July 2013 CCTV UPDATE - SURVEILLANCE CODE OF PRACTICE Covert surveillance by way of an immediate response to events Covert surveillance as part of general observation activities Covert surveillance not relating to specified grounds Overt use of CCTV and ANPR systems Certain other specific situations. Registered Providers (RP s) are not bound by The Regulation of Investigatory Powers Act 2000 ( RIPA ) but it is good practice to follow the guidelines as far as practicable. In some circumstances the CCTV will be provided through an organisation which is governed by RIPA, so you need to ensure that those organisations follow the procedures if you are seeking to rely on the CCTV they provide. If you are a public body for the purposes of RIPA you do not require authority for: Other types of covert surveillance may be authorised under RIPA if it is either intrusive or directed. Intrusive Intrusive surveillance is covert surveillance that is carried out in relation to anything taking place on residential premises or in any private vehicle, and that involves the presence of an individual on the premises or in the vehicle. Examples of residential premises would therefore include: A rented flat currently occupied for residential purposes A prison cell (or police cell serving as temporary prison accommodation) A hotel bedroom or suite. Examples of premises which would not be regarded as residential would include: A communal stairway in a block of flats (unless known to be used as a temporary place of abode by, for example, a homeless person) A prison canteen or police interview room A hotel reception area or dining room The front garden or driveway of premises readily visible to the public Residential premises occupied by a public authority for non-residential purposes, for example trading standards house of horrors situations or undercover operational premises.
Directed Surveillance is directed surveillance if the following are all true: It is covert, but not intrusive surveillance It is conducted for the purposes of a specific investigation or operation It is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation) It is conducted otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under Part II of RIPA to be sought. Update The Government has recently introduced a surveillance code of practice for public CCTV systems (aimed at the police and local authorities). Andrew Rennison (Surveillance Camera Commissioner) has hinted that guidance may be issued to regulate private CCTV in residential property because of a surge of complaints about privacy and nosy neighbours. This would clearly have an impact on anti-social behaviour cases because the increased use of CCTV evidence in these cases. How will this impact on the admissibility of CCTV evidence in civil proceedings? Currently, it is admissible. However if a neighbour did not follow the code would the evidence from their CCTV camera be admissible? This is an argument likely to be taken by tenants. It is unlikely that a neighbour would follow guidance prior to a housing or anti-social behaviour professional becoming involved. Where does that leave the evidence already gathered on their CCTV? It is possible that the guidance for private individuals will mirror that for public bodies - the surveillance should be necessary, proportionate and effective. The exact status of the code, whether it is legally binding or merely guidance, will determine whether it can be used to exclude what could otherwise be important evidence. Landlords may be able to rely on the ECHR case Khan v UK, where the use of important evidence obtained in breach of privacy was found to be compatible with Mr Khan s right to a fair trial. Watch this space... If you would like further information regarding CCTV, or to discuss any queries you may have please contact: Catherine Moore Solicitor, Housing and Regeneration Tel: 0151 600 3184 Email: catherine.moore@brabners.com
PUBLIC CONTRACT OR NOT A PUBLIC CONTRACT? FURTHER CLARIFICATION ON THE EXEMPTIONS TO EU PUBLIC PROCUREMENT LAW EU public procurement law is incorporated into UK legislation by the Public Contracts Regulations 2006 (the Regulations ). Registered Providers (RPs) are contracting authorities and must comply with the Regulations when entering into public contracts for works, goods or services above certain financial thresholds. The Regulations require contracting authorities to advertise contracts and competitively and transparently tender them. You can read more about public procurement in our article "Are you complying with the Regulations" in the last issue of Housing and Regeneration News (May 2013). The courts have established two circumstances in which contracts are not deemed public contracts and therefore exempt from procurement law:- The In-house Exemption (a.k.a the Teckal exemption) exempts a contract between a contracting authority and an external company from procurement law where the external company satisfies two tests, the control test and the function test. The contracting authority must be able to control the external company as if it was an internal department (the control test). The Teckal entity must also provide the majority of its services to the contracting authority (the function test). If it meets the requirements of both tests, the Teckal entity is considered to be an internal department of the contracting authority and therefore contracts which the contracting authority enters into in the Teckal entity are not considered public contracts for the purposes of the Regulations. The Hamburg Waste Exemption was established where Hamburg Council and four other German authorities entered into a not for profit agreement where the authorities sent waste to Hamburg Council for incineration while Hamburg Council could use the authorities unused landfill. As the arrangement was for the carrying out of the parties public service task of waste disposal and did not disadvantage private sector organisations, the contract was ruled not to be a public contract and was therefore exempt from procurement law. In a recent case, the European Court of Justice (ECJ) examined whether a contract between two local authorities constituted a public contract. One authority (KD) had transferred to the other (SD) responsibility for providing building cleaning services. In return, KD covered SD s expenses. The ECJ ruled that that neither exemption applied nor the contract was a public contract and procurement law applied. The ECJ concluded that both authorities were separate entities. KD s contractual right to supervise the cleaning service did not constitute a sufficient degree of control over SD to the extent that it could be considered one of KD s own departments, thus failing the control test. For the In-House Exemption to apply, both the function and the control tests must be passed, including genuine control of the service provider as if it was an internal department. Therefore the In-House Exemption did not apply. The transfer of responsibility between KD and SD did not amount to genuine co-operation with a view to carrying out a public service task. The cleaning of KD s buildings was not considered to be a public service task. Further, the contract utilised the services of a third party, which meant that a private sector organisation might be placed in a position of advantage in relation to others in the same market. Accordingly, the Hamburg Waste Exemption did not apply.
To use the two exemptions, their criteria must be genuinely met. RPs should take care as contracts with other companies within its group or with other contracting authorities do not automatically fall outside EU public procurement law. When wishing to apply an exemption to a commercial arrangement it is worth checking with a procurement law specialist to ensure the exemption s criteria are met. If you would like any further information regarding public procurement issues you may have, please contact: Michael Winder Solicitor, Corporate Tel: 0151 600 3085 Email: michael.winder@brabners.com COURT OF APPEAL CLARITY ON ALTERNATIVE ACCOMMODATION POSSESSION ORDERS The case of Reading Borough Council v Holt [2013] EWCA Civ 641 was an appeal by Ms Holt ( H ) against a conditional order for possession made by her local county court. The Court of Appeal, in dismissing H s appeal, gave guidance on the making of conditional orders for possession under Part III, Schedule 2 of the Housing Act 1985 (a Part III Order ). Key Issues Prior to this case, Registered Providers seeking a Part III Order would usually make an offer of alternative accommodation and have it available at the hearing date to enable the court to consider its suitability. This judgment gives permission for social landlords to seek a Part III Order on the basis that a suitable property will be available when the order takes effect, despite the fact that no offer has been made before the hearing and/or the accommodation is not available at the hearing. The landlord only needs to have an offer at the date of the Part III Order taking effect. Our thoughts This decision is, on the face of it, very advantageous to Registered Providers because, up until now, they have often held properties open for months while a Part III Order is pursued. Therefore, from a housing management perspective, the Judgment makes perfect sense! However, the Court made clear that Part III Orders should only be made when necessary and appropriate in the specific circumstances of the case. This clearly leaves room for continued argument on the issue. What if
the tenant has objections which would not have been apparent until the time of the offer? In these circumstances it could be argued that details of the offer would have to be known at the time of the hearing. Therefore, it is our advice that the safest thing for a Registered Provider to do is to make at least one offer of what it considers suitable accommodation prior to the hearing. This will demonstrate what sorts of offers are to be put forward and will enable the Court to consider actual objections as early as possible. Finally, and most importantly, because the Part III Order will lapse if offers are not made within the specified time frame, Registered Providers need to be confident that they will be able to make those offers in order to avoid incurring the costs of proceedings which ultimately do not obtain possession at all. Please refer to: http://www.bailii.org/ew/cases/ewca/civ/2013/641.html for the full judgment in this case. If you would like more information about possession claims, or to discuss any issues you may have please contact: Rebecca Chadwick Solicitor, Housing and Regeneration Tel: 0151 600 3178 Email: Rebecca.chadwick@brabners.com GOVERNMENT S NEW HELP TO BUY SCHEME The Government has introduced a new Help to Buy Scheme for people who cannot afford to buy a home. The two elements are Help to Buy Equity Loans and Help to Buy Mortgage Guarantees. Help to Buy Equity Loans Help to Buy Equity Loans was launched on the 1 April 2013 and set to run for 3 years. The Government has invested 3.5 billion into the scheme and these loans are available on newly built homes only. A buyer will need a 5% deposit with at least 75% of the cost to be met by a mortgage. The remaining 20% will be paid by the Government. The scheme is open to first time buyers and people looking to move on and upgrade to larger properties with a maximum value of 600,000. There will be no loan charges for the first 5 years. After 5 years the loan will attract a fee of 1.75% and this fee will increase each year by RPI plus 1%. These fees do not count towards the loan repayment, which must be paid in full once the home is sold.
Help to Buy Mortgage Guarantees Available from January 2014, the Help to Buy Mortgage Guarantee Scheme is open to first time buyers and people looking to move up the ladder and aims to increase the availability of mortgages for buyers with only a 5% deposit. The Government is investing 12 billion in guarantees and these are available on both new build and previously owned properties up to a value of 600,000. The Scheme has injected some activity in the housing market and is aimed to benefit first time buyers and those with smaller self-saved deposits to access lower mortgage rates. Peter Schofield, Director General of Neighbourhoods at the Department for Communities and Local Government said that the Help to Buy Equity Loan Scheme has been a huge and immediate success with over 4,300 reservations in the first 2 months of the scheme and developers saying they plan to build about 10% more each year to meet this growth in demand. However, the scheme has received much criticism from economists and from the previous Governor of the Bank of England, Sir Mervyn King. Sir Mervyn King issued a warning on the Help to Buy Scheme saying this scheme should not be a long term solution. He believes the Government would be under pressure to extend the scheme and also went on to say that this type of government interference in the housing market caused the subprime crash in the United States. Does the scheme actually help the right people to get on the property ladder? Although the Government have insisted the scheme will not help second home owners or buy to let landlords, they have struggled to say how they will stop this from happening. Without workable restrictions there is a good chance that these subsidised funds will go to people who are already well off but may wish expand their property portfolio with some generous Government support. If you require any further information regarding the new Help To Buy Scheme, please contact: Nicola Thompson Legal Executive, Housing and Regeneration Tel: 0151 600 3180 Email: nicola.thompson@brabners.com TENANCY DEPOSITS: ANOTHER TRAP FOR UNWARY LANDLORDS? Another possible trap on tenancy deposits has been created by the recent Court of Appeal case of Superstrike Ltd v Rodrigues. This case has important implications for landlords who take deposits from assured shorthold tenants. A possible effect of this case is that when an assured shorthold tenant remains in occupation after the expiry of a fixed term, the landlord should issue a second set of prescribed information.
This is because the statutory periodic tenancy that arises is a brand new tenancy and not a continuation of the original fixed term tenancy. If you do not do this, any section 21 notice could be invalid and the tenant maybe entitled to bring a claim for the return of the deposit and statutory damages of three times the deposit! Here we take a look at the background to the case and the important points you need to be aware of. Superstrike Limited v Rodrigues [2013] EWCA Civ 669 (Court of Appeal 14 June 2013) Legal background The provisions of the Housing Act 2004 relating to the protection of deposits came into force in April 2007. Tenancies commencing before then were exempt. If a landlord fails to comply with these provisions, any Section 21 notice (notice requiring possession) served by the landlord will be invalid and the tenant can bring a claim for the return of the deposit and statutory damages of three times the deposit. The facts Mr Rodrigues was an assured shorthold tenant of Superstrike. His tenancy began in January 2007 (before the deposit protection provisions came into effect) and was for a fixed term of 12 months. He paid a deposit in January 2007. He remained in occupation after the expiry of the fixed term in January 2008 whereupon his tenancy became a statutory assured shorthold tenancy. In June 2011, Superstrike served a Section 21 notice on Mr Rodrigues and then brought possession proceedings. The decision The main issue was whether the deposit protection provisions applied to Mr Rodrigues tenancy once it became a statutory periodic tenancy in January 2008. This depended on whether the statutory periodic tenancy arising at the end of a fixed term is a new tenancy or a continuation of the original tenancy. If it was a continuation then, in Mr Rodrigues case, the deposit protection provisions would not apply. The Court of Appeal held that a new tenancy did arise when the fixed term ended a statutory periodic tenancy arose. Therefore, Superstrike s Section 21 notice was invalid and the claim for possession was dismissed. Implications This decision has important implications for landlords who take deposits from fixed term assured shorthold tenants even after the deposit protection provisions in the Housing Act 2004 came into force. This is because the landlord s obligation is not just to protect the deposit by using a deposit protection scheme; the landlord must also issue prescribed information to the tenant within 30 days of receiving the deposit. For example, if a landlord took a deposit in respect of a 12 month fixed term assured shorthold tenancy beginning on 1 October 2010 and the tenant remained in occupation after the expiry of a fixed term, the landlord would have the following obligations in respect of the deposit: Within 30 days of receiving the deposit (in October 2010) the landlord must protect the deposit and issue prescribed information to the tenant; and Within 30 days of 1 October 2011 (when a new statutory period assured shorthold tenancy arose) the landlord must issue further prescribed information (presumably the deposit would remain protected).
If the landlord fails to issue the second set of prescribed information in these circumstances, any Section 21 notice will be invalid and the tenant would be entitled to claim the repayment of the deposit and statutory damages of three times the deposit. Some commentary on the Superstrike decision suggests that a landlord can rely on the prescribed information served at the beginning of the fixed term and therefore it is not necessary to issue a second set when the statutory periodic tenancy arises. In our view, this is a dangerous line to take. Whilst it appears attractive from a common sense point of view (common sense and the law do not always take the same path), it runs contrary to the express wording of the Housing Act 2004 and the logic of the Superstrike decision. Even if the commentary is correct, you could be dragged into an expensive test case. There have already been a series of Court of Appeal cases on what is supposed to be simple practical legislation on tenancy deposits. Avoiding the trap To avoid falling into this trap (and the possibility of being involved in a test case), landlords who take deposits from assured shorthold tenants should: Avoid fixed term tenancies altogether and issue periodic tenancies from the outset; or Serve a Section 21 notice expiring at the end of the fixed term and, if the landlord is happy for the tenant to remain in occupation after the end of the fixed term, grant a new tenancy agreement and repeat of the formalities with regard to the deposit; or Diarise the expiry of the fixed term and ensure that a new set of prescribed information is issued to the tenant within 30 days of the expiry date. If you require any further information concerning this case or for any issues arising from it please contact: Ian Alderson Partner, Housing and Regeneration Tel: 0151 600 3317 Email: ian.alderson@brabners.com GOODBYE LEASEHOLD VALUATION TRIBUNAL... HELLO FIRST TIER TRIBUNAL (PROPERTY CHAMBER) On 1 July 2013, the Leasehold Valuation Tribunal (LVT) ceased to exist and was replaced by the First Tier Tribunal (Property Chamber). The new Tribunal s acronym - FTT (PC) - does not roll off the tongue as easily as LVT. It is likely to be referred to as the Property Chamber as shorthand. The Property Chamber also replaces a number of tribunals in addition to the LVT, including the Residential Property Tribunal, the Rent Tribunal and the Rent Assessment Committee. The Rent Assessment Committee dealt with appeals from Section 13 rent increases for assured tenants so watch out for a change to the prescribed form of rent increase to reflect this change.
The new tribunal also has new rules. This brings it more into line with the courts. The most significant changes are the introduction of the overriding objective, a removal on the 500 cap on costs orders against parties who behave unreasonably and the introduction of wider powers for the tribunal to deal with disclosure of documents and to compel the attendance of witnesses. If you require any further information concerning these changes, please contact: Josephine Sharrock Associate, Housing and Regeneration Tel: 0151 600 3094 Email: josephine.sharrock@brabners.com COURT OF APPEAL CONFIRMS APPROACH TO BE TAKEN TO CALCULATE STATUTORY DAMAGES IN UNLAWFUL EVICTION CLAIMS In London Borough of Lambeth v H Loveridge [2013] EWCA Civ 494, the Court of Appeal has confirmed the approach to be taken to calculate statutory damages following a secure tenant's unlawful eviction. The Law Sections 27 and 28 of the Housing Act 1988 (the Sections ) relate to a residential occupier who has been unlawfully evicted and provide for him to be paid statutory damages for the loss of his right to occupy the premises. These damages are calculated by reference, not to his actual loss, but to the "profit" made by the landlord as a result of the eviction. The Sections require a calculation by reference to a comparison between the value of the landlord's interest subject to the residential occupiers rights, and the value of the landlord's interest free of the residential occupier's rights. Both valuations are calculated as at the point immediately prior to the unlawful eviction. Under Section 38 of the Housing Act 1988 ( Section 38 ), if a local authority landlord sells or transfers the reversion of a property that is subject to a secure tenancy to a private purchaser, this automatically converts the secure tenancy into an assured tenancy, meaning that the tenant will have to pay a market rent. The Facts Mr. Loveridge ( L ) was granted a secure tenancy by Lambeth Borough Council (the Council ) which, following his 8 week absence from, the Council took possession of. It transpired that L had merely been visiting family in Ghana and so he brought proceedings against the council for unlawful eviction. Common law damages reflecting L's actual loss for unlawful eviction were agreed in the sum of 7,400 and valuers were instructed by both parties to assess the statutory damages. The Council's valuer valued the building subject to an assured tenancy on the basis of Section 38 and concluded that there was no adverse effect upon the value.
L's valuer valued the building subject to an ongoing secure tenancy of the flat and concluded that this would depreciate the value of the building by 90,500. The trial judge agreed with the approach taken by L's valuer and assessed the statutory damages at 90,500. The Council (understandably) appealed. The Appeal Decision The Court of Appeal decided that a valuer was obliged to take into account the fact that a secure tenancy would be downgraded into an assured tenancy on a sale by a local authority landlord to a private purchaser. The Court considered the possibility of the "willing purchaser" being another local authority but concluded that this was improbable on the basis that an ongoing secure tenancy would make it unlikely that another local authority would pay more in the open market than a private purchaser. The Court noted that, the fact that this is what happens on such a sale, is inherent in the nature of a secure tenant's rights. On the basis that such vulnerability was inherent in the nature of L s rights, the value of the Council s interest subject to the tenant's rights must be by reference to the tenant being an assured tenant and not a secure tenant. As a result the statutory damages were assessed at nil. Our thoughts The decision of the Court of Appeal may seem more convoluted than the pragmatic approach taken by the High Court but it properly takes into account the nature of a valuation based upon Section 38. Notwithstanding the fact that these types of sales are uncommon, the unavoidable effect is that the tenant loses the benefits of a secure tenancy and the degree of rent protection afforded by it. It is therefore only right that the Court of Appeal accurately reflected this in relation to the calculation of statutory damages. Please refer to: http://www.bailii.org/ew/cases/ewca/civ/2013/494.html for the full judgment in this case. If you would like more information about unlawful eviction and statutory damages, or to discuss any issues you may have please contact: Rebecca Chadwick Solicitor, Housing and Regeneration Tel: 0151 600 3178 Email: Rebecca.chadwick@brabners.com
THE NATIONAL PLANNING POLICY FRAMEWORK AND PRESSURE ON LOCALISM The Localism Act 2011 was a key piece of legislation introduced by the Government. It was heralded as a radical shift in power from central government to local councils and local communities. The stated aim was to give power back to people and communities and create the conditions for the Big Society. The structure of central control over development was dismantled and Regional Spatial Strategies were to be abolished. However as we begin to emerge from a long recession the approach to the concept of Localism has changed. The introduction of the NPPF in 2012 is seen as the root cause of this change. The National Planning Policy Framework (NPPF) is the principle guide on planning policy in the UK in relation to all new developments and the focus is now on sustainable development. The Government s document Plan for Growth is aimed to introduce a powerful new presumption in favour of sustainable development so that the default answer to development is yes. The NPPF gave Local Planning Authorities a period of 12 months in which to bring their Local Plans into conformity with the NPPF. If at the end of that period March 2013 the Local Planning Authority could not demonstrate that its Local Plan conformed to the NPPF then applications for new development would be decided on the basis of the policies in the NPPF rather than the Local Plan. A number of councils are now under threat from a whole range of new development since they have been unable to bring their Local Plans up to date within the timescale. Local communities now feel threatened by a large number of applications for new development on green field sites which on the face of it can demonstrate that they are sustainable developments. Many councils are in the unfortunate position of being unable to demonstrate a 5 year supply of housing numbers as required in the NPPF. Many national house builders have seen this as an opportunity to proceed with developments on green field sites which are demonstrably sustainable in light of this failure on housing supply. A number of planning appeal decisions are now coming through and in the light of a council s failure to demonstrate adequate housing numbers in the Local Plan, the Inspectorate are deciding housing allocations. There is frustration in local communities and groups who are feeding in representations on emerging Local Plans, who raise arguments pointing to the principles of localism, in trying to counteract planning appeals on sites that do not conform to the previous (but now out of date) Local plan. They are failing to appreciate the effect that the NPPF is having on the development market. An illustration of this is found in the case of Cheshire East Council. The Council is beset with planning applications and appeals for new housing developments that do not tally with the approach taken by the Council in its emerging Local Plan. The emerging plan has relied on a number of town strategies prepared on neighbourhood planning principles (a key theme of Localism), therefore including views of the local community. However, housing developers have submitted applications claiming that the Council has significantly less housing supply than the 5 year requirement in the NPPF. The Council is putting forward a strong case that it has in fact over 7 years supply of housing sites in the pipeline. However the Council s emerging Local Plan has relied upon a number of prospective strategic sites in its assessment of housing supply, which many developers claim is a defective calculation. An appeal is currently being pursued by Taylor Wimpey and Seddon Homes Limited on a site in Sandbach, for 160 housing units, in which the demonstrable housing supply numbers of the Council are being subject to intense scrutiny. There is a distinct danger that an Inspector will conclude that the Council in this case has
not demonstrated a deliverable housing supply which satisfies the requirements of the NPPF. In a similar case in Tewksbury in the last few months the Council Leader stated We are disappointed with the outcome... what is clear is that the Localism Act has not delivered what was expected or suggested by the Government when it was introduced, which was to remove top down planning and transfer power to communities. It is clear that the Government sees an increase in house building activity as a key economic driver. Many councils have failed to identify sufficient deliverable housing sites over many years and are now being caught out by the NPPF 5 year requirement. Housing developers have seen this as the green light to pursue new housing sites in locations that previously would not have been acceptable. Now, if they can demonstrate that the site is a sustainable development and the Council doesn t have a 5 year housing supply then the developer has a good prospect of success on appeal. Localism has been forced to take a back seat in the cause of economic recovery. If you would like advice regarding the issues in this article or for any other planning law query, please contact: Iain Johnston Head of Planning Tel: 0151 600 3311 or 0161 836 8859 Email: iain.johnston@brabners.com TRAINING In the last couple of months we have provided training sessions to Registered Providers on a variety of topics including: Using Ground 8 (in rent arrears cases) Starter tenancies Tackling anti-social behaviour Delivery of plot sales off plan Simple property acquisitions and disposals If you are interested in training on these or any other topics please contact Ian Alderson on 0151 600 3317 or email: ian.alderson@brabners.com.
SAVE THE DATE FRIDAY 22 NOVEMBER 2013 NORTH WEST HOUSING CONFERENCE The annual North West Housing Conference is taking place on Friday 22 November 2013 at the BT Convention Centre in Liverpool. Supported and organised by Brabners LLP, Mitchell Charlesworth, Your Housing Group, Plus Dane, Regenda, LMH and Symphony, this year's conference promises to be 'the must attend' event in the social housing calendar. More information about the conference, the speakers and the workshops will be available shortly but the agenda includes speakers from Places for People and Liverpool City Council and workshops covering a range of issues including anti social behaviour, housing an ageing population, well being and of course, welfare reform. If you would like to be sent full information please contact Deborah Ascott- Jones at daj@brabners.com at Brabners LLP. Please forward the conference information to any interested colleagues or associates and we look forward to seeing you there. If you like to discuss any of your housing and regeneration needs in the meantime please do not hesitate to contact me. Alistair Fletcher Partner, Head of Housing and Regeneration Tel: 0151 600 3082 Email: alistair.fletcher@brabners.com This bulletin is for general guidance purposes only and should not be used for any other purpose. If you wish to receive the bulletin please let us know by contacting Jeanette Jackson at: jeanette.jackson@brabners.com. Brabners is a Limited Liability Partnership.