ISYU TUNGKOL SA SEKSWLADIDA (ISSUE ABOUT SEXUALITY
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
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.
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