non-payment or as a result of matters outside the tenants control

Etherington v. Burt [2004] EWHC 95 (QB)

• The consequences of making a possession order

REASONABLENESS

What are the consequences? “A person shall not be treated as having accommodation unless it is

accommodation which it would be reasonable for him to continue to

occupy” Housing Act 1996 s.175(3)

“As a matter of commonsense, it seems to me that it cannot be reasonable for a

person to continue to occupy accommodation when they can no longer discharge

their fiscal obligations in relation to that accommodation, that is to say, pay the

rent and make the mortgage repayments, without so straining their resources as to

deprive themselves of the ordinary necessities of life, such as food, clothing, heat,

transport and so forth.” R. v London Borough of Hillingdon, exp. Tinn (1988) 20 H.L.R. 305

REASONABLENESS

What are the consequences? A person becomes homeless intentionally if he deliberately does or

fails to do anything in consequence of which he ceases to occupy

accommodation which is available for his occupation and which it

would have been reasonable for him to continue to occupy. Housing Act 1996 s. 191

Generally, an act or omission should not be considered deliberate

where…the act or omission was non-payment of rent which was the

result of…financial difficulties which were beyond the applicant’s

control Homelessness Code of Guidance 11.17

REASONABLENESS

What are the consequences? • Where the landlord is a local authority?

“I am content to accept that if the case is…one…in which an application for

rehousing as homeless will manifestly succeed then there is no reason why the

judge should not take that fact…into account as part of the balance of factors by

which he assesses the reasonableness of the possession order” Lewisham LBC v. Akinsola (1999) 32 HLR 414

• Where the landlord is an LSVT housing association

REASONABLENESS

The other side of the coin: • The importance of enforcing the terms of tenancy

agreements • The impact on the landlord’s business and it ability to house

other tenants • The consequences of not making a possession order

SUSPENSION

“Those observations seem to me in line with what I take to be

the essential purpose of the stay or suspension of an order for

possession in a landlord and tenant case involving rent

arrears, that is, that the landlord should eventually be paid the

arrears of rent due to him and that he should obtain such

payment within a reasonable time”

Taj v. Ali (No. 1) (2001) 33 H.L.R. 26

MR & MRS SMITH

• Is it reasonable to make an order for possession • When the arrears are still quite small; and

• The Smiths have found themselves unable to pay the rent through no fault

of their own; but

• Where they cannot afford to pay even the current rent; and

• The prospects of them doing so are unknown?

• If an order is suspended, should it be on terms as to

payment of the rent and/or arrears or would this:

“cause exceptional hardship to the tenant or otherwise be unreasonable”

MR & MRS SMITH

Is there a choice? • Ground 8

• Housing Corporation Guidance • Existing tenancy agreements • New tenancy agreements

• No power even to adjourn notwithstanding arrears not

due to tenant’s default North British Housing Association v. Matthews [2005] 1 WLR 3133

FUTURE CASE LAW

PUBLIC LAW

• The importance of following policies and procedures

• Decisions of bedroom sizes and reclassification

• Enabling/assisting with downsizing

FUTURE CASE LAW

HUMAN RIGHTS

• The court as a public authority Malik v Fassenfelt [2013] EWCA Civ 798

• The assumption that Parliament has struck the

necessary balance

“the threshold for raising an arguable case on proportionality [is] a high one

which would succeed in only a small proportion of cases” Hounslow LBC v. Powell [2011] 2 A.C. 186

ANY QUESTIONS