Chartered Institute of Housing Legal Update. Charlotte McMurchie Friday 11 July 2014

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1 Chartered Institute of Housing Legal Update Charlotte McMurchie Friday 11 July 2014

2 Outline Succession Same sex couples Allocation Human Rights Act application to possession actions Decant and tolerated trespasser consequences to secure tenancies Under occupation possession action Equality Act ASBI Abandonment fluctuating assured status NoSP are errors fatal? Unlawful subletting Prevention of Social Housing Fraud

3 Succession Brent London Borough Council v AP (22 January 2014) AC = sole secure tenancy August 1990 Same sex relationship commenced AC & AP 2005 Both profoundly deaf and without speech Cultural and generational constraints on coming out AC prostrate cancer AP was main carer AC died 2010 AP applied to succeed to the tenancy Been living with AC as if they were civil partners Initially decision made to agree succession AC had claimed HB as single person Initial decision revoked relationship investigated

4 Succession Brent London Borough Council v AP (22 January 2014) Local authority unaware of relationship with AC GP unaware of relationship with GP Brent issued possession proceedings Defence = entitled to succeed Evidence as to relationship from neighbour, founder of LG deaf group, work colleague, employer, BSL interpreter and AP, housing officer of original decision to grant succession tenancy Outcome?

5 Succession Brent London Borough Council v AP (22 January 2014) Brent failed to show required delicacy/sensitivity Failed to look at potential consequences to vulnerable disabled man losing home Failed to make proper enquiries Imposed inflexible set of criteria = inappropriate for L & G relationships Open and unequivocal about relationship = sufficient witnesses to attest to relationship Permission to appeal refused

6 Succession Leicester City Council v Shearer (19 November 2013) Mrs S left matrimonial home owing to husband s violence Husband subsequently committed suicide Mrs S then moved back into the property and asked for a direct let Allocations policy allowed for direct lets in exceptional circumstances Council refused a direct let and advised Mrs S she must go through normal allocations policy but would not be allocated the matrimonial home Mrs S refused to apply for other properties. Council terminated the deceased s tenancy and brought possession proceedings against Mrs S as trespasser. Defended on public law grounds decision to evict unlawful as Council failed to give proper consideration to relevant factors (its policy and Mrs S s circumstances).

7 Human Rights Act Powell, Pinnock et all recap of Art. 8 Defence Defence = Recovery of possession is disproportionate in all the circumstances Test whether eviction is a proportionate means of achieving a legitimate aim Threshold for establishing an arguable case that a council is acting disproportionately and in breach of Art.8 where repossession is otherwise lawful = a very high one, and met in a handful of cases Fact that council has legal right to possession = strong factor in support of proportionality of making an order This type of defence must be pleaded and particularised to show it reaches high threshold of being seriously arguable. Proportionality more likely to be an issue if vulnerable due to mental illness, physical/learning disability, poor health/frailty

8 Human Rights Act Southend on Sea Borough Council v Armour (12 March 2014) Introductory tenant Verbal abuse to neighbour/contractor/managing agent A switched on electricity whilst contractors working Notice served Statutory review Possession proceedings issued 11 month delay in trial being heard Capacity issues - Asperger's and depression Litigation friend appointed No ASB between incidents and trial

9 Human Rights Act Southend on Sea Borough Council v Armour (12 March 2014) Initial finding proportionate and lawful within Art. 8 to seek possession order BUT at date of hearing disproportionate to grant possession order Absence of complaints since claim issued despite mental health problems Effect of eviction on 14 yr. old daughter If possession refused, tenancy = secure tenancy Therefore at risk of eviction anyway if ASB repeated First appeal Southend far too generous test applied to A Appeal dismissed Appealed again and granted permission

10 Human Rights Act Southend on Sea Borough Council v Armour (12 March 2014) Second appeal Was the decision the initial Judge reached one open to her to reach? To succeed with an Art. 8 defence need to show that there were exceptional circumstances to deviate from eviction being a proportionate response to achieve legitimate aim Can compliance by A with terms of tenancy = exceptional circumstance? A = better off with initial order than would be if granted a secure tenancy from outset Any ASB fresh proceedings will have to be started rather than if already secure, suspended order likely result

11 Human Rights Act Southend on Sea Borough Council v Armour (12 March 2014) Held (CA) Improvement in behaviour is a factor in deciding whether it is proportionate to continue to push possession Weight to be given = for trial judge Time for summarily dealing with defence = when pleaded Fail to deal with at this stage means = issue for trial

12 Secure tenancies, decant and tolerated trespasser Francis v Brent Housing Partnership and others ( 29 July 2013 Original secure tenancy 25C Stonebridge Park = 26 May May 2005 entered into agreement to move out to No. 1 Kingthorpe whilst repair works undertaken Part of agreement was a return to 25C once works completed Estimated time frame for works = 5 days Formal agreement for occupation of No.1 temp weekly periodic secure tenancy from 24 May 2005 Disagreement as to extent of works for 25C Works to 25C took until December 2009

13 Secure tenancies, decant and tolerated trespasser Francis v Brent Housing Partnership and others ( 29 July 2013 Possession proceedings No.1 due to accrued arrears Suspended order made possession on 23 February 2009 Re 25C Brent policy = occupation of No.1 for more than 12 months made decant to No.1 permanent No rights to 25C - Brent let 25C to Vinette Williams Mrs Francis issued claim for: entitlement to possession of 25C, injunction to allow immediate return and damages Does she have an entitlement to a tenancy of 25C? On face of it due to agreement to occupy No.1 yes BUT

14 Secure tenancies, decant and tolerated trespasser Francis v Brent Housing Partnership and others ( 29 July 2013 Suspended possession order 21 March 1991 giving possession of 25C on 18 April 1991 As at 19 April 1991 Mrs Francis = tolerated trespasser not a secure tenant of 25C Arrears gradually paid off but applications for warrants and suspension of warrant along the way Secure tenancy not revived at any time automatically/by agreement on clearing arrears New tenancy of 25C could have been entered into or Application made to court to postpone further the date for possession reviving secure status

15 Secure tenancies, decant and tolerated trespasser Francis v Brent Housing Partnership and others ( 29 July 2013 On what basis therefore can Mrs Francis be a secure tenant? HELD Contract parties entered into for the move into No.1 gave Mrs Francis the secure status as specifically set out that she was a secure tenant Intention of the parties that she was to be secure tenant and court gave effect to that Very complicated case!

16 Under occupation and possession Holt v Reading Borough Council (7 th June 2013) 28 Southdown Road, Emmer Green, Reading Family home since 1949 Passed from father to mother Mother required constant care from daughter Mother died 24 July 2010 January 2011 daughter deemed to under occupy Daughter completed registration form for allocation Qualified for one bedroomed property = suitable property Refused to bid for suitable properties 14 June 2011 NoSP 18 November 2011 possession claim issued 6 February 2012 June 2012 viewed 5 properties 10 September 2012 trial Possession granted to Council

17 Under occupation and possession Holt v Reading Borough Council (7 th June 2013) Daughter appealed 2 issues: Was it reasonable to make the possession order? Was the Judge satisfied that suitable accommodation would be available when the possession order took effect? Reasonableness = effect on each party of a possession order Landlord improve deployment of housing stock Tenant personal circumstances, length of occupation, support given to previous tenant

18 Under occupation and possession Holt v Reading Borough Council (7 th June 2013) Suitable accommodation Not a mandatory factor in assessing reasonableness Must be satisfied that suitable accommodation will be available when the order takes effect Balancing exercise competing needs and interest of parties

19 Under occupation and possession Holt v Reading Borough Council (7 th June 2013) Decision Needs of those on housing list outweigh daughter s taking in to account provision of suitable accommodation Conditional order made 28 days after formal binding offer received by daughter from council of suitable accommodation Suitable accommodation = secure tenancy, one bedroom, 1.5 miles of current property, facility to store bicycle

20 Equality Act - What is it? One Act of Parliament to legally protect people from discrimination in the work place and in wider society. Replaces a number of individual Acts dealing with discrimination: Sex Discrimination Act 1975 Race Discrimination Act 1976 Disability Discrimination Act 1995

21 Equality Act - ASBI Why is it relevant to housing? Arguments advanced in defence of possession/injunctions claims allege that seeking to evict/restrain behaviour of the material tenant is discriminatory if the decision to evict/restrain arises as a consequence of his/her disability. If there is a disability, and The reason for the decision to evict/restrain relates to that disability The decision to evict/restrain will be discriminatory BUT Landlord does have statutory defence

22 Equality Act - Disability Is there a physical or mental impairment? Does this have a substantial or long term negative effect on ability to do normal activities? More than minor or trivial More than 12 months Excluded conditions Addiction/dependency on alcohol/nicotine/any other substance Hayfever except where it aggravates the effect of another condition Tendencies to set fires/steal/physical or sexual abuse Exhibitionism Voyeurism

23 Equality Act indirect discrimination 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. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability EA 2010 s15

24 Equality Act discrimination in management of premises A person (A) who manages premises must not discriminate against a person (B) who occupies the premises - (a) in the way in which A allows B or by not allowing B to make use of a benefit or facility; (b) by evicting B (or taking steps for the purpose of securing B s eviction; (c) by subjecting B to any other detriment EA 2010 s35(1)

25 Equality Act public sector equality duty A public authority must, in the exercise of its functions, have due regard to the need to: (a) eliminate discrimination, harassment, victimisation and any other conduct prohibited by or under this Act; (b) advance equality of opportunity... (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it S149 EA 2010

26 Equality Act - ASBI Swan Housing Association v Gill (9 th December 2013) ASBI application refused by DJ on grounds related to supposed disability Appealed DJ failed to consider properly whether medical condition was a disability DJ failed to consider if it was a disability did the respondent s actions arise as a consequence of disability DJ wrong to find that s.35 (discrimination in management of premises) had been contravened. DJ wrong to find that Swan had not discharged its public sector equality duty

27 Equality Act - ASBI Swan Housing Association v Gill (9 th December 2013) Facts 29 June 2011 ASBI s.153a and D application Provisions Reinstate unimpeded access between 3 & 5 St Mary s Road Remove gazebo and greenhouses trespassing on first floor and passageway Reinstate fencing Refrain from interfering with communal door Refrain from using property as business premises Remove cctv installed without Swan s permission

28 Equality Act - ASBI Swan Housing Association v Gill (9 th December 2013) DJ requested submissions on Equality Act not raised by Defendant Found ASBI should be granted BUT DJ found Defendant had Asperger's. No medical evidence adduced. DJ consulted medical dictionary and found that symptoms consistent with Asperger's. Swan therefore should have reviewed decision to injunct. DJ found that Swan failed to have full regard to disability and therefore foul of provisions of Act both in terms of discrimination and public sector equality duty ASBI application dismissed

29 Equality Act - ASBI Swan Housing Association v Gill (9 th December 2013) What did the court of appeal do? Criticised the DJ for making the original order Reasoning was flawed and came to a conclusion not capable of reaching No evidence as to medical condition Without evidence of medical condition cannot hold that Defendant had a disability within the meaning of the Act Without a disability there can be no discrimination If no discrimination no application of Equality Act 2010 No application of Equality Act therefore only question that is relevant = have the provisions of s.153a and D been made out? If yes, grant the injunction

30 Equality Act - ASBI Swan Housing Association v Gill (9 th December 2013) Looked at the Public sector equality duty Could that still be engaged even where the defendant had no disability? In short No.

31 Fluctuations in Assured status Poplar HARCA v Reilly (4 June 2013) Assured tenant accrued arrears 4 January 2013 Serious assault fled to Edinburgh to temp accommodation from council No intention to return 13 February 2013 NoSP Possession proceedings issued 14 April 2013 tenant returned to property Hearing arrears not denied BUT submitted at time of NoSP and its notice period, she was not an assured tenant as not occupying as only or principle home Regained assured status on return to property NoSP therefore of no effect Proceedings dismissed

32 NoSP are errors fatal? Masih v Yousaf (6 th February 2014) Assured tenancy NoSP s.8 notice for rent arrears Landlord did not follow statutory form or wording for the notice Did this invalidate it? NoSP stated that tenant owed at least two months rent both at the time of the notice and at the date of the hearing NoSP stated that the tenant owed 1,680 approximately three months rent Tenant submission NoSP invalid as failed to cite statutory wording. Use of rent owed was insufficient. Held the use of rent owed was sufficient to let tenant know what she had to do to remedy the breach Defence pleaded - money was not owed not an answer to a case if rent was lawfully due Possession upheld

33 Unlawful subletting The Prevention of Social Housing Fraud Act 2013 The Act received Royal Assent 31 January In force from October and November million properties, asset value of 180 billion, 2 million families waiting for a council house 98,000 properties subject to tenancy fraud costing the taxpayer 900 million

34 What does the Act do? Give local authorities powers to prosecute in cases of unlawful subletting Creates new criminal offences for subletting all of a socially rented property and parting with possession Enable courts to order the recovery of profits Remove security of tenure from those who unlawfully sublet

35 What is tenancy fraud? Unlawful subletting of social rented housing; Subletting of the whole property; Security of tenure Secure tenancies Assured tenancies Intention to return.

36 Unlawful Profit Orders Recovering profits from tenants who have sublet their property Criminal courts under duty to consider issuing a UPO Landlords can seek a UPO in civil proceedings Landlords can recover profit LESS any rent paid and any service charge paid

37 Security of Tenure Amendment to Housing Act 1985/88 Previous legislation allowed assured/secure tenant to keep security of tenure Under 2013 Act this right was removed. Simplifies procedures for ending the tenancy notice to quit 28 days notice Issue possession proceedings

38 Unlawful subletting Viridian Housing Association v X (26 February 2014) Assured Tenant living and working abroad Sublet the flat Application for possession contractual tenancy Immediate outright order with costs and UPO Unlawful Profit Order - 31,000 Rent received for 31 months of proven subletting plus costs Newham LBC v Adesokan (11 th April 2014) Secure tenant Sublet 2 bedroomed flat whilst living elsewhere Unlawful Profit Order of 6, plus costs

39 Contact Charlotte McMurchie Partner Bond Dickinson One Trinity Broad Chare Newcastle upon Tyne NE1 2HF