Update: housing

In two recent cases, the Court of Appeal has reiterated that premises occupied for mixed business and residential purposes will usually be governed by the Landlord and Tenant Act 1954.

In Broadway Investments Hackney Ltd v Grant [2006] EWCA Civ 1709, the court held that, where a tenant takes a tenancy for the purpose of carrying on his profession in one part of the premises and resides in another, his tenancy is a business tenancy to which Pt 2 of the 1954 Act applies (see s 23(1) of the Act). The requirement in a lease that the tenant use a part of the premises for business purposes was inconsistent with the tenant's assertion that such business use was only incidental.

In Tan & Tan v Sitkowski [2007] EWCA Civ 30, the court was faced with a tenant who had used premises since 1970 for both business and residential use, but later ceased the business use. The court held that, as the premises had originally been let for mixed use, they had not been let as a dwelling for the purposes of s 1 of the Rent Act 1977 and that the tenant was not entitled to unilaterally change his status by ceasing business use (relying on earlier authority, most notably Pulleng v Curran (1980) 44 P&CR 58). The provisions of Pt 2 of the 1954 Act consequently applied.

In Thomas v Ken Thomas Ltd [2006] EWCA Civ 1504, a case concerning forfeiture, a tenant in rent arrears subsequently made two payments by clearing house automatic payments system (CHAPS). The payments were received by the landlord and not returned. When the landlord brought forfeiture proceedings, the tenant claimed that the landlord had waived his entitlement to forfeit by accepting those payments. The Court of Appeal agreed,holding that, where rent was paid into a landlord's bank account despite instructions to the bank that it should not be received, the landlord nevertheless waived his right to forfeit if he took no steps to repay the rent to the tenant.

Boyland & Son Ltd v Rand [2007] The Times, 18 January 2007, concerned a trespasser's application to suspend a possession order relying upon s 89, Housing Act 1980. The Court of Appeal dismissed an application for permission to appeal the judge's refusal to suspend the order. Section 89 was enacted to limit the court's existing powers (by limiting suspension to a maximum of two weeks or six weeks in the case of hardship). As there was no pre-existing power to suspend possession orders against trespassers, s 89 was of no help to the occupiers.

In Birmingham CC & Secretary of State for Communities and Local Government v Doherty [2006] EWCA Civ 1739, concerning a claim for possession against travellers who had occupied a site as licensees and whose licence had come to an end, the Court of Appeal considered Lambeth LBC v Kay; Price v Leeds CC [2006] UKHL 10 (see (2006) SJ 150 912, 14.07.06) and gave guidance on the House of Lord's decision holding that there was a clear majority on all the issues that the House had considered.

Anti-social behaviour

In Sheffield CC v Fletcher, Chancery Division, 12 January 2007, the local authority applied for an anti-social behaviour order (ASBO) and outright possession of the tenant's home. In her absence, the court granted both orders. In an application to vary those orders, the tenant attempted to adduce evidence, denying the allegations made against her. In essence, her evidence amounted to a bare denial of the anti-social behaviour: the judge dismissed the application. On appeal, the High Court held that the tenant's application to vary had had no prospect of success and the county court judge was right to dismiss it. It held, following Manchester CC v Higgins [2005] EWCA Civ 1423; [2006] HLR 14, that the court was required to take into account the effect that the anti-social behaviour both has and will have in the future on neighbours when deciding whether to make a possession order. The relevant issues were therefore whether the tenant had accepted responsibility for her actions, whether she comprehended the effect it had had and whether there was any expression of remorse. In the light of the tenant's bare denials and her ignoring of warnings, the county court judge had been right to find that the evidence that the tenant wanted to submit would have made no difference had it been heard at trial.

In Sheffield CC v Shaw [2007] EWCA Civ 42, a defendant to an ASBO had followed, pestered and made threats to kill his victim. Despite breaching the ASBO, the judge refused the local authority's application to extend the order to prevent the defendant entering Sheffield and suspended the possession order made in respect of his home. The judge took the view, following evidence from the defendant and his probation officer, that the defendant was genuinely remorseful and capable of reform. The authority appealed, contending that judge was wrong not to extend the ASBO and not to grant an outright possession order. The Court of Appeal dismissed the appeal. Judging sincerity was the province of the trial judge. There was sufficient evidence on which he could come to the view he did. Although the judge considered the potential homelessness of the defendant, it was not his sole consideration and he plainly took account of all the evidence. There was consequently no error of law and his conclusion was one that was open to him on the evidence.

In Brent LBC v Doughan (Court of Appeal), 6 February 2007, a county court judge refused to commit or to grant a possession order against a tenant who had caused considerable noise nuisance, such as to disturb his immediate neighbour, and had previously been made the subject of an anti-social behaviour injunction (pursuant to s 153A of the Housing Act 1996) and who was alleged to have breached that injunction. The local authority appealed asserting (among other grounds) that the judge was wrong to take into account the fact that the alleged noise was not greatly beyond what was to be expected from normal urban conditions and the failure of the housing management department to suitably house the defendant and his neighbour. The Court of Appeal held that the ground failed as those issues were not wholly irrelevant and in any event were not determinative of the judge's decision.

Housing benefit

In R (Heffernan) v The Rent Service [2006] EWHC 2478 (Admin), the claimant challenged a rent officer's decision as to the relevant rent for housing benefit purposes (see, reg 14 of the Housing Benefit Regulations 2006) on the ground that he had looked at too wide a locality in judging the rent that a landlord might reasonably have expected to obtain for a dwelling in the same locality, referred to as the local reference rent (see Rent Officers (Housing Benefit Functions) Order 1997, Para 4(6), Sched 1). The High Court quashed the rent officer's decision to use the whole of Sheffield as a local reference guide on the ground that the formula used for coming to its conclusion did not fit with the statutory criteria set out in the 1997 Order. The court gave guidance on the criteria to be used for assessing the local reference rent.

Discrimination

In Williams v Richmond Court (Swansea) Ltd [2006] EWCA Civ 1719, an 81-year-old tenant with severe mobility problems in a block of flats, which had no lift, asked her landlord to allow her to install a stair-lift in the block. The landlord refused principally for reasons of aesthetics and the tenant claimed discrimination contrary to s 22(3) of the Disability Discrimination Act 1995. The Court of Appeal held there was no discrimination in refusing to allow the alteration. The key was to ascertain the reasons for the alleged discrimination and to ask whether those reasons related to the claimant's disability. As the reason for refusal did not relate to the claimant's disability, there was no discrimination, as the claimant was not being treated less favourably than the landlord would have treated anyone else in a comparable situation.

Homelessness and Allocations

In R (Aweys) v Birmingham CC [2007] EWHC 50 (Admin), a number of the authority's tenants in severely overcrowded conditions applied to the authority as homeless under Pt VII of the Housing Act (HA)ï'žµ1996. For some time, the authority refused to accept the various applications, but eventually accepted that they were homeless as it was no longer reasonable for them to occupy their accommodation (s 175(3), HA 1996). The authority accepted that they owed them the full s 193 duty. It decided that the applicants should nevertheless remain in their respective homes until suitable permanent accommodation was given to them under Pt VI or VII, HA 1996. By doing so, the authority put the applicants at a disadvantage not only by refusing to find them alternative suitable temporary accommodation, but also because the allocations policy governing transfers to permanent accommodation distinguished between the homeless who were being provided temporary accommodation '“ they were put in band A '“ and the homeless who were not provided with such accommodation (who were given a lesser priority) and put in band B. On an application for judicial review, the court held that, under Part VII, the authority had to secure suitable accommodation pursuant to s 193. As the authority had decided that it was no longer reasonable for the applicants to continue to occupy their current accommodation, such that they were homeless, it followed that their current accommodation could not be suitable, even for a short time, for the purpose of discharging the authority's s193 duty. It was unlawful to delay the provision of temporary suitable accommodation for the applicants. It was consequently impossible to justify the division between band A and band B in the allocations policy. Whether homeless at home or whether given temporary accommodation elsewhere, both types of applicant were in accommodation that was temporary and those in band B, who were homeless at home, were in a worse position as they were in unsuitable accommodation so that there was an ongoing breach of the s 193 duty. The allocations policy, in distinguishing between those who had been given alternative temporary accommodation and those who had not, was consequently unlawful.

In F v Birmingham CC [2006] EWCA Civ 1427, an applicant who moved from secure to insecure accommodation (the newer accommodation being larger and closer to her partner's mother) was held by the authority to be intentionally homeless when she later lost the new accommodation because housing benefit did not cover the full rent. The authority found that the deliberate act of intentionality was the giving up of secure accommodation. The applicant nevertheless claimed that she came within the good faith defence and asserted that she did not know that there would be a shortfall in housing benefit when she moved and her act of intentionality was therefore not deliberate as it had been done while she was unaware of a relevant fact (s 191(2)). The authority, and the Court of Appeal, rejected that assertion as the applicant had been on notice that there was a risk that the new accommodation might not be affordable and that, while she may not have known whether or not housing benefit would cover the rent, her conduct could be classified as wilful ignorance or shutting her eyes to the obvious. Such conduct was therefore not in good faith (following O'Connor v Kensington & Chelsea LBC [2004] EWCA Civ 394).

In Lewis v Havering LBC [2006] EWCA Civ 1793, a homeless applicant found not to be in priority need on review applied for accommodation pending an appeal of the review decision to the county court (s 204(4), HA). The authority refused but its refusal letter gave no indication that, in exercising its discretion whether or not to provide accommodation pending the appeal, it had considered the grounds of appeal against the review decision. On appeal to the county court (s 204A) the authority sought to adduce evidence from the decision-maker that the grounds had in fact been considered. The judge dismissed the appeal in the light of that evidence. On a second appeal, the Court of Appeal held that the reviewing officer's evidence was sufficient to legitimise the refusal decision.

In R (Heaney) v Lambeth LBC [2006] EWHC 3332 (Admin), a Lambeth tenant applied for a transfer after the death of one of her children in her home caused her to suffer depression and had a considerable adverse affect on her other children. Medical evidence suggested that a transfer would improve the family's wellbeing considerably. The authority's allocations policy divided applicants into eight priority groups. Group B was for emergencies and had priority over all other groups. On the authority's refusal to put the applicant into group B, the applicant issued a claim for judicial review. The court refused the application as the authority had considered all the relevant material. In any event, the court took the view that the threshold for group B was a very high one and that it was quite impossible to envisage that the applicant's circumstances would qualify her for band B.