Update: housing

When it comes to dealing with anti-social behaviour, there are two new weapons to add to the armoury.

First, a more draconian form of closure order has been available to police and local authorities since 1 December 2008. These bodies now have the power to seek closure orders in respect of premises that are associated with persistent disorder or nuisance (Anti-social Behaviour Act 2003, Pt 1A). There are, however, strict requirements governing whether, when and by whom such an order can be made (see 'Cracking down on disruption', Solicitors Journal 24 February 2009).

Secondly, since 1 January 2009, a new type of tenancy is available to local authorities and registered providers of housing (Housing and Regeneration Act 2008, s.297(1) and s.297(2)). The Family Intervention Tenancy, the purpose of which is to provide behaviour support services, may be granted to a person against whom a possession order has been made of another dwelling house under nuisance grounds (or, in the opinion of the authority/RPT could have been made).

The tenancy is created by: first, the authority/RPT serving a notice containing prescribed information; and secondly, acceptance by the prospective tenant. There is no security of tenure and the tenancy may therefore be terminated in the normal way by notice to quit. Additional requirements, however, are imposed on the local authority: they must serve a pre-notice to quit and offer and, where applicable, follow a review procedure similar to that provided under the introductory and demotion schemes. It remains to be seen whether the scheme will prove attractive given the cost of providing support services, although it may be used more as a negotiation tool in possession proceedings by landlords.

Allocation

The decision in R (Ahmad) v Newham LBC [2009] UKHL 14 (see 'Law lords limit ability to challenge housing allocation schemes', Solicitors Journal, 10 March 2009) has not only swept away swathes of case law concerning housing allocation but also appears to limit the challenges which may be made to such schemes.

A local housing authority must have an allocation scheme for determining priorities and as to the procedure to be followed, in allocating housing accommodation (s.167(1)). The scheme must be framed so as to secure that reasonable preference is given to categories of people specified under s.167(2) of the Housing Act 1996 ('the Act'). The authority may frame the scheme so as to give additional preference to those particular descriptions of people (being descriptions of people with urgent housing needs) (s.167(2A)).

The House of Lords in Ahmad determined that there was no requirement beyond the duty to give reasonable preference to groups listed in s.167(2) of the Housing Act 1996 for an authority to accord priority as between reasonable preference applicants by reference to the relative gravity of their individual needs. In other words, the Act only requires a reasonable preference to be given to particular groups of people. It is the groups rather than the individual households within them which have to be given reasonable preference. Additional preference may be given to applicants (see s.167(2A)) but there is no duty to do so '“ only a power. Accordingly, it cannot be argued that an allocation scheme is unlawful unless the basis on which it accords priority between the reasonable preference applicants is irrational.

Given the decision that once a housing allocation policy complies with the requirements of s.167 the courts should be very slow to interfere on the grounds of alleged irrationality, it would seem there is little scope for challenge save in relatively rare and extreme circumstances. It would also be wrong, in principle, to have regard to the housing circumstances and individual requirements of an applicant in determining the validity of a housing allocation scheme.

Authorities are also not precluded from selecting applicants in the same band on the basis of the time they have satisfied the criterion for that band. It has the advantage of being very clear, relatively simple to administer and highly transparent.

Homelessness

Holmes-Moorhouse v London Borough of Richmond upon Thames [2009] UKHL 7 is a welcome decision for authorities regarding their homelessness duties where shared residence orders have been imposed (see Solicitors Journal 10 February 2009).

In this case, the court had ordered the father to leave the family home but provided that the parents should have shared residence of their children. The father did not have alternative accommodation and applied as homeless to the authority. He argued that he was in priority need because he was a person with whom dependent children reside or might reasonably be expected to reside by reason of the shared residence order. In practical terms, the importance of the decision of the House of Lords as to the meaning of 'might reasonably be expected to reside' is threefold.

First, it is for the authority to determine whether a person 'might reasonably be expected to reside'. The fact there is a shared residence order in place is not determinative of that question. Indeed, the family court should not put pressure on the local housing authority to allocate their resources in a particular way. Further, there is no need for the authority to intervene in family proceedings to argue against the making of a shared residence order.

Secondly, it will only be in exceptional circumstances that it would be reasonable to expect a child who already has a home with one parent to be provided, under Part VII of the Housing Act 1996, with another so that he can reside with the other parent as well. One example of a highly unusual situation would be where the child is disabled and care is divided between both parents. Another might be where a shared residence order has been working well over a long period of time but one of the parents is unexpectedly made homeless because of domestic violence.

Thirdly, the authority may take into account the scarcity of housing as a resource in determining whether an applicant is in priority need.

In addition, the comments made by Lord Neuberger as to the consideration and interpretation of review decision letters extend beyond the homelessness arena. He said that a judge should not adopt an unfair or unrealistic approach when considering decisions for they are written by housing officers, not lawyers. Accordingly, they should not be subjected to the same sort of analysis reserved for contracts drafted by solicitors, Acts of Parliament, or to a court's judgment. The court should not take a too technical view of the language used, search for inconsistencies or adopt a nit-picking approach. Of course, if there is an error which undermines the basis upon which the decision was reached then the decision should obviously be set aside. But even an error, which is irrelevant to the outcome, may not result in a quashing of the decision letter save in exceptional circumstances.

Tolerated trespassers

It has now been made clear when an assured tenancy ends. The House of Lords in Knowsley Housing Trust v White [2008] UKHL 70 (see Solicitors Journal 16 December 2008) determined that it ends on the execution of the possession order. Accordingly, the case law on tolerated trespassers does not apply. It follows that there is little reason for there to be 'no-date' postponed possession orders in rent arrears cases which impose a requirement on the landlord to apply for a date to be fixed by the court.

As far as secure tenants are concerned, they are entitled to vary an order which has been rendered unenforceable by clearance of the rent arrears. In addition, the right to buy is merely suspended and not lost indefinitely in the period between termination of the secure tenancy and subsequent revival. Accordingly, the tenant may continue to exercise the right to buy even though in the interim it may have been terminated by a possession order but later revived.

The consequences are that a tenant may take advantage of rising house prices choosing a time in which to reactive the original notice admitting the right to buy. One possible way around this would be for the landlord to serve notices to complete during the period of suspension. The former tenant's failure to do so '“ by reason of the arrears and status '“ means that the original notice exercising the right to buy is deemed withdrawn.

Future cases

Practitioners should be alert to cases concerning possession and Art. 8 following the decision in Birmingham City Council v Doherty [2008] UKHL 57; [2008] 3 WLR 636; [2008] HLR 45. In addition, the decision in X v Hounslow LBC [2008] EWHC 1168 (QB); [2008] All ER (D) 337 is awaited given the rejection of the argument in Glasgow City Council v Mitchell 2009 UKHL 11 as to the duties imposed on the landlord in relation to anti-social behaviour. Finally, we wait to see whether registered social landlords are public bodies in London & Quadrant Housing Trust v Weaver (see R (on the application of Weaver) v London & Quadrant Housing Trust [2008] EWHC 1377).