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Anti-Social Behaviour & Sentencing for Contempt: A Recap

Following the recent Court of Appeal decision in Gill v Birmingham City Council [2016] EWCA Civ 608, Alice Richardson reviews the authorities on sentencing in contempt proceedings for breach of injunctions granted to social landlords to prevent anti-social behaviour.


Committal for contempt of court

Breach of an injunction is a contempt of court and punishable with an unlimited fine or imprisonment for a period of up to two years: s.14, Contempt of Court Act 1981.


Pursuant to s.258 of the Criminal Justice Act 2003, a defendant will be released from custody upon serving half of any period of imprisonment imposed in committal cases. In addition, where a contemnor is committed to prison, the court has power to order his discharge prior to completion of sentence where the contemnor purges his contempt (CPR r.81.31).


By CPR 81.29(1) the court making the committal order may also order that its execution will be suspended for such period or on such terms or conditions as it may specify.


There are three main objectives in sentencing the defendant, Solihull v Willoughby [2013] EWCA CIV 699, [2013] HLR 36 at [20]:

  1. punishment for breach of the court order;
  2. securing future compliance with it; and;
  • rehabilitation of the defendant.


However, there is no tariff for “sentences” for contempt of court. It is entirely a matter for the Judge and every case must inevitably depend upon its own facts: Longhurst Homes Ltd v Killen [2008] EWCA Civ 402 per Hughes LJ, at [14].


Suspending a sentence

In Hale v Tanner, Practice Note [2000] 1 W.L.R. 2377, CA Hale LJ acknowledged, at 2380/D, the “dearth of guidance on sentencing for contempt of court” and set out various factors which require particular consideration when deciding whether to suspend any sentence:


  1. Suspension is possible in a much wider range of circumstances than it is in criminal cases. It does not have to be the exceptional case. Indeed, it is usually the first way of attempting to secure compliance with the court’s order [2381/C].


  1. If imprisonment is appropriate, the length of the committal should be decided without reference to whether or not it is to be suspended. A longer period of committal is not justified because its sting is removed by virtue of its suspension [2381/B].


  • The length of the suspension requires separate consideration, although it is often appropriate for it to be linked to continued compliance with the order underlying the committal [2381/D].


In Re W(B)(An Infant) [1969] 2 Ch 50 Lord Denning held, at 56/F, that, where a further breach is alleged a Judge hearing an application to activate a suspended committal order has a discretion whether or not to do so and may substitute some alternative penalty instead.


Even though it may not be best practice to suspend a committal order indefinitely, it is not unlawful to do so: see Griffin v Griffin [2000] 2 FLR 44, CA at [27].


Guidance in ASB cases

There have been a number of decisions of the Court of Appeal which concerned injunctions granted to prevent anti-social behavior (under the old provisions of the Housing Act 1996, or the so-called gang-injunctions granted under the Policing and Crime Act 2009; as yet, none seem to have arisen in the context of the “new” provisions of the Anti-Social Behaviour, Crime and Policing Act 2014). The following authorities in particular provide useful guidance.


In Leicester CC v Lewis [2001] 33 H.L.R. 37 (CA), at [19], in the context of the committal for breach of an ASBI, Clark LJ, held that, inter alia, it was important to have the following particular considerations in mind:

(1) Who was intended to be protected and against what?

(2) How strong was the evidence against the appellant in the original injunction proceedings?

(3) Was the breach of a carefully drafted term or a more general prohibition?

(4) Was the breach deliberate?

(5) How serious was the conduct?

(6) Was the defendant of good character?


In Amicus Horizon v Thorley [2012] EWCA Civ 817; [2012] H.L.R. 43 it was held, at [5], [9], that in sentencing a defendant for breach of the terms of an anti-social behaviour injunction made under the Housing Act 1996, the court should consider the guidance issued by the Sentencing Guidelines Council in relation to breaches of anti-social behaviour orders made under the Crime and Disorder Act 1998.


The committal order should reflect the aggravating and mitigating features of the breaches. Aggravating features will include deliberate flouting of the court’s order on repeated occasions and breach of a suspended order for imprisonment. Mitigating features may comprise personal inadequacy, admissions of breach, a low level of anti-social behaviour and efforts to reform: Solihull v Willoughby [2013] EWCA Civ 699, [2013] H.L.R 36 at [20]. The decision in Amicus Horizon v Thorley does not, however, apply to repeat offenders [23].


Although it is not mandatory to deduct any time spent on remand from a sentence passed on committal it is open to the judge to reflect the period on remand in the total period of imprisonment when passing sentence: R (James) v Governor of Birmingham Prison and others [2015] EWCA Civ 58; [2015] 1 W.L.R. 4210.


The conduct complained of in contempt proceedings may well also constitute a criminal offence. In that case, if there is more than one set of proceedings the first court to sentence must not allow for, or anticipate, a likely further sentence. It is for the second court to reflect the prior sentence to ensure that the defendant is not punished twice for the same act: Lomas v Parle [2003] EWCA Civ 1804; [2004] 1 W.L.R. 1642 at [48] (see also Slade v Slade [2009] EWCA Civ 748; [2010] 1 W.L.R. 1262).


Gill v Birmingham City Council

In Gill the appellant appealed against a committal order sentencing him to 14 months and 23 days’ imprisonment for breach of an anti-social behaviour injunction (“ASBI”).


In June 2012 the respondent had obtained an ASBI as a result of an alleged seven-year history of domestic violence against the appellant’s ex-partner, with whom he had a child. The appellant repeatedly breached the ASBI and, prior to the proceedings out of which this appeal arose, there were three previous committal orders made in the County Court for which Mr Gill served custodial sentences.


The new proceedings concerned seven alleged breaches, some of which were committed whilst the appellant was on bail. Prior to the proceedings in the County Court the appellant pleaded guilty to criminal charges in relation to some of the incidents in the Magistrate’s Court. At the date of the County Court proceedings he was still awaiting sentencing from the Magistrates.


In the County Court Her Honour Judge Wall found all of the breaches proved and sentenced the appellant to a total of 14 months and 23 days’ imprisonment. The appellant was subsequently sentenced in the Magistrates Court to a six sentence to run concurrently with the sentence ordered by HHJ Wall.


On appeal to the Court of Appeal the appellant contended that:

(1) the judge was wrong to make findings of fact against him on the basis of the evidence of his ex-partner.

(2) she was wrong to sentence him for the breaches which he had pleaded guilty to in the Magistrates’ Court.

(3) the sentence was manifestly excessive.


The Court of Appeal held that:

(1) the judge had been entitled to reach the conclusions she had done.


(2) where there were parallel criminal and civil proceedings regarding the same incidents, the first court should not anticipate or allow for a likely future sentence (Lomas v Parle and Slade v Slade). It was for the second court, which should be fully informed, to sentence in the light of the first so as to ensure that there was no double punishment for the same act.


(3) It was not clear whether, in the later sentencing the magistrates’ court had taken into account the sentence already imposed by the county court in respect of the same offence. There seemed no basis for any sentence relating to those criminal offences where the county court had already punished the breaches. While that could be an argument on appeal against the magistrates’ court order, it did not affect the validity of the sentence for breaches of the injunction.


However, the sentence of 14 months and 23 days was manifestly excessive. The judge had failed to consider that, inter alia, the appellant had pleaded guilty in the magistrates’ court to the two most serious offences. He should have had more credit for those pleas. The Court of Appeal held that the correct sentence was one of 12 months and the appeal was allowed to that extent.



Sentencing in contempt cases remains a difficult task for County Court judges. As in many other appeals of this nature the decision in Gill v Birmingham is predominantly fact-specific. However, it does confirm the position in relation to parallel criminal proceedings and may well assist judges who find themselves in a similar position.


One practical difficulty arising from the fact that those bringing contempt proceedings are not parties involved in the criminal proceedings is that it is often difficult to establish on what basis the Magistrates Court have reached their decision on sentencing. For that reason, it is preferable that the contempt proceedings are dealt with first in order to minimise the potential for defendants being punished twice for the same act.



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The Right to Rent and The Immigration Act 2016

In this post Alice Richardson considers the Immigration Act 2016 as it relates to possession proceedings and eviction.


How did we get here?

The Immigration Act 2014 sought to prevent landlords and letting agents from renting residential property to people who are unlawfully present in the United Kingdom. It did so by prohibiting letting of residential property to those people who did not have a “right to rent” (s.21) (in general terms, those people not lawfully present); enforcement was by way of civil penalties on landlords and agents (ss.23, 25).

The provisions of the 2014 Act were, and are, controversial. Landlords are not border officials, immigration specialists or experts in identifying valid identity documents. In  Ryanair Ltd v. Secretary of State for Home Department [2016] EWFC B5 the judge held, albeit in a different statutory context, that airline staff cannot be expected to have the same level of knowledge as the UK Border Agency and could not be expected to spot certain forged documents. There are also practical issues with retaining personal data which arise under the Data Protection Act 1998.

Conducting the necessary checks to protect a landlord or agent from falling foul of the Act is potentially time-consuming and costly. Most troubling therefore is the potential for discrimination. In a study carried out by the Joint Council for the Welfare of Immigrants 27% of landlords said that they would be less likely to rent to someone with a “foreign-sounding name or accent”. The research also found that 42% of landlords were less likely to consider someone who does not have a British passport as a result of the Right to Rent requirements. All landlords must be aware that any such discrimination would, of course, be in breach of the provisions of the Equality Act 2010 (s.33, s.13 & s.19 EA 2010).

The 2016 Act

The Immigration Act 2016 received Royal Assent on 12th May 2016. Sections 39-42 concern residential tenancies and will come into force in England on a date to be appointed. The issues with the 2014 Act identified above apply equally, if not even more so, to the new provisions given their punitive effect.


s.39 of the 2016 Act amends the Immigration Act 2014 by inserting new ss.33A-C. These provisions introduce the criminal offence of “leasing premises” to someone who does not have a “right to rent”. A landlord, or agent, who is guilty of the offence is liable on conviction, on indictment, to imprisonment for a term of up to five years.  This aspect of the new Act is particularly controversial and has probably received the most press coverage.

However, this post is concerned primarily with the new methods for gaining possession introduced by the 2016 Act.

The “Notice Only” Ground

s.40 of the 2016 Act inserts ss.33D-E into the 2014 Act and s.33D introduces a new “notice only” ground for possession.

By s.33D a landlord may terminate a residential tenancy agreement where he or she has been notified by the Secretary of State that the occupier(s) of the premises is disqualified from renting the premises because of their immigration status. The landlord simply has to give notice in writing, in the prescribed form specifying the date on which the agreement will come to an end (s.33D(3)). That date must not be earlier than the period of 28 days beginning the date the notice is served (s.33D(4)). This method will only apply where all occupiers are disqualified.

Crucially the notice will be enforceable as if it were an order of the High Court (s.33D(7)) and therefore a landlord would, presumably, be able to instruct a High Court Enforcement Officer (“HCEO”) to enforce the notice.

However it is not even necessary for a landlord to instruct an HCEO/bailiff to carry out an eviction where s.33D(2) is met as s.3A Protection From Eviction Act 1977 is amended by s.33E(5) so as to exclude such a tenancy from protection.

This new method of obtaining possession is potentially extremely problematic and will no-doubt face legal challenged once implemented.  The first question is, how would one challenge the Secretary of State’s notice? There is no internal review or appeals process so the only potential way must be by Judicial Review. The next question is who brings the Judicial Review? It is unlikely that the landlord would have inclination or interest in doing so in which case it must be the tenant.

The difficulty then is that the tenant has only 28 days from the date the notice is served before she is evicted and may well be a very vulnerable individual. It seems that the tenant would have to issue a claim for Judicial Review, before the 28 days expire, naming the landlord as an interested party and seeking an injunction against the landlord to prevent him executing the eviction pending the outcome of the Judicial Review claim.

Legal aid should, in theory, be available for such a claim subject to the usual means-testing and merits criteria and the rules on payment in Judicial Review cases contained in the Civil Legal Aid (Remuneration) (Amendment) Regulations 2015. But given the well-known backlog in processing legal aid claims (and the #CCMSfail), there must be real concerns that people will not get funding in time to secure proper representation.


The Mandatory Ground

By ss.33E(1) it is an implied term of a residential tenancy agreement to which the subsection applies that the landlord may terminate the tenancy if the premises to which it relates are occupied by an adult who does not have the “right to rent”.


By s.33E(2) subsection (1) applies to any tenancy (or sub-tenancy) which is not a protected or statutory tenancy within the meaning of the Rent Act 1977 or an assured tenancy within the meaning of the Housing Act 1988.

S.33E(3) deals with Rent Act tenants (see Case 10A in Part 1 of Schedule 15 to the Rent Act 1977) and s.33E(4) refers to the new mandatory Ground 7B which is inserted into Part 1, Schedule 2 to the Housing Act 1988 by s.41 of the 2016 Act.

Ground 7B applies where an occupier is disqualified; unlike the “notice only” ground it is not necessary for all occupiers to be disqualified. The ground is satisfied where the Secretary of State has given notice in writing to the landlord which identifies that the tenant (or one or more of the joint tenants) or another adult who is occupying the dwelling-house is disqualified as a result of their immigration status from occupying the dwelling-house under the tenancy.

Ground 7B is a mandatory ground and therefore the Court will have no discretion to consider reasonableness.


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Stepchildren and succession after divorce

Stepchildren and succession after divorce


Annette Cafferkey and Alice Richardson ask whether the Housing Act 1985 (as it read pre-Localism Act 2011), permit a stepchild succeed to a secure tenancy on the divorce of his natural parent from his step-parent?


Succession to a secure tenancy

Under s.87 Housing Act 1985, pre-April 2012 Localism Act amendments,

“a person is qualified to succeed to a secure periodic tenancy if he occupied the dwelling house as his only or principal home at the time of the tenant’s death and either:

  1. i) He is the tenant’s spouse or civil partner or
  2. ii) He is another member of the tenant’s family and has resided with the tenant throughout the period of 12 months ending with the tenant’s death.

unless, in either case, the tenant was himself a successor, as defined in section 88”

By s.113(1)(b) of the Act, a person is a “member of the family” if he is, inter alia, that person’s parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece. By s.113(2)(c), the stepchild of a person is to be treated as his child.

A stepchild clearly therefore falls within the definition of “member of the family” and could succeed a tenancy from his step-parent.


“Former” stepchild

The question that arises is whether the child ceases to be a stepchild when his natural parent and step-parent divorce? Or, even if that were the case, could someone who was a stepchild succeed to the tenancy despite the divorce?


The definition of “family member” in s.113 of the 1985 Act is an exhaustive one: Michalak v Wandsworth LBC [2002] EWCA Civ 271; [2002] H.L.R. 39. In Sheffield City Council v Wall [2010] EWCA Civ 922; [2010] H.L.R. 47 the Court of Appeal held that a foster child does not fall within the definition, and any discrimination under Art.14 and Art.8 was justified as a deliberate policy choice made by Parliament as part of the balance involved in the allocation of social housing.


Given that the definition of family member under s.113 is exhaustive, the only way that a former stepchild could fall within the Act would be if, in law, he retained that status after his parent has divorced his step-parent.


Under some statutory schemes, provision is made for children if they have been treated as a “child of the family”:


  1. Under the Matrimonial Causes Act 1973 a step-parent may be required to provide financial provision for a child where the child has been treated as a “child of the family”, even if they have divorced the child’s parent. In determining whether such an order should be made, the court must take into account various factors including whether the step-parent has assumed any responsibility for the child’s maintenance: Snow v Snow [1972] Fam. 74; [1971] 3 W.L.R. 951.


  1. Under s.1(1)(d) Inheritance (Provision for Family and Dependants) Act 1975 any person (not being a child of the deceased) who in relation to any marriage or civil partnership to which the deceased was at any time a party, or otherwise in relation to any family in which the deceased at any time stood in the role of a parent, was treated by the deceased as a child of the family may apply to the court for an order under s.2 of that Act.


  • Under the Fatal Accidents Act 1976 s.3(f) any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage is classed as a “dependent” for the purposes of a claim for damages.


  1. Under s.1(2) and Part 2 of Schedule 1 of the Marriage Act 1949 a marriage between a person and a child of their former spouse/ the former spouse of a parent is void if the younger party was at any time before attaining the age of 18 a child of the family.

These various provisions, of course, do not answer question of whether the status of stepchild is retained following the divorce of his parent.


The case-law

There is scant authority in England and Wales that deals with the status of stepchildren or former stepchildren.


In Mander v O’Toole [1948] NZLR 909 the New Zealand Supreme Court held that the term “stepson”, in s.2 of the Deaths by Accident Compensation Act 1908, extended only to children who possessed that character by virtue of a marriage subsisting when the cause of action sought to be enforced under the statute arose. The court held at [912] that any suggestion that the step-parent/child relationship was retained after divorce;

“… implies that the consequential and sub-ordinate relationships remain unbroken whilst the link by which they were created is complete severed… if Mr West’s contention is correct, the stepson of the man to whom his mother is currently married might also be the stepson to any number of other men whom his mother may, during the life of the son, have married and divorced”.


That position is established in the US: Brotherhood of Locomotive Firemen and Enginemen v. Hogan (1934) 5 Fed. Supp. 598 (at 604) where the court held that:

“The wife in this case was the cause of the affinity which existed between Kennedy and her children. When the cause ceases, it should logically follow that the result ceases. No sound reason for any other view occurs to the Court.”


The same interpretation is taken in Australia. In Re Burt [1988] 1 Qd R 23 the Supreme Court of Queensland relied on Mander v O’Toole and Hogan and held at [32] that:

“The status of stepchild, as ordinarily understood, does not apply to a case in which the natural parent has been divorced from the step-parent, and probably does not survive the death of the natural parent”.



The defining feature of a step-parent/child relationship is that the step-parent is married to the natural parent. The status of stepchild does not endure when that marriage ends: it is not the equivalent to adoption. The reasoning in Mander and Hogan must surely be correct.


This could result in some seemingly harsh decisions where a step-child, despite the divorce, continues to consider his former step-parent to be his parent, perhaps having been brought up by him/her, the divorce only occurring when the child is an adult.


Whether the status is severed by the death of the natural parent, as suggested in Re Burt, appears to be more doubtful, where the marriage has endured “til death [they] did part”.


The statutory schemes outlined above make provision for these circumstance. But the Housing Act 1985, which, notably, was enacted after each of those schemes, makes no such provision.


It seems likely that a former stepchild could be a “status” for the purposes of Art.14. However, any challenge on the basis of discrimination under Art.14 and Art.8 may be difficult, below the Supreme Court in any event, unless Sheffield City Council v Wall could be distinguished.

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Allocation schemes and unlawful discrimination

Sam Madge-Wyld looks at challenges to housing allocation schemes.

In Ahmad v Newham LBC [2009] UKHL 14; [2009] HLR 31, Lady Hale said of challenges to allocation schemes:

“[22]… Castigating a scheme as irrational is of little help to anyone unless a rational alternative can be suggested. Sometimes it may be possible to do this. But where the question is one of overall policy, as opposed to individual entitlement, it is very unlikely that judges will have the tools available to make the choices which Parliament has required a housing authority to make.”

That was because,

“[15]… The trouble is that any judicial decision, based as it is bound to be on the facts of the particular case, that greater weight should be given to one factor, or to a particular accumulation of factors, means that lesser weight will have to be given to other factors. The court is in no position to rewrite the whole policy and to weigh the claims of the multitude who are not before the court against the claims of the few who are.”

The previous coalition Government’s localism agenda also adopted a similar “hands off” approach in England. While every scheme would still have to give a reasonable preference to certain classes of people (e.g. the homeless and those in overcrowded accommodation), individual authorities could determine the priority each group were to be given within the scheme and could even exclude certain classes of people from the scheme: s.160ZA and s.166A, Housing Act 1996 (as inserted by Localism Act 2011). The new statutory guidance, issued in 2012 to accompany the changes made by the Localism Act 2011, also encouraged authorities to use this flexibility to support working households with a low income: Allocation of accommodation: guidance for local housing authorities in England, para.4.27.

One would have thought that the combination of Ahmad, the Localism Act 2011 amendment and the statutory guidance ought to have shut the door on the majority of successful challenges to authority’s allocation schemes. This was, by and large, the case for the first five years after Ahmad. For example, in R (Hillsden) v Epping Forest DC [2015] EWHC 98 (Admin), a scheme which prevented an applicant who had not been resident in the authority’s district for more than three years from ever joining the waiting list, whatever the circumstances, was lawful.

A “hands off” approach is not the same, however, as giving authorities carte blanche to frame schemes in any way they see fit. The 2012 Guidance reminded authorities that

“[3.20]… In framing their qualification criteria, authorities will need to have regard to their duties under the equalities legislation, as well as the requirement in s.166A(3) to give overall priority for an allocation to people in the reasonable preference categories.”

Two cases concerning Ealing’s scheme have illustrated the court’s increasing willingness to hold aspects of schemes as being unlawful which, on their face, appear to be following the statutory guidance.

R (H & others) v Ealing LBC [2016] EWHC 841 (Admin)

In R (H & others) v Ealing LBC, Ealing’s scheme was challenged for a second time (see below for the first challenge). Ealing’s scheme provided that 20% of allocations would be made to people who did not necessarily have a reasonable preference but who were either working at least 24 hours a week or who were an existing secure tenant who had complied with their terms of tenancy. This was therefore precisely the sort of scheme that the Government had encouraged authorities to adopt in its statutory guidance.   

H argued, however, that the scheme put women, the disabled and the elderly at a disadvantage because they were much less likely to be able to satisfy the qualifying criterion of working 24 hours per week. Accordingly, the scheme indirectly discriminated – under s.19, Equality Act 2010 and Art.14, ECHR – against such people and was discrimination which could not be justified. Ealing contended that the fact that those persons were still entitled to apply for the remaining 80% of council properties meant that the scheme as a whole did not discriminate against women, the disabled or the elderly or, if it did, it could be justified.

The High Court held, however, that the evidence showed that since the scheme had been amended the number of allocations made to disabled persons had fallen by 3%; in the absence of an explanation for this fall it followed that there was prima facie evidence of disadvantage to disabled persons. Nor could the discrimination be justified. Other authorities, who had adopted similar schemes, had adopted a “safety valve” which meant that people who could not work because of their age, disability or responsibility for caring for a disabled child were still eligible to bid for the same properties as those who had worked 24 hours a week. It followed that this less intrusive measure could have been adopted. The court found that the result was the same under both the Equality Act and the ECHR as the test for justification under the ECHR for policy made by local authorities was not whether the policy was “manifestly without reasonable foundation”.

In any event, Ealing had also breached s.149, Equality Act 2010, i.e. the failure to have due regard to the public sector equality duty, because it had not made any real enquiry into the potential discriminatory effects of the part of the scheme that excluded people who were not working 24 hours a week or more. Ealing had not been entitled to consider the scheme as a whole when considering the impact the change would have. Likewise, Ealing had failed to have regard to the need to safeguard and promote the welfare of children under s.11, Children Act 2004. No consideration had been given to how children would be affected.

While it would be surprising if this was not appealed (the finding that an authority is unable to justify discrimination that arises under a local lettings policy by reference to the rest of the scheme is a particularly surprising development which appears to cut across the whole localism agenda), it does evidence the courts’ new willingness to interfere in questions of allocations policy that, post Ahmad, it had generally ceased to.

R (HA) v Ealing LBC [2015] EWHC 2375 (Admin)

The statutory guidance (referred to above) also envisaged that authorities had the power to exclude certain classes of people from an authority’s scheme who had a reasonable preference and explained that this might apply to persons who are guilty of anti-social behaviour and who did not have a local connection to the authority’s area: 2012 Guidance, paras 3.21-3.22. This power to adopt a residency requirement was emphasised in further guidance published in 2013 (Providing Social Housing for Local People).  In the 2013 Guidance the Secretary of State said that he believed “that including a residency requirement is appropriate and strongly encourages all housing authorities to adopt such an approach”: para.13.

Moreover, in R. (Jakimaviciute) v Hammersmith and Fulham LBC [2014] EWCA Civ 1438; [2015] HLR 5, the Court of Appeal held that such a requirement was lawful: authorities could exclude people with a reasonable preference from applying for accommodation provided that the reason for the exclusion was because of something that was unrelated to the circumstances that gave rise to their reasonable preference. Authorities could not, however, exclude people, as a class, from applying under the scheme by reference to their reasonable preference. One of the lawful examples given by the Court of Appeal was, however, where a scheme had a residency requirement.

Surprisingly, in R (HA) v Ealing LBC, the High Court held that a scheme that excluded people, other than in exceptional circumstances, from applying for accommodation who had not been resident in the borough for more than five years was unlawful because it excluded people with a reasonable preference. That, however, belies a total misunderstanding of the decision in Jakimaviciute and is in direct contradiction of the statutory guidance and Hillsden.

More interesting was the argument concerning discrimination. Ealing had, perhaps unwisely, not given effect to the statutory guidance which had suggested that:

 “[3.22] … [W]hen framing residency criteria, authorities may wish to consider the position of people who are moving into the district to take up work or to escape violence, or homeless applicants or children in care who are placed out of borough.”

HA had suffered domestic violence at an address in Hounslow. As a result, she had left this address and applied to Ealing for assistance under Part 7, Housing Act 1996. Ealing decided that it owed her the full duty under s.193(2). She subsequently applied to join Ealing’s housing register. Her application was, however, rejected because Ealing’s allocation scheme provided that, absent exceptional circumstances, applicants who had not lived in Ealing for the last five years could not apply for accommodation under Part 6. As in the latter case of H, HA argued that the scheme breached the Equality Act 2010, ECHR and s.11, Children Act 2004 on the basis that women are more likely to be victims of domestic violence than men and so are significantly less likely to be able to establish sufficient residency criteria to meet the blanket qualifying criteria.

The High Court agreed. The scheme had discriminated against women and the discrimination could not be justified. What was interesting was the court’s dismissal of the argument that the “exceptional circumstances” provision in the scheme prevented any discriminatory conduct, holding that “the residual discretion permitted by the policy does not save it if there is no justification for the difference”, at [30].

As there was no justification for the difference in treatment the scheme was held to be unlawful.

Presumably, this means that an authority will have to identify all the potential ways in which the scheme may unlawfully discriminate against persons and prevent it accordingly unless it can be justified. While this may be possible in obvious cases of discrimination – and indeed ought to have obviously included those moving to escape domestic violence – it is impossible to identify every case of discrimination before it arises. Moreover, discrimination cannot be justified unless it is foreseen first or there is a residual discretion that can ameliorate its effect as and when it arises.

Therefore a scheme that contains has an exceptional circumstances provision ought to justify any discrimination provided the authority can show that it is exercised to prevent discrimination. In the bedroom tax cases (see The ever confusing tale of the bedroom tax), the Court of Appeal has held that a discriminatory scheme can be justified by the exercise of a residual discretion (in that case the provision of discretionary housing payments). After all, a scheme is only discriminatory (be it under Art.18, TFEU, Art.14, ECHR, or s.19, Equality Act 2010) if its effect is to actually disadvantage people of a certain class in comparison to those of another class. A scheme which permits officers to depart from the local residence provision is not discriminatory if in practice officers do so to prevent unlawful discrimination from occurring. This also accords with the needs of any scheme to be flexible enough to prevent injustice from occurring. This though appears to have been a point that was not considered in HA.

That is not to say that the result in HA was necessarily wrong. The failure to apply the exceptional circumstances provision to HA was both discriminatory and plainly irrational. However, that ought to have been the basis for the decision not that the scheme itself was unlawful.


Both cases, in addition to Jakimaviciute, illustrate the court’s re-found lack of deference to authorities’ allocation schemes. Although the arguments are dressed in new clothing they are not at all dissimilar to the arguments that preceded Ahmad, i.e. the court should intervene where an allocation scheme is not providing sufficient priority to the more vulnerable groups in society. It is certainly questionable, however, whether that is an approach that a court is equipped to take. Lady Hale certainly didn’t think so in Ahmad.

This should, however, be an encouraging development for advisers of applicants wishing to challenge schemes as almost every scheme will, by its nature, be discriminatory as it gives priority to some groups over others. Whether it accords with the underlying reasoning in Ahmad or was the intention of the Localism Act 2011 is another matter entirely.

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Water, water everywhere …

Sam Madge-Wyld considers the practice of local authorities charging tenants for water as part of the rent.

In 1989, the water industry was privatised. In London, the responsibility for providing, and charging for, the supply of water and wastewater services was transferred to Thames Water. Since 1989 many housing associations and local authorities, including the London Borough of Southwark, have entered into agreements with Thames Water – and other similar companies throughout the country – to collect the charges for water and wastewater services from many of their tenants (usually from tenants living in flats or in other unmetered properties). Authorities and associations do this by making it a condition of the tenancy agreement that the tenant pay, in addition to rent, water charges. This is a very common arrangement: Southwark alone has 37,000 tenants who live in properties that are not fitted with a water meter.

According to Thames Water, “the purpose of these arrangements is to enable [it] to collect charges from tenants in a more efficient way”, as the local authority assumes the risk for the non-payment of such charges and bad debts. As a result, Thames Water agrees to pay the authorities and associations that collect such charges for it a commission for doing so.

This method of collecting water charges has proved unpopular with some tenants on the ground that they believe they are required to pay more for the water they are supplied than those people whose charges are collected by Thames Water. This is especially true for those who pay regularly. Ms Jones – in Jones v Southwark LBC [2016] EWHC 457 (Ch) – is the latest tenant to challenge the legality of this arrangement. Happily for her, she is also the first so far to have been successful.

Previous challenges

Before considering the Jones case, it is first necessary to consider two earlier unsuccessful challenges. In Lambeth LBC v Thomas (1997) 30 HLR 89, Lambeth had entered into a similar agreement with Thames Water to collect the charges for the supply of water and wastewater services from its tenants. Twice a year Lambeth paid Thames Water the total water charges for all of the relevant properties. This sum was, however, discounted to take into account unoccupied properties and its cost of collection. This discount was retained by Lambeth and ensured that each year it obtained a surplus, which it used to off-set other costs in its housing revenue account. The Court of Appeal held that this arrangement was lawful and Ms Thomas was legally obliged, under the terms of her tenancy, to pay Lambeth the water charges. Moreover, if she failed to do she was at risk of being evicted.

More recently, in Rochdale BC v Dixon [2011] EWCA Civ 1173; [2012] HLR 6, Rochdale had entered into an agreement with United Utilities for Rochdale to recover on behalf of United Utilities the water charges, already fixed by United Utilities, from its tenants. In 2005, Rochdale amended the terms of all of the tenancy agreements with its secure tenants so as to enable it to do so. Rochdale, in consideration for collecting the charges, were paid a commission, i.e. a fixed charge of £28 per property and a variable charge of 8 per cent of the water charges. The fixed charge was intended both to cover Rochdale’s costs of collection and to provide a profit. The variable charge of 8% was intended to allow for vacant properties and bad debt. On four dates in each financial year, the authority paid one quarter of the total water charges for the year and the company paid one quarter of the Commission.

Mr Dixon contended that Rochdale’s power to enter into an agreement with United Utilities was governed by s.1, Local Authorities (Goods and Services) Act 1970. Section 1, as amended by the Water Consolidation (Consequential Provisions) Act 1991, provided that while an authority could enter into an agreement with a water undertaker, it only had the power to enter into an agreement “for the collection and recovery by the authority, on behalf of any water undertaker or sewerage undertaker, of any charges fixed by the undertaker”. Mr Dixon argued that Rochdale had in effect purchased the supply of water and sewage services from United Utilities and was re-selling it to its tenants at a profit; it was not therefore collecting water charges on behalf of United Utilities. The Court of Appeal, however, disagreed and held that United Utilities remained the water undertaker, i.e. it still supplied the water to Rochdale’s tenants, and that Rochdale was simply its agent. The charges had been fixed by United Utilities and it was simply that the mechanism for the collection and recovery of those liabilities had been undertaken by Rochdale for United Utilities. It was irrelevant that Rochdale paid United Utilities in bulk or that it charged an additional sum for collecting the charges.

Jones v Southwark

Southwark had a similar arrangement with Thames Water, which had been entered into in 2000 (albeit had been subsequently amended in 2013 after another case was settled; the court did not consider the meaning of the latest agreement as Thames Water needed to be joined to the proceedings). Under the 2000 agreement, Thames Water determined the water and sewerage service charge for each “unmeasured property” that it was agreed Southwark would collect the charges from. Thames Water then billed Southwark the total sum of all such charges less two sums: for void allowances (5%) and a collection commission (18%). Southwark accepted in evidence that this was an important source of funding for it and that the void allowance did not always correspond to the actual number of voids, for example in one year the number of voids was around 1% but the void allowance assumed 5%.

The agreement described Thames Water as the provider and Southwark as the customer. It further provided that Southwark would pay for Thames Water to provide water and sewerage services to some of its premises.

Ms Jones argued, like Mr Dixon, that the 2000 Agreement involved Thames Water supplying Southwark with water and sewerage services and Southwark’s tenants in turn buying such services from Southwark. Ms Jones further argued, unlike Mr Dixon, that Southwark was a re-seller of water and sewerage services within the meaning of the Water Resale Order 2006. The 2006 Order defined a Re-seller as being any person, other than a relevant undertaker – i.e. a supplier of water and sewerage services under the Water Industry Act 1991 such as Thames Water – who provides to a Purchaser, i.e. a person who occupies any dwelling and who buys from a Re-seller any water or sewerage services, a supply of piped water or sewerage service which a Water Undertaker has supplied, directly or indirectly, to the Re-seller.

Ms Jones also argued that under Thames Water’s charging scheme that had persisted until 2010, she was not in any event liable to pay Thames Water for water or sewerage services as Thames Water’s charging scheme had provided that where the relevant premises to which the supply is made is let on a tenancy of less than twelve months or licence, the owner of the premises shall be regarded as the occupier and be liable for charges except where some other person has paid the charges or is liable by agreement with Thames Water. As Ms Jones was a weekly periodic tenant Southwark had been liable to pay Thames Water for the supply of water and sewerage services and had, in turn, passed the cost onto her.

Whether Southwark was a re-seller of water within the meaning of the 2006 Order was important because the 2006 Order imposed a maximum charge for water and sewerage services that could be levied by the re-seller. It did not allow a re-seller to recover a commission for collecting unpaid charges or to make a profit on the voids allowance. Ms Jones argued that she, and all of Southwark’s other tenants who paid Southwark for water and sewerage services, had therefore been overcharged.

Southwark argued that, as in Thomas and Dixon, the 2000 agreement provided for it to collect the water charges on Thames Water’s behalf and that it was merely Thames Water’s agent. Newey J, however, disagreed.  The 2000 agreement was different to the one between Rochdale and United Utilities: it contained no reference to tenants being liable to pay water or sewerage charges to Thames Water, to Thames Water authorising Southwark to collect such charges on its behalf, to Southwark owing any duty of skill and care or to Southwark having any obligation to invoice tenants or in respect of complaints from them. Moreover, the commission paid to Southwark was nothing of the sort; it simply reduced what Southwark had to pay Thames Water and was not conditional on a service being performed.

Perhaps most importantly, however, until 2010 it was Southwark who had been liable to pay Thames Water for water charges; it could not therefore have been Thames Water’s agent during that time as its tenants were not liable to pay Thames Water.

That final point seems the most important as it is hard to see any real distinction between the arrangement in Rochdale, Lambeth and Southwark. They all proceeded on the same model of agreement.

The impact of this decision

Obviously for Southwark this decision has very wide-ranging implications. Some 37,000 of its tenants appear to have been over-charged for water and sewerage services over a period of 10 years. Although the decision does not quantify the amount at stake, one bill from 2005 put the discount (i.e. the commission and void allowance) at £126,000. It is not just Southwark, however, who this may affect. Thames Water gave evidence that it had “commercial agency arrangements” in place with 69 local authorities and housing associations that covered 375,000 properties.

It is important to note at this stage two points: this decision will almost certainly be appealed and seeing as contrary decisions were reached in Thomas and Dixon the prospects are not fanciful. Secondly, the decision only concerned whether Southwark had been entitled to levy the charges that it did. The decision did not decide whether or how much Southwark had to reimburse tenants who had been overcharged. Ordinarily, where money has been paid to another in circumstances where it was not due such money can be recovered by a restitutionary claim. Such a claim can, however, be defended on the basis that the authority has, in good faith, paid the money to a third party and, but for the payment by the tenant, would not have paid the third party. Any surplus, one assumes, has been credited to the housing revenue account and used to pay third parties, e.g. contractors.

However, this defence is unlikely to apply to Southwark, because s.150(5), Water Industry Act 1991 gives Ms Jones, and other tenants in her position, an express statutory right to recover from Southwark any overpayment she has made. It does not appear therefore that she will need to rely on the law of restitution to recover the sums paid. Presumably, however, as s.9, Limitation Act 1980 will apply, any sum that can be recovered will be limited to six years from the date that her claim was issued.

In the meantime, tenants with arrears who are being brought to court by Southwark in possession proceedings, or indeed any other association or authority with a similar agreement with Thames Water, would be wise to dispute the level of the arrears in respect of any water charges and to put Southwark to proof. Presumably, any such defence would also include a counterclaim. It is going to very difficult for Southwark, for the time being at least, to be able to prove what water rates were payable before 2013. This is likely to cause Southwark some difficulty in litigating possession claims unless it agrees to waive the water charge.

Finally, if Southwark has been using this revenue to off-set the housing revenue account, it will have to find other ways of doing so. Historically, the easiest and most obvious way of doing so would have been to increase the rents of its secure tenants. However, this will soon no longer be an option, as the Welfare Reform and Work Bill, once passed, will require it to cut rents by 1% per year for four years.


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The ever confusing tale of the bedroom tax

Sam Madge-Wyld tries to make sense of the bedroom tax.


January has been a very quiet month for the courts and housing law. Happily, and not just because it gives me something to write about, the Court of Appeal handed down its second decision on the bedroom tax (spare room subsidy if anyone from the Government is reading) in the case of R (Rutherford and A) v Secretary of State for Work and Pensions [2016] EWCA Civ 29. Before considering Rutherford it is first necessary, however, to delve back into history and consider two earlier cases

Burnip v Birmingham City Council and other appeals [2012] EWCA Civ 629

The cases of Burnip and Gory pre-date the bedroom tax, but are relevant because they concern reg,13D, Housing Benefit Regulations 2006 as it is what the bedroom tax was modelled on. Under reg.13D, a private sector tenant’s local housing allowance (i.e. the maximum amount of housing benefit they are entitled to) is calculated, in part, on the number of bedrooms to which the tenant is entitled.

Mr Burnip was the tenant of a two-bedroom property. He had spinal and muscular dystrophy and required an overnight carer. He claimed that he therefore needed the extra bedroom for his overnight carer. He applied for housing benefit, but, as he was only entitled to one bedroom under reg.13D, his housing benefit was not sufficient to cover his rent. He received some discretionary housing payments from the local housing authority, but these were not sufficient to cover his rent. He was therefore required to use additional money that he received in the form of a student loan, incapacity benefit and disability living allowance to pay his rent.

Likewise, Ms Trengrove was the tenant of a two-bedroom property. Owing to her disability, she required an overnight carer and she claimed that she needed the extra bedroom for her carer. Her housing benefit was also limited by reg.13D and her rent was not sufficient to pay all of her rent. The local authority made some discretionary housing payments which met the shortfall but the payments were not continuous.

Mr Gorry was the tenant of a four-bedroom house. He lived in it with his wife and their three children. His two daughters were disabled. One had Down’s Syndrome, the other had Spina Bifida. Owing to their disabilities, the daughters could not share a bedroom. Regulation 13D provided that he was only entitled to three bedrooms, on the basis that his two daughters were required to share a bedroom. The authority made some discretionary housing payments but these did not always meet the shortfall and were not continuous. The family were therefore required to use Mr Gorry’s incapacity benefit and disability living allowance to cover the shortfall.

All three argued that reg.13D discriminated, in contravention of Article 14, ECHR, against people who were disabled. The Court of Appeal found that the statutory criteria, namely reg.13D, was prima facie discriminatory. It would therefore be unlawful unless it could be justified. Henderson J, giving the second part of the judgment, posed the question in this way:

“Can it be said that the wider benefits context provides an objective and reasonable justification for the discrimination against Mr Burnip which we have found to be established in relation to the amount of his HB?”

His answer to that question was no. First, other benefits, which were provided for other reasons (e.g. to meet ordinary living expenses) were not intended to be used for paying a tenant’s rent. Secondly, discretionary housing payments were in principle available as a possible way of bridging this gap, but they could not be regarded as a complete or satisfactory answer to the problem. This was because, according to Henderson J

“The payments were purely discretionary in nature; their duration was unpredictable; they were payable from a capped fund; and their amount, if they were paid at all, could not be relied upon to cover even the difference between the one and two bedroom rates of LHA, and still less the full amount of the shortfall. To recognise these shortcomings is not in any way to belittle the valuable assistance that discretionary housing payments are able to provide, but is merely to make the point that, taken by themselves, they cannot come anywhere near providing an adequate justification for the discrimination in cases of the present type.”

Henderson J also held that it was also relevant that the exception sought was for only a very limited category of claimants, namely those whose disability is so severe that an extra bedroom is needed for a carer to sleep in or, where separate bedrooms are needed for children who, in the absence of disability, could reasonably be expected to share a single room. Such cases are by their very nature likely to be relatively few in number, easy to recognise, not open to abuse, and unlikely to undergo change or need regular monitoring. The cost and human resource implications of accommodating them should therefore be modest, quite apart from the point that in some cases the effect of refusing the claim could well be to force the claimant into full-time residential care at much greater expense to the public purse.

It followed that in all three cases the discrimination could not be justified. It was manifestly without reasonable foundation.

R (MA) v Secretary of State for Work and Pensions [2014] EWCA Civ 13

The effect of the bedroom tax (or reg.B13) was similar to the bedroom entitlement covered by reg.13D. Under reg.B13, tenants of social housing’s entitlement to housing benefit is reduced by 14% or 25% if they are deemed to have one or two “spare” bedrooms.

As with reg.13D, there are certain exceptions, but, as everyone reading this will know, there are a large number of disabled adult and other tenants who have been greatly affected by the cut in housing benefit. The claimants in R (MA) v Secretary of State for Work and Pensions [2014] EWCA Civ 13 serve as examples of the types of claimant who have been affected. Jacqueline Carmichael has spina bifida, hydrocephalus, is doubly incontinent, is unable to weight bear, and has recurring pressure sores. As a result she needed a special hospital-type bed in her bedroom with an electronic pressure mattress. She was unable to share this bed with her husband and there was insufficient room in her bedroom for an additional bed. Like, Mr Burnip she therefore needed an additional bedroom.

Likewise, JD lived with her disabled 26-year-old daughter, AD. AD has severe physical disabilities, learning disabilities and visual impairment. She has cerebral palsy with quadriplegia and she is registered blind. She has been assessed as having the approximate mental age of a three-year-old and is reliant on others to make decisions for her. She is doubly incontinent, and needs 24-hour care and support with every aspect of her life. To meet AD’s needs the property she and JD lived in was specially adapted. Her brother had previously lived with them, but had since moved out. This meant that the property was deemed to have a spare bedroom.

Richard Rourke was a wheelchair user. He has spinal arthritis, sciatica, sleep apnoea, diabetes and hereditary progressive deafness. For the most part, he lived in a three bedroom bungalow on his own, but, outside of term time, with his step-daughter Rebecca, who is herself a wheelchair user. Mr Rourke was deemed to have two spare bedrooms.

They, along with a number of other applicants, contended that reg.B13 was discriminatory for the precisely the same reasons that had caused the Court of Appeal to have found reg.13D to be discriminatory in Burnip. Like in Burnip, the Court of Appeal found that reg.B13 was, if considered in isolation and without regard to the separate provision of discretionary housing payments, prima facie discriminatory. Unlike in Burnip, however, the Court of Appeal found that the discrimination was justified, because the Secretary of State had also made available the provision of discretionary housing payments.

At this point you may be forgiven for wondering how the Court of Appeal could make, what appear to be, two decisions that conflict with each other. Isn’t the Court of Appeal bound by precedent? If you are thinking that you are likely to be even more confused when you learn that the Court of Appeal did not say that Burnip had been wrongly decided or that the law on justification had in anyway changed.

So, how did the Court of Appeal reach a different result? The cases of Burnip, Trengrove and Gory were all found to be different to the present set of cases. Henderson J had acknowledged that these two types of cases would be very limited and were likely to be “relatively few in number, easy to recognise, not open to abuse and unlikely to undergo change or need regular monitoring”. That was not the case in MA where the complainants did not fall within a tightly defined narrow class of claimant; the proposal in MA, to add an imprecise class of persons (those who need extra bedroom space by reason of disability) to whom the bedroom criteria would not apply, was simply not practicable to implement. Accordingly, for these types of case, in which no bright line existed, it was preferable for a flexible DHP fund to be used to meet the need of claimants. Moreover, since Burnip, the DHP fund had been topped up, was supplemented by guidance and kept under review. The problems identified by Henderson J did not apply.

Finally, the Secretary of State had been entitled to treat the needs of children who require an overnight carer (i.e. Mr Gorry) more favourably than the case of adults who require an overnight carer (i.e Ms Carmichael). This was because the Secretary of State was obliged to treat the rights of the child as a primary consideration as per Art.3.1, UN Convention on the rights of the child.

Rutherford and A

MA, as you would expect, was appealed to the Supreme Court. The Supreme Court, however, opted not to hear it until it decided the benefit cap case, i.e. R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16. That decision took a long time to be handed down.

In the meantime, a couple of other cases, with different facts, challenged the lawfulness of the bedroom tax: Rutherford and A. Mrs Rutherford was the grandparent of W. They lived in a three bedroom house. W suffered from profound mental and physical disability caused by a very serious and rare genetic disorder (Potocki-Shaffer syndrome). He required round the clock care from at least two people. Mrs Rutherford and her husband provided the majority of that care with the assistance of an overnight carer who required a bedroom in which to sleep. Under reg.B13, they were deemed to have a spare bedroom and their entitlement to housing benefit was reduced by 14%. The shortfall had always, however, been met by the provision of DHPs.

A lived in a three bedroom house. In 1993-4 she had a brief, casual relationship with a man, X, who was subsequently convicted of attempted murder; he had, overtime, been exceptionally violent to her. Whilst in prison he started to harass her and in 2002 he sought her out. A child was conceived as a result of his rape of her and was born in 2003. The child lives with A. In 2012, as a result of X subsequently trying to find her, A’s property was adapted under the Sanctuary Scheme. This made the property more secure and made provision for it to be monitored. One such adaption was to adapt the third bedroom into a safe room. There are around 5,800 households whose properties that have been adapted under the scheme, of which around 280 have had their housing benefit reduced by 14% or more by the bedroom tax.

Both claimants argued that reg.B13 unlawfully discriminated against them. As in both Burnip and MA, the Court of Appeal held that reg.B13 was prima facie discriminatory. The question was therefore whether the discrimination was justified. To answer that question the court had to decide whether the cases were Burnip type cases (i.e. of a narrowly defined class) or an MA type cases (i.e. a broad class). The problem for the Secretary of State was that A was plainly a narrow defined class, i.e. persons who had been the subject of extreme violence and whose properties had been adapted under the Sanctuary Scheme and there were only 280 housing benefit applicants under this class. The reasoning of the Court of Appeal in MA that explained why the provision of DHPs justified the discrimination, and which distinguished Burnip, could not apply to the facts of A. Unless Burnip was overturned the Court of Appeal was bound to follow it. It is of note, however, that the Court of Appeal appeared uncomfortable with this finding and indicated that they had seen “great force” in the Secretary of State’s argument that DHPs were available for such applicants and, provided authorities followed the Secretary of State’s guidance, they would be provided to cover any shortfall in housing benefit.

The Court of Appeal also found that the discrimination in Rutherford could not be justified, albeit for different reasons. In Rutherford, the Court of Appeal could find no rational reason for why disabled adults, who required an overnight carer, were entitled to a spare bedroom and yet disabled children, who also required an overnight carer, were not. This was especially so where the Secretary of State was obliged to treat the rights of the child as a primary consideration (and indeed had argued this as a reason for treating Ms Carmichale differently to Mr Gorry’s children).

The Supreme Court

This is almost certainly not the last word on the matter. The Court of Appeal in Rutherford implicitly recognised within its reasoning that the law on this area is a mess. As so often happens when cases are distinguished on their facts, but the reasoning is left untouched, anomalies and absurdities result. It has to be said, however, that such anomalies are also likely result from badly written, ill thought out and politically motived policy. It would have been far easier for the Secretary of State to have instructed his department to define narrow classes of case that plainly justified the provision of full housing benefit, if it was the Secretary of State’s intention to require local authorities, through guidance, to provide an equivalent sum in DHPs. Unless of course, the true motive was to make it harder for such people to claim full housing benefit. No court, however, is every going to entertain the latter argument.

The first question for the Supreme Court will be whether the bedroom tax survives. It will be very surprising if it does not as it has recently decided that the even more discriminatory benefit cap policy, which did not even have benefit of DHPs and that breached Art.3.1, UN Convention on the Rights of the Child, was justifiable. The second question, will then be whether the Burnip and MA distinctions survive and, if so, what other classes, if any, fit within the Burnip class. As the Supreme Court was split on the benefit cap it is impossible to make a sound prediction, but it will probably turn on the evidence of the Secretary of State concerning the provision of DHPs and the robustness of its guidance.

Hopefully, we will not have as long to wait for their decision as we did for their decision on the benefit cap.


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Something wicked this way comes

Sam Madge-Wyld considers the housing law agenda for 2016

Housing and Planning Bill

Since our last post on the Right to Buy (detailing the requirement for local authorities to sell their highest value homes to fund the extended right to buy for housing associations) and the Housing and Planning Bill there have been three further important amendments to the Housing and Planning Bill. First, the Bill will provide that all new secure tenancies will be fixed-term tenancies of between two and five years. Authorities will therefore be prohibited from granting life-time periodic tenancies to new tenants. Secondly, the rules on succession will be changed to prevent anyone, other than a deceased tenant’s partner, from succeeding to a secure tenancy. Moreover, the deceased partner will only succeed to a five year fixed term secure tenancy.

The implication of these late amendments are stark: under the Localism Act 2011 the then Government was keen to give authorities a choice in what tenure it allocated and how to set its succession policies. Those days are gone and it will no longer be possible for local authorities to grant life-time tenancies, save for in a limited number of circumstances that the Secretary of State may specify in regulations. Moreover, the life-time tenancies that do remain will, on a tenant’s death, convert into five year fixed-term secure tenancies and may only be passed onto the deceased tenant’s partner meaning that it will not be long until, like the Rent Act tenant, the life-time secure tenant will be rare. The change will also mean that all other family members, who are presently qualified to succeed, would no longer be able to succeed to a secure tenancy even if they had lived with the former tenant for a period of 12 months before the deceased tenant’s death.

Thirdly, the Government, perhaps aware of the concern, which we expressed in our own post (X-REF), that the forced sale of council homes will mean the end of council owned housing in London, has also moved an amendment which will allow local authorities in Greater London to enter into agreements with the Secretary of State that will enable local authorities to retain some of the money generated by the sale of high value council housing. However, it is unclear how authorities will be able to afford to build two new homes from the sale of one, especially if it isn’t even entitled to keep all of the proceeds. Moreover, many authorities require the capital proceeds from sales to pay down the debt they received when the housing revenue account subsidy was abolished four years ago.

In any event, there are only going to be a limited number of sites within an authority’s borough that it owns and that are capable of being developed. Once those sites are exhausted, the cost of converting brown field sites into homes or of acquiring empty land so as to enable the building of two homes may dwarf the proceeds of any sale.

The Bill is still to go to the House of Lords, and so may be amended further, but it is likely to be passed at some point later this year.

Immigration Bill

The Immigration Bill, as presently drafted, intends to amend the Immigration Act 2014 to provide that a landlord will be guilty of a criminal offence, as opposed to simply being liable to pay a civil penalty, if his premises are occupied under a residential tenancy agreement by a person without a right to rent and the landlord knows or ought to know that they person occupying the premises is disqualified from doing so. A landlord that commits this offence is liable to a sentence of up to five years of imprisonment, an unlimited fine or both. Incredibly, as presently drafted, there is no reasonable excuse defence, which means that a landlord becomes liable to prosecution as soon as he is deemed to be aware of the fact that someone is occupying his premises without a right to rent.

To mitigate the effects of this, the Government also proposes to make it far easier for landlords to remove tenants without a right to rent. Unlike under the Immigration Act 2014, the landlord may determine any tenancy by giving the tenant a notice to quit the premises within 28 days wherever the Secretary of State has notified him that the occupier does not have a right to rent. On its expiry the landlord can either recover possession without a court order (as such tenancies are excluded from the Protection From Eviction Act 1977), issue a warrant of possession in the High Court or issue a claim for possession in the county court under a new mandatory ground for possession. It remains to be seen whether landlords will, with the threat of a possible prosecution, resort to evicting tenants themselves or if they continue to instruct bailiffs to do so.

Curiously, there is no right of appeal against the service of a notice by the Secretary of State on the landlord, which must mean that it is potentially challengeable in the High Court by way of judicial review. Presumably, if the Secretary of State’s notice is quashed, for example because the tenant does have a right to rent, then the subsequent notice served by the landlord will also be invalid and potentially open the landlord to damages for trespass or breach of the covenant for quiet enjoyment.

The Bill has already passed its committee stage in the Lords and so is likely to be passed into law in the first few months of the year. It should also not be forgotten that the Immigration Act 2014, in its current guise, will itself come into force across England on 1 February 2016.

Cases in the Supreme Court

In addition to the main legislative changes, we can also expect judgment in McDonald v McDonald at some point after it is heard in March. The Supreme Court will tell us whether, and if so in what circumstances, an occupier of land owned by a private individual can raise an Article 8 defence to a claim for possession. In the same month, the Supreme Court will also hear MA & Others v Secretary of State for Work and Pensions, and determine whether the bedroom tax is, like the benefit cap, lawful.

Then in May, the Supreme Court will consider, in Edwards v Kumarsamy, whether a landlord can be found liable under a residential tenancy agreement for the existence of disrepair that exists in a part of the building that is not located within the tenant’s dwelling, and which is not within his control, in circumstances where he has no knowledge of the disrepair.

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Money, money, money

Sam Madge-Wyld considers the Autumn Statement and its implications for housing.

On 25 November 2015, the Chancellor published, and presented to Parliament, the Autumn Statement and 2015 spending review. The headline grabbing announcement was the Chancellor’s promise not to cut tax credits (or at least until universal credit abolishes them). As part of the way to pay for this, the Chancellor promised two important amendments to the Housing Benefit regulations, i.e. stopping housing benefit for claimants who have been away from the UK for more than four weeks and imposing the local housing allowance limits to tenants of local authorities and housing associations. It is unclear at the moment, however, what impact either of these changes will have, as the Autumn Statement is silent as to the amount that will be saved and does not cite any evidence for the number of tenants who will be affected.

Presently, tenants who leave the UK are only entitled to the payment of housing benefit for a period of 13 weeks. This change is therefore only going to affect the limited number of tenants in receipt of housing benefit who spend between 4 and 13 weeks out of the country. No evidence has been provided detailing how many of these tenants exist each year. One imagines that it is not very many.

Nor is it clear what the sums the Treasury expects to save by imposing the local housing allowance limits to tenants in the social rented sector. The local housing allowance is the deemed eligible rent (i.e. the maximum amount of housing benefit that a tenant can receive) for tenants of private landlords. The local housing allowance is determined by the rent officer of the authority responsible for administering housing benefit within its area. This determination is made by taking into account the range of rents which a landlord would be likely to obtain for letting an assured-shorthold tenancy, for a property with a particular number of bedrooms, which is in a good state of repair. There are various categories:

  • one bedroom shared accommodation;
  • one bedroom self-contained accommodation;
  • two, three or four bedroom self-contained accommodation (Schedule 3B, para.1 of the Rent Officers (Housing Benefit Functions) Order 1997).

The local housing allowance is then set at the amount of the 30th percentile, i.e. out of 100 potential rents the 30th highest or the local housing allowance as determined on 30 January 2015, whatever is lower (Schedule 3B, para.2(3), 1997 Order). On 30 January 2015, the 1997 Order, as then in force, provided that the local housing allowance could not exceed:

  • £260.64 per week for one bedroom accommodation (shared or self-contained);
  • £302.33 per week for two bedroom accommodation;
  • £354.46 per week for three bedroom accommodation;
  • £417.02 per week for four bedroom accommodation (Sch.3B, para.2(12) of the Rent Officers (Housing Benefit Functions) Order 1997 before its amendment on 2 November 2015).

In practice, in areas where there are generally higher rents, such as London, the local housing allowance is set at these capped limits.

According to the Chancellor, the imposition of the local housing allowance cap to the social rented sector will “ensure that Housing Benefit costs are better controlled and will help prevent social landlords from charging inflated rent for their properties.” This suggests that local authorities and housing associations have until now had free reign to set rents at whatever artificially high rates they deem fit and that it is the housing benefit paid to tenants in social housing that has caused the housing benefit bill to reach £21.4 billion in 2010/11.

Nothing could be further from the truth; anyone familiar with the sector will know rents set by local authorities and housing associations are often set far below those limits other than in two specific cases: affordable rent tenancies and tenancies let to homeless applicants under Part 7, Housing Act 1996 (although it is unclear whether the local housing allowance will apply to these tenancies as the rules governing housing benefit for these tenants is different to other local authority tenants and as yet there is insufficient detail in the autumn statement).

Moreover, both sectors are already required to have regard to detailed guidance issued by the Secretary of State or the Homes and Communities Agency in its Rent Standard as to the setting of rents. It is disingenuous in the extreme to suggest that it is the fault of local housing authorities and housing associations for the increased housing benefit bill; it is the spiralling cost of rent in the private rented sector that has resulted in the housing benefit bill increasing by 46% over a ten year period.

The Autumn Statement also fails to mention that it was only in the last Parliament, and a policy implemented by the same Government, that social landlords were encouraged to charge “affordable rents”, i.e 80% of the market rent, in respect of new properties. The rationale being that if the taxpayer was going to spend such a large sum of money on housing benefit it made sense if it could be directed to the sector that was actually going to build new homes to rent, i.e. the social housing sector. In practice, it is likely that it is going to be these very same properties, let at affordable rents that will be caught by the new caps. This is because, as mentioned previously, in the vast majority of cases, save for accommodation let by local authorities to homeless applicants, the application of the local housing allowance will not affect the rent charged by housing associations or local authorities.

Outside of London, the local housing allowance can be less than the caps imposed by the 1997 Order and it has been reported that in some areas the standard of accommodation in the private sector is so poor that rents in the social rented sector are actually higher than the local housing allowance. This is still, however, likely to be the exception rather than the norm, but where it does apply, as has been seen with the benefit cap and the bedroom tax, in the majority of cases tenants will struggle to pay the amount of their rent that is not covered by housing benefit.

Nor should it be forgotten that the Chancellor had already announced in the July budget that rents in the social rented sector will be cut by 1% every year in this Parliament. Nick Billingham, the current chair of the Social Housing Landlords Association, in his recent article for Journal Housing of Law, has already indicated that this cut will be likely to result in smaller associations being forced to merge or be consumed by other associations and result in less homes, certainly for rent, being built by all associations (J.H.L. 2015, 18(6)). Even some of the larger associations are likely to have find substantial savings. In such a climate, it therefore seems unlikely that housing associations will voluntarily reduce their rents and will instead look for more tenants who are able to pay the rent without housing benefit meaning that some families are priced out of social housing and forced to move into less secure private sector accommodation.

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Housing and Planning Bill

Sam Madge-Wyld considers the Housing and Planning Bill as at second reading stage.

The Housing and Planning Bill, according to Brandon Lewis MP – the current housing minister – ”marks the start of a national crusade to transform generation rent into generation buy”. Whether the Bill will achieve its principal objective is open to debate, especially as the Bill defines a starter home as being one that costs up to £450,000 in London and up to £250,000 in the rest of the country, being around 10 times the size of the UK average salary. The underlying question therefore is whether this Bill will make a difference to those who can’t afford to buy a starter home or who are not tenants of housing associations and are therefore not eligible for the extended right to buy and who therefore have no choice but to continue renting in the private sector.

Unsurprisingly, the Bill is not particularly radical in this regard; there is no rent control or extended security of tenure, the two changes which would make renting in the private sector far more attractive and affordable to most. That is not, however, to say that the Bill, when considered alongside the new measures contained within the Deregulation Act 2015, such as retaliatory eviction, does nothing. If the new proposals are enacted and then, as importantly, enforced, there is a chance that they will at least drive some of the criminal and downright incompetent landlords away from the sector. That can only be a good thing for all concerned, be they landlords or tenants.

Banning orders

Perhaps the most eye catching proposal is set out within Chapter 2 of Part 2 of the Bill. Chapter 2 gives the First-tier Tribunal, on an application made by a local housing authority, the power to make an order banning a person from letting housing in England and / or engaging in letting agency or property management work in England for a period of not less than six months where that person has been convicted of a banning order offence.

The Bill, so far, is silent on the all important details, i.e. what constitutes a banning order offence. That will be specified by regulations made by the Secretary of State. Some idea of what they might include can be found in the discussion paper that preceded the Bill, where it was proposed that a banning order offence would be likely to include convictions for fraud, violence, drugs or sexual assault which were committed at any residential premises which the offender (or a person associated with him) owned or was involved in managing and otherwise where the offender had been convicted of two or more relevant housing offences. A relevant housing offence is also not defined, but is almost certain to involve the letting of premises to persons without a right to rent under Part 3, Immigration Act 2014 (as every piece of legislation passed by this Government seemingly needs to include a new measure to combat the problem of unlawful migration). Presumably, a relevant housing offence will also include landlords who have been convicted of unlawfully evict their tenants, but it will be interesting to see if it also extends to housing offences under the Housing Act 2004, e.g. letting accommodation without a licence or failing to comply with an improvement notice, or even if it extends to landlords who have been found to have breached housing legislation that does not attract a criminal sanction.

Of course, banning orders will be completely ineffective unless they are enforced. Responsibility for enforcement will rest with local housing authorities. Importantly, however, the Bill provides that a person who breaches such an order will not be to a prosecution, but rather to pay a financial penalty of up to £5,000. The imposition of a penalty, which the authority may be able to keep, as opposed to a conviction is aimed at encouraging authorities to use their enforcement powers. This is certainly o be welcomed, because at a time where authorities’ budgets continue to be slashed, the will to bring prosecutions for no financial reward, which was already close to non-existent in the case of certain authorities, is only likely to wane further.

The ineffectiveness of prosecutions is also recognised by clause 86 of the Bill, which provides that authorities will also be entitled to impose to financial penalties, as opposed to bringing prosecutions, against landlords who commit offences under the Housing Act 2004. Presumably, this could also apply to offences under Protection From Eviction Act 1977 and it might be something that tenant’s representative groups, such as the Housing Law Practitioner’s Association, may wish to make representations on.

While the Bill provides that the Secretary of State will decide how much of the penalty authorities will be able to keep, the discussion paper, mentioned above, envisaged authorities being able to keep the penalty. It will be interesting to see if this intention is reflected in the subsequent regulations as if it isn’t the good intentions behind move to levying penalties will be worthless.

Register of rogue landlords

Authorities will also be required to enter persons made subject to a banning order onto the Secretary of State’s database of rogue landlords and letting agents. They will also have the power to enter the names of landlords who are convicted of banning order offences, but not made subject to a banning order. The idea behind this is to ensure that a landlord or letting agent, who is made subject to a banning order, cannot simply up sticks and move their business to another part of the country where they will be unknown and able to operate under the radar. Whether this will be effective remains to be seen as such landlords will undoubtedly set-up completely new companies in attempts to avoid detection.

One of the Bill’s proposals to combat this problem is to, controversially, require tenancy deposit schemes to provide local housing authorities with any information that they request, presumably so that authorities can maintain a record of every landlord that is active in their area. This will not only interest authorities seeking banned landlords flaunting their banning order, but also those operating selective or additional licensing schemes. Whether banned landlords will be conscientious enough to have protected their tenant’s deposits is perhaps another matter.

Rent repayment orders

Presently either tenants or local housing authorities can apply to the First-tier Tribunal for a rent repayment order, i.e. an order that the landlord pay back rent he has received in housing benefit, where a landlord has let accommodation in circumstances where he required a licence to do so, e.g. where the accommodation is within a licensable HMO. Chapter 4 of the Bill proposes to extend the availability of rent-repayment orders to circumstances where the landlord has breached a banning order or committed an offence by failing to comply with an improvement notice, unlawfully evicted a tenant or used violence to enter property occupied by the tenant. As with existing rent-repayment orders the Bill does not require that the landlord has in fact been convicted of the specified offence, although the amounts that are recoverable are likely to be higher where a conviction has been obtained.

These proposals will certainly be welcomed by authorities and tenants and should, if authorities use the powers, act as a further deterrent against those landlords who refuse to take action to remedy hazards present in let accommodation and those who choose to illegally evict their tenants. It may also result in authorities bringing more prosecutions against landlords where they stand to gain a financial reward for doing so.

Retaliatory eviction

The Deregulation Act 2015 has already made provision in England for the banning of the “retaliatory eviction”, albeit it is not as straightforward as originally intended and, so far, it only applies to tenancies in England granted after 1 October 2015. In respect of those tenancies, a s.21 notice that is served on a tenant becomes invalid if it is served after a tenant has complained in writing about the condition of the property and the local housing authority, in response to a complaint to it by the tenant about substantially the same issues arising from the condition of the property, serves the landlord with an improvement notice under Housing Act 2004: s.33(2),(3), 2015 Act. This even applies where the tenant doesn’t even complain to the landlord, because he was unable to make contact with the landlord, and so complains to the authority first: s.33(5), 2015 Act.

Likewise, the 2015 Act also prohibits landlords from serving s.21 notices for a period of six months from when the local housing authority served the landlord with an improvement notice, irrespective of whether a tenant has complained: s.33(1).


These proposals are undoubtedly welcome, because, frankly, any additional regulation of what has been until very recently an area free from almost any regulation is bound to be of benefit to some tenants. The real test will be whether the proposals are enforced by authorities and undoubtedly this vary across England. However, in practice, it is does no more than to scratch round the edges of the real elephant in the room: the lack of good quality affordable housing for those who cannot afford to buy their own home. The 2015 Act and the Bill, which if enacted will also introduce the extended right to buy which was discussed in last month’s post, will not solve, but exacerbate, that problem.

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Wrong to Buy?

Sam Madge-Wyld considers the recent RTB “offer” from the NHF.

Those who have even a passing interest in housing law will be familiar with the current Government’s proposal to give tenants of housing associations the right to buy their homes (or more accurately the right to the same discounts presently available to secure tenants). The proposal, as originally drafted, was to introduce new legislation that would compel associations to sell a tenant his home at a discount. In return, the Government would provide the association with a sum equivalent to the amount of the discount. This was to be funded by the introduction of additional legislation that would compel local housing authorities to sell their most valuable homes as and when they became vacant.

These proposals have been controversial and resulted in opposition from associations, local housing authorities and even, allegedly, the Treasury. At first associations were concerned that the introduction of the extended right to buy would remove their independence and charitable status. It had also been said that the proposed change in the law would lead to associations being defined as public bodies, which was the cause of the alleged concern within the Treasury as if that were to happen it would potentially add billions of pounds to the national debt. Obviously, local housing authorities were also concerned about the loss of their own stock. Even some commentators on the right questioned why sections of society who were already adequately housed should get a subsidy from the state to purchase a home they already lived in.

Notwithstanding these concerns, both the Government and the National Housing Federation (NHF), the body that represents housing associations, have been working towards agreeing a deal which would see associations retain their independence, but would also result in tenants acquiring the right to buy their homes.

The proposal suggests that it is an offer from the National Housing Federation to the Government. It is, however, plainly the result of proposals from both sides. Indeed, the deal was put to associations, at the NHF’s conference, by both David Orr, the Chief Executive of NHF and Greg Clark MP, Secretary of State for Communities and Local Government, with Greg Clark threatening associations that while he wanted to work with them to “find a way for every tenant to buy a stake in their home … there are some who say that to achieve the transformation we need requires a fresh start – that the housing association sector has taken us so far but might not be the right partner for the future.”

It is therefore not altogether surprising that 86% of all member associations, representing 93% of the sector’s rented homes, responded by indicating that they agreed to the deal. When one considers the deal in detail and the way that it will be funded it would also appear to be a no-brainer for the sector as a whole. The deal, if it is to be funded by the ongoing sale of council homes, will lead to housing associations becoming larger and stronger at the expense of local housing authorities. Effectively, the deal will result in local housing authorities funding the building of social housing owned by housing associations at the expense of existing council owned stock.

The offer

The detailed offer promises that all associations will extend “to all 2.3 million housing association tenants the right to purchase a home, at the level of discount to which they would be entitled if they had the Right to Buy … “ and that there would be a presumption that that housing associations would sell the tenant the property in which they live other than prescribed circumstances, i.e.

  • Supported housing within the meaning of Part 5, Housing Act 1985.
  • Properties in rural locations as defined by Section 17 of the Housing Act 1996.
  • Properties provided through charitable or public-benefit resources or bequeathed   for   charitable or public-benefit   purposes, and in the possession of the housing association before it became registered under the Housing Act 1974
  • Certain   specialist   properties   of   historic   interest   that   have   special significance to the community, such as almshouses.
  • Where there are clear restrictive covenants in existing resident contracts around the protection of rural homes.
  • Properties held in a Community Land Trust
  • Other categories that apply to the existing Right to Buy:
    • Properties   where   the   landlord   is   a   co-operative   housing association
    • Properties where the landlord does not have sufficient legal interest to be able to grant a lease exceeding 21 years for a house or 50 years for a flat
    • Tied accommodation occupied because the tenant is employed by a social landlord

Even then, associations would still be required, as part of the agreement, to offer alternative accommodation to tenants to purchase at the discount they would otherwise have been entitled to if purchasing their own home. Tenants would have rights of appeal to the Regulator of Social Housing in circumstances where they were denied the right to buy their own home and were unhappy with the alternative being offered or if they believed that the sales process was taking too long to complete. In either case, the Regulator would have the power to compel the association to provide an alternative property and to compel the association to complete the sale within a specified period. To ensure the speedy sale of homes, associations would no longer require the consent of the Regulator in circumstances where the right to buy applied.

Associations have also agreed that all properties that are sold will generally be replaced within two, but at the very latest within three years. To that end, the Government will provide associations with 70% of the discount on completion of the sale and the remaining 30% once there is evidence of a start on site or the acquisition of land to build on.

There would also be a presumption that each association would, so far as they are able to, replace each property on a one for one basis through building a new home, Associations would, however, have a wide discretion as to the types of homes they build, e.g. an assured tenancy could be replaced with a property to be let at an affordable rent, sold under shared ownership or even to be sold on the open market. Those associations that are not set-up to develop new homes would be able to enter into agreements with larger associations that could.

The Government has, for its part, promised, in addition to amending the circumstances in which a Regulator’s consent would be required before the disposal of any of an association’s assets, to allow associations to let and sell more properties at the market rate and to amend legislation so as to remove local housing authorities’ control over the allocation of an associations stock.

What will this mean?

One doesn’t need to be an expert in housing to see where this is going. If the Housing Bill is passed, the days of local housing authorities building new council homes will be over. No sane authority will choose to build homes, at its own expense, when they can be sold effectively for nothing. Likewise, local housing authorities who inherited a debt when the subsidy for the housing revenue account was abolished will also be concerned about how they will be able to finance that debt in the absence of capital receipts from sale of their own stock.

Secondly, in the long term, local housing authorities will cease to own any, or a very small proportion, of their own stock. While the current proposal is only for the sale of an authority’s most valuable homes, once those are sold those that remain will also need to be sold to fund the discounts available to future association tenants. It has been predicted that the cost to local housing authorities will be £6 billion of the next four years if all assured tenants who are able to purchase their own homes choose to do so.

Finally, there will be less available social housing in the classic sense, i.e. housing available at below the market rent with security of tenure, as associations are given greater flexibility in how they use or dispose of their existing and future stock.

The driver behind this proposal is to allow more people to own their own homes and for more homes to be built. A consequence of this approach, however, will inevitably mean less affordable housing for those who are unable to purchase their own homes. This will not solve the so called “housing crisis”.

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