I am not going to follow the fad on television for repeating a mildly edited version of the previous post and then adding a small update at the end. I will only discuss here the new points, changes, and clarifications contained within the White Paper.

The Welsh Government is explicit in in its brief two-page Guide to the White Paper that it is diverging from the English approach to social housing by refusing “to introduce a fixed term flexible tenancy for social housing.” As I have commented elsewhere this seems to indicate a radical philosophical difference between England and Wales in matters of Housing policy. The Executive Summary to the main paper highlights uncertainty and confusion as reducing the willingness of people to move between the social and private sectors, thereby reducing flexibility and social mobility. The Welsh model certainly seems more oriented toward persuasion, flexibility and seduction than the English model which is more compulsive in its style. Wales also seems to be positioning the PRS as a housing partner to the social sector as opposed to the preferred alternative model that seems to underlie the English approach.

Amusingly, the Government also states in the Guide that one of its reasons for introducing the changes is to enhance consumer confidence in the Private Rented Sector. This was actually one of the justifications for introducing tenancy deposit protection. Presumably the Welsh Government considers more trust is required.

Turning to the meat of the white paper itself this is presented with a great deal of belief and passion by the Welsh Government. I am told that the Welsh Housing Minister was extremely passionate when presenting this today in a speech and so there is clearly a great deal of determination to make this work within the Welsh Government.

The White Paper repeats what has already been said before that the Housing Bill later this year will introduce registration and licensing for all PRS landlords and estate and lettings agents. The partnership theme is repeated in several contexts with the paper stating that the objective is not to change the balance between landlord’s and tenant’s basic rights but rather to increase clarity and make things simpler.

The paper makes clear for the first time precisely what will not be covered by the altered regime. The list includes:

• Business tenancies;
• Agricultural holdings;
• Dwellings let with other land;
• Long leases;
• Mobile homes;
• Holiday lets;
• Certain high and low value lets.

This list is a little disappointing as it seems to leave some of the slightly odd and unhelpful exclusions to the Housing Act 1988 untouched.

Specific issues flagged by the paper (see page 28) include:

• New methods of dealing with anti social behaviour and domestic abuse. These are a bit worrying as they sound suspiciously like the proposals from the Westminster Government to make it easier to evict those carrying out anti-social behaviour. Details will be watched with interest;
• A new method of handling joint tenants which will allow a tenant to give notice and withdraw from the tenancy wihtout seriously affecting the other tenants. How this will work inside a fixed term remains to be seen. If it is to allow tenants to escape contracts during the fixed term or replace themselves with unsuitable alternatives it will be very unpopular with student landlords;
• More equality for 16 and 17 year olds by allowing them to rent on the same terms as adults. Again it will be interesting to see how this will work. The current restriction on letting to those under 18 is not that it is prohibited in law. It is just that no landlord will do it because of the common law limitations on title which mean the landlord ends up holding the property in trust for the tenants with all the difficulties this creates for recovery of possession;
• It seems that there will be no change to the landlords repairing obligations under s11, Landlord & Tenant Act 1985. However, they will be required to be written down explicitly in the tenancy agreement so that they are clearer to tenants.

Other changes which are intended to assist landlords include:

• Making the distinction between a tenancy and license clearer and easier for landlords to understand;
• Making it easier for landlords to deal with abandoned property by being permitted for the first time to recover possession without court proceedings in relative safety as opposed to the current method of serving a notice and crossing fingers;
• Making it easier to tidy up joint tenancies by removing jont tenants who have gone from the tenancy agreement;
• By providing some pre-written terms removing the risk of challenge under the UTCCR. I am not sure this is actually a big thing for most landlords who are usually totally unaware of the provisions of the UTCCR!
• Landlords will be obliged to ensure that there are no category 1 hazards under the HHSRS before the letting begins. This will be a big deal for many landlords. The HHSRS is not always well enforced by local authorities and some are prone to finding category 1 hazards in very doubtful cases. There has also been a lot of comment from the Upper Tribunal about the HHSRS system, not all of it complimentary. Imposing a fitness standard is one thing but I am not sure that it should be based on a system of such doubtful value;

Implementation is planned on a “Big Bang” model. That does not mean that a gangly-looking nuclear physicist is involved but rather that there will be a set date where all current tenancies that are covered by the new legislation will convert to one of the new tenancy types. There will then be a period of time for new rental contracts to be issued, presumably so that most tenants will transition seamlessly onto the new agreement style on a tenancy renewal or by moving house. The timetable proposed has this occurring at some point in 2016.

And what of the RLA? Well they say that the changes will cause a detriment to landlords in the PRS in terms of a significant increase in administrative and legal costs. I am personally less convinced. There will undoubtedly be one off costs at the outset and there will be problems for some landlords as they struggle to get their heads around the changes. However, this cost is not in itself a good reason not to make legislative change otherwise we would never change anything. What longer term costs the RLA is alluding to is much less obvious and I would go so far as to suggest that it will be a bit of a case of swings and roundabouts in that the increased cost in one area will be balanced by reduced costs and increased flexibility somewhere else.

The White Paper is in consultation until 16 August 2013 and you can comment on its provisions. Let us know what you are going to say.

Lastly I wanted to say that this is a big achievement for the original team, headed by Professor Martin Partington, who produced these proposals for the Law Commission in 2006. They have come full circle from early interest in their ideas from Government, through a true winter of discontent when they sat in the wilderness (metaphorically, not physically), to a rosy dawn where their ideas will finally see the light of day. All the credit for the positive aspects of these changes goes to them.

We can only apologise for not writing it up sooner. All we can say is that the nearlylegal backlog of cases is threatening to rival the UK Border Agency’s backlog of immigration and asylum cases.

Facts

SL was a failed asylum seeker. He approached Westminster and asked that they provide him with accommodation under s.21, National Assistance Act 1948.

Section 21 provides that an authority is under a duty to provide persons with accommodation if:

1) by reason of age, disability, mental illness or any other circumstance,

2) they are in need of care and attention,

3) which is not otherwise available to them.

However, a failed asylum seeker – and anyone else here unlawfully – may not be provided with accommodation under s.21 if the need for care and attention has arisen because they are destitute. In R (M) v Slough BC [2008] UKHL 52 Baroness Hale held that “care and attention” meant “looking after” someone and “looking after” meant doing something for the person being cared for which he cannot or should not be expected to do for himself.

SL had attempted suicide in 2009 after he had become homeless. He was subsequently diagnosed as suffering from depression and post-traumatic stress disorder. It was not in dispute, however, that, at the date of his application, SL had no self-care needs, no cognitive or motor difficulties and was sociable and able to form relationships. Rather unhelpfully for SL, his care co-ordinator gave expert evidence that while he suffered from anxiety, depression and low self-confidence, he did not need looking after. Rather SL required advice, encouragement and for his condition to be monitored.

Westminster decided therefore that he was not in need of care and attention. This was upheld by the Administrative Court but overturned on appeal by the Court of Appeal. Laws LJ decided that SL’s care co-ordinator was “looking after” SL by “doing something for the claimant which he cannot do for himself: he is monitoring his mental state so as to avoid if possible a relapse or deterioration.”

The Supreme Court, unaminously, allowed the appeal. The provision of care and attention did not cover all forms of social care or practical assistance. The need has to be for care and attention which is not available otherwise than through the provision of residential accommodation. This means that it has to be normally provided in the home (whether ordinary or specialised) or will be effectively useless if the claimant has no home. It need not, however, be specialised care and attention that can only be provided in a residential setting. This therefore meant more than, as in this case, monitoring someone from afar through weekly or monthly meetings.

Comment

This is a very important decision. It had previously been thought that the need for care and attention and the need for a home were separate. If you needed “looking after” in some way then you got through the door (literally). SL changes that completely. Applicants are now going to need to demonstrate not only that they have a need for care and attention but that without a home they will be unable to receive it.

The issue was whether OR could receive housing benefit for his stays in a night shelter hostel. The First Tier Tribunal had held that a hostel was a dwelling for the purposes of the housing benefit regulations, because the regulations said it was. However, the First Tier found that OR was not occupying it as his home.

On appeal to the Upper Tribunal, this was found to be wrong. While the regulations certainly didn’t prevent a hostel from being a dwelling, there was no definition of hostel that meant it always was a dwelling in the regs. The question therefore was whether the night shelter in this case was capable of being a dwelling for OR such that HB was payable.

The Upper Tribunal followed Secretary of State for Work and Pensions –v- Miah [2003] EWCA Civ 1111; R(JSA)9/03 on the approach to identifying whether accommodation could be considered to be a dwelling, adopting the First Tier Tribunal’s finding of facts:

“The….Night Shelter [was] on the ground floor of the former British Legion club in Holyhead. This was an open area which had been partitioned to form an office, a male sleeping area or dormitory for 8 persons and a female dormitory for 2 persons. The maximum number that could be accommodated was 10. There was a food preparation area where users could prepare the food provided which consisted of bread, ham, cheese, baked beans, cereal, jam, tea, coffee and (presumably) milk and sugar. There was a stand alone boiler for hot water, microwave oven, kettle, toaster, and fridge. The existing male and female toilets and washbasins in the building provided the toilet and washing facilities. Shower facilities were available in the day centre which was about a quarter of a mile away from the night shelter. The two facilities were run in conjunction with one another. Facilities for storage of personal belongings took the form of individual plastic boxes which were locked together in a large cupboard. In addition each user had a bedside locker for clothing and a chair. Places at the night shelter were allocated on a first come first served basis. In practice no one had been denied a place although it was conceded at the hearing that in theory if more people had turned up than there were beds for then some would have been turned away.

 

…The purpose of the accommodation was to give shelter to night sleepers of whom it was known there were a number in the area. Many had…alcohol or drug problems. Those wishing to stay in the night shelter were required to register at the day centre by 6pm. Newcomers (those who had not stayed in the shelter before) would have been assessed earlier. There were no specific criteria for admission. If they posed no risk they were admitted on a first come first served basis. A hot meal was provided at the day centre and those admitted were escorted as a group to the night shelter at 8pm. Advice on their rights, applications for housing and help and advice with personal difficulties was provided by trained staff at the day centre and by the two members of staff on duty at the night shelter. Staff were encouraged to interact with users. Users were required to vacate the premises at 8am”.

Not an unusual set of arrangements for a night shelter, save perhaps for the separate shower facilities.

The UT adopted para 26 of Miah as setting out a functional test of “Is this a place serving as a home for the claimant?” with “such a place being a place where the person lives, eats, sleeps, bathes, relaxes, and enjoys with his family” (paragraph [32] of Miah).

The decision was that OR was not occupying the night shelter as a dwelling.

47. However the factors (or factor – as both overlap to a considerable extent) which in my judgment count decisively against the appellant are (a) the very transient nature of his stays at the hostel, and (b) the lack of any right of occupancy beyond the 12 hours he was allowed to be there overnight. At most, once in the night shelter the appellant had a licence to stay there (subject to his abiding by conditions as to his behaviour) limited to the 12 hours between 8pm and 8am. After those hours he had to leave, he had no right to return to the shelter in the day to rest or shelter from the weather, and he could not leave any personal possessions at the shelter during the day. On this basis I cannot see how it can be said that that he was occupying a dwelling as his home even for the 24 hour period of one day within which he stayed at the night shelter for the night time. What is missing is any connection with the night shelter, or using it as a base or home, during the day: the function of it being a place where he lived, ate, slept, bathed, relaxed and enjoyed as described in Miah. In addition, the appellant had no right to stay in the dwelling on the following or any given night (and so had not right to occupy it as a home). His ability to do so was dependent entirely on whether the shelter was full or not. That lack of any certainty or right to stay (even if only on subsequent nights) is not in my judgment consistent with the appellant occupying a dwelling as his home.

 

48. This is not to say that very short stays in accommodation cannot fall within section 130(1)(a) of the SSCBA and qualify for housing benefit. The person forced to stay in bed and breakfast accommodation or emergency council accommodation for a few days or weeks due to a flood or domestic violence may well be occupying that accommodation as his or her home even for the short period they are there (as they will have a right to remain in that (or some other) accommodation for the temporary period and will be able to use the accommodation as their home); and they may, subject to regulation 7 of the HB Regs, qualify for housing benefit for any ‘rent’ charged for that accommodation. But, on the facts of this case, the appellant was neither occupying the night shelter as his home (in the Miah sense above), nor did he have any right to occupy it as a home.

Now, while the UT was very concerned to emphasise that this was a decision strictly on the facts of the case, not intended to represent any wider finding on hostels, the arrangements at this shelter are hardly unusual – communal sleeping, being turned out during the day, with no right to return, and no storage for belongings.

It turns out that one council, Salford, has indeed taken this decision as meaning that no HB is payable for night shelters in their areas and that if they pay it, they won’t get it back from the DWP. According to the Guardian, this has led to the closure of a shelter in Salford. More councils are looking at their position. Other councils have taken a different view to Salford, but clearly it may turn on the specific arrangements for each shelter.

This is a very bad situation. It is unlikely that Councils will divert funds from other areas (Preventing Homelessness, for example) to replace the loss of HB income for the shelters. However, the DWP appears either to have not figured out that there is a problem, or is remarkably blasé about it. I suspect that the issue would take amendment to the regulations to resolve, as DWP guidance couldn’t really over-rule a binding UT decision. But these is no sign of any action, let alone rapid action from the DWP.

The facts of the case were this: Mr Hotak had come to London with his brother. They moved into a flat in Peckham. They were asked to leave the flat and both approached Southwark for assistance (albeit Mr Hotak’s brother at that time was ineligible for assistance and so the application was made in Mr Hotak’s name only).

Southwark accepted that Mr Hotak’s suffered from depression, post-traumatic stress disorder and a learning disability, all of which had resulted in him self-harming while in prison. Southwark also acknowledged that these conditions were “serious” enough to mean that he “might” be vulnerable. Moreover, Southwark also conceded that if he was street homeless, and on his own, then he would be more likely to suffer harm or injury than the ordinary homeless person.

However, Southwark also took into account the support that Mr Hotak received from his brother. This amounted to daily personal support, including prompts to undertake personal hygiene, to change his clothes, to undertake a routine, and to organise health appointments, meals and finances. Southwark were satisfied that Mr Hotak was not vulnerable because if he were to be homeless he would not suffer harm or injury because he would continue to receive this kind of support from his brother.

Mr Hotak appealed against this decision to the county court. He contended that when assessing a person’s vulnerability Southwark were restricted to considering how an applicant would cope if they were homeless on their own without assistance from anyone else or, alternatively, Southwark’s decision that Mr Hotak’s brother could provide such support was not open to it on the evidence. This appeal was unsuccessful in the county court and Mr Hotak appealed to the Court of Appeal on the first ground only.

The appeal was dismissed. The reviewing officer, once he was satisfied that a person suffered from a mental illness, was required to consider whether, by reason of that mental illness, when homeless, the applicant would be less able to fend for himself than the ordinary homeless person, so that he would suffer harm or injury. This was a “composite assessment” which required the reviewing officer to take into account all of the applicant’s personal circumstances. It was not permissible for the reviewing officer to make an assessment of the applicant’s vulnerability in isolation from his personal circumstances, which in this case included the support offered by his brother.

Rather helpfully, however, the Court of Appeal did make clear that an authority cannot simply rely on an existing support network to uphold a finding that a person is not vulnerable. The reviewing officer would have to give proper weight to the support network available:

“[42]… The effect of a support network in the applicant’s existing home is unlikely to be the same as the effect of a similar support network when the applicant is made homeless. Even if the reviewing officer is satisfied that the support network would remain in place it may not, in a situation of homelessness, be sufficient to enable the applicant to fend for himself as would the average homeless person. For example, the old age or mental ill health or physical disability of the applicant may be such that no amount of support will enable the applicant to cope with homelessness as would a robust and healthy homeless person. It seems to me that a fair evaluation of all the evidence is critical to the sustainability of the reviewing officer’s decision.”

Comment

This decision is not all that surprising. The question of whether someone can cope on the streets is a very fact sensitive judgment and plainly the authority making the decision can take everything into account. As the Court of Appeal caution, however, in the vast majority of cases the fact that someone has a support network at home is unlikely to protect them sufficiently while on the streets to ensure that they do not suffer harm or injury. But, as that judgment is for the authority subject to an irrationality challenge, it is going to quite hard to challenge.

The aim of the walk is to raise funds for not for profit/free legal advice organisations. This year, the funds are more desperately needed than ever, for reasons that should be obvious to all, cuts in funds from Legal Aid, from Councils and other bodies, allied with increasing demand from prospective clients.

So, some of the NL team will be forming part of the longest, slow moving queue of lawyers, stretched over a central route, that London has yet seen (even longer than Central London County Court), ambling behind, albeit some way behind, Lord Judge – The Lord Chief Justice, Lord Dyson – The Master of the Rolls, and Lord Neuberger – President of the Supreme Court.

Naturally, we want your money. Donations very welcome to either of these teams:

Justgiving page 1

Justgiving page 2

If you are on the walk, say hello in the Knights Templar afterwards…

Morshead Mansions Ltd is a lessee-owned company. It holds the freehold of (appropriately enough) Morshead Mansions, a block of 104 or so flats. It has two different ways of raising money. The first (and most common) is via the service charge. It seems that, at some stage in the past, Morshead Mansions Ltd became dissatisfied with this arrangement and started using the second method, i.e. collecting money via the articles of association. Despite the objections of Mr Di Marco, the Court of Appeal (broadly) endorsed this approach in 2008 ([2008] EWCA Civ 1371 see our note here), or, at least, held that it was a valid way of collecting monies and did not engage the service charge provisions of the Landlord and Tenant Act 1985.

In the present claim, Morshead Mansions had sued for various sums due under the lease (ground rent, I think) and under the articles. Mr Di Marco counterclaimed, including, for an injunction to compel the landlord to give him a summary of expenditure and to allow him to inspect the underlying documentation. Those rights are found in ss.21, 22, Landlord and Tenant Act 1985. Now, nowhere in the Act does it say that they are enforceable by injunction. To the contrary, provision is made (s.25) for criminal enforcement.

For our purposes, we’re interested in this aspect of the counterclaim (the case goes much wider and talks about many other issues, but they seem largely on their facts). The county court refused to make an injunction, holding that there was no right to one. The judge relied on Lonrho Ltd v Shell Petroleum Co Ltd No 2) [1982] AC 173, where it was held that, “… where an Act creates an obligation, and enforces the performance in a specified manner … that performance cannot be enforced in any other manner …” In the present case, the Act provided for criminal sanction and that was the only remedy.

The High Court disagreed. A tenant could seek an injunction to compel compliance with these provisions. The duty to provide accounts and documents was owed to tenants as a class. Access to information was crucial if they were to be able to check that they were paying no more than was properly due. Criminal sanction was less likely to effectively vindicate those rights and Parliament could not have been presumed to have excluded the normal civil remedy.

This is a very helpful case for leaseholders. Sections 21 and 22 are widely acknowledged to be rubbish – indeed, both the Commonhold and Leasehold Reform Act 2002 and the Housing and Regeneration Act 2008 provided for their abolition and replacement. For various reasons, neither the 2002 nor 2008 reforms are ever likely to come into force, meaning that leaseholders are stuck with the original provisions. There are very few local authorities who would prosecute for non-compliance (Westminster are, so far as I am aware, one of the few who might) and, without this information, tenants simply cannot start to vindicate their rights. Whilst it would clearly be better for the information to be provided free and as of right, a civil injunction is obviously preferable to criminal proceedings.

In general terms, many of these cases are worth quite a lot of money. Which means that they get appealed (and appealed, and appealed). In Henley and another v Cohen [2013] EWCA Civ 480, the Court of Appeal has had a go at trying to stop further appeals. But probably hasn’t managed it. And, in the process may well have generated another route for further appeals. Ho hum.

The building in question had commercial use on the ground floor, with a first floor which had been converted into a flat. Those conversion works were relatively recent and were in breach of covenant. The leaseholders sought to enfranchise and the landlord resisted.

The trial judge went on a site visit to view the property. He noted that the flat was entirely separate from the commercial unit; that it had been adapted in breach of covenant and that, in his view, the property was not a “house reasonably so called.”

The leaseholders unsuccessfully appealed to the Court of Appeal. In quite a terse judgment, the court held that the trial judge had not erred in law and the factual basis of his decision was largely a matter for him. There was always scope for disagreement over whether or not a property could reasonably be called a house. But that is what trials were for. Appeals against such a fact-sensitive conclusion would be difficult to sustain.

Now, the case strikes me as the CA trying to put down a bit of a marker to stop appeals in these sorts of cases. Fair enough I suppose. But what interested me is that the Court then went on to deal with the unlawful conversion works. Given that those works were what founded the basis of a claim to enfranchise, the Court was reminded of the old adage that a person should not benefit from his or her own wrong. Of course, this is all obiter, but it does seem to me to open up another line of argument that both parties will need to be aware of in future cases. And, of course, it will generate its own appeals as well.

More details as soon as we get them.

We were very late to the party with the Disability Discrimination Act 1995 (the first higher court case wasn’t until 2003, with North Devon Homes v Brazier [2003] EWHC 574 (QB); [2003] HLR 59 and we didn’t get into the Court of Appeal until Manchester CC v Romano [2004] EWCA Civ 834; [2004] HLR 47). Then, of course, we broke the Act with Malcolm v Lewisham LBC [2008] UKHL 43; [2008] HLR 41). And, at least as far as I’m aware, there isn’t anything substantive on how the Equality Act 2010 plays out in our work yet either.

This seems odd to me. What are we all missing? The Housing Law Practitioners Association has its bi-monthly meeting this Wednesday (May 15, 2013) and has secured two top-notch speakers to try and help members understand how the Act can be used. We have Robert Brown, the assistant editor of the Housing Law Reports who, in his former life in the charity sector, was heavily involved in lobbying for the 2010 Act. He is joined by Sarah Steinhardt, who has been actively pushing Equality Act arguments “at the coal face” and has an extensive background in wider discrimination and equality issues.

So, come one, come all to the HLPA meeting this Wednesday, 7pm, Portland Hall,
University of Westminster, 4 Little Titchfield Street, London, W1W 7UW.

Mr Burr appealed against that decision and the Court of Appeal recently gave its judgment on the subject (judgment here).

The facts, for those too lazy to click the link above, were that in November 2007, through no fault of its own, Om found itself with a gas bill in the region of £100,000. This arose because it had mistakenly been paying EDF Energy for the gas it was using, when EDF were not responsible for the supply of gas to the block (this was unsurprising as the developer had told Om that EDF supplied the gas). Moreover, EDF had been under charging. Even when EDF paid Total Energy (i.e. the company who had been supplying the gas) what it had received there still remained a shortfall of £100,000. Om subsequently put the sum through the service charge and demanded it from its leaseholders.

Before the LVT Mr Burr argued that these costs were irrecoverable because they had been incurred more than 18 months before the service charge demand was sent. He said that the cost of supplying the gas was incurred when it was supplied. Mr Burr won in the LVT but lost in the Upper Tribunal.

The Court of Appeal dismissed his appeal. The Upper Tribunal was right; a cost becomes incurred on the presentation of an invoice or when it is paid.