Practice trends: housing law

Last week, a young woman was told by the Court of Appeal in Watchman v Ipswich Borough Council that she made herself 'intentionally' homeless by taking up a mortgage knowing she would not be able to meet the repayments. Even her husband losing his job, which accelerated the couple's difficulties with repayments, would not be taken into account because the correct time to assess 'intentionality' was when they left the property which they had earlier rented from the local authority. The Council, the Court of Appeal said, had no duty to provide them with accommodation.

that she made herself 'intentionally' homeless by taking up a mortgage knowing she would not be able to meet the repayments. Even her husband losing his job, which accelerated the couple's difficulties with repayments, would not be taken into account because the correct time to assess 'intentionality' was the time they left the property they had earlier rented from the local authority. The Council, the Court of Appeal said, had no duty to provide them with accommodation.

Homelessness

Intentionality in one of the numerous obstacles in the way of vulnerable people turning to local authorities in the hope they can secure a roof over their heads. In order to succeed, homeless applicants must show that they meet eligibility criteria. 'In practice,' says Chris Morris, Managing Solicitor at Shelter, 'you have to be a 'priority need'. For instance, have children, or be pregnant. The problem is that some applicants simply cannot fall in a given category '“ a male applicant cannot be pregnant.'

Other categories include mental illness or physical disability, but the provision of housing will depend on the degree of severity. 'Local authorities use external medical advisers who do not even see the applicant', continues Morris. 'It only costs about £30 to get a medical certificate by fax from one of the practices which specialise in this business. And there are real concerns that local authorities rely on this kind of advice as a matter of routine'. According to Morris, a claimant who was partially blind and whose case was taken up by Shelter nearly lost her sight as a result of this practice. The local authority initially refused to accept evidence that her blood pressure would increase as a result of stress if she was not offered suitable accommodation, causing blockage in her optical nerves and leading to total blindness.

Children are a specific category regarded as priority between 16 and 17. Some particularly vulnerable children will also be owed a specific duty as 'relevant' children under the Children Act. 'Where this is the case, there have been instances where the local authority has denied it owed a duty at all because it considered that the duty under the Children Act excluded further duty under the Housing Act', says Morris. The situation has not yet been tested in court but Morris says his organisation is looking to support a test case which would allow the courts to clarify the relationship between the two Acts.

Then there are the isolated cases, such as Robinson v Hammersmith & Fulham ([2006] EWCA Civ 1122). In this case, the 17 year old applicant said she had been asked to leave home and applied to her local authority for accommodation. The local authority postponed the making of a decision pending mediation. The Court of Appeal held that by doing so, the local authority had acted unlawfully because by the time mediation was attempted, the child would be 18; she would no longer qualify as a 'priority need' and the local authority would escape its duty to provide her with accommodation.

Other tactics include the recourse to health and safety exemptions to overcome the duty to disabled tenant. In Manchester v Romano ([2004] EWCA Civ 834), the defendant was a secure tenant with mental health problems who had been evicted after neighbours complained the noise she made stopped them sleeping. The judge accepted the contention, which, Morris comments, 'seems to have put the lid on disability discrimination arguments'. Nevertheless, the steam has not completely run out, and Morris says that disability discrimination arguments can still be developed successfully, particularly in the benefits area, as in the case of dyslexic claimant who was unable to understand forms she had been sent by the council, later failed to take the measure of an eviction notice and was thrown out of her house. The case was settled out of court and the applicant eventually re-housed.

Procedural unfairness

Morris also points to procedural unfairness in the system, but whereas Shelter has supported many applicants, here again there has been no opportunity for judicial clarification.

One example is the use of Ground 8 proceedings under the Housing Act. Tenants who fall behind in rent with registered social landlords (RSLs) have eight weeks from the date they are given formal notice to pay, after which the RSL may start possession proceedings. This is irrespective of whether failure to pay rent is not the tenant's fault, for instance if '“ as if often the case '“ their housing benefits have not been paid for no fault of theirs. And the procedure can be started without the RSL having to consider alternatives to repossession, such as payment by instalments (a position confirmed by the Court of Appeal in British Housing Association v Matthews [2004] EWCA Civ 1736, where the Court said it did not have the power to adjourn). Secure tenants with a local authority are under no such immediate threat.

Similar problems arise under s 21 of the Act, which allows landlords to regain possession by giving two months' notice, which Morris said can lead to abuses.

Shelter has relied on guidance given by Housing Corporation that possession should be last resort and Morris believes that it should be possible to apply for judicial review of RSL decisions. Only four years ago, the European Commission threatened to take Britain to court over the classification of RSLs as 'public authorities' under the public procurement directives. In the end the government accepted the Commission's contention that RSLs were public authorities who therefore had to comply with the procedure on public tenders and the case did not go to court. That reasoning which could be extended to the duties under the Housing Act.

At a purely practical level, however, the biggest hurdle for tenants is that during the time a decision is being reviewed, the local authority has no power to provide accommodation, unless there is a breach of European Union law or of the applicant's rights under the European Convention on Human Rights or the 1998 Human Rights Act.

European rights

Human rights principle, whilst possibly losing favour elsewhere, have been successfully used in housing litigation and, according to Morris, are likely to continue to be relied on in vulnerability cases. The case of Tiga Tsfayo, a tenant on housing benefits who was claiming for backdated payments, was ultimately decided by the European Court of Human Rights last November (Tsfayo v United Kingdom, application 60860/00, judgment 14 November 2006). The Court upheld Tsfayo's claim that the Housing Benefits Review Board hearing her case was not independent and impartial under Art 6 ECHR because five local councillors were on the panel.

Limits of the duty

The duty to provide accommodation under human rights principles has been tested in more unusual cases. Johann Wylly, formerly of the housing department of Leicester City County, The Chartered Institute of Housing, and now a senior solicitor in the Local Authorities team at Mills & Reeve, mentions Codona Codona v United Kingdom (application 485/05, judgment 7 February 2006, and [2004] EWCA Civ 925 for the Court of Appeal proceedings), which settled some of the limits of the duty. In this case, gypsies had turned down the offer of bricks and mortar accommodation made by a local authority on the basis that it was not culturally suitable. The court made it clear that such a refusal, on cultural aversion grounds, was not reasonable. The court also hinted that there could be a positive obligation on local authorities to look for suitable sites for travellers, although if there none available, then there was no obligation to find one.

According to Wylly, the examination of the suitability of accommodation in Codona could lead to further uncertainty both for potential tenants and landlords. In this case, the Court of Appeal accepted that the local authority was only under a duty to provide bed & breakfast accommodation on a temporary basis. 'The duty to provide suitable accommodation is absolute, but the Court of Appeal's findings in the case suggests that the local authority could take financial constraints into account,' Wylly says.

Codona would also need to be reconciled with R (Conville) v Richmond Upon Thames Borough Council [2006] EWCA Civ 718, which Wylly says 'has put the wind up local authorities a little bit'. Richmond Borough Council had argued that it would limit the period of accommodation it would offer to an intentionally homeless person because it would not be reasonable to provide housing for a longer period in light of its limited financial resources. The Court of Appeal rejected the local authority's arguments, saying that it could not take account of its limited resources or other financial pressures on them (a petition to appeal to the House of Lords was refused on 8 October 2006). 'Local authorities are concerned,' says Wylly, 'that they will have to provide temporary accommodation fo much longer periods to discharge their duties towards the intentionally homeless, which would inevitably be burdensome form them.'

ASBOs and evictions

The other area that has grabbed the attention of housing lawyers is the increasing use of anti-social behaviour orders (ASBOs) on unruly tenants. So much so that the government recently put forward proposals to enable tenant management organisation (TMOs) to hand out ASBOs without having to apply to the courts.

The move has been criticised by groups such as Liberty, who fear ASBOs will be used inappropriately, but for Yetunde Dania, a partner in the social housing team at Cobbetts, the proposal is 'about empowering the community, allowing those affected by the behaviour to take action without having to go through the red tape'.

'At the moment,' Dania says, 'a TMO grappling with anti-social behaviour has to approach the local authority or the police; it usually takes a few weeks to obtain a report, appoint an investigator, and go through consultation with those concerned. Under the government proposal, the TMO could issue proceedings immediately, which would speed up the process.'

'ASBOs should not be used in the first resort,' Dania continues, 'other options should be explored first, but the current process causes a lot of frustration. For instance, the officer in charge of the case changes patch, his replacement has to be briefed, which slows down the resolution of the issue. This is what the proposal addresses.'

In Dania's experience, which goes back to the days when she was acting for tenants, anti-social behaviour remains one of the biggest issues for housing lawyers; and she says it will not be resolved by issuing ASBOs. 'We need to look at the community at large,' she explains, 'and the solution will depend on government resources dedicated to communities. Young people wander around the streets looking bored; there are parenting issues; the family bond is not as strong as it used to be '“ all these issues need to be addressed. There is a general awareness of the problem, and the sector as a whole is also aware of the remedies, but it will take time.'

Most problems tend to arise where the property has been sublet. 'A property could have been sublet for years, sometimes over a decade, then all of a sudden the water bill is not paid, and the water company contacts the landlord, who then finds out that his property had been sublet unlawfully,' Dania comments.

Regaining possession is usually straightforward, with the landlord taking squatter proceedings against the sub-tenant and possession proceedings against the tenant. 'Few tenants resist proceedings,' Dania says. Which leads to a further point. As a practice, housing law has been dramatically affected by the cuts in legal aid. 'The market has completely contracted. Firms have gone out of business or opted out of legal aid. There are only a few left in the Birmingham area. And elsewhere in the region, there may be only one or no firm at all.' This, according to Dania, means that those on legal aid have no genuine choice, and it will not be long before judges, who ensure that the parties to proceedings have had access to legal advice, realise the extent of the problem.