On the agenda: Part 2

In the last post, Sam and Justin considered the new Government’s proposals concerning the right to buy, the benefit cap and the roll out of the Immigration Act 2014 in England and Wales. This post considers the effect of the budget and the announcements it made in respect of housing law in England and Wales.

Housing benefit and the benefit cap

As we noted previously, the Government had already announced that it would reduce the benefit cap to £23,000. In the budget, however, the Chancellor announced that the benefit cap would be even lower for people outside of Greater London. While it would be lowered to £23,000 for persons living in Greater London, it would be set at £20,000 for everyone else. The Government proposes to legislate for this change by clause 7 of the Welfare Reform and Work Bill 2015. In the last Parliament, the cap was largely seen as a problem for families living in London (although in practice it actually affected just as many families living outside London as in). The reduction of the cap by £6,000 for those out of London will, however, now ensure that a far greater number of families will be impacted by the cap than had previously been the case.

The same Bill also proposes to amend the Welfare Reform Act 2012 so as to require the Secretary of State to review the operation of the benefit cap and to consider whether the cap should be increased or decreased having regard to the general economic situation and any other factor that the Secretary of State considers relevant: clause 8, 2015 Bill. While this is an eminently sensible amendment, the cynics in us see this a useful defence to any potential future legal challenge than as a real intention to increase the cap should the impact on families prove to be worse than anticipated.

The Chancellor also announced that from April 2016 those aged between 18 to 21 will no longer be automatically entitled to the housing element of universal credit. It is unclear if this will also apply to housing benefit, but one would have thought that it would and it may be that the Chancellor simply presumed that universal credit will have finally been rolled out nationally by April 2016. It is not proposed that the exemption will apply to those aged between 18 to 21 who are vulnerable, have children living with them or who are “living independently and working continuously for the preceding 6 months.” While the last exception is plainly designed to ensure that young people are not deterred from leaving the family home to get a job, the fact that housing benefit only applies after a young person has been working for six months is likely to make some people from thinking twice about moving away to obtain employment.

Finally, the Chancellor also intends to make further savings by limiting the backdating in housing benefit claims to a maximum of four weeks as opposed to the current six months. On the one hand this change merely reflects what will happen with the housing costs element of universal credit once it is finally rolled out nationally. However, this is a big change that effectively shifts a further cost from the Treasury onto housing associations and local authorities. This will therefore be a yet further factor, in addition to the bedroom tax and benefit cap, to drive up the level of rent arrears.

Social rents

Another piece of good news for tenants of housing associations, in addition to the extended right to buy, comes in the form of clause 19(1) of the 2015 Bill. Save for a limited number of exceptions, all registered providers of social housing must secure that the amount of rent payable by a tenant of their social housing in England is 1% less than the amount that was payable by the tenant in the preceding 12 months. The amount that was payable in the preceding 12 months is whatever the rent was on 8 July 2015. This will also apply to tenants of local authorities.

For some secure tenants, however, the reverse will be true. From April 2017, it is proposed that tenants of local housing authorities earning more than £30,000, or £40,000 in London, referred to as “high income social tenants”, will be forced to “pay to stay”, i.e. pay the market rent for their secure tenancy. The Treasury estimates that this accounts for around 9% of all secure or introductory tenants. This latest proposal is not altogether surprising; the previous Government openly considered bringing in such a change in the last Parliament and conducted a consultation on the subject. Unsurprisingly, the responses to that consultation from local housing authorities were almost universally positive. At that time, however, it was proposed that a high income social tenant would be someone who earned more than £60,000 per annum.

Those local housing authorities, who had presumably assumed that the additional rent would simply be credited to the housing revenue account, will, however, be disappointed to learn that the additional rent will be recovered by the Treasury and will not be made available to local housing authorities.

The end of lifetime tenancies?

That is not the end of the bad news for local housing authorities. The Localism Act 2011 gave local housing authorities the choice of whether or not to use fixed-term (often referred to as flexible) tenancies as opposed to the default “life-time” secure tenancy. The Government statistics for 2013/14 do not record the number of fixed-term tenancies that were granted by local housing authorities (although such data is now apparently being collected). It appears to be the case, however, that the majority of authorities have generally opted to continue granting secure tenancies to their new tenants. The Government now appears to want to remove the choice for authorities and intends to carry out a further review with the aim of limiting the use of life-time tenancies to ensure “households are offered tenancies that match their needs and make best use of the social housing stock.”

As we highlighted last time, under the new right to buy proposals local housing authorities will be obliged to sell high value properties that become vacant. One way of delaying properties becoming vacant is to ensure that they are all let on secure tenancies. One ulterior motive for this review might therefore be to ensure that there is a regular and constant supply of vacant properties that are available to sell to ensure that the extended right to buy for housing associations remains affordable to the Treasury.

Conclusion

This Government is still young and there will undoubtedly be further changes to housing law as the Parliament progresses. One feature that is quickly emerging, and not just in housing, is a retrenchment from the rhetoric of “localism” and a return to more centralised control over housing.

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On the agenda

Sam Madge-Wyld and Justin Bates consider the forthcoming legislative programme

Introduction

On 27 May 2015, the new Conservative Government, through the Queen’s speech, set out its legislative programme for the coming Parliament. Earlier on 21 May 2015, the Prime Minister gave a speech on immigration. We consider both speeches and what they mean for housing law.

The right to buy for tenants of housing associations

This proposal was not originally on the Conservatives radar when they went into the election. Indeed, Kris Hopkins, a former housing minister, had in 2013 discounted the idea as being fraught with risk and likely to prove too costly to the public purse.

However, as the polls refused to budge the Conservatives appeared to have decided that a sequel to a previous big policy hit from the 1980s, tapping back into the voters’ aspirations for home ownership, was what was needed to get them back into government with a majority. Whether it was the right to buy “wot won it” we will never know, but it is certainly a manifesto pledge that the Conservatives intend to honour.

Those unfamiliar with housing law may be forgiven for believing that housing association tenants were presently excluded from exercising the right to buy their own homes. That, of course, is not entirely correct. For a start, where a secure tenant had become the assured tenant of a registered provider or a registered social landlord, following the local authority transferring the land to the registered provider under a large scale voluntary transfer, the tenant’s right to buy is preserved: s.171A, Housing Act 1985.

Secondly, tenants of registered providers, or registered social landlords in Wales, who would, but for the fact they are not tenants of a local authority, meet the requirements of Part 5 of the Housing Act 1985, have the “right to acquire” their home if the provision of the dwelling was publicly funded and the property has remained in the social rented sector ever since: s.180(1), Housing and Regeneration Act 2008 and s.16(1), Housing Act 1996.

The substantive difference between the right to buy and right to acquire was the amount of the discount available. By way of example, under the right to acquire the discount in London was £16,000 (The Housing (Right to Acquire) (Discount) Order 2002/1091), whereas under the right to buy the discount is now just over £100,000 (Housing (Right to Buy) (Limit on Discount) (England) Order 2014/1378), and rises by inflation each year.

It is this difference that the forthcoming Housing Bill intends to change. The Housing Bill will entitle housing association tenants to the same amount of discount as those exercising the right to buy. This will not be funded by the housing associations, but by local authorities disposing of high-value vacant council houses. While the detail is not yet clear, one imagines that whenever a housing association sells a property it will be entitled to be paid the discount from central government, who will in turn off-set it against the revenue from the sale of high value council homes that it will recover from local authorities.

Presently, there is very little detail on what is meant either by “high-value” or “vacant”. One imagines, however, every council house in the country will be valued and that those of above a particular value, depending on the region they are located, will be required to be sold when it becomes vacant, presumably meaning whenever an authority recovers possession from a tenant. A fresh valuation of each individual council house would be very costly, so it may be that the current council tax bands are used. However, if this policy is not to be time limited, and proves very popular, then this will presumably require the sale of a very large number of council properties. In areas – such as London – where there are likely to be a number of high value properties this could reduce the amount of social housing considerably.

It is fair to say that the policy has been criticised from both sides of the political divide. Some question why the sale of state held assets should be used to subsidise the purchase of a house by a small class of people who are already adequately housed, while offering no help to others accommodated in poorer quality accommodation in the private rented sector. While others question why any local housing authority will now choose to build new council homes if they might be required to sell them, effectively, for nothing. Councils themselves, operating with historic debt from the housing revenue subsidy payment a couple of years ago, may now also be concerned at the loss of right to buy receipts from their most valuable properties. Many, especially in areas where demand for social housing is already very high, will also understandably bemoan the loss of their stock and the resulting rise in waiting lists. While the Government has promised to replace every social home sold with a newly built property, this same promise was made in 2011 when the right to buy discounts were extended and, to date, the Government has failed to honour its promise with the number of new homes failing to match the number that have been sold.

Some housing associations have also, not unsurprisingly, expressed disquiet at the proposals, some even threatening litigation under the Human Rights Act 1998. It is hard to see, however, what form any legal challenge to the increase of the discounts available would take. First, public authorities are not able to sue under the 1998 Act (Aston Cantlow v Wallbank [2003] UKHL 37; [2004] 1 AC 546) and in R (Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587; [2010] 1 WLR 363, the Court of Appeal held that housing associations are likely to be public authorities themselves.

Even if the 1998 Act were to apply, any challenge would almost certainly fail. In James v UK (1984) 6 EHRR CD475, the ECtHR held that the Leasehold Reform Act 1967, which enabled leaseholders to obtain the freehold ownership of their homes at less than the market value, was a legitimate aim of housing policy and was within the UK’s margin of appreciation to pursue. Here, where the aim is to allow people to own their own homes and where the compensation to the existing freeholder will equate to the market value, it is difficult to see how such a change in the law would be found to be a disproportionate interference with an association’s A1/P1 rights. Nor is a sale, if a housing association is receiving the full market value, likely to impact on a housing associations charitable status.

What about Wales?

This policy is likely to further fragment housing law throughout the UK. The Scottish Parliament has abolished the right to buy and the Welsh Government has announced plans to reduce the discount to £8,000 (see here).

 

Benefit cap

The Government, perhaps emboldened by the Supreme Court’s decision in R (SG) v SSWP [2015] UKSC 16; [2015] 1 WLR 1449 that the benefit cap was lawful, also intends to reduce the benefit cap to £23,000 from the current cap of £26,000. It remains to be seen if the appellants in SG will appeal to Strasbourg – adopting the argument of the minority in the Supreme Court that the benefit cap failed to treat the best interests of children as a primary consideration thereby infringing both Article 8 and Article 3.1 of the UN Convention on the rights of the child – but even if successful it is hard to see this Government, supported by the opposition, deciding to discontinue the benefit cap.

 

Immigration and housing

The Government did not announce in the Queen’s speech an intention to introduce any new legislation concerning the rights of people without leave to remain to access housing. However, in a separate speech, the Prime Minister confirmed that Chapter 1 of Part 3 of the Immigration Act 2014, which prohibits landlords from letting residential premises to persons without leave to remain in the United Kingdom, would be rolled out nationally after having so far only been introduced as a pilot in the West Midlands.

While unsurprising, one would have thought that it would have made sense to await the findings of the pilot before introducing the measures nationally. It is unclear, in the absence of any evidence, whether landlords have been able to get to grips with the new law or whether the support given to landlords has been sufficient to enable them to determine whether a person is in the UK lawfully or whether, as many predicted, landlords have simply refused to let to any tenants from ethnic minorities.

In the same speech, the Prime Minister also indicated that the Government would consult on further legislation that would provide for the automatic termination of a person’s tenancy agreement at the time that his leave to remain expired and to introduce a mandatory licensing regime to prevent “unscrupulous landlords” from “cramming houses full of illegal migrants”.

How the Government intends to amend the Housing Act 1985, Housing Act 1988 and the common law on landlord and tenant so as to bring to an end a tenancy at the same time that a person’s visa expires will be interesting. Will a landlord be required to take steps to evict someone within a period of time? Or will the (not so) tolerated trespasser return?

 

Conclusion

What does all this mean for housing? By 2020, a number of people who did not already own their home will do so. An even greater number of people won’t and will remain in accommodated in the private rented sector paying ever increasing rents. The demand for social housing will remain, but the amount available in England will be less than there is today. People living and working in the UK illegally will also, in all likelihood, be living in even worse accommodation than they presently are already and fewer people with large families unable to work will be living in London and other areas with high rents

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Pat Reddin – Arrangements

Pat Reddin – Arrangements

 Pat’s funeral will take place at 3 p.m. on April 29, 2015, at

 St Marylebone Crematorium

East End Road, East Finchley, London N2 0RZ

All those wishing to do so are invited to attend. Donations instead of flowers to Pat’s chosen charity

 Crisis,

Crisis UK, 66 Commercial Street, London E1 6LT

Please wear casual and colourful clothing!

The family also invite all his friends – whether or not they attend the funeral – to a reception to celebrate his life at

Victoria Stakes, 1 Muswell Hill Road, London N10 3TH

from 4.30 onwards. As well as speeches by members of Pat’s family, friends will be welcome to contribute thoughts and memories of, and tributes to, Pat. There will be food, drink and music – no tears, for his was a joyful life and that is how he and the family would like it to be remembered.

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Today, housing lost a good friend

Pat Reddin: 1947-2015

Andrew Arden QC records and reflects on the loss of the leading housing surveyor of our times.

This morning, April 13, a day before his 68th birthday, housing surveyor Pat Reddin died following a fall.

For those – few – housing practitioners not familiar with his work, Pat has been the ‘go to’ surveyor for both tenants and social landlords since the early 1970s. Indeed, the founders of housing law at that time were not only Law Centre and legal aid lawyers but others, without whom our work would have been impossible to deliver, who put flesh on the bones of cases involving housing conditions, by whom I mean pre-eminently Pat Reddin and the independent environmental health adviser, David Ormandy. It felt like there wasn’t a disrepair claim which didn’t feature one or other of them.

As those who follow this blog – and many others – will know, in 2011 Pat was diagnosed with a brain tumour which he courageously, vigorously and (for the most part!) with the best of humour fought throughout 2012, allowing him to return to work less than a year after surgery (and long before the doctors had predicted he would be able to): he had continued to recover, and to work, and was, as he always has been, much in demand as an expert witness, readily acceptable to social landlords and tenants alike as a joint expert and indeed in the courts.

It is too early to say what caused the fall or how far it was linked to the tumour, although his annual scans showed that the residue had not grown and that the operation was a considerable success. His sudden death has accordingly come as a complete shock to his family and friends.

Pat leaves behind his wife, Vincina Mellor, four daughters – Tania, Sarah, Jada and Francesca – and five grandchildren – Cassius, Ava, Tulah, Sheyo and Kosi – as well as a host of friends many of whom are active in housing and housing law and all of whom know how lucky we were to have had him in our lives and who will miss him dreadfully. Pat and the family were deeply grateful for the outpourings of concern and support during 2012, the most enormous morale boost through what Pat remarked in his client letter as he returned to work was a truly horrible year.

In my first post on his condition (July 6, 2012), I recorded that the tumour had been

‘a dreadful shock to him and to his family – and to those close to him who hadn’t realised he had a brain at all (a joke he does not tire of making!)’.

This was also a line I had used to his youngest daughter – Frankie, my god-daughter (as Pat was my daughter’s god-father) – across his bed in the ICU the morning after an 11½ hour operation in early January 2012, when there were very real doubts both about his chances of recovery and about how far he was (or would be) capable of comprehension. I was quite clear in my own mind, though, that I saw in his eyes a flicker of recognition – of humour – at the line and it is one of the enduring joys of my life that as soon as he could communicate again, he confirmed that I had read him right: he had not left us but briefly.

That last thought struck me again today, when I found a draft will written way back when – from its contents, probably 20 years or so ago – and which contained this line.

‘This is a time of celebration and adventure. I am going on another journey. I will return and I will always be available for you. Hold me in your thoughts for that is where I reside’.

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Access to justice in decline

 Andrew Arden QC and Clare Cullen consider the depressing decline in access to the courts.

The costs of issuing a claim are increasing yet services provided by the courts continue to diminish: many courts are now running an appointment-only service and it is common to see litigants, seeking to issue a claim or application, being turned away because they don’t have a pre-booked appointment. The “unassigned list” in Central London County Court is said to have been a fiasco (Nearly Legal) and is a further example of decline: what it means is that no judge is assigned to the case in the hope that one will become free, e.g. because another case settles. The result is that parties are often left waiting most of the day, a judge may still not become available and the case is adjourned – an enormous waste of money for all concerned and another illustration of putting the burden of state cuts on individuals. Moreover, because lawyers know about this sort of thing, and how to manage it, those most affected are usually the unrepresented, which in turn means – to use the phrase du jour – that the burden falls on those with the least broad shoulders.

Access to the courts is not only restricted by increasing fees and declining service: the reductions in legal aid are of course playing a major part. The Public Accounts Committee in its report, Implementing Reforms to Civil Legal Aid, Thirty Sixth Report of Session 2014-2015, has been critical of the Ministry of Justice’s legal aid reforms citing a failure properly to research the impact of the reforms including whether those who are entitled to legal aid are actually able to access it and the potential costs arising elsewhere in the public sector – presumably they have in mind delays, adjournments and cases (when they are heard) taking longer. The President of the Family Division has been particularly robust in his criticisms.
Over the past few months, the Government has responded to two consultations relating to these issues: one on increased court fees; the other on legal aid for committal proceedings following a breach of the new injunctions under the Anti-Social Behaviour, Crime and Policing Act 2014.

Increased court fees

In Enhanced court fees: the government response to Part 2 of the consultation of reform on court fees, January 2015, it was announced that the fees for issuing a claim valued above £10,000 will rise to 5% of the value of the claim, subject to a maximum fee of £10,000. Where the claim is for an unspecified sum, the issue fee will be 5% of the estimated value of the claim with the same upper limit.

The plans have, unsurprisingly, been criticised by many in the legal profession, including senior Judges: the concern is that fees will be prohibitive and may result in more litigants acting in person because the money which would have been spent on legal fees will be taken up paying them. The Government has rejected this criticism on the basis of rather dubious research which found that “fees are a secondary consideration in the decision to litigate”: the research, in 2013, was based on 18 telephone interviews and, in 2014, on responses from 31 civil court users only 12 of whom would have been affected by the proposed changes.

In housing, this increase is particularly concerning for disrepair and unlawful eviction claims, often involving an unspecified sum for general damages which are hard to quantify at the beginning of the claim. The judiciary’s understanding of the proposals, having had sight of the draft Statutory Instrument, is that the maximum fee of £10,000 will be payable where the sum claimed is not limited in the claim form. The Government suggests in response that, where the claim is for an unspecified sum, any fee payable will be based upon the estimated value of the claim.

This is extraordinary, utterly ignorant, wholly unprofessional: the amount paid will be known to the other side; accordingly, a litigant is torn between stating a high sum which will generate a high issue fee and stating a lower sum which will – inevitably – set the parameters not only for any negotiations but even for the court itself on judgment. (To pre-empt the response that there are estimates even under current arrangements, the brackets are so wide that they do not have this effect).

Independently of this, the fees represent a significant increase from present levels: the issue fee would be £1,250 for a claim valued at a maximum of £25,000 and £750 for a claim at a maximum of £15,000. (Currently, a fee of £610 applies to a claim valued between £15,000- £50,000 and £455 to a claim valued between £5,000-£15,000).

Whilst a claim for damages for unlawful eviction remain – at least for now – within the scope of legal aid, a claim for disrepair damages does not. These claimants will often be vulnerable and have limited means; it is that vulnerability which is part of what exposes them to the practices of bad landlords; coupled with the lack of legal aid, the increased fees are likely to limit access to the courts for many with a claim.

To add to the concern, the response to the consultation also announced the Government’s intention to increase the issue fee for possession claims to £355, the second rise in two years. In arrears cases, these fees will increase a debt which the tenant is already unable to pay, prolonging their time in debt, while, for social housing providers, it will be an additional cost that will prevent money being spent elsewhere.

Legal Aid – committal proceedings

The second consultation response, Anti-Social Behaviour, Crime and Policing Act 2014: changes to remuneration for legal aid services, concerns legal aid for committal proceedings where there has been a breach of the new injunction introduced by s.1, Anti-Social Behaviour, Crime and Policing Act 2014 (replacing ASBIs and ASBOs) and is equally worrying. Whilst the new injunctions will fall within the scope of civil legal aid, committal proceedings for breach will be under criminal legal aid and will therefore be paid at criminal rates which have been subject to such much public comment and criticism that there is no point in repeating it here.

Despite responses to the consultation pointing out that the vast majority of breach proceedings will be in the county court, the Government has rejected the proposal that proceedings should fall within civil legal aid on the basis that “the focus of breach proceedings will…..be on proving beyond reasonable doubt whether breach has occurred” and, therefore, that the proceedings are “simpler in terms of process than those for applications, variations, discharges or appeals”.

This is just nonsense. It is common – close to usual – for ASBI breach proceedings to be joined to an application to vary the ASBI or a claim for possession based on the same facts (which will be the case in the context of the new injunctions). Accordingly, as many civil legal aid practitioners will not have a criminal legal aid franchise, prima facie a criminal practitioner will be needed for part of the case while a civil practitioner for the remainder.

That would, of course, generate an absurd additional cost, so what is suggested is that civil legal aid practitioners will be able to apply for an individual case contract where necessary (itself giving rise to a public sector cost handling applications) although it does not appear that such contracts will be routinely awarded even where solicitors were involved in the original injunction proceedings: it is anticipated that such a contract will be awarded “where the provider has had substantial involvement in the original proceedings, where continuing to act for the individual represents value for money, and where it is in the interests of justice” but the example given is in respect of “clients with incapacity issues or learning difficulties, who might suffer from loss of continuity of representation” as if other defendants won’t.

Even if the contracts are granted routinely, the administrative burden of having to apply (which is likely to take some time) and the criminal rates available will deter many civil legal aid providers from seeking them, with the result either that those facing committal proceedings will lose all representation, alternatively continuity of representation while the case is taken up by a criminal practitioner who may have no familiarity at all with the housing law issues involved.

Even where such a contract is awarded, there is no guidance as to how lawyers are to separate out their time on the breach claim as opposed to – say – a variation claim and/or a possession claim. We can make an educated guess: though said to be simple, we suspect that in practice public funding will find that much more time is spent at the lower, criminal rate than civil.

Conclusion

The two consultations have followed a depressingly familiar pattern: responses largely ignored and the Government pressing ahead with proposals regardless of well-founded, professional objections to them. The impact that the increased issue fees will have on litigation remains to be seen but the rise risks making the courts prohibitive to even more people than now; the proposals for committal proceedings for breach of the new injunctions will likewise have an impact on access to justice (in circumstances incidentally where a person’s liberty is at stake) significantly reducing the solicitors and the skills available in relation to this work.

We despair!

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Nations Apart

Andrew Arden QC and Clare Cullen consider a recent report from Crisis on the challenges faced by the single homeless

Introduction

Obtaining assistance as a single homeless applicant under Part VII, Housing Act 1996 is – to say the least – an uphill struggle. Ordinarily, and subject to meeting the other requirements, the full homeless duty will only be obtained if the single person is found to be vulnerable under s.189(1)(c) so as to confer priority need: in contrast with other categories of priority need (e.g. pregnancy or dependent children), this is not a straightforward finding of fact.

The prevalence of gatekeeping, preventing many single homeless applicants from obtaining support, was highlighted by the Crisis report Turned Away, The treatment of single homeless people by local authority homeless services in England, October 2014 (see post, No Surprises – Gatekeeping). A new report from Crisis, published in December 2014, Nations Apart? Experiences of Single Homeless People Across Great Britain, affords further insight into the challenges faced by single homeless people.

Priority need – Vulnerability

To establish priority need under s.189(1)(c), the applicant (or a person who might reasonably be expected to reside with the applicant) must be found to be vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason.

In considering whether an applicant is vulnerable, a local authority has to consider whether the applicant is less able to fend for himself than an ordinary homeless person so that injury or detriment to him will result when a less vulnerable man would be able to cope without harmful effects (R v Camden LBC Ex p. Pereira (1998) 31 H.L.R. 317).

 

Local authorities have a wide discretion when applying the Pereira test: they are said to be best placed to make such a judgment in the context of their own homeless population and resources (Osmani v Camden LBC [2004] EWCA Civ 1706; [2005] H.L.R. 22 at [38]).

 

For policy reasons, drug addiction by itself is unlikely to amount to a “special reason” under s.189(1)(c) although it could be if it puts a recovering addict at risk of relapse on the streets (Crossley v Westminster CC [2006] EWCA Civ 140; [2006] HLR 26 at [30]).

Ordinary Homeless Person?

The new report highlights the difficulties faced by many single homeless people:

  • 48% had experienced drug dependency;
  • 46% had experienced alcohol dependency;
  • 49% have faced mental ill health at some point during their lives;
  • 41 % have been subject to a prison sentence at some point during their lives;
  • Nearly 50% became homeless aged 20 or younger. The earlier that a person became homeless, the more likely they were to have five or more incidents of homelessness.

It is unsurprising that such a high proportion suffer from alcohol, drug or mental health problems: these issues clearly make it more difficult to find and keep accommodation. The proportion in which these issues arise is, of course, much higher than for the general population.

That leads to the question, what is an “ordinary homeless person”. This issue arose in Johnson v Solihull MBC [2013] EWCA Civ 752; [2013] HLR 39, currently on appeal to the Supreme Court (UKSC 2014/0230) (Judgment is awaited. See Kanu v Southwark LBC (UKSC 2014/0233) on vulnerability where Judgment is also awaited).

Mr Johnson was a recovering heroin addict and persistent offender. It was accepted that he was at risk of reverting to drug use should he become homeless but the local authority did not consider that he had a priority need under s.189(1)(c). Applying the Pereira test, the review officer relied on a survey which had found that 92 % of homelessness services worked with people experiencing problems with drugs and therefore concluded that the risk of relapse did not render Mr Johnson vulnerable on the basis that relapse was not unusual amongst the homeless population. On appeal, it was argued that the reviewing officer had used the wrong comparator and should have considered an ordinary homeless person who did not have drug issues but this was rejected by the Court of Appeal.

“18. it is clear that the concept of an ordinary homeless person is necessarily an imprecise one. It falls to the Housing Authority to consider what features such a person would have. It is also clear from that paragraph that the question of who is an ordinary homeless person and what characteristics they have is a question to be assessed in the real world. It is sadly not surprising that many homeless persons have drug issues, or that many homelessness services are involved with dealing with those issues. Accordingly, in my judgement, it was open to the review officer to refer to this report as providing some assistance in determining the characteristics of the ordinary homeless person,”

 

Conclusion

Applying the Court of Appeal’s analysis, issues which are prevalent amongst the homeless community but not the general population, such as mental ill health, could also be seen as a characteristic of the “ordinary homeless person” diluting the test even further and imposing further limitations on single homeless applicants’ ability to obtain assistance. It is a vicious, downward spiral: the worse the general conditions of the homeless, then the worse the condition of an individual homeless person has to be in order to be vulnerable on the Pereira text. This is of particular concern when one considers the young age at which many first become homeless: it exacerbates the likelihood of writing them off for life.

Secction 189(1)(c) is intended to protect those who are vulnerable rather than simply determining priorities between the vulnerable homeless. The comparator of the “ordinary homeless person” was an invention by the Court of Appeal in Pereira which has severed the approach to vulnerability from s.189(1)(c) itself. Unless the Supreme Court agrees, however, the next Crisis report on the subject will inevitably contain statistics even worse than the current ones.

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History repeating?

Andrew Arden QC and Clare Cullen consider the decision in Sims v Dacorum

 

Introduction

The Supreme Court in Sims v Dacorum [2014] UKSC 63 ended (for now) the belief of many housing practitioners that the common law rule in Hammersmith v Monk [1992] 1 A.C. 478 would have to be revisited in light of the Human Rights Act 1998.

 

Rule in Monk

Monk affirmed the rule that, unless a tenancy agreement provides to the contrary, a unilateral notice to quit (NTQ) served by one of a number of joint tenants will bring the tenancy to an end regardless of the wishes of the other, who becomes an instant trespasser with no rights of occupation, losing all security and any ancillary rights – in the case of a secure tenant, very valuable ancillary rights, including RTB, security, succession and so on, all without the benefit of any judicial process.

 

Extent of Art.8

A previous post, Buckland v UK, considered the extent of Art.8.

 

That case concerned a possession order made against an occupier of a mobile home on a local authority site in Wales. At that time, the mobile home agreement did not fall within Mobile Homes Act 1983 so as to confer full security (this changed from July 10, 2013). The protection afforded to Ms Buckland was, therefore, limited to the court’s power to suspend a possession order for up to 12 months at a time under Caravan Sites Act 1968.

 

The district judge granted possession but suspended the order for 12 months. As the law stood at that time (Kay v Lambeth LBC [2006] UKHL 10; [2006] 2 A.C. 46), the judge was unable to consider whether a possession order would breach Ms Buckland’s Art.8 rights and therefore no proportionality exercise was carried out.

 

Ms Buckland accordingly applied to European Court of Human Rights alleging a breach of Art.8, a claim that was upheld notwithstanding the right to apply (and re-apply) to suspend the order for possession:

“The possibility of suspension for up to twelve months of the possession order is inadequate, by itself, to provide the necessary procedural guarantees under Article 8. Although further suspensions may be granted, suspension merely delays, and does not remove, the threat of eviction. The Court cannot accept that the fact that an individual may effectively be able to remain in her home in the long-term by making repeated applications to extend suspension of a possession order removes any incompatibility of the procedure with Article 8.” ([68])

 

This was thought to have significant implications:

“The decision that suspension is insufficient is very important indeed: incompatibility was only remedied by removing even the threat of eviction. In many cases, this will be a difference without a distinction, because refusal of a possession order still leaves the tenancy in existence, eg introductory tenancies, demoted tenancies, flexible tenancies, ie the tenancy continues until the court decides that it is to end. That is not so, however, in the case of, eg Part 7 tenancies or family intervention tenancies or where a secure or assured (or other) tenancy is brought to an end by a joint tenant’s notice to quit. If a court finds that it would be disproportionate to make an order, then – at any rate on the face of it the former tenant will still have no domestic right of occupation and his position will be akin to that of the tolerated trespasser.

 

“Given that a finding on proportionality is temporal in quality (ie it turns on specific facts at a given time, which facts may change) – this plainly leaves the occupier in such cases as much at risk of eviction as in Buckland – if not more so, because in Buckland there was a period for which the occupier was not under threat of eviction (the period of the suspension) while in the cases we are talking about, there is the constant risk of repeat proceedings, not even confined to the occupier’s circumstances but, eg if other demands on the local authority landlord are said to have changed so that the balance is affected.

 

“In short, we do not see that the law can achieve what we might call Buckland compliance other than by ensuring that the right of occupation continues (as it will in some cases) or otherwise that it is either revived or replaced.”

 

Sims

The Monk device is most commonly used when a joint tenant leaves a property citing domestic violence and seeks assistance from a local authority under Part 7, Housing Act 1996. As it is not reasonable to occupy accommodation if it is probable that it will lead to domestic violence (1996 Act, s.177), she (as it will usually be) must be found homeless and unintentionally so. Subject to eligibility and priority need, that person will, therefore, be owed a full homelessness duty.

 

In these circumstances, most local authorities will not offer permanent accommodation in discharge of the homelessness duty unless the joint tenancy has been brought to an end. It is common practice for local authorities to provide a pro forma NTQ so that this can be done.

 

The case of Sims was in this category. Mr Sims and his wife were joint secure tenants of Dacorum BC. Mrs Sims left and moved into a women’s refuge claiming that she had been a victim of domestic violence. Mrs Sims applied to Wycombe DC for accommodation and was told that she could not be granted a tenancy whilst she remained a joint tenant of a property elsewhere. Dacorum BC, therefore, suggested that she serve a notice to quit which she did and the tenancy ended.

 

It was contended by Mr Sims that the rule in Monk was incompatible with Art.8 and Article 1 of the First Protocol (A1P1). In the Court of Appeal, he accepted that the court was bound by Monk so he sought permission to appeal to the Supreme Court (this was refused by the Court of Appeal but granted by the Supreme Court).

 

In light of Buckland, it was argued that the ability to raise an Art.8 defence during possession proceedings brought against the former joint tenant was insufficient to comply with Art.8 as the court would not have the ability to resurrect the tenancy or grant a further tenancy: even if an Art.8 defence were successful, this would still leave the former joint tenant in limbo as a trespasser.

 

Reliance was also placed on the statutory protections provided under Family Law Act 1996 and the specific grounds for possession concerning domestic violence in respect of secure and assured tenancies (Ground 2A and 14A respectively).

 

Family Law Act 1996

The Family Law Act 1996, s.53 and Sch.7, allows spouses, partners and cohabitants to apply to court for the transfer of, amongst other things, a joint tenancy of property which has been the couple’s home to that person alone (including a secure or assured tenancy, Sch.7, para 1). (There is also the possibility of a transfer of the tenancy under s.24, Matrimonial Causes Act 1973). The right is not, however, available once the tenancy has come to an end.

 

The vast majority of joint tenants will be in a relationship which would fall within these provisions. The rule in Monk is at odds with the statutory purpose to protect a joint tenant’s interest in the event of a relationship breakdown and to allow a court to decide who should get the family home. This affords the degree of judicial oversight that is at the core of what Strasbourg decisions suggest is fundamental in eviction cases.

 

Ground 2A and 14A

The rule in Monk, as it operates where there has been domestic violence, also bypasses the statutory grounds for possession specifically designed to address domestic violence (Ground 2A for secure tenancies and Ground 14A for assured tenancies). These grounds likewise afford procedural safeguards for the remaining joint tenant: the ground has to be made out and the court must also consider whether it is reasonable for a possession order to be made. Those safeguards will not be in place where an NTQ has been served by the other joint tenant at the request of the local authority.

 

Decision of Supreme Court

The Supreme Court dismissed the appeal. In relation to A1P1, it was held that:

 

“…..If the result is not as decided in Monk [1992] 1 AC 478 , either the tenant who served the notice is forced to remain a tenant against her will, or the landlord is landed with one tenant instead of two, which means less security—and, in a case such as the present, a family property occupied by a single person. Just as a joint tenant in Mr Sims’s position can claim that the outcome determined as correct in Monk is harsh, so could a joint tenant in Mrs Sims’s position or a landlord in Dacorum’s position contend that either of the alternative outcomes is harsh.” (at [17])

 

The Supreme Court did not address the power under the Family Law Act 1996 to transfer the joint tenancy to a sole tenancy or the statutory grounds for possession which would remedy the potential harm identified to a joint tenant in Mrs Sims’ position and the landlord.

 

In relation to Art.8, it was held that:

 

“[It is] suggested that this conclusion was inconsistent with the judgment of the Strasbourg court in Buckland v United Kingdom (2012) 56 EHRR 557, but I agree with…Dacorum that the judgment simply supports the proposition that, where the court is considering making an order for possession against a public sector residential tenant, she must have the opportunity of raising the argument that, in the light of article 8, no order for possession should be made. I do not therefore think that it assists Mr Sims in this case.” (at [24])

The decision in Sims is at odds with Buckland for the reasons identified in the post referred to above (Buckland v UK), in particular the reference to being able to stay “in the long term”.

 

Conclusion

Whilst the domestic remedies are now exhausted in Sims, there remains the option of application to Strasbourg. Whether or not this is taken up by Mr Sims or, as it inevitably will be, by someone else, the outcome does leave us wondering whether we are heading towards a repeat of the ping-pong that took place between the courts here and in Strasbourg, in Harrow LBC v Qazi, Kay v Lambeth LBC, Doherty v Birmingham CC, Pinnock v. Manchester CC and Hounslow LBC v Powell before – finally, reluctantly – the courts here recognised that Strasbourg really is serious about ensuring that evictions from a home do take place with an element of judicial scrutiny, something one would have thought was a basic right even if, in the sister case of CN (see Dwelling on the benefits of bad law), that too was rejected by the Supreme Court.

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