Update: housing

Recent cases over the past three months have looked at the status of occupiers, the situations in which a person may exercise the right to buy, the interrelationship between the Disability Discrimination Act 1995, the Housing Act 1988 and homelessness.

Secure tenancies

Under s 79(1) of the Housing Act 1985 'a tenancy under which a dwelling house is let as a 'separate dwelling is a secure tenancy at any time when the conditions described in sections 80 and 81 as the landlord condition and the tenant condition are satisfied'.

In Mansfield DC v Langridge [2008] EWCA Civ 264, the council sought possession on nuisance grounds of premises let to the defendant under a secure tenancy. The council excluded the defendant from those premises pending trial. In the interim, the council purported to grant the defendant a licence to occupy other accommodation on a temporary basis. It was an express term of the 'licence' that it did not create a secure tenancy.

The Court of Appeal held that, regardless of the express intention of the parties, the agreement created a secure tenancy. The defendant had exclusive possession of the separate self-contained unit with no element of sharing. He had no other accommodation available given that he was excluded by the council in respect of the other premises. The fact that it was envisaged and intended that, at some point in the near future, he would either move back into the former premises or have to leave did not alter the correct assessment of the position at the start of the agreement.

In Lord Mayor and Citizens of the City of Westminster v Boraliu [2007] EWCA Civ 1339, the council was granted a lease of a property for the purposes of temporarily housing homeless persons. Ms Boraliu '“ to whom the council owed a full homelessness duty '“ was granted a tenancy by the council of that property. The tenancy was expressed to be non- secure by virtue of para. 6 of sched.1 to the Housing Act 1985: that is, a tenancy of property which had been let to the council as use for temporary accommodation for

occupation by homeless persons. The council '“ following service of a notice to quit '“ sought possession of the property. They asserted that the tenancy was not secure by virtue of para. 4 of sched. 1 to the 1985 Act: the tenancy was granted in pursuance of its function under Part VII of the Housing Act 1996.

The Court of Appeal held that paragraphs 4 and 6 were not mutually exclusive '“ as held by on appeal below '“ for three reasons: first, a landlord within para. 6 may be a local housing authority landlord or may be a body which is not a local housing authority; secondly, tenancies may be granted to persons pursuant to duties other than homelessness duties; and thirdly, the provisions were intended to have an independent purpose.

Right to buy

Under s 121(1) the right to buy cannot be exercised if the tenant is obliged to give up possession of the dwelling house in pursuance of an order of the court or will be so obliged at a date specified in the order. Two cases deal with the operation of this section.

In Manchester City Council v Benjamin [2008] EWCA 189, the defendant succeeded to a secure tenancy of a six-bedroom house following the death of her mother. Thereafter, the council sought possession under Ground 16, namely, that the property was more extensive than was reasonably required by the defendant. The defendant having applied to exercise her right to buy counterclaimed for an order compelling the council to convey the property to her. The council put forward three properties as suitable alternative accommodation all of which were to be the subject of a transfer to a registered social landlord. It was argued by the defendant that the property was not suitable because the defendant would lose her right to buy by reason of s 121(1) of the Housing Act 1985.

The Court of Appeal held that s 121 was limited to the secure tenant's right to buy the property which was the subject of the possession order. It did not preclude the tenant's right to buy other property once the qualifying period '“ in accordance with para. 4 of Sched.4 of the 1985 Act '“ had expired.

The fact that the suitable alternative accommodation was to be the subject of a transfer was an irrelevant consideration in considering the better deployment of the Council's housing stock.

In Honeygan-Green v London Borough of Islington [2008] EWCA Civ 363, the secure tenant applied to exercise her right to buy. The council obtained a suspended possession order. The order was breached thereby terminating the tenancy. The tenant successfully applied to set aside that possession order. The council issued fresh possession proceedings and the tenant counterclaimed for an injunction ordering the council to grant a long lease of the property. The main issue on appeal was whether the original right to buy claim was capable of revival once the tenancy had been brought back into existence. The Court of Appeal held that if the secure tenancy is revived by a court order before possession is given up, the accrued steps taken before the limbo period ensued revive with the tenancy. The tenant is not required to begin the right to buy process again by serving a fresh s 122 notice. The prohibition contained in s 121(1) related only to the taking of a step exercising the right to buy while a possession order was in existence.

Service occupiers

In Wragg v Surrey County Council [2008] EWCA 19, the Court of Appeal held that a group of countryside rangers were service occupiers and not secure tenants who could exercise their right to buy. Para. 2(1) of Sched. 1 to the Housing Act 1985 provides that a tenancy is not a secure tenancy if the tenant is an employee of the landlord or of a local authority 'and his contract of employment requires him to occupy the dwelling house for the better performance of his duties'.

That should be construed as laying down two conditions. First, the contract requires him to occupy the dwelling house. This only involves looking at the contract. Second, that requirement is for the better performance of his duties. This is a question of fact and the court will look at all the circumstances. It is, however, only necessary to show that the occupation was reasonably capable of leading to a better performance. It is immaterial that the particular employee had not in fact used the property in such a way as to produce the better performance in practice. It is also wrong to equate 'better' with 'proper' or 'efficient'.

Disability discrimination

In S v Floyd [2008] EWCA Civ 201, the defendant was an assured tenant of premises let by a private landlord. He fell into arrears and the landlord sought possession under mandatory Ground 8 of Sched. 2 to the Housing Act 1988. A defence was filed admitting the arrears. He alleged that the landlord's

'illegitimate and excessive' demand for increased rent caused him to suspend payments of rent. He also contended that he suffered from a disability.

At the first hearing, the duty adviser '“ who was representing the defendant'“ applied for an adjournment because of concerns about his mental capacity. This was refused because the judge did not consider there was a defence to the claim even if the defendant was mentally ill.

The Court of Appeal gave short shrift to any argument that there were grounds for adjourning the claim in the absence of any evidence suggesting he lacked capacity.

Nor did the case present exceptional circumstances to justify an adjournment, applying North British Housing Association v Matthews [2004] EWCA Civ 1736, [2005] 1 WLR 3133.

Furthermore, there was little scope for defending the claim based on the Disability Discrimination Act 1995. On the facts, there was no relationship between the disability and the accrual of rent arrears. The court distinguished Malcolm v Lewisham Borough Council [2007] EWCA Civ 763 as a case where the landlord was relying on its contractual, not statutory right, to possession and had been satisfied that the subletting related to the disability.

Homelessness

In Omar v Westminster City Council [2008] EWCA Civ 421, the council accepted that the applicant and his wife and son were homeless and persons to whom they owed a duty to provide accommodation. It offered accommodation outside the Westminster area which the applicant refused on the grounds that it was unsuitable because of his son's medical condition. The council considered that they had discharged their duties and the applicant sought a review of that decision. The applicant unsuccessfully appealed to the county court under s 204 of the Housing Act 1996 and appealed to the Court of Appeal. The issue was whether the reviewing officer was confined to the facts as at the date of the original decision.

It held that where the council has taken the view that it has offered suitable property and that its duty had ceased, the correct question for the reviewer is whether the council were right as at the date of that original decision. For that purpose, the review officer should consider the facts that existed as of that date. This will, however, include facts which were discovered between the date of that original decision and the date of review.

In R (Aweys & others) v Birmingham City Council [2008] EWCA Civ 48, the applicants lived in overcrowded accommodation which was not reasonable for them to occupy. The Council owed them the fully duty under s 193(2) of the Housing Act 1996. It purported to discharge that duty by leaving the applicants in their current accommodation '“ for a temporary period '“ while they looked for suitable accommodation The Court of Appeal held that this was not a lawful discharge of the council's duty because the applicants remained homeless. The full duty arises as soon as the council are satisfied that the applicant is homeless, eligible for assistance, has a priority need and did not become homeless intentionally. The applicants were rendered homeless because it was not reasonable for them to occupy that accommodation. By virtue of s 175(3) they are deemed to be without accommodation.

In relation to the allocation scheme, there was no justification for differentiating between the priority to be afforded to the homeless at home and the priority to be afforded to those who had been placed in temporary accommodation.

Compare this with Manchester City Council v Moran; Richards v Ipswich Borough Council [2008] EWCA Civ 378 where the Court of Appeal held that a women's refuge could be described as accommodation for the purposes of Part VII of the Housing Act 1996 and it could be reasonable for a woman to continue to occupy such a refuge. Reported in Case Reports, Solicitors Journal, 29 April 2008.