Blake Lapthorn Social Housing seminar - 22 February 2012
Another boring year in social housing? Robert Wassall Partner, Social Housing firstname.lastname@example.org 023 8085 7012
What am I going to talk about? Recent cases – Human rights – Mental capacity – Care – Consultation New law – Localism Act
Localism Act & tenure; intro Gives RPs ability to grant ‘affordable’ tenancies – Fixed term (assured shorthold), or – Periodic ‘lifetime’ (assured) Gives LAs ability to grant ‘flexible’ tenancies – Which will be fixed term (secure) VIP date 1 April 2012
What is an ‘affordable rent’ tenancy? A tenancy of residential premises Granted by a RP At a rent higher than social rent; and At up to 80% of the local market rent – for a property of the same size and type – in the private sector – including any service charge
What is a fixed term tenancy? Minimum term of two years – ‘exceptional circumstances’ Otherwise not less than five years No maximum term RPs: assured shorthold LAs: secure ‘Norm’ five years?
Tenancies and rents (1) Until 1 April 2012, fixed-term tenancies – can only be granted at an affordable rent – as part of agreement with HCA – to fund the development of new homes After 1 April 2012 – can be granted at social rent Which means…
Tenancies and rents (2) Different housing ‘products’ 1. Fixed term (assured shorthold) at social rent 2. Fixed term (assured shorthold) at affordable rent 3. Periodic (assured) at social rent 4. Periodic (assured) at affordable rent 5. Fixed term (flexible) at social rent 6. Fixed term (flexible) at affordable rent 7. Periodic (secure) at social rent 8. Periodic (secure) at affordable rent
Fixed-term tenancies and succession Previously, no right of succession to AST Localism Act, gives right of succession to AST But only to spouses etc L can grant additional succession rights (to anyone)
Ending fixed term tenancy (during term) Only on a ground expressly referred to in tenancy Certain grounds not available – All mandatory grounds (except ground 8) – Discretionary grounds 9 and 16 – Cannot move to suitable alternative accommodation But can have ‘break clause’ (min two years) Surrender does not apply (unless permitted by tenancy) Any breach can be actioned as usual
Ending fixed term tenancy (at expiry term) L Must give six month notice informing T that – Tenancy will not be renewed/re-issued – How T can get help/advice L must also serve s21 notice Act gives no right to review (but could be in policy) If above not done, T becomes periodic tenant T can end tenancy, at any time after expiry fixed term, by service NTQ
Some key questions… Can existing AST agreements be used? Could other agreements be relevant? What does all this mean for you?
Recent Cases Saxon Weald V Chadwick (service of notices) Westminster CC v Holmes (post Pinnock) Mexfield Housing v Berrisford (tenancy agreement) Benesco Charity Ltd v Kanj (trespassers) Chesterfield BC v Bailey (notices) Sefton Care Association v Sefton Council (consultation) Wychaven DC v EM (mental capacity) K v LBX (mental capacity) Complaint against Wrexham CBC (Ombudsman)
Saxon Weald v Chadwick C given Starter tenancy ASB throughout NOSP, five days before expiry Starter tenancy SW sent letter telling C he was Assured tenant! Court said – letter form SW “unambiguous” – C had become Assured tenant
Westminster CC v Holmes H had non-secure accommodation (homeless) H assaulted two officers W served NTQ, issued claim for possession H defended on human rights (denied assault) W applied for the defence to be struck out – Possession order made on summary basis – No oral evidence given “the burden lay on [H] to show that he had substantial grounds to establish the need for a hearing to find the facts”
Mexfield Housing v Berrisford Tenancy “from month to month until determined as provided in this agreement” B could give notice any reason/anytime M could only give notice if tenant default M gave B notice – B not in default SC said – this was tenancy for life, taking effect as 90 year lease – Could only be ended only by death of M, or in accordance with terms of tenancy
Benesco Charity Ltd v Kanj Possession claim against the trespassers Defendant made witness statement claiming they had a tenancy or a sub-tenancy. Possession order made but defendants appealed. Appeal allowed – “a person is entitled to a trial of their Defence and the content of the witness statement should not be rejected at a summary stage "unless the evidence is incredible".
Chesterfield BC v Bailey (1) 2002: Joint tenancy granted to Mr and Mrs B 2005: Mr B moved out 2010: C told Mr B – he was liable for arrears of rent – that his only way of avoiding any future liability for rent was to have his name "taken off" the tenancy Mr B gave NTQ, to expire 4 Oct 2010 C claimed possession Mrs B defended claim on basis that…
Chesterfield BC v Bailey (2) Tenancy agreement specified that – NTQ must give four full weeks notice in writing – "to expire on a Monday at midday if you wish to end your tenancy“ 4 October 2010 was Monday C could not show that the notice had been received before 12 noon on 6 September 2010 and therefore failed to establish that four full weeks notice had been given. Claim dismissed
Sefton Care Association v Sefton Council (1) February 2010: LA told care home providers it would not increase fees paid for placements for the 2010/11 financial year. Later in 2010: LA decided that further savings could be made by freezing fees for another year That was not communicated to care home providers until November 2010. Despite C having told the local authority that it was underfunding its placements and that fees would need to rise if the private care sector was to remain viable.
Sefton Care Association v Sefton Council (2) LA had failed to – adequately investigate the actual costs of care and – failed to have due regard to those costs, (contrary to both the guidance issued by the secretary of state and that issued by the Department of Health) LA was under duty to consult with the care home proprietors, but there had been no consultation in any meaningful sense LA had acted unlawfully
Wychaven DC v EM (1) EM had profound physical and mental disabilities. Her parents had a home specially constructed for her Needed income to finance cost of mortgage Income was to come from HB Tenancy agreement described father as landlord and EM as tenant, – but in the space for tenant’s signature it is stated that EM "is profoundly disabled and cannot communicate at all". LA refused to pay HB
Wychaven DC v EM (2) Nobody with power to contract on behalf of EM EM had no liability to pay rent “by reason of a document to which she was not a party and of which she had no knowledge or means of knowledge” There was no tenancy agreement and No entitlement to housing benefit
Wychaven DC v EM (3) All above 29 March 2011 6 January 2012, same judge ‘reviewed decision’ Confirmed no contractual obligation to pay rent But, EM was obliged to pay for ‘necessary goods and services’ at common law Therefore entitled to HB!
K v LBX (1) L, aged 28, mild learning disability Lived with father who – agreed L needed to move into local authority arranged care but – disagreed with the local authority about when that should happen LA and father could not agree, so went to court…
K v LBX (2) The issue for the Court was – whether the right to family life required the court to afford priority to the placement of an incapacitated adult in their family, or – whether family life was simply one of "all the relevant circumstances" that the court had to consider – under s.4 of the Mental Capacity Act when determining a persons best interests
K v LBX (3) the safe approach was to ascertain the best interests of the incapacitated adult by – applying the checklist in the Mental Capacity Act, then – asking whether the resulting conclusion amounted to a violation of their human rights and – whether that violation was nonetheless necessary and proportionate
Complaint against Wrexham CBC (Ombudsman) (1) Complainant was middle-aged, single, disabled man living with his mother (who was a tenant of the council) He made repeated applications for rehousing, complaining that his accommodation was unsuitable for his disabilities and was in disrepair
Complaint against Wrexham CBC (Ombudsman) (2) The Ombudsman found extensive maladministration including: – systemic failures in approach to the rehousing applications; – failure to follow relevant legislation, statutory guidance and its own policies and procedures; and – poor record keeping
Complaint against Wrexham CBC (Ombudsman) (3) Ombudsman recommended – a wide-ranging re-training of staff, – review of the councils policies, systems and procedures, – an apology and – £1500 compensation
Oxford City Council v John Basey (1) B, 64 had severe learning disabilities. One of four tenants, all of whom had similar difficulties, of a housing association property Each tenant had their own bedroom and shared other facilities Staff provided care, support and supervision 24 hours per day
Oxford City Council v John Basey (2) LA decided B lived in ‘supported’, not sheltered’ accommodation Not entitled to have included as ‘eligible rent’ (for the purpose of calculating the amount of his housing benefit) – his share of the costs of fuel for, and cleaning of, the rooms of common use in his accommodation LA said that sheltered accommodation is….
Oxford City Council v John Basey (3) small, easily managed, and self-contained with its own bathroom and kitchen; grouped together on a site; designed specifically for the elderly, disabled or other vulnerable persons; served by a warden, who dealt with estate management issues and emergencies only; served by an emergency alarm system; with a communal common room, for social activities, and gardens
Oxford City Council v John Basey (4) No legal distinction between supported and sheltered accommodation Any service charges not connected with the provision of adequate accommodation were excluded from eligibility for housing benefit… …but communal rooms were necessary in sheltered accommodation B lived in sheltered accommodation B entitled to HB to cover costs of communal room
Another boring year in social housing? Robert Wassall Partner, Social Housing email@example.com 023 8085 7012
Crossing the line Amanda MorrisPartner and head of Property Litigation firstname.lastname@example.org 023 8085 7483
Neighbour Disputes: A guide to the law and practice By Donald Agnew and Amanda Morris Wildy, Simmonds & Hill Publishing 2nd edition published 2011
Decision making and the Mental Capacity Act 2005 Rachel Brooks Partner email@example.com 023 9228 2714
Outline Decision making Brief outline of the provisions in the Mental Capacity Act 2005 Court of Protection and Deputies Powers of Attorney
A person is determined to lack capacityThe Act provide that…. “a person lacks capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken.”
Decision making and the Act Decisions are task specific This contrasts with the position prior to the MCA 2005 – either you had capacity or you didn’t A person may be able to make simple day to day decisions but not more complex ones Can they make the decision at this particular moment
Why is it important if someone lacks capacity? The document will be invalid Wychavon District Council v EM  UKUT 12 (AAC) (06 January 2012)
Mental Capacity Act 2005 – five PrinciplesPrinciple 1 A person must be assumed to have capacity unless it is established that they lack capacity. …therefore there is a presumption of capacity
Mental Capacity Act 2005 – five PrinciplesPrinciple 2 A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
Mental Capacity Act 2005 – five PrinciplesPrinciple 3 A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
Mental Capacity Act 2005 – five PrinciplesPrinciple 4 An act done or decision made under the act for or on behalf of a person who lacks capacity must be done or made in his best interests.
Mental Capacity Act 2005 – five PrinciplesPrinciple 5 Before the act is done or the decision is made regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the persons rights and freedom of action.
Duty to consult Section 4 - MCA 2005 Consult with friends, relatives, carers, doctors, etc Keep records of decision made
Who can make legally binding decisions forothers? Appointee – DWP Deputy – Court of Protection Attorney: – Enduring Power of Attorney – Lasting Power of Attorney
Deputy – Court of Protection Family or professionals Panel Deputy Type – property and affairs – welfare Detailed application – medical report – full details of family and finances
Practical points Get a copy of the order and check that the deputy has the necessary authority If joint deputies - are they appointed jointly or jointly and severally?
Powers of Attorney Appoints others to deal at a time when the donor is unable to do so To be signed when the donor knows what they are doing Enduring Power of Attorney – 1985 to September 2007 Lasting Power of Attorney - 1 October 2007 to date
Practical points EPA – If the person lacks capacity then check that the EPA has been registered with the Court of Protection LPA – Check it has been registered with the Court of Protection regardless of loss of capacity Check if joint or joint and several appointments of attorneys You should see original document or appropriate certified copy
Practical points (cont’d) Check that the document has been properly drawn up Check that there are no restrictions which prevent the act you are looking at If the tenant does not have capacity and there is no power of attorney then an application to the Court of Protection is needed
Contact information www.publicguardian.gov.uk – for code of practice and other helpful booklets Office of the Public Guardian PO Box 15118 Birmingham B16 6GX
Housing headlines and headaches Sarah Pearson Senior firstname.lastname@example.org 023 8085 7002
Housing headlines and headaches…. Cases – Gangbos – Anti-social Behaviour New law – Welfare Reform Bill – Health & Social Care Bill – Protection of Freedoms Bill – ASB update The year ahead…. – Squatting – a criminal offence? – Gas safety – Disrepair – Landlord’s right of appeal
Recent Cases Enfield LBC v Martin (gangbo) Westlea HA v Price (ASB and ground 14) Toynbee HA v Choudhury (ASB and court’s discretion) Hammersmith & Fulham LBC v Forbes (drug conviction and dealing) Barking & Dagenham LBC v Bakare (community impact evidence)
Enfield LBC v Martin Gang injunction - Defendant aged 19 Prohibited from inciting violence on the internet, wearing gang colours or being in possession of an offensive weapon July 2011 - committal application for breach seven breaches proven - 14 month custodial sentence suspended for two years two further breaches - council applied to active the suspended sentence Immediate custodial sentence of 15 months
Westlea v Price Assured tenancy 39 ASB allegations Defendant admitted many and promised to improve Defendant’s violent partner jailed – was there DV? Little support or guidance from HA to Defendant Held: possession order not reasonable
Toynbee HA v Choudhury June 2008 postponed possession order made due to son’s drug-related ASB. Son ordered to stay away Order breached as son repeatedly returned Application for date for possession Defendant applied to suspend warrant – Def had not prevented son’s visits and unlikely to in future – DJ used her discretion and dismissed the application but allowed permission to appeal D appealed - discretion point was reconsidered Eviction did not go ahead
Hammersmith & Fulham LBC v Forbes Secure tenant for 31 years – heroin addict No nuisance prior to June 2010 Complaints of drug dealing. Police raid, heroin found, guilty plea to charge of possession Closure order obtained Possession order sought using evidence from criminal proceedings Def addressed addiction issues but compounded by no fixed abode during closure order Postponed possession order made NB: Forbes caught by new mandatory ground?
Barking & Dagenham LBC v Bakare Secure tenant PPO for rent arrears C applied for possession due to breach of ASBO and nuisance Would separate proceedings have been better? Crucial - strong evidence of threat to community Held: possession forthwith
New Law Welfare Reform Bill Health & Social Care Bill Protection of Freedoms Bill ASB update
Welfare Reform Bill – benefit cap Universal Credit - a new benefit to replace existing in and out of work benefits Will cover basic living costs, including housing costs Benefits to be capped at £26,000 per year “Claimant Commitment” – work related requirements The cap will cause conflict with the new affordable rent regime, especially in London
Welfare Reform Bill – direct payments Administration of benefits to change (from Oct 2013) Benefits to be paid direct to tenants rather than landlords Exceptions - pensioners and vulnerable tenants Likely to increase arrears Landlords will lose financial security Landlords borrowing costs will rise 93% of tenants want HB paid direct to landlords
Welfare Reform Bill – under-occupation HB cuts for tenants who are under-occupying from April 2013 Tenants to make up rent shortfall or move to smaller accommodation Landlords support downsizing but insufficient housing Increased demand for smaller properties puts pressure on housing providers to build more, smaller houses Will hit the disabled and foster families hardest DWP suggests lodgers fill spare rooms!
Health and Social Care Bill Makes a strong connection between health, care and housing Housing sector already providing care and support services An opportunity for housing providers to expand their business? A key role for housing in new diverse health service
Health and Social Care Bill Push towards personalisation giving service users control over personal care budgets Makes local authorities responsible for better integration of medical and social care services Funding cuts will change the way housing providers provide health and social care support
Protection of Freedoms Bill Wide ranging legislation focussing on civil liberties May widen scope of Freedom of Information Act – “publicly owned companies” Impact on housing associations – Drive efficiency – Provide better service BUT – Administrative burden – What is public and what is private? Social Services and EHO unable to enter homes without a warrant – Impact on vulnerable tenants
Anti-Social Behaviour – Update (1) Government plans to toughen up powers to deal with problem families – “Community trigger” – Authorities will be forced to investigate if more than five complaints made New Crime Prevention Injunction – designed to stop asb before it escalates – civil burden of proof – consequences of breach different for adults and minors – death of the anti-social behaviour injunction – untested – still out to consultation
Anti-Social Behaviour – update (2) Government consultation – New mandatory ground for possession? Aims to speed up process for obtaining possession order Applicable if criminal behaviour already proven in other proceedings Landlord must still comply with ASB policy and be mindful of “proportionality” – Proposed amendment to discretionary ground 14 for offences involving violence No locality requirement Impact on neighbours vital? Consultation closed in Nov 2011
Anti-Social Behaviour – update (3) Gangbos – Policing and Crime Act 2009 – Aims to prevent gang related violence – Civil court - reduced burden of proof – Can use hearsay – From 9 January 2012 can be used against those aged 14 or over – Southwark Council obtained first one in February 2011
Squatting – criminal offence? Consultation paper in July 2011 Create new criminal offence of squatting in residential property Weakening so-called “squatters rights” in Criminal Law Act 1977 Legal test: – Entering as a trespasser – Knowledge of trespassing – Intention to live in building for a period Penalty – imprisonment or fine of up to £5000 Does this mean the police will “pick up the tab”? But are the police able to deal with complex property rights when quick decisions are needed?
Gas Safety Update The Gas Safety Trust report Oct 2011 – Dramatic rise in fatalities caused by carbon monoxide – Threefold rise in incidents over the last year – Landlords failing to provide adequate safety certificates – Recorded incidents only – true figures much higher? – Risk comes from malfunctioning appliances as well as blocked chimneys and flues – The Trust recommends the duty on landlords to inspect gas appliances be stepped up to a duty to service them
Disrepair – one to watch? Frequent issue raised by tenants 76.7% of complaints to landlords between January and March 2011 were repairs related Recurrent problems: – Poor communication – Poor co-ordination – Consistent approach by staff – training need? – Refer to insurer? – What does the tenancy agreement say? – New cashback scheme
Landlords to lose right of appeal? TSA considering scrapping appeals against its most serious decisions A practical decision taking account of smaller HCA committee Only route of challenge will be High Court Increase in costs and time
Blake Lapthorn Housing Management Launch of Housing Manager Forum in Spring – To be held at Blake Lapthorn – Topics of your choice – Exchange good practice – Network amongst fellow professionals – Speakers Secondments Up2dates Free helpline – email@example.com – 0844 620 5003 “Lessons Learned”