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Housing Management Law School – Autumn Term

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Housekeeping

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Agenda

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8.30am Registration & refreshments 9.00am The News 9.30am Hot topic: Equality 10.15am Refreshment break 10.30am Revision topic: Hoarding 11.15am Networking

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John Murray & Simon Thirtle

The News

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Homes (Fitness for Human Habitation) Act 2018

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Miss-selling and unfair contracts

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Victoria Place Management Co Ltd v Kuehn [2018] EWHC 132 (CH)

Exercising discretion reasonably

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Curo Places Limited v Anthony Pimlett [2019] UKUT 130 (LC)

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Robert Wilcock v The Guinness Partnership Limited [2019] UKUT 148

Service Charges – Construction of Tenancy Agreement

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Lambeth LBC v Greenland 1 April [2019]

Possession and Warrants

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Lambeth LBC v Casey 5 June [2019]

Succession

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Westlake Estates Ltd v Yinusa [2019] UKUT 255

Service charges - s.47 Landlord and Tenant Act 1987

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Whale and others v Maunder Taylor and Northwood Hall RTM Company Ltd May [2019]

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Tenants will be given access to rogue landlord database

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It’s the End of the News as we Know it

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John Murray, Partner

Hot topic: Equality

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The Equality Act 2010 – Discrimination » The Equality Act prohibits discrimination: »Against certain people with ‘protected characteristics’ »By certain people and bodies »In certain situations

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The Equality Act 2010 – Discrimination » Protected Characteristics »Can it be shown that the possession claim is justified as a proportionate means of achieving a legitimate aim? »Case Law: Paragon Asra Housing Limited v James Neville [2018] EWCA Civ 1712

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The Equality Act 2010 – Discrimination » Three Key Stages: »1. Is the person disabled as defined by the Equality Act 2010? » s6 : physical or mental impairment »Substantial and long terms adverse effect on ability to carry out normal day to day activities.

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The Equality Act 2010 – Discrimination

» Three Key Stages: » 2. Has the person been discriminated against? » S35: obligation on managers of premises to not discriminate » By not allowing to use benefit/facility » Eviction or other detriment » S15: disability discrimination » Unless proportionate means to achieve legitimate aim » S15(b) not if did not know/could not reasonably know of disability 20

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The Equality Act 2010 – Discrimination » Three Key Stages: »3. Is treatment proportionate means of achieving legitimate aim? »Case Law: Midland Heart Limited v Margaret Burns and CA (a protected party by his litigation friend, the Official Solicitor)

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Duty to make reasonable adjustments - s.36 Equality Act 2010

» S36: duty applies to » (a) a controller of let premises; » (b) a controller of premises to let; » (c) a commonhold association; » (d) a responsible person in relation to common parts.

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Duty to make reasonable adjustments - s.36 Equality Act 2010

» s.20 : three requirements to avoid substantial disadvantage: » Provision, criterion or practice » Physical feature » Provision of auxiliary aid » Equality and Human Rights Commission guidance on 'reasonable‘. » Case Law: Smailes & Poyner-Smailes v Clewer Court Residents Limited [2019] (QC)

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Obligation to allow a residential tenant to alter a property » s.190 Equality Act 2010 – alterations/improvements » Written consent to the landlord » Landlord’s consent unreasonably withheld » Landlord’s refusal of consent » No response from landlord within a reasonable time

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Public sector equality duty

» s.149

» (1) 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 that is prohibited by or under this Act; » (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; » (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it'. » '(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1)'.

» Case Law: Forward v Aldwyck Housing Group Ltd (2019) EWCA Civ 1334 25

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Capacity for decision making (Mental Capacity Act)

» s.1 Mental Capacity Act 2005 - Five statutory principles

» A person must be assumed to have capacity unless it is established that they lack capacity. » A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success. » A person is not to be treated as unable to make a decision merely because they make an unwise decision. » An act done, or decision made, on behalf of a person who lacks capacity must be done, or made, in their best interests. » Before the act is done, or the decision made, regard must be had as to whether the purpose of the act or the decision can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.

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Capacity for decision making (Mental Capacity Act) » s.2 Mental Capacity Act 2005 - People who lack Capacity » A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

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Capacity for decision making (Mental Capacity Act) » s.3 Mental Capacity Act 2005 - 'Unable to make a decision‘ » A person is unable to make a decision for himself if he is unable– » (a) to understand the information relevant to the decision, » (b) to retain that information, » (c) to use or weigh that information as part of the process of making the decision, or » (d) to communicate his decision (whether by talking, using sign language or any other means).

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Capacity for litigation (Civil Procedure Rules) » Rule 21.1(2)(d) - A protected party means a party who lacks capacity to conduct the proceedings. » Rule 21.2(1) - A protected party must have a litigation friend to conduct proceedings on their behalf. » Rule 21.3(2) - A person may not, without the permission of the court, make an application against a protected party before proceedings have started; or take any step in proceedings except:

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Capacity for injunctions

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» What must the court consider?

» Wookey v Wookey

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Simon Thirtle, Partner

Revision topic: Hoarding

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Hoarding – Overview

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» What is hoarding? » “a pattern of behaviour characterised by the excessive acquisition of and inability or unwillingness to discard large quantities of objects that cover the living areas of the home and cause significant distress or impairment” » Why do people hoard? » Suffer from another form of mental illness » A 'trigger event'

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Hoarding – How would you recognise Hoarding

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» A person is holding onto a large number of items » A person’s home is cluttered and rooms cannot be accessed » The condition of the property causes distresses or illness to the person living there

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Hoarding – What are the risks?

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» Fire / flammable materials – risk to life » Vermin and pests » Statutory nuisance or environmental hazard » Condition of the property may deteriorate » Landlord may not be able to carry out repairing obligations » Issues with heating or ventilation of the property » Cost

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Hoarding – How can it be addressed? » Support from Housing Officers » Local authority's Safeguarding Adults Board Guidance » Who will bear the costs of cleaning the property? » Housing Officers should be persistent but patient

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Hoarding – the Legal Remedies and Issues » The Care Act 2014 » Replaced the National Assistance Act 1948 and the National Health Service and Community Care Act 1990 » General duty under S.1 to “promote [an] individual’s well-being”

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Hoarding – the Legal Remedies and Issues » The Care Act 2014 » S.9: “needs assessment” » Care and Support (Eligibility Criteria) Regulations 2014

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Hoarding – Hoarding – the Legal Remedies and Issues

» Referrals to and liaison with external support providers » Vulnerable Tenants » Check and follow internal policies » Referrals to third party support providers » SS. 42 – 47 Care Act 2014 » Safeguarding Adults Board » S.6 Care Act 2014 38

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Hoarding – the Legal Remedies and Issues

» Injunction Proceedings » Anti-Social Behaviour Crime and Policing Act 2014 » Claim for breach of tenancy » Require the tenant to take action or allow the landlord to do so in default » If the landlord does the work, re-charge or absorb the cost? » What support will be given to the tenant? 39

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Hoarding – the Legal Remedies and Issues

» Possession Proceedings » Is an injunction appropriate? » New Pre-Action Protocol for Possession Claims by Social Landlords » Notice of Seeking Possession – Schedule 2 to the Housing Act 1985 / 1988 » Suspended Possession Order? » Is it reasonable to make any Possession Order? » The National Housing Federation 2015 guidance - alternative means of resolving the problem

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Hoarding – the Legal Remedies and Issues » National Housing Federation 2015 guidance » Best practice examples » Hoarding Toolkit » Formal working relationships / partnerships with support providers

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Hoarding – the Legal Remedies and Issues » The Equality Act 2010 » Is a hoarding disorder a disability? » S.6: a physical or mental impairment that has a long-term adverse effect on a person’s ability to carry out normal day-to-day activities

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Hoarding – the Legal Remedies and Issues

» Diagnostic and Statistical Manual of Mental Disorders – 5th Edition » Recognition of hoarding as a disorder » Difficulty parting with possessions » Need to save items / distress of discarding » Accumulation of items cluttering living area » Hoarding causes clinical distress / social impairment » Not attributable to another medical condition » Not better explained by symptoms of another disorder

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Hoarding – the Legal Remedies and Issues

» The Equality Act 2010 » S.15: prohibition of discrimination on basis of disability » S.35: discrimination in management of premises » S.149: Public Sector Equality Duty » S.20: reasonable adjustments » Proportionality defence

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Hoarding – the Legal Remedies and Issues

» Hoarding and Capacity – the Mental Capacity Act 2005 » No automatic lack of capacity » Issues with taking legal action against a Defendant without capacity » S.4: Best Interests Decision » Factors to consider » No deprivation of liberty » Not without risk » Application to Court of Protection

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Hoarding – the Legal Remedies and Issues » Support After the Event » What steps can be implemented to prevent recurrence? » What support can be offered? » Liaison with third party support providers?

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Slides from today's seminar will be emailed to you shortly.

Thanks for joining us

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