Leicester Housing Association Ltd v Armstrong. Leicester County Court 5 March 2013 [Not published elsewhere, we have a copy].

This was the summary hearing of Mr Armstrong’s defence to LHA’s claim for possession. Mr A had a ‘starter’ tenancy from LHA, which was an assured shorthold of 12 months term. At the end of the 12 months, the tenancy would automatically convert into an assured tenancy, provided that no steps had been taken to gain possession in the meantime. The property was a 2 bed flat in a new build scheme, a mix of social housing and private ownership. Barretts (for they were the developers) still had a sales team on site.

On the evidence at the summary hearing, (and therefore as yet untested), Mr A was homeless, a former serviceman and police officer. At interview with LHA it was noted that Mr A was subject to fits and seizures. He also had mental health issues, resulting from service experience, and an ongoing battle with alcohol dependence. LHA had a medical report on these issues prior to granting Mr A a tenancy.

The tenancy agreement had usual sort of clause on not causing a nuisance to people living, visiting or otherwise lawfully in the vicinity of the property.

The tenancy agreement said that a s.21 notice could be used to end the starter tenancy if the tenant’s behaviour was a breach of tenancy conditions. It went on to set out a review procedure of a decision to use a s.21 notice. The tenant could request a review of the decision within 14 days of service of the notice. The review would be carried out in accordance with the ‘starter tenancy policy’.

The policy stated:

7.7 At the appeal hearing the Officer (responsible for serving the Notice) will present their evidence for the case. This should include the following . .
Evidence (eg case note, diary sheets, witness statements, warning letter) . . .
Vulnerabilities/support needs. . .

7.8 The resident will then be called on to explain their version of events and the reasons why LHA-ASRA should not start legal proceedings to claim possession of their home. The resident may bring along someone for support but this should not be a legal representative.

7.9 The Chair of the meeting will review all the evidence and inform the resident of their decision within 7 days of the appeal hearing. This should be done via letter and should include a summary of the key findings.

There were apparently a number of complaints about Mr A’s alleged behaviour. There was a meeting about Mr A between a police officer, a consultant psychiatrist and a housing officer from LHA (Mr PW), about which Mr A was not informed. Nor was Mr A provided with the notes of the meeting. Shortly afterwards  Barretts sent an email with complaints about Mr A’s alleged behavior. A few days later, Mr PW served a section 21 notice on Mr with a letter stating that this was “because complaints of anti-social behaviour had been made against you, members of your household and/or visitors to your home”. There was no further detail of the alleged behaviour or complaints.

Mr A put in an appeal against the section 21 notice, without knowing the specific allegations against him. Mr A accepted that he had been ill because of changes in his medication, that ambulance teams had attended, with the police as this was required by the ambulance service, but denying being violent, threatening or committing ASB.

Before the hearing of the appeal, LHA told Mr A they were to discuss ‘complaints from four residents regarding police having to be called [...] because of inappropriate or dangerous behaviour in your home and the surrounding area”. This was apparently the extent of the information given to Mr A about the allegations before the hearing.

Immediately before the hearing and apparently at the Claimant’s request, Mr A’s Community Nurse wrote to the Claimant setting out that Mr A had maintained his abstinence from alcohol and that there had been no incidents involving the police since the ‘professionals meeting’.

The appeal hearing resulted in a decision to uphold the section 21 notice. However, the note of the meeting raised 5 specific incidents apparently raised by Barretts and other residents. It was no clear if these had been put to Mr A. The incidents as noted did not tally with those raised in the ‘professionals meeting’, either by date or in the detail, such that it did not appear that the appeal hearing had the full facts in front of it. Mr PW was not at the hearing and did not ‘present the evidence’ for the case. The conclusions of the note of the hearing also appeared to have failed to take into account the information from the Community Nurse.

A claim was issued. Mr A’s Defence raised:

• An Article 8 proportionality defence,
• A Gateway B public law defence that the Claimant had failed to follow its own policies and procedures with regard to the decision to invoke and pursue the section 21 proceedings
• That Mr A had a disability within the meaning of the Equality Act 2010 and issuing and continuing the proceedings was discriminatory.

At first hearing, the matter was listed for a 2 hour summary hearing to determine whether the Art 8 and gateway B arguments could proceed. However, and perhaps oddly, the Equality Act defence was also considered. LHA conceded it was a public body, reserving its position on this should the case go to the Supreme Court.

On the Art 8 and Gateway B, the test the Court set was that the defences cross the threshold of being ‘seriously arguable’ with guidance from  the higher courts that the threshold was likely to be crossed in very few cases.

On the Equality Act, the Court noted that ‘there appears to be no decided case on the applicable test as to whether an Equality Act defence should be allowed to run at trial. We’ll come back to this.

On the Gateway B argument

Mr A argued that the review process was unfair, unreasonable, in breach of natural justice, and failed to follow the Claimant’s procedures, policy and tenancy agreement.

Mr A did not know the case he faced at the appeal hearing, Eastland Homes Partnership v Whyte [2010] EWHC 695 [our report]. The Appeal hearing considered matters of which MR A had had no advance warning and evidence with which he had no been provided. The appeal hearing was not conducted according to the starter tenancy policy, Mr PW did not ‘present the evidence’ and the evidence had not been supplied to Mr A. Mr A was not then allowed to explain his version of events.

Further, the policy required the Claimant to be satisfied that there was a breach of Clause D of the tenancy agreement (the nuisance clause for the purpose here). The Claimant had not attempted to so satisfy itself that there was a breach.

The Claimant argued that their scheme followed the Introductory Tenancy statutory scheme. Therefore R (Ex p McLellan) v Bracknell Forest BC [2001] 33 HLR 86 should be followed, the appeal hearing was not a formal hearing, there was no obligation to provide witness statements or schedules of allegations. The panel could determine how it carried out is function and reach a view as to the credibility of the Defendant. There was no requirement to make findings. The Claimant was entitled to take a broad view of matters. The Defendant should not be given a higher degree of protection than the Introductory tenancy regime. In any event, the available powers on a successful gateway B defence were akin to judicial review, so that at most the matter would be remitted back to the Claimant for fresh consideration, which would in practical terms make no difference [apparently pre-deciding any remitted decision].

The Court found on this ground that the Claimant’s scheme differed from the Introductory tenancy scheme. It was not statutory and was regulated by contract. While for an Introductory tenancy termination it was not necessary (pace Powell) for the Local Authority to be able to show that complaints were well founded, in this case the termination procedure could only be used if the tenant’s behaviour amounted to a breach of tenancy obligation. Therefore the Claimant had to determine whether the Defendant’s behaviour amounted to a breach of tenancy and the review should consider this issue. It was not sufficient for the Claimant simply to be satisfied that the Defendant was not a suitable person to be a tenant. This point crossed the ‘seriously arguable’ threshold,

When a review occurred it should:

• Be conducted in accordance with the rules of natural justice
• Address the key issue of whether the Defendant was in breach of the tenancy agreement and, if so, whether it was proportionate to seek an order for possession. Unlike Powell, this required a factual determination.

The Defendant was entitled to, at least, know the d the dates and substance of allegations against him. In this case it appeared that there were differences in nature and extent of allegations in the various accounts relied on by the Claimant.

The Officer serving the Section 21 did not ‘present the evidence’ at the review hearing. In the absence of other steps being taken to ensure the case and evidence was properly and fairly put, this might amount to a breach of the rules of natural justice.

The Defendant’s medical position and the report from the Community Nurse was not considered. The Defendant was apparently not even aware that a report had been obtained. Again a seriously arguable breach of natural justice.

On the Claimant’s argument that remitting the decision would make no difference, not only was it uncertain that this would be the case, a valid gateway B defence would be a complete defence to these proceedings.

On Article 8.

The Defendant argued that the Claimant proceeding with the claim for possession was disproportionate where there was no evidence or allegations of any bad behaviour since March 2012 (this hearing taking pace in January 2013).

The Claimant said that this had not been raised before, nor was any evidence of good behaviour filed. There was a last minute statement from Mr PW setting out more allegations between July 2012 and November 2012.

The Court rather oddly refers to the Claimant relying on ‘the dicta’ of Cranston J in Southend BC v Armour [2012] EWGC 3361 (QB) [our report] and then ‘to the view of Cranston J as ‘per incuriam’, apparently finding that subsequent good behaviour should not be taken into account (it may be that the transcript has errors here, but this is what it says). In any event, the Article 8 defence was found not to pass the ‘seriously arguable threshold’ and was not permitted to go to full trial, at least insofar as it was not the same as the gateway B and Equality Act defences.

On the Equality Act defence.

This was dealt with pretty much at the last minute, as the Defendant had assumed the matter would have to go to full trial and the Claimant had accordingly not responded on the point.

The Defendant argued that the Defendant had been discriminated against, unlawfully under section 15 Equality Act 2010, and that the Claimant had failed to take into account a mandatory consideration, section 149 Equality Act, in dealing with the Defendant.

The neighbours were upset because of the police attending the property, but this only occurred because of the Defendant’s mental state and because the ambulance crews required the police presence due to the Defendant’s medical history. Taking proceedings against the Defendant on the basis of those complaints from neighbours was a direct result of the Defendant’s disability and prima facie discriminatory.

The Claimant argued that the Equality Act defence should be subject to summary determination, although possibly on a lower threshold of ‘an arguable case’ rather than ‘seriously arguable’. But the answer was no, the possession claim was a proper and proportionate way of achieving a legitimate aim.

The Court found that, although this was not one of the types of cases to which summary determination applied, the issues raised were similar to the Gateway B and Art 8 issues. So, as there was a summary hearing it seemed sensible to consider the Equality Act issues at the same time.

In the absence of any authority for the threshold for doing so, the Court assumed the CPR 24 rule of ‘a real (as opposed to fanciful) prospect of success’, taken as being lower than ‘seriously arguable’.

On the basis of the pleaded case, the Defendant suffered from a disability within the meaning of the Equality Act 2010. The Claimant was aware of the Defendant’s disability.

The Decision to serve the section 21 notice and issue possession proceedings was taken (at least in part) on the basis of the Defendant’s mental health and therefore amounted to unfavourable treatment on account of his disability.

The issue was whether this was a proportionate means of achieving a legitimate aim. While the legitimate aim was likely to be the Claimant’s management of its housing stock and protection of others in the neighbourhood, the question of whether it was proportionate would involve evidence on whether there were other means of managing whatever risks might be posed by the Defendant’s health issues and a finding as to what those risks were. On the limited available evidence, it was arguable it was not proportionate.

The Equality Act claim should therefore go to full trial.

Directions given to trial.

Comment

While this is a first instance decision, and on a summary hearing at that, it is interesting. There is a practical interest in the way in which the court deals with the Art 8 and Gateway B defences, but there are also some substantial issues to consider, not least as they are likely to come up fairly often.

The distinction between a starter AST arrangement and an Introductory tenancy strikes me as right. One does not obtain the quality of a statutory regime simply by emulating its form. A starter tenancy is a creature of contract to the extent that it differs from the basic statutory provision.

The view taken of Southend v Armour, frustratingly briefly addressed, is puzzling. While Armour is indeed under appeal to the Court of Appeal, I have trouble seeing how the decision of Cranston J could be said to be ‘per incuriam’ or indeed ‘dicta’. As a High Court appeal, Armour would seem to be binding. But the transcript is not wholly clear through this whole section, so frankly, who knows what was meant!

Then the substantial issue of the Equality Act defence. Should there have been a summary hearing on this issue at all? Granted, the Court adopted the CPR 24 test for a summary judgment, rather than carrying over ‘seriously arguable’, but while CPR 24 does provide for the court to deal with summary judgment of its own motion, it seems odd in circumstances where there was no strike out application from the Claimant and, as the court admits, very little evidence on the issue before it.

It would be worrying to see courts adopting what would be a self-directed summary judgment hearing on Equality Act cases as a kind of proxy for the summary hearing in Art 8/Gateway B cases, even on a lower threshold. Not least as Equality Act issues are often complex and evidence dependent.

As this matter is ongoing, we will not be commenting on evidence or the merits of the case.

Superstrike Ltd v Rodrigues [2013] EWCA Civ 669

Where a deposit was taken on an assured shorthold tenancy before April 2007, when the Housing Act 2004 provisions came into force, but the tenancy became a statutory periodic tenancy after April 2007, does the deposit fall to be dealt with under the Housing Act 2004 requirements and do the penalties for non compliance apply?

The facts in this case are straightforward. Rodrigues was the assured shorthold tenant of Superstrike. The tenancy began in January 2007 with a term of 12 months. A deposit of £606.66 (a month’s rent) was paid in January 2007. In January 2008, the tenancy became a statutory periodic tenancy. In June 2011, S served a s.21 Notice and then brought possession proceedings. In May 2012, the possession claim was dismissed, though for reasons not at issue in this appeal. On appeal to a Circuit Judge, a possession order was granted, on the basis that the deposit had been taken before April 2007. So, to the Court of Appeal.

There was one main ground of appeal.

On the statutory periodic tenancy arising in January 2008, a deposit was received in respect of a tenancy, which fell under the requirements of s.213 HA 2004, thus failure to protect meant s.215 applied and the s.21 Notice was invalid.

There were two questions for the Court to decide. First, did the statutory periodic tenancy constitute a new tenancy? Second, had the deposit been ‘received’ by the landlord in respect of that tenancy in the meaning of section 213.

The Court of Appeal made short shrift of the first issue:

It is clear from the 1988 Act that what happens at the end of the fixed period tenancy is the creation of a new and distinct statutory tenancy, rather than, for example, the continuation of the tenant’s previous status. I do not see that there can be any doubt as to that. It was so held in relation to a comparable provision in the 1988 Act in N & D (London) Ltd v Gadson (1991) 24 HLR 64.

This left the second issue, of whether the deposit had been ‘received’ in January 2008 at the start of the new statutory periodic tenancy. The landlord argued that:

section 213 only applies when the deposit is “physically received” after 6 April 2007. By physical receipt he meant payment by cash, cheque, bank transfer or in some other comparable way, such as occurred in the present case in January 2007. He supported this argument by a submission that, if the appellant’s contention were correct, many private landlords would have been caught, and caught unawares, by a need to comply with section 213 on the expiry, after the commencement date, of a fixed term assured shorthold tenancy created before that date, if the tenant remains in possession, no new tenancy agreement being entered into, and the deposit, which had previously been paid and was still held, simply staying where it was with nothing said about it. He pointed to the absence of any transitional provision in the Act or in the commencement order. If so, he argued, the landlord would have to go to the otherwise unnecessary and pointless trouble and expense of arranging for the deposit to be held in accordance with an authorised scheme, simply in order to be able to recover possession of the premises by serving a section 21 notice.

R argued that

even though no money changed hands and no book entries were made at that stage, nevertheless the landlord had to be treated as having received the amount of the deposit, referable to the new tenancy, on 8 January 2008. Otherwise the deposit would only have been held as security for obligations and liabilities under the original fixed period tenancy, which would make no sense, at least for the landlord. If the landlord is, therefore, treated as holding the deposit in relation to the new tenancy, it must be treated as having received it for that purpose.

As s.212(8) referred to money in the form of cash or otherwise, it was clear that it didn’t have to be physical currency, payment by cheque or bank transfer could amount to payment and receipt. This provision should be construed broadly. Payment had been held to cover situations other than cash, cheque or bank transfer in White v Elmdene Estates Ltd [1960] 1 QB 1, [1960] AC 528, where an obligation to give a £500 discount on a sale associated with a tenancy letting had been found to be payment of a premium. This had been approved in Hanoman v Southwark London Borough Council (No 2) [2009] UKHL 29.

The Court of Appeal agreed with R.

The 2004 Act has to be construed in the light of the provisions of the 1988 Act as regards assured shorthold tenancies, including section 5. Once the new statutory periodic tenancy had come into being after the commencement date, a tenant’s deposit being already held, it would be necessary to consider whether and if so how the 2004 Act applied. As I have said already, it must have been the landlord’s position, by then, that it held the sum of £606.66 as a deposit as security for the performance of the tenant’s obligations, or for the discharge of any liability of the tenant, arising under or in connection with the new tenancy. That could only be the correct legal position if that sum of money was to be treated as having been paid pursuant to the tenant’s obligation under the periodic tenancy to provide a deposit. That obligation only arose on the expiry of the fixed term tenancy, so the payment at the beginning of that fixed term cannot have given rise to the position which obtained once the fixed term had expired. [...]

The tenant should be treated as having paid the amount of the deposit to the landlord in respect of the new tenancy, by way of set-off against the landlord’s obligation to account to the tenant for the deposit in respect of the previous tenancy, given that the landlord did not seek payment out of the prior deposit for the consequences of any prior breach of the tenancy agreement.

It follows that, on my analysis, the tenant did pay, and the landlord did receive, the sum of £606.66 by way of a deposit in respect of the new periodic tenancy in January 2008, and so the obligations under section 213 applied to the deposit so received. As is common ground, they were not performed. Section 215(1) therefore applied so that the landlord could not validly give notice under section 21 of the 1988 Act. The notice purportedly given on 22 June 2011 was thus ineffective and the grounds for possession were not made out.

As there had been no claim by the tenant, as yet, for the return of the deposit and a penalty under s.214, the only order was for the dismissal of the possession claim.

Intriguingly, but also frustratingly, the Judgment notes a second line of appeal by the tenant, that the wording of s.215(1) meant that no s.21 notice could be served if a deposit was not protected, regardless of when the deposit was received, so even if taken for a statutory periodic before April 2007. There was not need to decide on this and it was left for another case, where the facts of this case wouldn’t apply.

Comment

It is good to finally have this point settled by the Court of Appeal. I have long argued that a statutory periodic was a new tenancy, and that in order for the landlord to hold the deposit against the tenant’s performance of that new tenancy, the deposit must have been received anew, even if by a notional set off against repayment of the old deposit. But apparently this decision has come as a surprise in some quarters.

The s.215(1) argument remains to be heard. It is also worth recalling that the commencement order for the Localism Act 2011 amendments to Housing Act 2004 stated that the amended scheme applies to all deposits held for ASTs in effect on or after the commencement date, with no exemption for pre April 2007 deposits. But even if successful, these arguments would now only be required where a tenancy had become a statutory periodic prior to April 2007.

There is a further issue, however. If a deposit is ‘retained’ from one tenancy to the next (whether statutory periodic or new tenancy agreement), and therefore ‘received’ in respect of the new tenancy, there is also the obligation to provide the prescribed information. So even if the deposit was already protected, when a tenancy goes from fixed term to statutory periodic, does the obligation to serve the prescribed information arise again? While the actual information may be unchanged, and has arguably already been served ahead of the new tenancy, it might also be the case that it should be served again when the deposit is ‘received’ in respect of the new tenancy.

If the prescribed information is not served within the 30 day period (since April 2012), no s.21 notice is valid until it is served (and a failure to serve within 30 days opens up a potential s.214 claim). So, if there is a requirement to serve the information again on a new tenancy, whether statutory periodic or by agreement, when the deposit is held over/received again, I suspect that a very large number of landlords and/or agents would be in breach. I expect to see this issue come up very soon indeed.

Congratulations to Martin Westgate QC and Ben Chataway for the tenant for this case.

In Avon Estates (London) Limited v Sinclair Gardens Investments (Kensington) Limited [2013] UKUT 0264 (LC) [not online yet we have a transcript] the Upper Tribunal considered the question of whether an insurance premium had been reasonable incurred.

Avon Estates was the leasehold owner of a flat within a Victorian terrace house that had been converted into three flats. Sinclair Gardens was the freehold owner of the property. Avon Estates’ lease required it to contribute a third of the service charge expenses which included, amongst other things, the cost of insuring of the property. Sinclair Gardens applied to the LVT for a determination that the service charge in respect of the three flats for the year 2010/11 was payable.

Sinclair Gardens used its own insurance agency, which charged a 12% handling fee, to deal with claims management and a broker to obtain the premium. The overall cost was £4,154.25 to insure the property.

Avon Estates contended that the insurance premium was not reasonably incurred within the meaning of s.19, Landlord and Tenant Act 1985. It relied on a quote it had obtained which would have insured the property for a quarter of the price. It also argued that 12% handling fee was, in any event, unreasonably incurred because it had not been negotiated at arms’ length in the market place and nor was there any evidence that it was representative of the market rate.

The LVT decided that, while cheaper insurance may have been obtained, Sinclair Gardens was not obliged to “shop around” to obtain the cheapest premiums; it was merely required to prove that the rate was representative of the market rate or that the contract had been negotiated at arm’s length and in the market-place (Havenridge Ltd. v Boston Dyers Ltd. [1994] 2 EGLR 73, CA). For those same reasons, however, the 12% handling fee had not been reasonably incurred.

The Upper Tribunal dismissed Avon Estates’ appeal, which was heard by way of a review. There was no evidence before the LVT that the insurance premium had not been arranged otherwise than in the normal course of business and Avon Estates had failed to adduce any evidence to the contrary. The LVT was entitled to reach a view that the contract had been negotiated at arm’s length and in the market place.

Sinclair Gardens was not, however, permitted to cross-appeal against the decision in respect of the handling fee as they had failed to seek permission to do so.

Comment

This decision goes to show how hard it is to challenge insurance premiums put through the service charge. Provided the landlord can show that it has been negotiated at arm’s length and in the market place, it will have been reasonably incurred. In a previous decision (Forcelux Ltd v Sweetman [2001] 2 EGLR 173) the Lands Tribunal said this meant demonstrating that the landlord had properly “tested the market” and it had been thought that this might mean something more, but here the Upper Tribunal – perhaps ducking the issue slightly – say it does not. As such, where a landlord has instructed a broker to find an insurance quote it is going to be nigh on impossible to challenge it.

There have been a number of priority need cases in the Court of Appeal recently and Johnson v Solihull MBC, June 6, 2013, unreported [from a lawtel note] is another one.

Mr Johnson was 37 years old. He was a heroin addict, suffered from depression and had spent many periods in custody since he was 13 or 14 years old. For several years he had not had his own home, and would either stay with friends or family or sleep rough. He subsequently applied to Solihull for assistance under Part 7, Housing Act 1996. The authority decided that he did not have a priority need because he was not vulnerable. This decision was upheld on a review. In doing so, the reviewing officer, when comparing Mr Johnson to the “ordinary homeless person”, referred to a report which contained statistics demonstrating that a number of homeless people suffered from mental illnesses and drug problems.

The county court dismissed Mr Johnson’s appeal and Mr Johnson appealed to the Court of Appeal. He contended that (1) the reviewing officer had wrongly applied the test of vulnerability, as she had used as the comparator a homeless person affected by drug use rather than a homeless person who did not have such issues; (2) the composite assessment approach required of the reviewing officer when she considered “other special reason” under s.189(1)(c) meant that she should consider the individual factors and how they related to each other; (3) the judge had been wrong to limit to long-term prisoners the application of the Homelessness (Priority Need for Accommodation) England Order 2002 art.5(3), which provided that a person who was vulnerable as a result of having served a custodial sentence had a priority housing need.

The Court of Appeal dismissed the appeal. The reviewing officer had been entitled to, when comparing Mr Johnson’s circumstances to the ordinary homeless person, to determine that the ordinary homeless person was likely to suffer from mental illness and / or drug problems and it could not be said that the reviewing officer had failed to consider all of Mr Johnson’s circumstances together.

Nor was the reviewing officer wrong to find that Mr Johnson was not vulnerable by way of his imprisonment; he had not become institutionalised and the other evidence showed that his released had not led to him being vulnerable.

Comment

This decision, in my view, is contrary to the purpose of the Act and takes Pereira a step further than was intended. The purpose of the Act was to ensure that people who are at more risk of suffering harm when homeless are given accommodation. I freely accept that to make that judgment you need a comparator, but the comparator should be someone who is able to cope if they were homeless. The ordinary homeless person may well suffer from mental health problems, but so what? The question is whether they are vulnerable or not. If the majority of homeless people are vulnerable then the comparator should no longer be the ordinary homeless person.

It will be really interesting if this goes higher. As far as I am aware the House of Lords/Supreme Court have never looked at the question of vulnerability and this case would appear ripe for the Supreme Court to look again at Pereira and to see if it is – to use the oft quoted phrase – fit for purpose 16 years on.

Riniker seems to be a leaseholder of a flat which is owned by a company (called only “C” in the note). Mr Mattey was the company secretary of C. It appears that the notice under the Schedule was served on C; access was not given, and Riniker issued proceedings against Mr Mattey.

The District Judge held that there was no case to answer as Mr Mattey was not the landlord. The Divisional Court upheld that decision.

Now, there must be something more to this. How on earth is it contended that Mr Mattey is the landlord? Sadly, the note serves to tease, but not satisfy (hat tip, Sir Alan Ward). If any readers have any more information, I’d be very grateful to hear it.

First up comes Triplerose Ltd v (1) Grantglen Ltd (2) Cane Developments Ltd [2012] UKUT 204 (LC), a case all about s.47, Landlord and Tenant Act 1987. You’ll remember that this is the provision that requires all demands for, inter alia, service charges, to contain the name and address of the landlord. In Beitov, it was held that this provision meant what is said and that giving the address of an agent was not sufficient. Well, in Triplerose, the demand had not given the name of the landlord (which was a company) but had given the name of a director of the company. The LVT had not been worried by this, saying that there was no prejudice to Triplerose.

The UT allowed an appeal. Name and address of the landlord meant exactly what it said. The name of a director of the landlord company was not enough. Prejudice simply didn’t arise.

Which brings us to Kolup Investments Ltd v Al-Dhahir [2013] UKUT 136 (LC). This one has a special place in the hearts of the NL team. Counsel for the appellant was Amanda Gourlay of the excellent Law and Lease blog and the solicitors were Anthony Gold who, as some of you will have realised, have quite a lot to do with the NL blog. Good people all and available at remarkably reasonable rates.

In short, there was a block of flats, most of which were let on long leases but some (three, I think) of which were retained by the landlord. There had been proceedings in the LVT in 2009 relating to proposed boiler replacement works and possible reasonable costs. There were then second LVT proceedings relating to the costs of the 2009 case; the landlord sought to recover them through the service charge but the LVT held that no costs were recoverable. It accepted that the lease allowed for the recovery of the costs, but held that the costs had not been incurred by the landlord qua landlord, but, rather, in its capacity as owner of the three flats. Further, it held that the 2009 proceedings were a charade as the landlord had never intended to do any boiler replacement works at all.

The Upper Tribunal allowed an appeal. The fact that the appellant retained three flats did not mean that it was somehow not acting as a landlord; the whole issue was a red-herring. The reasoning by the LVT was inadequate and could not stand. Nor could it be said that the proceedings were a charade. It was clear that there had been a serious dispute in 2009 about the proposed works and that the LVT determination had been sought against that background. The UT quashed the LVT decision and held that the only legally sustainable conclusion was that the costs were properly recoverable through the service charge, together with various of the costs of the second LVT case and the UT appeal.

In Cussens v Realread Ltd [2013] EWHC 1229 (QB), Ms Cussens was the leaseholder of two flats in a block owned by Realread. It was alleged that the flats were used for “unlawful and immoral” purposes, (namely prostitution and that this was a nuisance*; this behaviour was said to be a breach of covenant. Realread wanted to forfeit the lease and, so, in an effort to comply with s.168, 2002 Act, issued proceedings in the county court seeking a declaration that there had been a breach of covenant. Given the unchallenged evidence from two police officers and another leaseholder, the factual basis of the claim was made out and the CJ granted a declaration as sought and made an order for costs. There is no suggestion in the judgment that Ms Cussens was in any way personally responsible for any of this

Ms Cussens appealed to the High Court arguing that there was no jurisdiction to enable the county court to make a declaration of this nature. The appeal was dismissed. There was nothing in s.168, 2002 Act which dealt with whether a county court could make a declaration of this sort, but that was besides the point. The court court had jurisdiction under s.15, County Courts Act 1984 to deal with cases about contracts. The lease was a contract and so the county court had jurisdiction. However, (a) the county court could always transfer the case to the LVT for determination; and, (b) there was a potential argument (for another day) as to whether the county court, if it were to deal with such a case, should apply a limited costs power, akin to the restrictive powers of the LVT.

* probably only to other residents although this isn’t made clear

In Spaul there seems to have been two issues arising out of one point. In short, Mr S was the leaseholder of a flat. He said that he had not received various statutory notices (see s.20, Landlord and Tenant Act 1985) nor had he had proper notice of the landlord’s application to the LVT. The LVT rejected this and the UT refused permission to appeal.

The High Court dismissed his application for judicial review. Mr S was arguing that, had the UT properly considered the evidence, it would have been bound to grant permission to appeal. The High Court (at least, according to the note) was not impressed. The application for permission to appeal had been wholly unsatisfactory and had failed to set out why it was said that the LVT had erred. In short, the decision was one for the UT and there was no arguable basis for JR.

As ever with these Lawtel notes, you find yourself with the impression that there is rather more to this than the author of the note sees fit to tell you. If anyone involved in the case has more to say, we’d be grateful to hear it.

On July 1, 2013, the new tribunal will burst forth into the world (well, England and, for very limited purposes, Wales) and replace the LVT, RAC, Agricultural Lands Tribunal, etc. And, to mark this happy occasion, we’ve (finally) been given some new procedural rules to govern this tribunal. In short, there will be one set of rules to govern them all, one website to find them, one building to house them all and, in the darkness bind them.

The new rules are, in fairness, pretty good. There are extensive case-management powers in rules 3 and 6 which, whilst they may not come as any great surprise to those who regularly use the CPR, they’re a vast improvement over the various rules which they replace (e.g. there is now a power to extend time even if a time limit has passed – very useful, but  totally lacking from the old LVT procedure regulations). Failure to comply with directions, etc, is dealt with r.8 and punishments range from waiving the failing through to barring your participation in proceedings.

A problem with the old r.11 of the LVT procedure regs is corrected by r.9 of the new regs. Now it is possible to strike out the whole or part of either side’s case whereas previously, only an applicant could be struck out.

Detailed provision is also made for disclosure of documents etc (r.16-18). Importantly, a new power (r.20) is introduced allowing the Tribunal to issue a witness summons or order that someone answer specific questions (presumably these need to be relevant to the case, so the FTT(PC) can’t order you to name the best Bowie album of all time or explain what Gavelkind was).

The FTT(PC) may transfer cases to the Upper Tribunal (Lands Chamber) if they are complex, lengthy or of high-value (r.25). It’ll be interesting to see how that power is used. I wonder how many clients will want to try and by-pass the FTT(PC)? I suppose if you *know* that your case is going to the Court of Appeal, you might try and save some time and money. Although, given the backlog of cases in the UT, one wonders how much time you’d actually save. Presumably some sort of practice direction will be produced in due course.

Part 4 deals with conduct of hearings. Not much new here, but r.35 is useful as it provides for consent orders. Previously, there was some uncertainty about how, if at all, the LVT could deal with such orders.

Given the wide range of work that the FTT(PC) will be doing, it’s hardly surprising that there are some special rules for certain kinds of case. If you’re dealing with land registration cases, or cases about drainage on agricultural land, etc, then you need (a) a stiff drink; and, (b), Pt.5 of these rules.

The area where I can foresee the most practical difficulty is Pt.6. The slip rule is preserved (r.50), but a new power is introduced allowing the FTT(PC) to set aside a decision which, in effect, has been reached in breach of natural justice (r.51). I confess, I see plenty of satellite litigation coming out of this power. I also see problems with the new powers (r.53, 55) allowing the FTT(PC) to review its decision when being asked for permission to appeal. Again, satellite litigation seems inevitable.

From Mike M[...]

Email xxxx@cardiff.gov.uk

Message

intentionally homeless for abandoning suitable accommodation, looking for caselaw on this subject

From: Nearly Legal

Sent: 30 May 2013 16:55

To: Mike M[...]

Subject: Re: A comment from Mike M

Well, the blog is there to search. Anything more is what we get paid for.

NL

From: “Mike M[...]“

xxxx@cardiff.gov.uk

Date: 31 May 2013 07:54

Subject: RE: A comment from Mike M[...]

To: “Nearly Legal”

Thanks for your reply, but it was not helpful, I understand there is a blog, but I do not have the time to search, when you guys have set up the site and must be all knowing on such matters would suggest a few case law’s on my request.

Not helpful and very unprofessional of you

Kind regards

M. M[...]

Homeless Assessment Team
Xxxx@cardiff.gov.uk

Out of a possibly misplaced sense of mercy, I have redacted his email address. However, for such a remarkable display of entitlement, onto the step goes Mr M[...].

[Update. Mr M[...] is annoyed with me.

From NL
To Mike M[...]

Dear Mr M[...]

In order to remind myself of the need to be professional at all times in immediately doing unpaid work for someone who can’t be bothered to do it themselves, even though it is their job (and they have a Council legal department if they are stuck), I have put a note on the blog.

Regards

NL

From Mike M[...]
To: NL

Dear NL,

Again your tone is very derogatory, I guess your website is not helpful, so why bother setting it up in the first place, I though it was about sharing information and helping each other in such matters.

It is not about not bothering to search, it was trying to get answers as quickly as possible to help applicants in their homeless approaches. I also do volunteering for two separate organisations and I am always professional. Council legal departments are not always the best people to ask when you have experts in such fields that can help.

I shall not be using your site and will instruct others to go to other more professional sites, as it is clear that you are not.

Thankyou for your time spent on being unprofessional when you could have spent the time dealing with the request

Kind regards

M. M[...]

Mr M. [M...]
Homeless Assessment Team

I fear Mr M[...] really doesn’t get it. Also poor Cardiff Legal Services! I’m sure they are actually wonderful. And expert.

Perhaps I should take this chance to make clear something that we hoped would have been blindingly obvious. Mr M[...]‘s first contact was via the contact form on our About page. On that page it says:

The purpose of this blog is to provide information and discussion. Nothing on this blog should be relied upon as a substitute for legal advice from a qualified solicitor regarding any actual legal issue or dispute. Nothing on this website should be construed as legal advice or perceived as creating a barrister/solicitor-client relationship. Please note that we cannot give advice on individual’s situation or problems on this blog.

There are many good reasons for this, including lack of insurance for advising via the blog, lack of confirmation of client ID, not seeing documents and so forth. But there is also the question of time and effort being demanded for free. Every contributor to the blog is busy. and does this in what remains of their own time. We are delighted if it is of use to people. But if we were to take up giving free advice and assistance via the blog, we would end up doing nothing else. Frankly, I prefer to be able to eat.

The kind of advice we are asked for, not least by Mr M[...], is the kind of thing we get paid to do, one way or another, what with being professionals and all. The contributors to the blog are happy to help people with legal issues, it is what we do all day (and frequently evenings) but we do so on proper terms of engagement and, somehow (via legal aid, Conditional fee agreement, private etc.), for fees. ]

[Update 2. OK, I promise to stop this now, honestly I do. But I have to include this last shot from Mr M[...] in which I am accused of lèse-majesté against Cardiff Council, in its incarnation in Mr M.:

Thankyou for your assistance and for putting me on the naughty step in your blog, not professional and not complementary either to myself or Cardiff Council. It just goes to show that you are not a professional person and somewhat immature.

Also, he “will not use this site or ask [me] anything again”. Which seems like a reasonable resolution to me.]