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The Human Rights Act 1998 and
                Pinnock...

      What does it mean for Registered
    Providers & Local Housing Authorities?


Andy Lane & Arthur Moore
Wednesday 9th February 2011
Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Programme – Part One

• The Human Rights Act 1998

• Weaver & Public Authorities

• Article 8 & “Gateway A”

• Barber & ASB Policy
  Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Programme – Part Two

• “Gateway B” – original position

• Pinnock & Article 8 proportionality

• Current position & impact on RPs/LHAs



   Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Human Rights Act 1998

• Came into effect in October 2000
• Cases about an individual’s human rights can now be
  raised in a UK court
• Previously complaints about their human rights went to
  the European Court of Human Rights in Strasbourg
• The rights contained in the Convention are included at
  Schedule 1 of the Human Rights Act. For the purposes
  of the Human Rights Act they are known as ‘the
  Convention Rights’
   Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Who does the Act apply to?

(1) It is unlawful for a public authority to act in a way
   which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if—
   (a) as the result of one or more provisions of primary legislation,
      the authority could not have acted differently; or
   (b) in the case of one or more provisions of, or made under,
      primary legislation which cannot be read or given effect in a way
      which is compatible with the Convention rights, the authority was
      acting so as to give effect to or enforce those provisions.


   Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Are you a Public Authority?

• Definite public authorities – courts, local housing
  authorities, education authorities, Home Office

• Possible public authorities – housing associations

• Definite non-public authorities – private landlords
  (though see Ghaidan-v-Godin-Mendoza [2004]: a
  Rent Act succession case – a court is a public
  authority: s.6(3)(a) HRA98)

   Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Public Authority (2)

• Poplar HARCA-v-Donoghue [2002]

• R(on the application of Susan Weaver)-v-L&Q
  Housing Trust [2008]

• Effect of Weaver – in most possession claims a
  RP will be susceptible to a Gateway A/B or
  Article 8 challenge

  Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Examples of Convention Rights

• Article 2
  Right to life
• Article 3
  Prohibition of torture
• Article 6
  Right to a fair trial
• Article 9
  Freedom of thought, conscience and religion
• Article 12
  Right to marry
  Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
The European Convention on Human
             Rights
The ECHR was drafted by the nations of the Council
of Europe (including the UK) in the aftermath of
World War II. The Council of Europe was founded to
defend human rights, parliamentary democracy and
the rule of law, and to ensure that the atrocities and
cruelties committed during the war would never be
repeated.


Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
What are the Convention Rights?

• They number 16 but there are “later additions” referred
  to as Protocols - such as the right to education &
  protection of property
• They concern matters of life and death, like freedom
  from torture and being killed
• They also cover rights in everyday life, such as what a
  person can say and do, their beliefs, their right to a fair
  trial and many other similar basic entitlements.


   Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Type of Convention Rights

• Absolute rights – such as the right to protection
  from torture and inhuman and degrading
  treatment (Article 3). The state can never
  withhold or take away these rights.
• Limited rights – such as the right to liberty
  (Article 5). These rights may be restricted under
  explicit and finite circumstances.

  Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Type of Convention Rights (2)

• Qualified rights – rights which require a balance
  between the rights of the individual and the needs of
  the wider community or state interest. These
  include: the right to respect for private and family life
  (Article 8); the right to manifest one’s religion or
  beliefs (Article 9); freedom of expression (Article 10);
  freedom of assembly and association (Article 11);
  the right to peaceful enjoyment of property (Protocol
  1, Article 1); and, to some extent, the right to
  education (Protocol 1, Article 2).

   Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Article 8(1) -Right to Respect for Private
               and Family life

  Everyone has the right to respect for his private and
  family life, his home and his correspondence.

• This is not a right to a home (see later slide)

• It will be engaged in any possession of residential
  accommodation

• Even a person who has never been a tenant can rely on
  Article 8 including trespassers and would-be successors

• This is a qualified right

   Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Pleadings

• No need for L to plead compliance with Art 8 as
  compliance will initially be assumed: Lord
  Bingham in Kay (39)

• Confirmed in Pinnock




  Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Mr Justice Collins in Defence Estates-v-JL &
 SoS for Communities & Local Government
         [2009] EWHC 1049 (Admin)


“37. Article 8, of course, does not confer a
positive right to be housed, merely a right not to
lose housing unless that loss is compliant with
Article 8 rights...”



 Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Article 8(2)

There shall be no interference by a public
authority with the exercise of this right except
such as is in accordance with the law and is
necessary in a democratic society in the
interests of national security, public safety or the
economic well-being of the country, for the
prevention of disorder or crime, for the
protection of health or morals, or for the
protection of the rights and freedoms of others.
Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Interference with qualified rights is
            permissible only if...

• There is a clear legal basis for the interference
  with the qualified right that people can find out
  about and understand, and

• The action/interference seeks to achieve a
  legitimate aim.


  Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Legitimate Aims

• Legitimate aims are set out in each article containing a
  qualified right and they vary from article to article. They
  include, for example, the interests of national security, the
  prevention of disorder or crime, and public safety.
• Any interference with one of the rights contained in Articles 8–
  11 must fall under one of the permitted aims set out in the
  relevant article, and
• “The action is necessary in a democratic society”. This means
  that the action or interference must be in response to ‘a
  pressing social need’, and must be no greater than that
  necessary to address the social need.

   Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Kay-v-Lambeth LBC [2006] UKHL 10 – the
         Gateway A defence
•   Article 8(1) engaged and right interfered with by request for a
    possession order (107)
•   Assumption that if Parliament allows it (or does not disallow it) then
    Article 8(2) satisfied and legitimate aim being pursued (107)
•   “Cases where the home was occupied under a tenancy, or some
    other interest falling short of a tenancy, which has been brought to
    an end in accordance with the relevant law...will fall into this
    category. The interests safeguarded by art 8 will be sufficiently
    protected by the fulfilment of the formal requirements for the eviction
    laid down by the relevant statute or by the common law” (108)


     Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Gateway A – Attack on the System

42...As I said in para 109 of my opinion in Kay, and
again at the outset of para 110, a defence to a
possession order which does not challenge the law
under which it is sought but is based only on the
personal circumstances of the occupier should be struck
out. The personal interests safeguarded by article 8
must be taken to have been sufficiently safeguarded by
the fulfilment of the requirements for the recovery of
possession by the landowner laid down by statute or by
the common law...
[Lord Hope in Doherty-v-Birmingham CC [2009] 1 All ER
653]

Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Poplar HARCA-v-Donoghue [2001] 4 All
    ER 604: attack on s.21 “system”

• Poplar HARCA were a public authority

• Homeless accommodation – IH decision

• Section 21(4) notice requiring possession



   Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Lord Woolf, CJ @ para 72

We are satisfied, that notwithstanding its mandatory terms, s
21(4) of the 1988 Act does not conflict with the
defendant’s right to family life. Section 21(4) is certainly
necessary in a democratic society in so far as there must be a
procedure for recovering possession of property at the end of
a tenancy. The question is whether the restricted power of the
court is legitimate and proportionate. This is the area of policy
where the court should defer to the decision of Parliament.
We have come to the conclusion that there was no
contravention of art 8 or of art 6.

Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Gateway A: Previous HRA Decisions

• McLellan – introductory tenancies

• Gallagher – discretionary cases

• Lee – disrepair

• Smart & Mullen – non-secure tenancy

  Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Gateway A Cases (2)

• Adjei & Dixon – joint tenant NTQ

• Gilboy & Pinnock – demoted tenancies

• Austin – reviving a tenancy



  Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Gateway A Conclusion
Exceptional case

Has to be seriously arguable

Challenge to statute/common law

Individual circumstances not relevant (see Kay & Doherty)

Burden of proof on D: Taylor

Not a viable defence/submission in most instances

 Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
ASB Policy - since 30 June 2004

The landlord (including LHAs/RPs/HATs) must prepare—

(a)       a policy in relation to anti-social behaviour;

(b) procedures for dealing with occurrences of anti-social
   behaviour.

and publish it
[s.218A(2) Housing Act 1996]

      Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Barber-v-Croydon LBC [2010] EWCA Civ
 51 – why the ASB policy is important
• Non-secure tenancy

• Threats, abuse & assault on staff member

• Learning difficulties & personality disorder

• NTQ and possession claim issued

   Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Barber (2)

• Failure to refer to IMHS & Social Services

• Failure to interview pre-NTQ

• Possession Order at first instance

• Set aside by Court of Appeal – Gateway B
  (Wednesbury unreasonable @ 45)

  Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Patten LJ in Barber

[44] Judged by any ordinary standards, the assault on Mr Baah was
serious and obviously unacceptable. But the Council's policy on
vulnerable people is to explore alternative solutions which may lead to
the prevention of ASB in the future...Given the absence of any
misbehaviour by Mr Barber prior to 22 May or subsequently, and having
regard to Dr Owen's assessment of him, it was, I think, incumbent upon
Mr Hunt to consult the other agencies and to take advice as to whether
some alternative remedy such as an ABC would solve the problem...
[45] What Mr Hunt appears to have done is to treat this as an ordinary
category 3 case to which the Council's policies on vulnerable people
have no application. I think that approach was wrong in principle and
led to a decision by him which no housing authority faced with the facts
of this case could reasonably have taken.


 Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Postcript: Waller LJ in Salford City
Council-v-Mullen [2010] EWCA Civ 336
67. Where a notice to quit has been served on a non secure
tenant occupying accommodation as a homeless person it will
take highly exceptional circumstances for there to be a
gateway (b) defence. Barber may be an example of such
circumstances where it seemed the Local Authority had
been unaware when it served a notice to quit of the mental
illness of the occupier and of the risk to his life if he were
moved. Anything less than that kind of risk would be unlikely
to qualify as so exceptional as to provide an arguable
gateway (b) defence in the context of the homeless
legislation.

Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Human Rights revisited:

The rise and rise of art.8 after Manchester
               CC v. Pinnock


Arthur Moore
Hardwicke
Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
The way we were pre:
           Kay v. Lambeth [2006] 2 AC 456

No defence to ‘mandatory’ possession:
•   Introductory
•   Non-secure (Part VII)
•   Starter (s.21)
•   Demoted
•   Mandatory grounds 1988 and 1985 Acts
•   Termination of joint tenancy


Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
The way we were post:
      Kay v. Lambeth [2006] 2 AC 456

• “a defence which does not challenge the
  law under which the possession order is
  sought as being incompatible with article 8
  but is based only on the occupier’s
  personal circumstances should be struck
  out”.

Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
The way we were post:
      Kay v. Lambeth [2006] 2 AC 456
BUT

• It is open to a Defendant “to challenge the
  decision of the local authority to recover
  possession as an improper exercise of its powers
  at common law”

• “a decision that no reasonable person would
  consider justified”

Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Gateway (b) defences:
•   Attacks the decision not the law

•   Decision of a “public authority”

•   Judicial review principles
      ° Illegality
      ° Procedural impropriety
      ° Irrationality

•   Exceptionality



Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
The way we were post:
      Kay v. Lambeth [2006] 2 AC 456
Doherty v. Birmingham CC [2009] 1 AC 367

• Luke warm approval of Kay

• Traditional approach to Judicial review would have to
  be expanded

• Court to make own assessment of relevant facts

Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
The way we were post:
      Kay v. Lambeth [2006] 2 AC 456
What did this all mean?

     • Which decision?

     • Were personal circumstances relevant or not?

     • How were gateway (b) JR principles different from
       “ordinary” JR?

     • What was the effect if a decision was in fact unlawful?


Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Art 8(2)
“There shall be no interference by a public authority
  with the exercise of this right except such as is in
  accordance with the law and is necessary in a
  democratic society in the interests of national
  security, public safety or the economic well-being
  of the country, for the prevention of disorder or
  crime, for the protection of health or morals, or for
  the protection of the rights and freedoms of
  others”

Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
The way we are:
     Manchester CC v. Pinnock [2010]
                UKSC 45
• Anti-social behaviour of children, not the tenant

• Demoted tenancy

• No defence at law to claim for possession

• The CA’s view

Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Pinnock in the Supreme Court

• The problem:

• The growing weight of Strasbourg Jurisprudence

     ° Kay v. UK

     ° JR not good enough (no fact finding)

     ° County Court can find facts, but has no “JR”
       jurisdiction

Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Pinnock in the Supreme Court:
              What is clear?
•   Any person at risk of being dispossessed of his house at the
    suit of a local authority has the right to raise the question of
    proportionality

•   It is the proceedings as a whole which must be considered
    for art 8. compliance

•   The Court will only consider proportionality if the occupier
    raises it


Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Pinnock in the Supreme Court:
              What is clear?

• The question is always whether the
  eviction is a proportionate means of
  achieving a legitimate aim




Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
What is “proportionate”?
Not a term found in art 8 or HRA

BUT

•   Vindicate ownership rights

•   Duties in relation to distribution and management of housing
    stock

•   Need to move vulnerable people into sheltered
    accommodation

•   Need to remove nuisance neighbours

Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Pinnock in the Supreme Court:
           What is clear (contd)

“….in virtually every case where a residential
  occupier has no contractual or statutory
  protection,….. there will be a very strong
  case for saying that making an order for
  possession would be proportionate.”


Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Pinnock in the Supreme Court:
              What is unclear
•   “Exceptionally” is an outcome not a guide?

•   “In accordance with the law” - Separate requirement or part of
    proportionality?

•   Does proportionality differ from reasonableness?

•   What does the Court do if a breach of art 8 is found?



Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Pinnock in the Supreme Court:
          What is unclear (contd.)

• What is the status of an occupier left in
  possession with no domestic law rights?




Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Effect of Pinnock on RPs and LAs

•   Likely to be most relevant in cases of mental or physical
    disability.

•    Have a policy and stick to it

•   Decision paper trail

•   Explicit consideration of art. 8

•   Keep decision under review
Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Effect of Pinnock on RPs and LAs
                 contd.

• Art.8 is likely to be raised in every case
  where there is no other defence

• Courts should initially deal with it
  summarily (Pinnock para 61)- be prepared


Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
The Localism Bill and
other recent legal developments
        9 February 2011
           Robert Wassall
 Partner and Head of Social Housing
           023 8085 7012
     robert.wassall@bllaw.co.uk
What am I going to talk about?

 New law
  – Localism Bill
  – ASB update
 Recent cases
  – GvE
  – Octavia Hill Housing Trust v Brumby
  – Ruza Berrisford v Mexfield Housing Co-operative
 Other recent developments
  – “Running a business from home”
Localism Bill: dealing with…

 Tenancy strategies
 Flexible tenancies
 Affordable tenancies
 New rules about succession (to secure tenancies)
 Allocations
Localism Bill: not dealing with…

  Planning
  Homelessness
  Housing finance
  Housing mobility
  Regulation
CLG press release: “a new era for people power”

  “The Bill will put councils in charge of allocation and
  tenure of social housing, giving councils the flexibility
  to use their social housing stock to the maximum
  effect and reduce waiting lists.”
Tenancy strategies 1/2

 Each LA must prepare and publish a “tenancy
 strategy”
 Setting out the matters to which RPs in its district are
 to have regard in formulating policies relating to:
  – the kinds of tenancies they grant; and
  – the circumstances in which they will grant a tenancy of
    a particular kind; and
  – where they grant tenancies for a fixed term, the lengths
    of the terms; and
  – the circumstances in which they will grant a further
    tenancy on the coming to an end of an existing tenancy
Tenancy strategies: 2/2

  Before adopting a tenancy strategy, the authority
  must:
  – send a copy of the draft strategy to every RP in its
    district, and
  – give the RP a reasonable opportunity to comment on
    those proposals
Affordable Rent tenancies are…

 Assured shorthold tenancies
 Granted by registered providers
 For a fixed term of two years or more
 With rent of up to 80% of local market rent
  – including service charges?
 Tenants will have Right to Acquire
Recovery of possession of Affordable Rent tenancy
(on expiry of fixed term)
  The court may not make an order for possession of
  the dwelling-house unless;
  1. the landlord has given to the tenant not less than six
     months’ notice in writing stating that
  2. the landlord does not propose to grant another
     tenancy on the expiry of the fixed term tenancy, and
  3. informing the tenant of how to obtain help or advice
     about the notice and, in particular, of any obligation of
     the landlord to provide help or advice.
– But what about Pinnock?
Flexible tenancies

  a flexible tenancy is
  – a secure tenancy;
  – granted for a fixed term of not less than two years;
    and
  – before it was granted the landlord served a written
    notice on the person who became the tenant (stating
    that the tenancy would be a secure tenancy)
  “We would expect social landlords to provide longer
  tenancies to families with children”
Review of flexible tenancies 1/2

  A person on whom a notice (that the tenancy will be
  flexible tenancy) is served may request a review of
  the prospective landlord’s decision about the length
  of the term of the tenancy.
  The review may only be requested on the basis that
  the length of the term does not accord with a policy of
  the prospective landlord as to the length of the terms
  of the flexible tenancies it grants.
Review of flexible tenancies 2/2

  A request for a review must be made;
  – within 21 days from receipt of notice, or
  – such longer period as the the prospective landlord may
    allow
  On a request being duly made to it, the prospective
  landlord must review its decision
  The Secretary of State may by regulations make
  provision about the procedure to be followed in
  connection with a review
Rights of flexible tenants

  Right to
  –   exchange
  –   take in lodgers
  –   sub-let part (with consent)
  –   repairs
  –   consultation and information
  –   to buy
  No automatic right to
  – make improvements
  – be compensated for making improvements
  But, such rights can be given
Termination of flexible tenancy (by tenant)

  The tenant must serve a notice in writing on the
  landlord giving four weeks notice
  The landlord may agree with the tenant to dispense
  with this requirement
  The tenancy is terminated only if, on that date
  – no arrears of rent are payable under the tenancy, and
  – “the tenant is not otherwise materially in breach of a
    term of the tenancy”
Recovery of possession of flexible tenancy 1/3

   On or after the coming to an end of a flexible
   tenancy a court must make an order for possession
   if it is satisfied that
   1. the flexible tenancy has come to an end; and
   2. no further tenancy is in existence; and
   3. the landlord has given the tenant
      –   not less than six months’ notice in writing; and
      –   not less than two months’ notice in writing
      –   stating that the landlord requires possession of the
          dwelling-house.
Recovery of possession on expiry of flexible
tenancy 2/3
   six month notice must state:
   – the landlord does not propose to grant another
     tenancy on the expiry of the flexible tenancy; and
   – set out the landlord’s reasons for not proposing to
     grant another tenancy; and
   – inform the tenant of the tenant’s right to request a
     review of the landlord’s proposal and of the time
     within which such a request must be made.
   two month notice must state:
   – that the landlord requires possession (may be given
     before or on the day on which the tenancy comes to
     an end).
Recovery of possession on expiry of flexible
tenancy 3/3
  The court may refuse to grant an order for
  possession:
   – if the tenant has requested a review of the landlord’s
     proposal not to grant another tenancy; and
   – the court is satisfied that the landlord has failed to carry
     out the review properly; or
   – that the decision on the review is otherwise wrong in
     law
Succession & secure tenancies: new rules

 A person will be qualified to succeed if:
  – he/she occupies the dwelling house as his/her only or
    principal home at the time of the tenant’s death, and
    he/she is the tenant’s spouse/partner/ civil partner.
 Any person will be qualified to succeed if
  – an express term of the tenancy makes provision for
    that person to succeed
 This will not apply to a tenancy that was entered into
 before the Localism Act 2011 comes into force
Allocations: now

 LAs must operate ‘open’ waiting lists
  – anyone eligible, to any authority (some exceptions)
 LAs must accept applicants onto waiting list
 Which means (perception);
  – anyone will be able to get into social housing, if they
    wait long enough
Allocations: the future

  LAs can decide which ‘categories’ of applicants
  should join waiting list
  LAs should “put in place arrangements which suit the
  particular needs of their local area”
  Examples:
  – Households (not individuals)
  – Residency criteria
  – Exclude those with ‘poor tenancy record’
  But must include vulnerable
All of which means…

 Local authorities and RPs will have the option
 (“freedom”), to grant fixed term tenancies (‘flexible’
 and ‘affordable’) for min. two years (but no max.)
 Fixed term tenants will have (most of) same rights as
 periodic tenants
 Local authorities will need to publish a policy on
 tenancies
 There will be new rules on succession
 Allocation rules may vary by LA area
What do LAs need to do?


 Prepare tenancy strategy
 Create ‘flexible’ tenancy agreement?
 Re-consider their allocation policy
What do RPs need to do?

 Review existing policies
 Formulate new tenure policy
 Create ‘affordable’ tenancy agreement
And now, some cases…

 GvE
 Octavia Hill Housing Trust v Brumby
 Ruza Berrisford v Mexfield Housing Co-operative
G v E: the facts

  E, a young adult with profound learning disabilities,
  had been looked after for many years by F
  Following allegations that F had physically abused E,
  local authority removed E from the care of F
  – without consulting with E's nearest relative, (G),
  – without giving F opportunity to make representations
  E given tenancy agreement
  Y (owner of accommodation) signed a tenancy
  agreement on behalf of E
G v E: the decision

  E lacked capacity;
  E had been deprived of his liberty;
  That deprivation of liberty amounted to a breach of
  E's human rights (Article 5 ECHR);
  The removal of E from F's care and the failure to
  involve G/F in the decision making process of E's
  future amounted to a breach of E's human rights
  (Article 8 ECHR);
  The purported tenancy agreement was a nullity
G v E: the ‘tenancy’

  E had no capacity to enter into any agreement
  No-one had any authority to enter into that purported
  contract on his behalf
  In any event the nature of the occupancy precluded a
  tenancy from coming into existence
  – because staff of the establishment had unrestricted
    access to the room occupied by E
G v E: the care home 1/2

 An establishment is a care home if it provides
 accommodation “together with nursing or personal
 care”
 This is a question of fact to be decided in each case
  – registration as a care home or not as the case may
    be, is not, in itself, sufficient to resolve this.
 This establishment was not registered as a care
 home
 Owner claimed could not be care home because was
 not providing accommodation (due to tenancy)
G v E: the care home 2/2

 But, if no tenancy, then E licensee
  –   which means both care and accommodation provided
  –   so establishment was care home?
  –   If so, then should be registered (under CSA s 3) and
  –   the owners were unlawfully in receipt of housing
      benefit and committing a criminal offence.
 CQC had inspected!
 Court refused to decide if care home or not!
G v E: the lessons

  The removal of someone from his/her carer (by a
  local authority) will always be a breach of their
  human rights which may or not be justifiable.
  The placing of someone in the care of others will be
  a breach of their human rights unless their carers
  and/or family are consulted.
  The legal status of what truly amounts to a "care
  home" is uncertain.
  Persons without sufficient mental capacity cannot
  enter into tenancy agreements
  In a caring environment, it may be (legally)
  impossible to truly grant a tenancy.
Octavia Hill HT v Brumby: facts

  B, a tenant of the Trust, claimed damages from trust
  on basis that for nearly four years she had suffered
  from the Trust's failure to prevent a nuisance to her
  by visitors to another flat in the block.
  B alleged that she had made 11 complaints to the
  Trust, but that it had failed to take any reasonable
  steps to abate the nuisance caused to her.
Octavia Hill HT v Brumby: decision

 The Trust applied to strike the claim out for disclosing
 no reasonable grounds and applied for summary
 judgment on the basis that:
  – it had no real prospect of success;
  – for there to be a cause of action there had to be more
    than the mere existence of anti-social behaviour on the
    Trust's land and that a mere failure to abate the
    nuisance was not enough
 The High Court decided that a victim of anti-social
 behaviour might be able to successfully sue their
 landlord for failing to tackle such behaviour.
  –
Octavia Hill HT v Brumby: the problem

 Octavia were unable to demonstrate to the
 satisfaction of the court that there existed a decision-
 making process and ‘audit trail’
Berrisford v Mexfield Housing Co-operative CA 1/3

  M was a fully mutual housing association
  M had entered into month to month "occupancy
  agreement" with B under which, by clause 6, it
  agreed that it could not bring the agreement to an
  end unless B;
   – “fell into arrears” or
   – “committed a breach of the agreement”
  M served B with NTQ (but no arrears or breach)
Berrisford v Mexfield Housing Co-operative CA 2/3

  A tenancy agreement serves a dual purpose
   – it is a contract between the original parties who were
     landlord and tenant; and
   – it creates an interest in land for the tenant (which was
     transferable)
  The commencement of a tenancy and the maximum
  duration of its term had to be certain, or capable of
  being rendered certain, before the tenancy took
  effect.
  The terms of clause 6 made the maximum term of the
  tenancy uncertain, therefore the tenancy was invalid.
Berrisford v Mexfield Housing Co-operative CA 3/3

  What this means for social landlords:
   – clause 6 rendered the maximum term of the tenancy
     uncertain and the written tenancy was therefore void
   – the only tenancy between the parties was an implied
     tenancy, from month to month
  If tenancy agreements state that it is only in certain
  circumstances that the agreement may be brought to
  an end, (so that additional circumstances permitted
  by law are excluded), these should be re-considered
  in light of this case.
ASB update

 Abolition ASBOs
 Introduction “gangbos”
Abolition of ASBO (and other ASB news)
 Community triggers - local agencies will be compelled to take
 action if five people from five different residences in the same
 neighbourhood have complained
 ASBOs replaced with ‘criminal behaviour order’
 Crime Prevention Injunctions - civil burden of proof
 Community Protection Orders - these are place-specific
 orders, bringing together a number of existing measures
 Police "direction" powers - the ability to direct any individual
 causing or likely to cause crime or disorder away from a
 particular place and to confiscate related items
“GangBOs”

 Police and local authorities can apply to County court
 Last up to two years.
 For adults who have been proven to have engaged
 in, encouraged or assisted gang-related violence
 Could ban gang members from entering certain
 areas, wearing ‘gang colours’, and going out in public
 with dangerous dogs.
 Will not lead to a criminal record if breached.
CIH: "Running a Business From Home",

 1/11/10, CIH published guidance about the
 advantages of encouraging tenants to run a business
 from home (in order to boost their employment
 prospects)
 Grant Shapps: “I want all social tenants with the
 ambition, drive and vision to set up their own
 businesses to be given all the help they need to do
 so. Tenants should have the same opportunities as
 anyone else… “
 Sarah Webb: “In reality there are many types of
 businesses that tenants could run from home without
 causing any difficulties.
The Localism Bill and
other recent legal developments
        9 February 2011
           Robert Wassall
 Partner and Head of Social Housing
           023 8085 7012
     robert.wassall@bllaw.co.uk

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Blake Lapthorn and Hardwicke Chambers social housing seminar 9 February 2011

  • 1. The Human Rights Act 1998 and Pinnock... What does it mean for Registered Providers & Local Housing Authorities? Andy Lane & Arthur Moore Wednesday 9th February 2011 Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 2. Programme – Part One • The Human Rights Act 1998 • Weaver & Public Authorities • Article 8 & “Gateway A” • Barber & ASB Policy Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 3. Programme – Part Two • “Gateway B” – original position • Pinnock & Article 8 proportionality • Current position & impact on RPs/LHAs Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 4. Human Rights Act 1998 • Came into effect in October 2000 • Cases about an individual’s human rights can now be raised in a UK court • Previously complaints about their human rights went to the European Court of Human Rights in Strasbourg • The rights contained in the Convention are included at Schedule 1 of the Human Rights Act. For the purposes of the Human Rights Act they are known as ‘the Convention Rights’ Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 5. Who does the Act apply to? (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if— (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 6. Are you a Public Authority? • Definite public authorities – courts, local housing authorities, education authorities, Home Office • Possible public authorities – housing associations • Definite non-public authorities – private landlords (though see Ghaidan-v-Godin-Mendoza [2004]: a Rent Act succession case – a court is a public authority: s.6(3)(a) HRA98) Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 7. Public Authority (2) • Poplar HARCA-v-Donoghue [2002] • R(on the application of Susan Weaver)-v-L&Q Housing Trust [2008] • Effect of Weaver – in most possession claims a RP will be susceptible to a Gateway A/B or Article 8 challenge Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 8. Examples of Convention Rights • Article 2 Right to life • Article 3 Prohibition of torture • Article 6 Right to a fair trial • Article 9 Freedom of thought, conscience and religion • Article 12 Right to marry Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 9. The European Convention on Human Rights The ECHR was drafted by the nations of the Council of Europe (including the UK) in the aftermath of World War II. The Council of Europe was founded to defend human rights, parliamentary democracy and the rule of law, and to ensure that the atrocities and cruelties committed during the war would never be repeated. Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 10. What are the Convention Rights? • They number 16 but there are “later additions” referred to as Protocols - such as the right to education & protection of property • They concern matters of life and death, like freedom from torture and being killed • They also cover rights in everyday life, such as what a person can say and do, their beliefs, their right to a fair trial and many other similar basic entitlements. Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 11. Type of Convention Rights • Absolute rights – such as the right to protection from torture and inhuman and degrading treatment (Article 3). The state can never withhold or take away these rights. • Limited rights – such as the right to liberty (Article 5). These rights may be restricted under explicit and finite circumstances. Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 12. Type of Convention Rights (2) • Qualified rights – rights which require a balance between the rights of the individual and the needs of the wider community or state interest. These include: the right to respect for private and family life (Article 8); the right to manifest one’s religion or beliefs (Article 9); freedom of expression (Article 10); freedom of assembly and association (Article 11); the right to peaceful enjoyment of property (Protocol 1, Article 1); and, to some extent, the right to education (Protocol 1, Article 2). Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 13. Article 8(1) -Right to Respect for Private and Family life Everyone has the right to respect for his private and family life, his home and his correspondence. • This is not a right to a home (see later slide) • It will be engaged in any possession of residential accommodation • Even a person who has never been a tenant can rely on Article 8 including trespassers and would-be successors • This is a qualified right Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 14. Pleadings • No need for L to plead compliance with Art 8 as compliance will initially be assumed: Lord Bingham in Kay (39) • Confirmed in Pinnock Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 15. Mr Justice Collins in Defence Estates-v-JL & SoS for Communities & Local Government [2009] EWHC 1049 (Admin) “37. Article 8, of course, does not confer a positive right to be housed, merely a right not to lose housing unless that loss is compliant with Article 8 rights...” Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 16. Article 8(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 17. Interference with qualified rights is permissible only if... • There is a clear legal basis for the interference with the qualified right that people can find out about and understand, and • The action/interference seeks to achieve a legitimate aim. Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 18. Legitimate Aims • Legitimate aims are set out in each article containing a qualified right and they vary from article to article. They include, for example, the interests of national security, the prevention of disorder or crime, and public safety. • Any interference with one of the rights contained in Articles 8– 11 must fall under one of the permitted aims set out in the relevant article, and • “The action is necessary in a democratic society”. This means that the action or interference must be in response to ‘a pressing social need’, and must be no greater than that necessary to address the social need. Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 19. Kay-v-Lambeth LBC [2006] UKHL 10 – the Gateway A defence • Article 8(1) engaged and right interfered with by request for a possession order (107) • Assumption that if Parliament allows it (or does not disallow it) then Article 8(2) satisfied and legitimate aim being pursued (107) • “Cases where the home was occupied under a tenancy, or some other interest falling short of a tenancy, which has been brought to an end in accordance with the relevant law...will fall into this category. The interests safeguarded by art 8 will be sufficiently protected by the fulfilment of the formal requirements for the eviction laid down by the relevant statute or by the common law” (108) Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 20. Gateway A – Attack on the System 42...As I said in para 109 of my opinion in Kay, and again at the outset of para 110, a defence to a possession order which does not challenge the law under which it is sought but is based only on the personal circumstances of the occupier should be struck out. The personal interests safeguarded by article 8 must be taken to have been sufficiently safeguarded by the fulfilment of the requirements for the recovery of possession by the landowner laid down by statute or by the common law... [Lord Hope in Doherty-v-Birmingham CC [2009] 1 All ER 653] Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 21. Poplar HARCA-v-Donoghue [2001] 4 All ER 604: attack on s.21 “system” • Poplar HARCA were a public authority • Homeless accommodation – IH decision • Section 21(4) notice requiring possession Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 22. Lord Woolf, CJ @ para 72 We are satisfied, that notwithstanding its mandatory terms, s 21(4) of the 1988 Act does not conflict with the defendant’s right to family life. Section 21(4) is certainly necessary in a democratic society in so far as there must be a procedure for recovering possession of property at the end of a tenancy. The question is whether the restricted power of the court is legitimate and proportionate. This is the area of policy where the court should defer to the decision of Parliament. We have come to the conclusion that there was no contravention of art 8 or of art 6. Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 23. Gateway A: Previous HRA Decisions • McLellan – introductory tenancies • Gallagher – discretionary cases • Lee – disrepair • Smart & Mullen – non-secure tenancy Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 24. Gateway A Cases (2) • Adjei & Dixon – joint tenant NTQ • Gilboy & Pinnock – demoted tenancies • Austin – reviving a tenancy Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 25. Gateway A Conclusion Exceptional case Has to be seriously arguable Challenge to statute/common law Individual circumstances not relevant (see Kay & Doherty) Burden of proof on D: Taylor Not a viable defence/submission in most instances Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 26. ASB Policy - since 30 June 2004 The landlord (including LHAs/RPs/HATs) must prepare— (a) a policy in relation to anti-social behaviour; (b) procedures for dealing with occurrences of anti-social behaviour. and publish it [s.218A(2) Housing Act 1996] Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 27. Barber-v-Croydon LBC [2010] EWCA Civ 51 – why the ASB policy is important • Non-secure tenancy • Threats, abuse & assault on staff member • Learning difficulties & personality disorder • NTQ and possession claim issued Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 28. Barber (2) • Failure to refer to IMHS & Social Services • Failure to interview pre-NTQ • Possession Order at first instance • Set aside by Court of Appeal – Gateway B (Wednesbury unreasonable @ 45) Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 29. Patten LJ in Barber [44] Judged by any ordinary standards, the assault on Mr Baah was serious and obviously unacceptable. But the Council's policy on vulnerable people is to explore alternative solutions which may lead to the prevention of ASB in the future...Given the absence of any misbehaviour by Mr Barber prior to 22 May or subsequently, and having regard to Dr Owen's assessment of him, it was, I think, incumbent upon Mr Hunt to consult the other agencies and to take advice as to whether some alternative remedy such as an ABC would solve the problem... [45] What Mr Hunt appears to have done is to treat this as an ordinary category 3 case to which the Council's policies on vulnerable people have no application. I think that approach was wrong in principle and led to a decision by him which no housing authority faced with the facts of this case could reasonably have taken. Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 30. Postcript: Waller LJ in Salford City Council-v-Mullen [2010] EWCA Civ 336 67. Where a notice to quit has been served on a non secure tenant occupying accommodation as a homeless person it will take highly exceptional circumstances for there to be a gateway (b) defence. Barber may be an example of such circumstances where it seemed the Local Authority had been unaware when it served a notice to quit of the mental illness of the occupier and of the risk to his life if he were moved. Anything less than that kind of risk would be unlikely to qualify as so exceptional as to provide an arguable gateway (b) defence in the context of the homeless legislation. Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 31. Human Rights revisited: The rise and rise of art.8 after Manchester CC v. Pinnock Arthur Moore Hardwicke Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 32. The way we were pre: Kay v. Lambeth [2006] 2 AC 456 No defence to ‘mandatory’ possession: • Introductory • Non-secure (Part VII) • Starter (s.21) • Demoted • Mandatory grounds 1988 and 1985 Acts • Termination of joint tenancy Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 33. The way we were post: Kay v. Lambeth [2006] 2 AC 456 • “a defence which does not challenge the law under which the possession order is sought as being incompatible with article 8 but is based only on the occupier’s personal circumstances should be struck out”. Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 34. The way we were post: Kay v. Lambeth [2006] 2 AC 456 BUT • It is open to a Defendant “to challenge the decision of the local authority to recover possession as an improper exercise of its powers at common law” • “a decision that no reasonable person would consider justified” Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 35. Gateway (b) defences: • Attacks the decision not the law • Decision of a “public authority” • Judicial review principles ° Illegality ° Procedural impropriety ° Irrationality • Exceptionality Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 36. The way we were post: Kay v. Lambeth [2006] 2 AC 456 Doherty v. Birmingham CC [2009] 1 AC 367 • Luke warm approval of Kay • Traditional approach to Judicial review would have to be expanded • Court to make own assessment of relevant facts Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 37. The way we were post: Kay v. Lambeth [2006] 2 AC 456 What did this all mean? • Which decision? • Were personal circumstances relevant or not? • How were gateway (b) JR principles different from “ordinary” JR? • What was the effect if a decision was in fact unlawful? Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 38. Art 8(2) “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others” Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 39. The way we are: Manchester CC v. Pinnock [2010] UKSC 45 • Anti-social behaviour of children, not the tenant • Demoted tenancy • No defence at law to claim for possession • The CA’s view Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 40. Pinnock in the Supreme Court • The problem: • The growing weight of Strasbourg Jurisprudence ° Kay v. UK ° JR not good enough (no fact finding) ° County Court can find facts, but has no “JR” jurisdiction Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 41. Pinnock in the Supreme Court: What is clear? • Any person at risk of being dispossessed of his house at the suit of a local authority has the right to raise the question of proportionality • It is the proceedings as a whole which must be considered for art 8. compliance • The Court will only consider proportionality if the occupier raises it Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 42. Pinnock in the Supreme Court: What is clear? • The question is always whether the eviction is a proportionate means of achieving a legitimate aim Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 43. What is “proportionate”? Not a term found in art 8 or HRA BUT • Vindicate ownership rights • Duties in relation to distribution and management of housing stock • Need to move vulnerable people into sheltered accommodation • Need to remove nuisance neighbours Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 44. Pinnock in the Supreme Court: What is clear (contd) “….in virtually every case where a residential occupier has no contractual or statutory protection,….. there will be a very strong case for saying that making an order for possession would be proportionate.” Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 45. Pinnock in the Supreme Court: What is unclear • “Exceptionally” is an outcome not a guide? • “In accordance with the law” - Separate requirement or part of proportionality? • Does proportionality differ from reasonableness? • What does the Court do if a breach of art 8 is found? Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 46. Pinnock in the Supreme Court: What is unclear (contd.) • What is the status of an occupier left in possession with no domestic law rights? Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 47. Effect of Pinnock on RPs and LAs • Likely to be most relevant in cases of mental or physical disability. • Have a policy and stick to it • Decision paper trail • Explicit consideration of art. 8 • Keep decision under review Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 48. Effect of Pinnock on RPs and LAs contd. • Art.8 is likely to be raised in every case where there is no other defence • Courts should initially deal with it summarily (Pinnock para 61)- be prepared Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
  • 49. The Localism Bill and other recent legal developments 9 February 2011 Robert Wassall Partner and Head of Social Housing 023 8085 7012 robert.wassall@bllaw.co.uk
  • 50. What am I going to talk about? New law – Localism Bill – ASB update Recent cases – GvE – Octavia Hill Housing Trust v Brumby – Ruza Berrisford v Mexfield Housing Co-operative Other recent developments – “Running a business from home”
  • 51. Localism Bill: dealing with… Tenancy strategies Flexible tenancies Affordable tenancies New rules about succession (to secure tenancies) Allocations
  • 52. Localism Bill: not dealing with… Planning Homelessness Housing finance Housing mobility Regulation
  • 53. CLG press release: “a new era for people power” “The Bill will put councils in charge of allocation and tenure of social housing, giving councils the flexibility to use their social housing stock to the maximum effect and reduce waiting lists.”
  • 54. Tenancy strategies 1/2 Each LA must prepare and publish a “tenancy strategy” Setting out the matters to which RPs in its district are to have regard in formulating policies relating to: – the kinds of tenancies they grant; and – the circumstances in which they will grant a tenancy of a particular kind; and – where they grant tenancies for a fixed term, the lengths of the terms; and – the circumstances in which they will grant a further tenancy on the coming to an end of an existing tenancy
  • 55. Tenancy strategies: 2/2 Before adopting a tenancy strategy, the authority must: – send a copy of the draft strategy to every RP in its district, and – give the RP a reasonable opportunity to comment on those proposals
  • 56. Affordable Rent tenancies are… Assured shorthold tenancies Granted by registered providers For a fixed term of two years or more With rent of up to 80% of local market rent – including service charges? Tenants will have Right to Acquire
  • 57. Recovery of possession of Affordable Rent tenancy (on expiry of fixed term) The court may not make an order for possession of the dwelling-house unless; 1. the landlord has given to the tenant not less than six months’ notice in writing stating that 2. the landlord does not propose to grant another tenancy on the expiry of the fixed term tenancy, and 3. informing the tenant of how to obtain help or advice about the notice and, in particular, of any obligation of the landlord to provide help or advice. – But what about Pinnock?
  • 58. Flexible tenancies a flexible tenancy is – a secure tenancy; – granted for a fixed term of not less than two years; and – before it was granted the landlord served a written notice on the person who became the tenant (stating that the tenancy would be a secure tenancy) “We would expect social landlords to provide longer tenancies to families with children”
  • 59. Review of flexible tenancies 1/2 A person on whom a notice (that the tenancy will be flexible tenancy) is served may request a review of the prospective landlord’s decision about the length of the term of the tenancy. The review may only be requested on the basis that the length of the term does not accord with a policy of the prospective landlord as to the length of the terms of the flexible tenancies it grants.
  • 60. Review of flexible tenancies 2/2 A request for a review must be made; – within 21 days from receipt of notice, or – such longer period as the the prospective landlord may allow On a request being duly made to it, the prospective landlord must review its decision The Secretary of State may by regulations make provision about the procedure to be followed in connection with a review
  • 61. Rights of flexible tenants Right to – exchange – take in lodgers – sub-let part (with consent) – repairs – consultation and information – to buy No automatic right to – make improvements – be compensated for making improvements But, such rights can be given
  • 62. Termination of flexible tenancy (by tenant) The tenant must serve a notice in writing on the landlord giving four weeks notice The landlord may agree with the tenant to dispense with this requirement The tenancy is terminated only if, on that date – no arrears of rent are payable under the tenancy, and – “the tenant is not otherwise materially in breach of a term of the tenancy”
  • 63. Recovery of possession of flexible tenancy 1/3 On or after the coming to an end of a flexible tenancy a court must make an order for possession if it is satisfied that 1. the flexible tenancy has come to an end; and 2. no further tenancy is in existence; and 3. the landlord has given the tenant – not less than six months’ notice in writing; and – not less than two months’ notice in writing – stating that the landlord requires possession of the dwelling-house.
  • 64. Recovery of possession on expiry of flexible tenancy 2/3 six month notice must state: – the landlord does not propose to grant another tenancy on the expiry of the flexible tenancy; and – set out the landlord’s reasons for not proposing to grant another tenancy; and – inform the tenant of the tenant’s right to request a review of the landlord’s proposal and of the time within which such a request must be made. two month notice must state: – that the landlord requires possession (may be given before or on the day on which the tenancy comes to an end).
  • 65. Recovery of possession on expiry of flexible tenancy 3/3 The court may refuse to grant an order for possession: – if the tenant has requested a review of the landlord’s proposal not to grant another tenancy; and – the court is satisfied that the landlord has failed to carry out the review properly; or – that the decision on the review is otherwise wrong in law
  • 66. Succession & secure tenancies: new rules A person will be qualified to succeed if: – he/she occupies the dwelling house as his/her only or principal home at the time of the tenant’s death, and he/she is the tenant’s spouse/partner/ civil partner. Any person will be qualified to succeed if – an express term of the tenancy makes provision for that person to succeed This will not apply to a tenancy that was entered into before the Localism Act 2011 comes into force
  • 67. Allocations: now LAs must operate ‘open’ waiting lists – anyone eligible, to any authority (some exceptions) LAs must accept applicants onto waiting list Which means (perception); – anyone will be able to get into social housing, if they wait long enough
  • 68. Allocations: the future LAs can decide which ‘categories’ of applicants should join waiting list LAs should “put in place arrangements which suit the particular needs of their local area” Examples: – Households (not individuals) – Residency criteria – Exclude those with ‘poor tenancy record’ But must include vulnerable
  • 69. All of which means… Local authorities and RPs will have the option (“freedom”), to grant fixed term tenancies (‘flexible’ and ‘affordable’) for min. two years (but no max.) Fixed term tenants will have (most of) same rights as periodic tenants Local authorities will need to publish a policy on tenancies There will be new rules on succession Allocation rules may vary by LA area
  • 70. What do LAs need to do? Prepare tenancy strategy Create ‘flexible’ tenancy agreement? Re-consider their allocation policy
  • 71. What do RPs need to do? Review existing policies Formulate new tenure policy Create ‘affordable’ tenancy agreement
  • 72. And now, some cases… GvE Octavia Hill Housing Trust v Brumby Ruza Berrisford v Mexfield Housing Co-operative
  • 73. G v E: the facts E, a young adult with profound learning disabilities, had been looked after for many years by F Following allegations that F had physically abused E, local authority removed E from the care of F – without consulting with E's nearest relative, (G), – without giving F opportunity to make representations E given tenancy agreement Y (owner of accommodation) signed a tenancy agreement on behalf of E
  • 74. G v E: the decision E lacked capacity; E had been deprived of his liberty; That deprivation of liberty amounted to a breach of E's human rights (Article 5 ECHR); The removal of E from F's care and the failure to involve G/F in the decision making process of E's future amounted to a breach of E's human rights (Article 8 ECHR); The purported tenancy agreement was a nullity
  • 75. G v E: the ‘tenancy’ E had no capacity to enter into any agreement No-one had any authority to enter into that purported contract on his behalf In any event the nature of the occupancy precluded a tenancy from coming into existence – because staff of the establishment had unrestricted access to the room occupied by E
  • 76. G v E: the care home 1/2 An establishment is a care home if it provides accommodation “together with nursing or personal care” This is a question of fact to be decided in each case – registration as a care home or not as the case may be, is not, in itself, sufficient to resolve this. This establishment was not registered as a care home Owner claimed could not be care home because was not providing accommodation (due to tenancy)
  • 77. G v E: the care home 2/2 But, if no tenancy, then E licensee – which means both care and accommodation provided – so establishment was care home? – If so, then should be registered (under CSA s 3) and – the owners were unlawfully in receipt of housing benefit and committing a criminal offence. CQC had inspected! Court refused to decide if care home or not!
  • 78. G v E: the lessons The removal of someone from his/her carer (by a local authority) will always be a breach of their human rights which may or not be justifiable. The placing of someone in the care of others will be a breach of their human rights unless their carers and/or family are consulted. The legal status of what truly amounts to a "care home" is uncertain. Persons without sufficient mental capacity cannot enter into tenancy agreements In a caring environment, it may be (legally) impossible to truly grant a tenancy.
  • 79. Octavia Hill HT v Brumby: facts B, a tenant of the Trust, claimed damages from trust on basis that for nearly four years she had suffered from the Trust's failure to prevent a nuisance to her by visitors to another flat in the block. B alleged that she had made 11 complaints to the Trust, but that it had failed to take any reasonable steps to abate the nuisance caused to her.
  • 80. Octavia Hill HT v Brumby: decision The Trust applied to strike the claim out for disclosing no reasonable grounds and applied for summary judgment on the basis that: – it had no real prospect of success; – for there to be a cause of action there had to be more than the mere existence of anti-social behaviour on the Trust's land and that a mere failure to abate the nuisance was not enough The High Court decided that a victim of anti-social behaviour might be able to successfully sue their landlord for failing to tackle such behaviour. –
  • 81. Octavia Hill HT v Brumby: the problem Octavia were unable to demonstrate to the satisfaction of the court that there existed a decision- making process and ‘audit trail’
  • 82. Berrisford v Mexfield Housing Co-operative CA 1/3 M was a fully mutual housing association M had entered into month to month "occupancy agreement" with B under which, by clause 6, it agreed that it could not bring the agreement to an end unless B; – “fell into arrears” or – “committed a breach of the agreement” M served B with NTQ (but no arrears or breach)
  • 83. Berrisford v Mexfield Housing Co-operative CA 2/3 A tenancy agreement serves a dual purpose – it is a contract between the original parties who were landlord and tenant; and – it creates an interest in land for the tenant (which was transferable) The commencement of a tenancy and the maximum duration of its term had to be certain, or capable of being rendered certain, before the tenancy took effect. The terms of clause 6 made the maximum term of the tenancy uncertain, therefore the tenancy was invalid.
  • 84. Berrisford v Mexfield Housing Co-operative CA 3/3 What this means for social landlords: – clause 6 rendered the maximum term of the tenancy uncertain and the written tenancy was therefore void – the only tenancy between the parties was an implied tenancy, from month to month If tenancy agreements state that it is only in certain circumstances that the agreement may be brought to an end, (so that additional circumstances permitted by law are excluded), these should be re-considered in light of this case.
  • 85. ASB update Abolition ASBOs Introduction “gangbos”
  • 86. Abolition of ASBO (and other ASB news) Community triggers - local agencies will be compelled to take action if five people from five different residences in the same neighbourhood have complained ASBOs replaced with ‘criminal behaviour order’ Crime Prevention Injunctions - civil burden of proof Community Protection Orders - these are place-specific orders, bringing together a number of existing measures Police "direction" powers - the ability to direct any individual causing or likely to cause crime or disorder away from a particular place and to confiscate related items
  • 87. “GangBOs” Police and local authorities can apply to County court Last up to two years. For adults who have been proven to have engaged in, encouraged or assisted gang-related violence Could ban gang members from entering certain areas, wearing ‘gang colours’, and going out in public with dangerous dogs. Will not lead to a criminal record if breached.
  • 88. CIH: "Running a Business From Home", 1/11/10, CIH published guidance about the advantages of encouraging tenants to run a business from home (in order to boost their employment prospects) Grant Shapps: “I want all social tenants with the ambition, drive and vision to set up their own businesses to be given all the help they need to do so. Tenants should have the same opportunities as anyone else… “ Sarah Webb: “In reality there are many types of businesses that tenants could run from home without causing any difficulties.
  • 89. The Localism Bill and other recent legal developments 9 February 2011 Robert Wassall Partner and Head of Social Housing 023 8085 7012 robert.wassall@bllaw.co.uk