Housing Law Navigating the maze Gail Sykes Partner T: 01733 - - PowerPoint PPT Presentation

www.buckles-law.co.uk 13 November 2013 Gail Sykes Partner T: 01733 888794 E: gail.sykes@buckles-law.co.uk

Housing Law

Navigating the maze

Legally focused, relationship driven

Welfare reform update

Legally focused, relationship driven

Benefit cap

Rolled out nationwide from July 2013, 4 pilot areas from April 2013 £500 per week for couple or lone parent with children, £350 for single person Administered by docking HB currently before Universal Credit rolled out Judicial review challenge by 3 non-working lone mothers

Legally focused, relationship driven

Universal credit

To be rolled out by Oct 2017 Many unresolved issues re administration Lord Freud – direct payment reviews once tenant 1 month in arrears and direct payments once tenant 2 months in arrears Lord Freud recommendation to collect arrears re benefit system not backed by government Sanctions for failure to comply with ‘Claimant Commitment’

Legally focused, relationship driven

Bedroom tax

What to expect in judicial approaches to arrears solely accrued due to bedroom tax Judicial scrutiny – compliance with protocol Ground 8 loopholes Exceptional circumstances? Human rights? Challenges  disability discrimination and what is a ‘bedroom’?

Legally focused, relationship driven

Burnip, Trengrove and Gorry v Birmingham City Council [2012] Discrimination if HB docked for spare bedroom for carer or disabled child who can’t share bedroom HB guidance changed by Secretary of State Court of Appeal held that Discretionary Housing Payments not sufficient to prevent discrimination as unpredictable and discretionary

Legally focused, relationship driven

R (MA and others) v Secretary of State for Work and Pensions [2013] Bedroom tax not in breach of Art 14 of ECHR (discrimination) nor the Public Equality Duty brought in by Equality Act 2010 Court of Appeal said amending HB guidance after Burnip not sufficient and Housing Benefit Regulations 2006 should be amended

Legally focused, relationship driven

Bedroom tax – disability tribunal cases

Glasgow tribunal case – breach of HR for disabled wife Redcar tribunal case – could not be reasonably expected to share a room

Legally focused, relationship driven

Bedroom tax – what is a bedroom-split sides?

Argument stems from space standards in HA 1985 which state for purposes of overcrowding bedroom must be at least 70 square feet Fife tribunal cases - 5 test cases decided room under 50 square feet not a bedroom and room between 50- 70 square feet can only be deemed a bedroom for use for a child under 10

Legally focused, relationship driven

Bedroom tax – what is a bedroom-split sides?

DWP circular disagreeing with space standards argument and stating intention to appeal 2 of the Fife cases Lall v Westminster Council – bedroom necessary for equipment essential for independent living

Legally focused, relationship driven

Practical issues – welfare reform

Service charge eligibility for HB Reclassification of bedrooms How far do you want to encourage lodgers? Increase in Debt Relief Orders Changes to policies e.g. can’t move if arrears Vary tenancies?

• Historic arrears to be paid
• ‘Claimant Commitment’
• Rent periods and payment of rent by Direct Debit

Legally focused, relationship driven

Practical tips for possession hearings

Legally focused, relationship driven

The Judge’s decision

Adjourn the application Make a suspended possession order Make an outright possession order

Legally focused, relationship driven

Is it reasonable to make an order?

“In my judgement…it (an order for possession) can be suspended but it should only be suspended for a defined period…. that period should not extend into the mists of time”. Vandermolen v Toma [1981]

Legally focused, relationship driven

Is it reasonable to make an order?

“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 [2001]

Legally focused, relationship driven

What is a reasonable period of time?

In the circumstances of Taj v Ali, 5 years was reasonable After 6 years the landlord needs permission to enforce a warrant. This permission may be refused (Patel v Singh [2002])

Legally focused, relationship driven

What is a reasonable period of time?

The rules which apply to mortgages do not apply to rent possession claims (Taj v Ali [2001]) Tenants will rely on Lambert LBC v Henry [1999] – in fact the Court mistakenly applied mortgage possession rules allowing 23 years for the tenant to pay the arrears

Legally focused, relationship driven

It is worth reminding the Court!

Because Courts frequently overlook what a reasonable payment period may be, they frequently concentrate

• n the level of arrears to the exclusion of the rate at

which the tenant can repay them.

Legally focused, relationship driven

What about evidence?

If the landlord wants an outright possession order, it should provide the Court with evidence to support its

• case. It should at the very least plead in the claim form

the reasons why it would be reasonable to make an

• rder for possession (Laimond Properties Ltd v

Raeuchle [2001]).

Legally focused, relationship driven

What points to raise in the claim form?

 The landlord cannot afford to carry a debt of this

• size. It relies on rental income to provide services to

all of its tenants. Rental income is re-invested to carry out necessary repairs and decorations  The landlord’s lenders look at its ability to recover rent when assessing its viability for loans which will enable it to provide new homes. Tenant debts affect the Claimant’s financial viability

Legally focused, relationship driven

What points to raise in the claim form?

 The landlord has spent considerable time supporting the tenant and dealing with problems caused by their debt. This time could equally have been spent with other tenants

Legally focused, relationship driven

Warrant suspensions

In order to suspend a warrant the tenant needs to be able to show an “unexpected and significant change in circumstances” since the possession order was

• made. The Court is entitled to evidence of this (Taj v

Ali [2001]) The burden of proof on an application to suspend is

• n the tenant (Southwark LBC v St Brice [2001])

Legally focused, relationship driven

If the Court suspends

Make a note of the Judge’s findings (if the Judge says that this is a “last chance”) note it down and put it in a witness statement for the next time. This information will not be found on the Court order or the Court file when the matter comes around again! Ealing LBC v Richardson [2006] the Court can only take into account the evidence that is before it at an application to suspend

Legally focused, relationship driven

If the Court suspends

Consider asking for costs. Although enforcing the

• rder may be unlikely a costs order does signify that

the tenant has been in the wrong and has been given another chance May help the landlord to put findings before the Court and the next time about the costs of enforcing the possession order

Legally focused, relationship driven

Changes in the County Court

Legally focused, relationship driven

Single County Court

Individual County Courts merged into single County Court No ‘home’ Court implications for

• Claim entry points
• Bailiff enforcement

No change to PCOL – but cost sanctions for not utilising

Legally focused, relationship driven

County Court reforms

Cost estimates for multi-track cases

• Injunction orders
• Trials exceeding 1 day

Rule 3.9 – relief from sanctions

• Change in approach to administrative focus rather than justice focus
• Realistic timescales
• Litigants in person

Legally focused, relationship driven

Prevention of Social Housing Fraud Act 2013

Legally focused, relationship driven

Prevention of Social Housing Fraud Act 2013

 Came into force on 15 October 2013  Criminal offence of unlawful subletting for secure and assured tenants  Meaning of dishonest – R v Ghosh [1982]  Unlawful Profit Order – to pay back profits to landlord

Legally focused, relationship driven

Prevention of Social Housing Fraud Act 2013

 Permanent loss of security of tenure – assured tenants  Evidential and intentionality issues  Local Authority powers to prosecute  Data protection issues  Limited application

Legally focused, relationship driven

Anti-social behaviour update

Legally focused, relationship driven

Anti-Social Behaviour, Crime and Policing Bill

 Nearly through Parliament  Royal Assent expected April 2014, commencement expected late summer 2014  Expect early challenges to new mandatory ground  Draft Guidance published October 2013

Legally focused, relationship driven

Pinnock v United Kingdom [2013] Appealed to ECHR arguing Art 8 (right to home) infringed by Supreme Court as he was not personally responsible for the ASB and perpetrators had left his home ECHR held no infringement – Supreme Court had properly considered all factors

Legally focused, relationship driven

Willoughby v Solihull Metropolitan Borough Council [2013]

W suffered mental health problems, recovering alcoholic and heroin addict Breached interim ASBI prohibiting nuisance and boyfriend from coming to flat. 2 month prison sentence Committal proceedings initiated and then further breaches – sentenced to a further 10 months in prison Court of Appeal substituted sentence for 3 months saying custodial sentence most serious sanction and should therefore only be made for minimum period

Legally focused, relationship driven

Boyd v Incommunities [2013]

D had history of convictions for violence and intimidation Judge relied on 3 anonymous witness statements in making SPO on grounds 10, 12 and 14 D appealed SPO submitting wrong to rely on anonymous evidence and Judge took account of history of convictions Appeal dismissed as perfectly proper for Judge to prefer anonymous evidence to that of D and to take history of convictions into account

Legally focused, relationship driven

R v Meade [2013] Breach of ASBO by 61 year old woman who screamed racial abuse at neighbour 12 month sentence reduced to 10 months on appeal as she was found to recognise the need for a fundamental change in her behaviour Look to sentencing guidelines for breach of ASBO for application to ASBI cases

• Amicus Horizon v Thorley [2012] – “equally relevant when an anti-

social behaviour order has been made by a civil court”

Legally focused, relationship driven

Birmingham County Council v Ashton [2013]

Council relied upon 4 convictions in bringing possession proceedings – including brandishing samurai sword at neighbour and threatening neighbour with a knife Psychiatrist report said bipolar, on medication and risk of reoffending at 20-30% so long as medication taken Judge made SPO CA held there was significant risk of reoffending which Judge had not properly addressed and so case was remitted to County Court for reconsideration of the issue

• f suspension

Thank you

13 November 2013

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