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Bedroom tax: round 2

On 27 April 2017 the Upper Tribunal (‘UT’) handed down judgment in Secretary of State for Work and Pensions v Carmichael and Sefton BC (HB)  [2017] UKUT 0174 which was the Secretary of State’s appeal to of the First-tier Tribunal’s (‘FTT’) decision on the Carmichael’s ‘bedroom tax’ appeal.

In this post Alice Richardson considers the judgment and the wider implications for cases in which a court or tribunal holds that subordinate legislation is incompatible with convention rights.

Background

Mrs Carmichael lived with her husband, Mr Carmichael, in a two-bedroom flat. She had spina bifida, hydrocephalus, double incontinence, inability to weight bear and recurring pressure sores. Mr Carmichael was her full time carer. She needed a special bed with an electronic mattress. She also needed a wheelchair beside the bed. Her husband could not share the same bed, and there needed to be adequate space for him and nurses to attend to her needs. There was not enough space for him to have a separate bed in the same room. Their rent was previously met in full by Housing Benefit, but it was reduced by 14 per cent under regulation B13 of the Housing Benefit Regulations 2006 (SI No 213) otherwise known as ‘the bedroom tax’ or ‘the spare room subsidy’ etc.

The First-tier Tribunal decision

On 9 June 2014 the FTT allowed the Carmichaels’ appeal holding that regulation B13 unfairly discriminated against disabled persons who needed an additional bedroom and that there was no objective and reasonable justification for the discrimination.

The decision was somewhat surprising given the Court of Appeal’s decision in the unsuccessful judicial review proceedings involving the Carmichael’s: R (MA and others) v The Secretary of State for Work and Pensions [2014] EWCA Civ 13.

Further the FTT judge went on to read words into the regulations purportedly under section 3(1) of the Human Rights Act (HRA) 1998 in order to avoid a breach of Mr Carmichael’s human rights.

The Secretary of State sought permission to appeal that decision and the application was stayed pending the outcome of the Supreme Court decision in the judicial review proceedings.

The Supreme Court decision

On 9 November 2016 the Supreme Court held that the bedroom tax regulations were a breach of the Carmichaels’ human rights:  R (MA and others) v The Secretary of State for Work and Pensions [2016] UKSC 58 (our post here).

On the same day the Department for Work and Pensions had issued local authorities with a ‘Housing Benefit Urgent Bulletin’ advising local authorities that they ‘must continue to apply the rules when determining housing benefit claims as they did before today’s judgment’ and that ‘the Department is considering the Court’s judgment and will take steps to ensure it complies with its terms in due course’.

The Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2017 (SI No 213) were not laid before Parliament until 2 March 2017.

In our post on that decision we queried how tribunals were to deal with people in the same position as the Carmichaels and the Rutherfords pending the amended regulations because it was not open to the tribunal to read words into the regulations under  HRA 1998 s3(1) (as the FTT judge in this case had already done).

The Upper Tribunal appeal

Given the decision of the Supreme Court it may seem surprising that the Secretary of State continued to pursue an appeal of the FTT decision. However, there remained the unresolved jurisdictional point framed as:

‘whether statutory tribunals have the jurisdiction to develop bespoke solutions to Convention violations (discrimination or otherwise) on a case by case basis’.

In other words, having found the regulations to amount to a convention violation, was the FTT still bound by them or was it entitled to dis-apply the regulations?

In the Upper Tribunal (UT) it was common ground between the parties that the FTT’s interpretation had not been open to it, since it went beyond any interpretative reading permitted by HRA 1998 s3(1).

The Secretary of State’s position was that in the period between a Court identifying a breach of Convention rights by the operation of secondary legislation (such as reg B13) and Parliament taking steps to rectify that incompatibility then ultimately a claimant’s only recourse to make good the consequential financial loss was to bring civil proceedings in a court for damages under HRA 1998 s8(2).

On the Carmichaels’ behalf it was argued that the approach taken in Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47 should apply. There was no obligation in the primary legislation to make the 14 per cent reduction; the requirement was contained in the secondary legislation. Mathieson demonstrated that in such circumstances the Tribunal should allow the appeal, set aside the offending decision by the initial decision-maker and substitute a decision that the claimant was entitled to the continued payment of benefit at a rate unaffected by the action which would otherwise be a breach of the claimant’s Convention rights.

The Upper Tribunal decision

The UT concluded that Mathieson applied and that courts and tribunals ultimately have the power to order that to the extent that subordinate legislation is incompatible with a person’s Convention rights it should not be given effect to in determining the person’s lawful entitlement, or should be otherwise applied or dis-applied in a way that does not breach the person’s Convention rights. That course of action was held to be a ‘relief or remedy’ which a court or tribunal may make ‘within its powers as it considers just and appropriate’ under HRA 1998 s8(1).

The FTT had arrived at the correct outcome but by the wrong route. The FTT should have directed the local authority to calculate the claimant’s housing benefit entitlement without making a deduction of 14 per cent for under occupancy to avoid an unlawful breach of the Carmichaels’ human rights. The result was the same, namely that no deduction operated.

Comment

The effects of this case are potentially far-reaching. While the appeal concerned only the Carmichaels’ appeal it was effectively the lead case in a block of some 170 further cases before the UT in England and Wales and around 40 cases pending in Scotland. It is not known how many other cases are pending before the FTT. However, implications of the decision would likely go further than Carmichael-like cases and bedroom tax cases: it effectively confirms that the FTT has powers far beyond what most practitioners previously understood to be the case.

Unsurprisingly the Secretary of State sought permission to appeal the decision. That application was refused by the UT and the DWP has announced that an application will be made to the Court of Appeal.

In the interim, the effect of the UT’s decision was apparently suspended for 28 days from 27 April 2017 (according to gov.uk) presumably leaving the 210+ block of cases in the UT, and however many are pending before the FTT, in limbo once again.

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Joined up thinking

The Universal Credit (Housing Costs Element for claimants aged 18 to 21) (Amendment) Regulations 2017 (2017/252) came into force on 1st April 2017.

In this post Alice Richardson considers the regulations and their incompatibility with the Government’s support for the Homelessness Reduction Bill 2017 which is currently awaiting Royal Assent.

Background

Former Chancellor, George Osborne, announced the removal of entitlement to the housing element of Universal Credit from certain young people aged 18-21 as part of the Summer Budget in 2015.

The policy had been suggested as far back as June 2012 when then Prime Minister, David Cameron, proposed removing access to Housing Benefit for people aged 16-24 during a speech at Bluewater in Kent. The idea was raised again at Conservative Party Conferences in 2012, 2013 and 2014 by which point, following some criticism, the age range was narrowed to those aged 18 to 21.

The Regulations

The Universal Credit (Housing Costs Element for claimants aged 18 to 21) (Amendment) Regulations 2017 (2017/252) came into force on 1st April 2017.  The regulations amend the Universal Credit Regulations 2013.

The changes have widely been reported as a withdrawal of housing benefit although the provisions only apply to new claims made after 1st April 2017.

Certain classes of claimant are exempt from the removal, including those who;

  • are responsible for a dependent child;
  • were a care leaver before reaching the age of 18;
  • do not have a parent living in Great Britain;
  • are accommodated in temporary accommodation under Part 7 Housing Act 1996;
  • receive DLA middle-rate care or above, or PIP Daily Living (at either rate);
  • have been subject to, or threatened with domestic violence;
  • cannot live with their parents due to a serious risk to their physical or mental health, and the Secretary of State considers it inappropriate to expect them to do so;
  • earn the equivalent of 16 hours per week at the National Minimum Wage.

 

The Department of Work and Pensions expects that around 11,000 people will be affected by the regulations by 2020/21.

The Homelessness Reduction Bill 2016/2017

The Homelessness Reduction Bill is a Private Member’s Bill introduced by Bob Blackman MP which passed through parliament with Government support and is now awaiting Royal Assent.

If enacted the Bill would make changes to Part 7, Housing Act 1996. It would place duties on local housing authorities to intervene at earlier stages to prevent homelessness and to take reasonable steps to help those who become homeless to secure accommodation. It also requires local housing authorities to provide some new homelessness services to all people in their area and expands the categories of people who they have to help to find accommodation.

Comment

Organisation from across the sector, including Centrepoint, the Chartered Institute of Housing, Crisis, Shelter, the Residential Landlord’s Association and the National Landlord’s Association have all raised concerns with the regulations.

The CEO of the National Landlords Association, Richard Lambert, was reported as saying:

 “Never mind the nuances, all landlords will hear is that 18-21 year olds are no longer entitled to housing benefit.  Faced with a young person who may not be able to pay the rent, a landlord won’t worry about the details of their life, they just won’t consider them as a tenant… However much the Government tries to make this policy more palatable by talking up the exemptions, it still leaves a nasty taste in the mouth”.

The policy was also criticised by Labour’s Shadow Secretary of State for Housing John Healey MP who said:

“This disgraceful cut to housing support will leave thousands of young people with nowhere to go. Many could end up on the streets…”

Of particular concern to many is how a young person who is unable to remain at the family home would demonstrate that to the decision-maker so as to be exempted from the cut. Anyone who has experience of DWP decision-making is likely to be sceptical of Caroline Noakes MP’s assurances that:

“…it is a question of young people informing a work coach, somebody in the local authority or a trusted medical professional of their inability to live at home because their relationship with their parent has broken down, and in those cases they will receive the exemption.

The Regulations come at a time when homelessness, including street homelessness, is already increasing. The estimated number of rough sleepers in England has increased from 1,768 in 2010 to 4,134 in 2016 according to “Rough Sleeping in England”.

In an article dated 6 March 2017 Inside Housing reported that the regulations “…could place 9,000 at risk of homelessness” and reported concerns that, if youth homelessness increases, it could “wipe out” almost all of the forecast savings.

On 5th April 2017 the Residential Landlord’s Association reported that their survey of more than 1,000 landlords found that 76% fear the measures will leave under 21s unable to pay their rent, making landlords less likely to let property to those in this age group.

On announcement of the regulations Crisis urged the Government not to continue with the “destructive policy” commenting that:

“The Government has made positive steps towards preventing homelessness in recent months, including pledging its full support for the Homelessness Reduction Bill… today’s announcement runs entirely counter to those aims and could have disastrous consequences…”

(Crisis, 18-21 year olds at greater risk of homelessness as Government announces benefit cuts, 6 March 2017)

Although the Bill arguably does not go far enough to tackle the growing homelessness crisis, it is very much considered to be a positive step. As is the Government support it has received. The introduction of the regulations, which have been so heavily criticised and risk increasing youth homelessness, does somewhat undermine that support.

Furthermore, researchers at Heriot-Watt University predict that the likely savings would actually only be around £3.3 million. Of course, if a young person becomes homeless as a result of losing of the policy this will ultimately cost the taxpayer. The researchers estimated that only 140 people would need to become homeless for the policy to cost more than it saves.

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Of cuts and caps: the benefit cap and housing benefit

Andrew Arden QC and Justin Bates consider the Benefit Cap (Housing Benefit) Regulations 2012 SI No 2994, published this week and coming into force on 15 April 2013.

 

Policy background

In July 2010, the government published a consultation paper 21st Century Welfare, in which they outlined their plans for welfare reform. One of the key themes was ‘rewarding work and personal responsibility’ which included ensuring that ‘a fair balance is struck between support and conditionality’. Ultimately the intention was to ‘reduce the cost of the welfare system and reduce welfare dependency and poverty’.

 The idea of a benefit cap seems to have come from the respondents to the consultation paper: see Consultation responses to 21st Century Welfare (November 2010).

‘3.        Many respondents stated that the most effective way to encourage people into work would be to ensure that people are significantly better off working than on benefits.

–          There were a number of suggestions for how this might be achieved that included:

–          allowing people to keep more benefit in work by increasing disregards and reducing tapers;

–          increasing the National Minimum Wage; or

–          establishing a benefit cap to restrict the amount people can receive whilst out of work.

‘There needs to be a much larger gap between benefit rates and the National Minimum Wage to emphasise the merits of working and to make it more financially attractive. The National Minimum Wage must rise at a higher percentage level than benefit rates. Consideration should be given to capping benefits and imposing timescales for the length of receipt.’ (Burnley Borough Council and Burnley Action Partnership)’. (Response to question 1, para.1.3).

 

Welfare Reform Act 2012

From these beginnings, the idea of a benefit cap began to take hold. The legislative underpinning was created by Welfare Reform Act 2012 s96 which provides that the Secretary of State may make regulations providing for a ‘benefit cap’, setting the total entitlement to welfare benefits of any claimant.

 

The regulations have now been published. They amend the Housing Benefit Regulations 2006 SI No 213 so as to provide that a single person may not receive more than £350 in welfare benefits; in all other cases, the limit will be £500 per week. There is a limited number of exceptions to what is to be counted, eg war widows and widowers pensions are excluded. In order to ensure that the cap is not exceeded, the local authority have to calculate the total income received from welfare benefits and reduce housing benefit accordingly subject to a minimum amount of housing benefit of 50 pence per week.

 

The reform does not apply to those who receive housing benefit under the Housing Benefit (persons who have attained the qualifying age for state pension credit) Regulations 2006 SI No 214 (ie persons aged 65 and over); it is confined to what has come to be called ‘working age benefits’.

 

Potential impact

At risk of stating the obvious, these reforms will lead to a significant rise in possession claims based on rent arrears and, linked to that, applications for homelessness assistance under Part 7 of the Housing Act 1996. These fears are shared by the Joseph Rowntree Foundation and Centrepoint and appear to be backed up by leaked government documents obtained by Channel 4 News.

 

The Impact Assessment indicates that 56,000 households will lose an average of £93 per week, rising to 58,000 households in 2014/15. That amounts to around 80,000 adults and 190,000 children. London will see the greatest impact, as 49 per cent of affected households are living in the area. Birmingham, Brent, Ealing, Enfield, Hackney, Haringey, Redbridge, Tower Hamlets and Westminster are each expected to have more than 1,000 households affected.

 

The impact assessment suggests that households will either need to find work, cut their non-rent expenditure or find cheaper accommodation. Those who cannot pay their rent are advised to contact their local authority (see Frequently Asked Questions), presumably with a view to seeking a discretionary housing payment under the Discretionary Financial Assistance Regulations 2001 SI No 1167 (although, as there is only £120 million available for these payments in 2013-15, it is obvious that this will not prove sufficient).

 

The figures do not tell anything like the whole story; even the most populist press – much of which has lent substance to the thinking which led to the cap – seems now, if belatedly, to be beginning to recognise the serious consequences for families and communities alike. The loss of education, medical and other connections as families have to move further and further away from their homes (and, in particular, homes that are near to employment opportunities) will –obviously, inevitably and unarguably – have a significant impact not merely on those currently dependent on welfare benefits and homelessness provision, nor ‘merely’ on their offspring, but on a generation beyond.

 

It is also clear that little protection will be provided by the recent homelessness regulations governing use of the private sector, on which we commented in our last blog, and which require authorities to ‘take into account’ the location of accommodation, including disruption which would be caused to the employment, caring responsibilities or education of the applicant and his household and the proximity and accessibility of medical facilities and other support currently used or provided to them and which are essential to their well-being. ‘Taking into account’ is, bluntly, at the very lowest level of statutory direction and is as routinely despatched as many of the contents of the Homelessness Code of Guidance.

 

There was a time when it typically took two or three generations (or more) for people to climb the ‘ladder’ from poverty to ‘success’ (in material and/or professional terms); over the latter part of the last century, that ‘track’ became quite a lot shorter. More than anything else, making it impossible for people to stay in the areas where there are the most opportunities and the greatest resources reverses that advance. Couple it to the increasing problem of securing legal advice and assistance with which to assert such rights as remain and it is not difficult to see why many are feeling a real and profound sense of hopelessness.

 

Select Committee

The House of Commons’ Select Committee on Communities and Local Government announced in October 2012 that it was to conduct an inquiry into the private rented sector and sought submissions from interested parties dealing with the ‘quality and regulation of private rented housing’ and ‘levels of rent’ within the sector. Matters that parties were asked to address included levels of rent within the private rented sector – including the possibility of rent control and the interaction between housing benefit and rents.

 

Submissions are to be emailed to clgev@parliament.uk by 17 January2013. Given the implications of the benefits cap, it would be a missed opportunity for all those with experience to offer in this respect not to pile on the pressure to ensure a long-overdue reversion to some form of rent control that may take at least some of the sting out of the tail of these caps.

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New edition of Quiet Enjoyment out today

The seventh edition of Quiet Enjoyment: Arden and   Partington’s guide to remedies for harassment and illegal eviction publishes today, 32 years after the first edition  was published by LAG.  Andrew Arden QC remains at the helm, and is joined in this edition by Rebecca Chan and Sam Madge-Wyld, both barristers at Arden Chambers.

Quiet Enjoyment is concerned with the rights of occupiers of residential property to live undisturbed in their homes and the legal remedies available when this peace is threatened.

The number of illegal evictions continue to rise and many tenants suffer loss, distress and discomfort and prolonged harassment, sometimes with lives being put at risk.  Quiet Enjoyment explains the laws that protect tenants, how to prepare for court proceedings and obtain injuctions and awards of compensation and damages.  The books covers both civil and criminal proceedings in turn.

This edition is up to date to cover the offence of squatting in a residential building brought in by the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 s144 and how in practice the landlord’s claim that the tenant is a trespasser sits with the rights of the residential occupier under the Protection of Eviction Act 1977.

As with all LAG books this is a practical guide. It is an essential handbook for specialist housing lawyers and advisers but always has the non-lawyer in mind in its explanation of the legal issues and step-by-step guide to court procedures. As the use of private rented property by local authorities is on the rise, this is an important book for local authority housing and legal departments as a clear and succinct account of the offences and remedies

At only 326 pages Quiet Enjoyment is one of LAG’s slimmest and lightest volumes  so will be welcomed by all those used to lugging our 1000-page books to court.  This edition is also available as an eBook  and we welcome comments on how people find using that version.

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Pat’s back

Housing surveyor Pat Reddin is back at work!

 

As I explained in an earlier blog about Pat Reddin, the ‘go to’ surveyor for tenants and social landlords since the early 1970s, he was diagnosed with a brain tumour last year and, earlier this, underwent surgery which had left him out of action since.

 

As foreshadowed in that blog, Pat has continued to make a terrific recovery and is now back at work. In a letter to clients, he has explained that he had a while ago (before the condition was diagnosed) begun to appreciate that age was catching up with him, which would increasingly affect those aspects of his work that required agile mobility; he has now had talks with two former colleagues whom many will know, Wyn Burgess and Angus Moss, to do his site visits for him on a consultancy basis.

 

In terms of expert work, this will mean that he will still prepare a report and attend court if required, based on their inspections. Reports would be signed by both the site visitor and Pat (though clients will not be paying more than if the whole task was carried out by just one person). He recognises that this will mean charging public funding rates for assisted parties – but then he always has and it hasn’t let it stop him yet!

 

He is also available for the usual range of other work through which he has been subsidising his publicly funded practice for many years and is hoping that the new arrangement will allow him not only to continue to offer the same services as he has for many years but to expand the range of his work, to the same standard for which he has a well-earned reputation.

 

His client letter thanks everyone who has stuck by him through what has been a truly horrible year. As he says, we cannot imagine what it has meant.

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Student lettings

With the start of the new academic year Andrew Arden QC and Justin Bates consider some of the fees and other sums of money that students may have to pay to rent accommodation.

 

Introduction

In September and October, around 158,000 new students are estimated to start university (figures taken from UCAS). Whilst most new students are offered accommodation in halls of residence or other property owned or sourced by their university for the first year, they will soon find themselves having to make decisions about their accommodation for the following years.

 

For many students, this means finding others with whom they want to live and then finding a property. It is likely to be their first experience of renting for all the members of a group. Their parents may well not have any relevant or recent experience of the rental market. It is all too easy for them to be taken advantage of by landlords or agents. As the examples below show, this is an area that is ripe for legislative intervention.

 

Fees

There is a range of fees that tenants may find themselves being asked to pay. A recent survey carried out by Shelter found that one in four people renting in the private sector in England felt that they had been ‘ripped off’ by letting agents charging fees for, among other things,

  • Criminal Record Bureau checks
  • credit checks
  • unparticularised administration charges
  • inventory fees
  • unnecessary document copying
  • new tenant fees
  • renewal fees

 

Such fees are unlawful in Scotland (see the Rent (Scotland) Act 1984) and the Scottish Government has committed itself to ensuring that the law is enforced and (if necessary) amended to close up any loop-holes (see here). Shelter Scotland have recently launched a campaign to encourage tenants to sue for the return of any fees that were paid: as at June 2012, there were some 870 claims in the Scottish courts (all awaiting a decision) worth over £100,000 (see BBC news report, here).

 

There is no analogous protection in England. The Accommodation Agencies Act 1953 provides limited protection against fees for the provision of information about rental properties but does not prevent the fees of the sort that Shelter has identified.

 

It may be that the Unfair Terms in Consumer Contracts Regulations 1999 or the Consumer Protection from Unfair Trading Regulations 2008 could be used to fashion a remedy, but it would be vastly preferable to regulate fees at the outset, rather than leave it to tenants to try and reclaim them at a later date.

 

Holding deposits

Holding deposits also give rise to concern. Would-be tenants are asked, fairly early on in the letting process, to pay a ‘holding deposit’, usually in the several hundreds of pounds. The purpose is to prevent would-be tenants agreeing (or ‘bidding’) to take properties, which may cause them to be taken off the market or an alternative bid to be rejected, but then withdrawing because they find something better. That purpose is plainly unexceptionable, but holding deposits may be taken from several would-be tenants in relation to the same property – which is plainly wrong unless they are aware that they are in a ‘queue’ – and the vice lies in the difficulty unsuccessful tenants have getting their deposits back because

  • the circumstances in which the would-be tenant is entitled to withdraw are usually not spelled out,
  • the conditions for return of the deposit are likewise not spelled out (eg, if the credit check is said to be negative),
  • agents are hard to reach once they know the student will not be renting from them,
  • the terms of the tenancy may prove so onerous that the tenants cannot take it up, eg guarantees (see below), and
  • students do not know how to challenge a refusal to return the deposit and do not have access to advice or assistance getting it back. Indeed, it is not unknown for a request for return of the deposit to be met with the threat of an additional claim for a greater amount on specious grounds that the tenants’ putative default has cost the landlord or the agent more than is covered by the deposit. Furthermore, in practice, the amounts each individual student has to pay – perhaps only one or two hundred pounds, while a lot of money, is low enough for them to realise that litigation is not a viable option.
  • Alternatively, some agents assert that the deposit is transferable to another property (which ‘ties’ the would-be tenant to that agency, even if there is an alternative available elsewhere).

 

Guarantees

This has become so widespread that it merits a section of its own. This is the common practice of requiring all the parents of the would-be tenants planning to share a property to sign personal guarantees both for the whole rent of the property (not just the share of the rent which their child will be paying) and all other liabilities under the lease (ie, as one of the joint tenants with joint liability for all the terms), eg damage. This is made a condition of the tenancy being granted and, if the tenants do not take it up because their parents refuse to sign the guarantee, the deposit is then withheld.

 

There is quite a lot that can be said about this – not least because one of us has recently been through it (work it out – one of us isn’t old enough to have a child living away from home)!  First, the credit check will normally relate only to a single share of the rent – not many but most parents would fail a credit check for the whole rent for a whole house or large flat; when asked to guarantee their own child’s liabilities, they are nonetheless guaranteeing the rent in full. Secondly, the idea of guaranteeing the ‘behavioural’ terms for a group of young people, some of whom may not even be known to the parents, is hugely onerous. Consider this: their child comes home for the holidays while one of the other sharers stays on and, perhaps – even probably if a long enough break – has others in for a while, which ‘visitors’ or ‘lodgers’ cause damage or who, say, smoke in the property (which these days is commonly prohibited), for which those parents – never met joint tenant, never met sharer – will nonetheless be liable in law. Finally, the parents are in a real bind: given that these guarantees are so very common now, almost universal in relation to student lettings, how will their child find accommodation unless they sign?

 

Sometimes, it is possible to negotiate a variation to confine liability to the rent payments of one’s own child (just as it is sometimes possible to get back a holding deposit or even several) – and, yes, ‘guess who’ managed to do both but possibly (just possibly) was better equipped than most to be able to do so!

 

Otherwise, however, such guarantees are highly suspect and could well be regarded as unfair under the 1999 Regulations (above) – if otherwise qualifying (eg standard terms, etc) or even a sham (if the credit check was limited to the individual rent share). Again, though, this is not something which ought to be left to individuals to have to fight and cries out for legislative intervention.

 

Conclusion

We doubt we shall see legislation – in the current Parliament at any rate. The coalition government is committed to supporting and stimulating the private rented sector and any move such as this would be likely to meet a fairly solid block of opposition from agents and landlords which it will not want to have to deal with. Sometimes, though, it is right to fight on – and on and on – both because it may have some protective value insofar as it informs people who may then be willing to push back a little harder and because eventually it may lead to change.

 

With a bit of luck, it might even be in time for the other of us!

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Winning the battle but losing the war?

Not every tenant victory is necessarily a victory for tenants, Andrew Arden QC and Justin Bates assert.

 

Introduction

There is a danger that this post is going to sound like sour grapes, as Andrew appeared for the authority in Camden LBC v Stafford [2012] EWCA Civ 839, the case to be discussed. It is not intended to be but, even if there is an element of it, there remains a valid point, that what may appear at first glance to be a victory for one ‘side’ or another can sometimes turn out to have very different implications in the longer term.

This is not a point that is confined to cases. The development of a proportionality defence in Manchester CC v Pinnock [2010] UKSC 45, [2011] 2 AC 104, [2011] HLR 7, and Hounslow LBC v Powell and other cases [2011] UKSC 8, [2011] 2 AC 18, [2011] HLR 23 has been hijacked by the government to do away with security of tenure in new cases such as the flexible tenancy and the so-called ‘mandatory power of possession’ in some ASB cases. Space does not allow us to elaborate on this here, but those who are interested can read Andrew’s keynote speech to the Housing Law Practitioners Association in December 2011, available here for HLPA members or by emailing Justin.

 Camden LBC v Stafford

 Stafford concerned the review of a decision to terminate an introductory tenancy. The housing officer served notice of seeking possession for anti-social behaviour (mostly noise); the tenant requested a review, apologised and said that her ex-partner was responsible for most of the problem. The review panel stated that it was upholding the notice but went on to suggest how actual eviction might be averted. ‘The Panel decided that the Notice was correctly and justifiably served as ‘there had been allegations of anti-social behaviour’ and the tenant had ‘accepted that at least some of these complaints were justified’. Nonetheless, it did ‘not believe that an application to the court for possession of the property should be made at this point in time’. Rather, while ‘… the decision to serve the Notice is upheld’ it made a number of recommendations as to steps that could be taken, such as meeting with a Youth Intervention Support Panel, an Acceptable Behaviour Agreement, and further enquiries of the police and neighbours. After further complaints, however, the authority decided to proceed with the notice.

This strategy followed Cardiff CC v Stone [2003] EWCA Civ 298, [2003] HLR 47, in which a review decision which confirmed a decision to terminate the introductory tenancy nonetheless provided that further action would be suspended on terms relating to payment of rent arrears. This was upheld as confirmation of the decision within Housing Act 1996 s129, so that, when the payments were not maintained, the authority could continue with the eviction. The argument for the tenant:

 ‘… would lead to the possibility of a local authority having to serve numerous notices. That would have the consequence that the procedure for terminating an introductory tenancy, which only has a very short life anyway, would become very formal. It is quite possible that it would discourage landlords from allowing introductory tenants to remain as tenants while they were given a second chance, and it may well be very undesirable to discourage landlords from doing so’;

 …

 ‘if the case advanced … were right, the likely consequence would be that housing authorities would almost inevitably be driven to adopt a less humane, more rigorous, unrelenting approach to introductory tenants who had failed to pay rent when it was due. In many cases there is much to be said for full, indeed generous, weight to be given by the housing authority to any relevant extenuating circumstances and for the tenant to be offered (as this tenant was) a reasonable opportunity to make amends. However, if that opportunity is rejected by the tenant, then the housing authority’s position …should not be prejudiced simply because it made allowances for a tenant’s difficulties and deferred proceedings to bring the tenancy immediately to an end’.

In Stafford, the Circuit Judge rejected the claim for possession and an appeal to the Court of Appeal was dismissed, on the basis that the letter had not confirmed the original decision as required by section 129: a review decision under section 129 could not be expressed in equivocal terms; the practical options are only to confirm the decision to seek an order for possession or to withdraw it.

Criticism

Leaving aside the obvious difficulty of reconciling Stafford and Stone, the real issue is how cases are going to be handled in the future, bearing especially in mind the requirement that the review must – if by an officer – be by one who is senior to the officer who made the original decision.

If the review can only say ‘yay or nay’ to the notice of seeking possession, without the room for manoeuvre that allows it to use what will always be its greater experience to steer a route between the anti-social behaviour and the wish to avoid eviction, it has to be anticipated that reviews will much more readily come down in favour of eviction than run the risk of carrying the responsibility for allowing an anti-social tenant to acquire security (against the initial decision that this ought not to be allowed to happen). Even if a further notice could be served, the review would still be responsible both for adding to the work involved, and – given the limited time available – for increasing the chance that later ASB could not be prayed in aid.

Conversely, while it is true, as held in Stafford, that an authority will always have the right to change its mind, and even a duty to keep the situation under review (citing Barber v Croydon LBC [2010] EWCA Civ 51, [2010] H.L.R. 26), so that it is not bound to take possession proceedings to a conclusion, once a more senior officer has ruled in favour of eviction, the likelihood of the junior officer changing course inevitably diminishes. (Reviews can be by members; that is rare; but where it does happen, the likelihood of the officer changing course reduces to nil).

The practical result will be that authorities will simply cease offering a second chance to their introductory tenants.

The decision fails to understand the nature of the review. It is not an appeal but an opportunity for the position of the authority to be reconsidered at a ‘higher’ level (officer or member). It is very hard indeed to see why the position of the authority should not be a tad more sophisticated than the Court of Appeal allows in Stafford, somewhat closer to the sort of stance recognised and validated in Stone. This is the crux of it; it deprives authorities of the scope to be more imaginative and more helpful; it fails to recognise that it is not only the tenant who seeks to avoid eviction, but the authority as well – and deprives the authority of the tools to allow them both to achieve the shared goal.

It might also be added that the decision appears to be utterly out of step with a climate of mediation and culture of alternative dispute resolution.

 

Footnote: we’re moving

As some of you may already have seen, on Friday July 20, 2012, Arden Chambers will be moving from John Street in London (where we have been based for 15 years) to newly refurbished premises on Bloomsbury Square.

This is new territory for the Bar but we rather suspect that other Chambers will join us over time.

When Andrew was first in practice (some years before Justin was born), and operating out of Chambers in Bowden Street opposite Lambeth County Court and, subsequently, Wellington Street in Covent Garden, the first time any London Chambers had stepped outside the Inns of Court, the Bar Council briefly changed their professional rules so as to require all Chambers to get its consent before operating outside of the Inns.

How times change.

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