Update : housing

Housing law has been dominated by a number of big decisions since the previous update, and readers should refer to past issues where these cases have been digested and analysed. For example, in Lewisham LBC v Malcolm [2008] UKHL 43 the House of Lords held that the comparison to be made under s.24(1)(a) of the Disability Discrimination Act 1995 was between: (a) the defendant; and (b) a tenant who had sublet and was not disabled. It was also necessary for a defendant to show that the alleged discriminator either knew or ought to have known of the disability (see [2008] SJ 152/30, 29 July p.17 and [2008] SJ 152/32, 12August p.20). The House of Lords in Doherty v Birmingham City Council [2008] UKHL 57 confirmed that county court judges should continue to follow the guidance in Kay v Lambeth LBC [2006] UKHL 10 (see [2008] SJ 152 online, 1 September). In Gilboy v Liverpool City Council [2008] EWCA Civ 751, the Court of Appeal held that the demoted tenancy scheme was compatible with Art.6 of the ECHR (see [2007] SJ 151/47, 14 December p.1582). The High Court in R (Weaver) v London & Quadrant Housing Trust [2008] EWHC 1377, ruled that housing associations are amenable to judicial review (see [2008] SJ 152/31, 5 August p.13). Readers should refer to past issues where these cases have been digested and analysed. This update considers other recent case law.

Homelessness appeals

In R (on the application of Lusamba) v Islington LBC [2008] EWHC 1149 (Admin) the claimant applied to the housing authority as homeless. She said that her 18-year-old sister with whom she lived was a child and dependant on her. In support, the claimant relied on the Homelessness Code of Guidance which states that authorities may wish to treat as dependant all children aged between 16 and 18 who are in, or about to begin, full-time education. The authority decided that the claimant was homeless and eligible for assistance. She was not, however, in priority need because the sister was not dependant on her and was not a child because she was 18. The claimant sought a review of that decision and requested interim accommodation pending the review. The authority failed to respond to the request and the claimant issued judicial review proceedings challenging that failure and seeking an interim injunction to provide accommodation. The court granted permission to seek judicial review and granted the interim relief.

Subsequently, the authority notified the claimant that it was refusing to provide interim accommodation because there needed to be a relationship akin to a parent and child to establish priority need based on dependency.

At the final hearing, the court held there was no basis for the judicial review since the authority's failure to make a decision had been made good. Any amendment to the claim was futile since the authority had not acted unlawfully in refusing to provide the interim accommodation. The claimant and her sister were not individually in priority need; taken together did not mean they had acquired priority need.

The Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 govern, inter alia, the procedure to be followed in connection with a review by a housing authority under s.202 of the Housing Act 1996. Regulation 8(2) provides that if the reviewer considers that there is a deficiency or irregularity in the original decision, or in the manner in which it was made, but is minded nonetheless to make a decision which is against the interests of the applicant on one or more issues, the reviewer shall notify the applicant: (a) that the reviewer is so minded and the reasons why; and (b) that the applicant, or someone acting in his behalf, may make representations to the reviewer orally or in writing or both orally and in writing.

In London Borough of Lambeth v Johnston [2008] EWCA Civ 690, the applicant had a history of drug and alcohol abuse. He applied to the authority as homeless. He was interviewed by a caseworker who recorded that he was vulnerable and in priority need. Eleven months later '“ and without further inquiries '“ another caseworker concluded that while he was homeless and eligible for assistance, he was not in priority need because he was not vulnerable. The applicant sought a review of that decision which was upheld by the authority but quashed by the county court as being Wednesbury unreasonable. Subsequently the authority interviewed the applicant and with the assistance of new medical evidence, reached a fresh decision that the applicant did not have priority need. The county court quashed the decision on the basis that the authority had breached Reg.8(2) by failing to send the 'minded to' letter. The authority appealed arguing that the review officer had not erred because the applicant and his advisers had ample opportunity to make representations.

Dismissing the appeal, the court held that Reg.8(2) is not a discretionary option that the review officer can apply or disapply according to whether or not he considers that the service of a 'minded to' notice would be of material benefit to the applicant. The obligation is twofold. First, the authority must consider whether there is a deficiency or irregularity in the original decision or the manner in which it was made (this is not purely a subjective exercise but may be challenged on usual public law grounds). Secondly, if there was '“ but the review officer is minded to make an adverse decision - the authority must serve a 'minded to find' notice on the applicant.

The homeless applicant in Barrett v London Borough of Southwark [2008] EWHC 1568 (Comm) was profoundly deaf. The authority determined that she was intentionally homeless and upheld that decision on review advising her that she would need to see a solicitor if she wished to appeal. The applicant attempted to seek assistance from a number of solicitors who either declined to take on her case or gave unfavourable advice. Over 21 days after notification of the review decision, the applicant instructed solicitors who advised her to appeal under s.204 of the Housing Act 16 and request permission to appeal out of time under s.204(2A). At the hearing, the judge refused permission to extend time for appealing as the delay was due to unfavourable advice received by the applicant. Allowing an appeal, the High Court disagreed and held that the delay was because the applicant was seeking advice which she could understand and follow. The decision of the judge was wrong and unjust. Accordingly, the appeal court exercised the discretion afresh and granted permission to appeal out of time.

In R (Dumbuya) v Lewisham LBC [2008] EWHC 1852 (Admin) the authority accepted that it owed the applicant a full homeless duty under s.193 of the Housing Act 1996. The applicant was provided with accommodation but was subsequently evicted for her failure to pay rent. The applicant presented as homeless. The authority determined that she had become homeless intentionally and refused to provide accommodation. The applicant obtained an interim order that the authority provide her with accommodation and was granted permission to apply for judicial review. In the interim, the applicant appealed to the county court under s.202. The authority settled that appeal and, following a further review, made a decision in the applicant's favour. The judicial review proceedings were restored to determine costs.

The High Court held that the authority should pay the applicant's costs. Given the authority's contention '“ in its summary grounds '“ that it did not owe the applicant a further limited duty to accommodate her under s.190, the prospect of its losing the judicial review was high.

Right to buy

In Hanoman v Southwark LBC [2008] EWCA Civ 624, the claimant was a secure tenant. His rent was paid by housing benefit. In 1999, he applied to exercise his right to buy which was admitted by the authority. No further progress was made and the claimant served an initial notice of delay pursuant to s.153A of the Housing Act 1985. The authority failed to respond to that notice and an operative notice of delay '“ under s.153B '“ was served by the claimant. The effect of such a notice is that the landlord must deduct from the purchase price an amount based on the rent paid during the period of delay. The parties entered into discussions as to whether the purchase price should be reduced to take account of the claimant's payments of rent. In 2005, however, the matter had not been concluded. The claimant wrote to the authority saying he wished to conclude the conveyance but reserved the right to apply to the court for a declaration as to the validity and effect of the operative notice of delay. The authority granted a lease on payment of the purchase price. Subsequently, the claimant commenced proceedings. The county court judge determined that a reduction in the premium could not be obtained where the rent was paid by way of housing benefit. The claimant appealed and the authority argued that the court had no jurisdiction to grant the relief as the lease had been executed.

The court held that there was an agreement before the execution of the lease which constituted a collateral contract between the parties. Thus, notwithstanding completion, the claimant would be free to seek any appropriate remedy thereafter about the purchase price. Insofar as the purchase price was concerned, ss.153A and 153B apply where rent is paid by way of housing benefit in the same way as they apply where the tenant pays the rent himself.

Variation of tenancy terms

In Governors of the Peabody Trust v Reeve [2008] EWHC 1432, the claimant proposed to alter the terms of its standard assured tenancy agreement. Clause 5(a) made provision for the agreement only to be altered in writing of both the tenant and the claimant. Clause 5(b) also provided that the agreement may be varied by the claimant by a notice of variation served on the tenants and applied the provisions of s.103 of the Housing Act 1985 which '“ subject to notice '“ allow for unilateral variation.

The court held that clause 5(b) was unenforceable. Clauses 5(a) and (b) were contradictory and '“ applying reg. 7 of the Unfair Terms in Consumer Contracts Regulations 1999 SI 1999/2083 '“ the correct construction was one which favoured the tenant. Therefore, agreement in writing was required for any variation. In any event, clause 5(b) would not have been binding as it was unfair under reg 5: it was individually negotiated and caused a significant imbalance in the rights and obligations of the parties to the detriment of the tenant.

Committal

The Court of Appeal has recently looked at custodial sentences imposed for breach of injunctions granted pursuant to s.153A of the Housing Act 1996. In Kirklees Council v Davis [2008] EWCA Civ 632 the defendant was sentenced to three months imprisonment for being in an area excluded under the terms of an injunction. Although the Court of Appeal was satisfied that the sentence was justified, it was necessary for time spent in custody on remand to be taken into account in the calculation of sentence.

In Birmingham City Council v Flatt [2008] EWCA Civ 739 the defendant appealed against a sentence of four months' imprisonment for two breaches of an injunction on the ground that it was manifestly excessive. The breaches related to driving a car at a neighbour and making unfounded allegations against that same neighbour. This was the first occasion the defendant was being dealt with for contempt of court.

The court held that in determining whether a sentence should be suspended the court has an absolute discretion. Although it was common practice to take some other course on a first breach, given the denial of the breaches and the absence of any remorse, the sentence in this case was well was within the court's discretion.

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