The Housing Year: 12 cases – 2018/9
Housing, Public Law and Judicial Review
By Andy Lane
The last 12 months have proved significant in housing terms for landlords, tenants, housing providers and the homeless, and I was going to provide a detailed look at the ‘housing year’ until work, Judge Judy, Murder She Wrote and NCIS intervened (it has been said that I make Steve Davis look like Shane MacGowan).
What I have done instead therefore is pick my “favourite” or, for me, the most interesting reported case (other than those I may have been involved in) from each of the months from September 2018 to August 2019. Of course, there will be different opinions on this, and I know I have omitted the Supreme Court judgment in Samuels v Birmingham City Council  P.T.S.R. 1229 (Matt Lewin and I have written about it though). I am also aware that I have defined “housing” broadly but I hope it proves nonetheless a thought-provoking and reflective read.
There wasn’t much choice in this month, but that is not to underestimate the importance of Mr Justice Dingeman’s judgment in Livewest Homes Ltd v Sarah Bamber  EWHC 2454 (QB).
This case concerned a common model of a fixed-term assured shorthold tenancy with a starter, probationary period. Was 2 or 6 months (s. 21) notice required given the fixed-term nature of the tenancy? The court determined that where a social landlord had given the usual (s. 21) two months’ notice to recover possession during the starter or probationary period of a fixed term tenancy, the tenancy was no longer “a fixed term tenancy for a term certain of not less than two years” and the provisions of the Housing Act 1988 requiring six months’ notice – that is sections 21(1A)(1B) – no longer applied.
The judge concluded at para. 42: “In circumstances where there is a limited supply of social housing it might be expected that registered providers will want to recover possession immediately on the expiry of the fixed term.”
The tenant appealed to the Court of Appeal and in July 2019 the appeal was dismissed. The court, in essence, held that the six-month notice period required under sections 21(1A) and 21(1B) assumed the expiry of a fixed-term tenancy by effluxion of time, and not as a result of its premature termination under a break clause.
There was more choice this month, including the (failed) Convention right challenge to the one succession only rule in LB Haringey v Simawi  H.L.R. 13 (due to be heard next month in the Court of Appeal).
I have however stuck to the section 21 theme in choosing the Court of Appeal decision of (1) Alkali Barrow (2) Leigh Ann Amey v (1) Isabel Kazim (2) Yavuz Kazim (3) Leyla Mustafa  H.L.R. 14.
This case concerned the question of who must serve a section 21 notice requiring possession when a head landlord brought the mesne tenant’s tenancy to an end. The answer was that section 21(1)(b) of the Housing Act 1988 was clear in requiring it to be the landlord at the time of service (here the mesne tenant). The assured shorthold tenants’ appeal was therefore successful.
Lord Justice Newey addressed concerns as to the implications of the judgment as follows at para. 23:
“Mr Wijeyaratne suggested that it would be unsatisfactory if a superior landlord had to wait until the mesne tenancy had been determined before giving notice under section 21 of the 1988 Act. It would, however, be possible for the mesne tenant to give notice in the meantime; a landlord could alleviate any potential inconvenience by providing for that in its agreement with the mesne tenant; and in any event the appellants’ construction of the 1988 Act could not necessitate more than two months’ delay.”
Moving away from assured tenancies I have chosen a case for November which dealt with some of the art. 8 and breach/damages issues I was faced with in McDonagh v LB Enfield  H.L.R. 43 (and McDonagh was cited in my choice), albeit McDonagh concerned the local authority in its housing capacity (against the parent), whilst R (MIV & ors) v LB Newham  EWHC 3298 (Admin) dealt with Children’s Services’ responsibilities in a claim brought by the child.
In MIV DHCJ Karen Steyn QC held that the rights of a disabled child under art.8 had not been infringed by a local authority even though the child and his parents had been housed in unsuitable accommodation for an eight-month period. The local authority had acted quickly to prevent them being rendered street homeless and had provided better accommodation at a later date.
She acknowledged at para. 91 of her judgment the potential for art. 8 providing a positive obligation on the part of the authority to provide support:
“In my judgment, the effect of Anufrijeva is that, insofar as the article 8 right in issue consists of individual rights, such as the right to privacy or the right to physical or psychological integrity, unless the individual’s predicament is sufficiently severe to engage article 3, it is hard to conceive of a situation in which article 8 will impose a positive obligation to provide welfare support. On the other hand, where the right in issue is the right to family life, there may be a positive obligation under article 8 to provide welfare support even though the lack of such support would not breach article 3.”
But that this case fell into the former category:
“102. Secondly, the specific article 8 article relied on, in this case, is MIV’s individual right to a private life, in particular having regard to his right to physical and psychological integrity or well-being. This is not a case where it can be contended, even arguably, that MIV’s right to family life was breached. There was never any threat of MIV being accommodated other than together with both his parents. He has lived with his parents, and been cared for by them, without interruption.
103. Accordingly, this case falls into the first category that I have identified in paragraph 91 above and so the guidance given in Anufrijeva points strongly against the likelihood of a positive obligation being owed pursuant to article 8.”
Sticking to my promise not to include any of my own cases in the 12 chosen ones – and Riccardo Calzavara and I acted for the City of Westminster in Alibkhiet v LB Brent; Adam v City of Westminster  H.L.R. 15 where judgment was handed down on 6 December 2018 (see the case review here) – I have opted in this month for the homeless case of R (AR) v LB Hammersmith & Fulham  EWHC 3453 (Admin).
The AR case concerned a local authority’s refusal to accommodate a Lithuanian national who had become homeless. He was not eligible for housing assistance and DHCJ Markus QC found that the authority had no power to accommodate him under the Care Act 2014 as there was no need “for care and support”.
As for a local authority’s general powers under the Localism Act 2011, section 1, this could not “get round” the aforementioned ineligibility for housing assistance and section 2 prevented section 1 from being used to do something which was prohibited by another statute.
And so the judge concluded at para. 43:
“The defendant’s decision not to provide accommodation under the Care Act 2014 was lawful. The defendant would not be able to provide accommodation to the claimant under section 1 of the Localism Act 2011, even if he were not excluded from such provision pursuant to schedule 3 of the Nationality Immigration and Asylum Act 2002. But, in any event, the claimant is excluded from such provision pursuant to schedule 3. Accordingly, I dismiss the application for judicial review.”
Ruchi Parekh and I acted for Dacorum Borough Council in a PSED case in which the Court of Appeal handed down judgment this month – Dylan Powell v Dacorum Borough Council  H.L.R. 21 (see the case review here).
Mrs Justice Chema-Grubb DBE also handed down judgment in January 2019 in another PSED case of Forward v Aldwyck Housing Group Ltd  H.L.R. 20 (see the reference to the Court of Appeal judgment in July 2019).
However, my choice of case for this month betrays my continuing “affection” for and interest in benefit decisions following on from my introduction to the same in the mid 1980s at the Northampton Welfare Rights Advice Group. On the same day as the Powell judgment, Upper Tribunal Judge Paula Gray allowed a landlord’s appeal, and ordered a re-hearing, against a First-tier Tribunal decision that housing benefit should be paid to 2 of her tenants rather than to her.
In ST v Sunderland City Council  P.T.S.R. 1291 the Upper Tribunal provided guidance on the application of the Housing Benefit Regulations 2006 reg.95(1)(b), which provide for housing benefit to be paid to a claimant’s landlord where they owed eight weeks’ rent arrears but not if it was in their “overriding interest” for direct payments to be made to the landlord. The judge provided some limited guidance on the overriding interest exception:
“28. The interest being considered is that of the claimant: whether or not the landlord is a fit and proper person to receive direct payments cannot be considered under this exception because one exists under regulation 95 (3) (see paragraph 20 above).
29. Matters directly relevant to a particular claimant must be considered; for example, known previous rental difficulties and matters that might impact on the ability to budget such as addiction or other vulnerability.
30. The question of overriding interest cannot be answered on the basis that it is assumed to be in the interests of the tenant to receive direct rent as part of a policy of financial inclusion, or indeed for any other generic reason; individual criteria need to be considered by the housing authority in each case. Such issues may form part of the picture, but so must be the interest in the tenant retaining the accommodation they have secured: I note that the DWP at paragraph 15 of the circular AS2/2009 points out that the intention behind regulation 95 (1) (b) is to provide landlords with the security of direct payment as an alternative to seeking possession on a mandatory ground and so avoid a situation where a tenant is evicted under housing legislation. That is not binding on me, but I do not disagree with it.“
There was another housing benefit case this month, this time before the Court of Appeal in Lebbie v LB Bromley  2 WLUK 294, on the issue of the recoverability of housing and council tax benefits overpayments, as well as a couple of housing allocation scheme challenges (one of which involved Kelvin Rutledge QC and I for the local authority) and a Court of Appeal judgment in a (homeless) suitability case (Kannan v LB Newham  H.L.R. 22).
I have though opted for R(B) v LB Redbridge  EWHC 250 (Admin) where DHCJ Jeremy Johnson QC declined to order a local authority to conduct a second statutory (s. 202) review of its decision that s.193(2) accommodation it was providing was affordable and suitable for the claimant. In essence, the authority had no statutory obligation to conduct a second review, and the applicant had the options of asking for an extra-statutory review or an updated decision as to suitability, or could make a fresh housing application.
Paragraph 35 of the judgment said:
“In my judgment, it is not open to the Court to read a caveat in to s202(3) so that it does not apply to s202(1)(f). The meaning of s202(3) is clear on its face: any request for a review under s202, whether made under s202(1)(a) or s202(1)(f) or any of the other paragraphs of s202(1), must be brought within 21 days (or such longer time as is permitted by the local authority). The interpretative obligation under s3 Human Rights Act 1998 does not here arise. Conventional canons of interpretation do not enable the type of re-writing of s202(3) that the Claimant requires. In any event, I do not agree that the consequences of applying s202(3) to a s202(1)(f) request are as significant as is suggested. A local authority can be asked to consider a request out of time. In deciding whether to consider a request out of time the local authority must act rationally. If it does not do so it can be challenged by judicial review – see C v London Borough of Lewisham  EWCA Civ 927 per Ward LJ at .”
My instructing solicitor (Kirsty Varley) and I acted for the housing association in the possession estoppel case of Salix Homes v Mantato  1 W.L.R. 3609 (the case review is here), and Cornerstone Barristers’ David Lintott acted for the successful authority in Godson v LB Enfield  EWCA Civ 586, a case concerning intentional homelessness and the refusal of accommodation, in which my colleague David Lintott acted for the successful authority and wrote a case review.
I have opted however for another judicial review challenge judgment this month – R (SN & ors) v (1) LB Enfield (2) LB Haringey  EWHC 793 (Admin), in which Michael Paget acted for one of the successful authorities. DHCJ Anne Whyte QC found that a local authority had not erred in ceasing to provide three young children and their mother with accommodation and subsistence under the Children Act 1989 s.17. Although it had erred in citing the family’s lack of physical presence in the borough as a reason for deciding that the children were not in need, its assessment had been conducted in good faith and reasonable enquires had been made.
Paragraph 31 of the judgment said:
“I do not accept the claimants’ submissions that the assessment was rushed or inadequate because of the wrong approach to physical presence and/or because Enfield assumed that if any borough had responsibility, it was Haringey. I find, on the material before me, that the assessment was conducted in good faith and that reasonable enquiries were made with sufficient diligence. Sufficient account was taken of PN’s medical condition. The fact that the enquiries did not reveal a source of income for SI does not particularly assist the claimants. SI had plainly had a source of income throughout 2018 but did not satisfactorily reveal or explain it to those assessing her childrens’ situation. I note the assessment that there was a 7 out of 10 danger that the children might become homeless in the future and that they might temporarily have been homeless in 2017 but that does not render the basic assessment unlawful. Enfield was under a duty to take reasonable steps to assess whether the children were in need at the point of assessment and I have found, on the facts, that they did so.“
Mrs Justice Thornton DBE decided in Marian Dahir Mohamed v LB Barnet  3 All ER 901 that the occupation of temporary accommodation provided by a local authority did not attract security of tenure by the operation of the Housing Act 1985, Schedule 1 para.6(b) because the licence to occupy the property enabled the landlord to obtain vacant possession when required.
At para. 59 of her judgment she concluded:
“Applying my analysis to the present case: The licence arrangement between Rent Connect and the Council was for an initial fixed term of 12 months followed by a periodic (monthly) occupation. It was a periodic arrangement by the time Ms Mohamed took occupation in April 2017. Ms Hodgson submitted that the facts are analogous with the case of Abdi. Mr Lee disputed this saying the arrangement is a hybrid fixed term/periodic one. I accept Ms Hodgson’s submission that the facts are akin to the indeterminate arrangement in Abdi. As mentioned above, I accept Ms Hodgson’s submission that the parties to the arrangement between Rent Connect and the Council would not have been able to answer the question “when does this arrangement end?” In Abdi the provision was for possession on ‘not less than 7 days’ notice’. Clause 5.2 provides for possession ‘on not less than 14 days’ notice’. I can see no material difference between the two notice requirements. In line with Mann LJ’s decision in Abdi, I find that Rent Connect can obtain possession when it requires. This is sufficient because the licence is periodic. Accordingly, paragraph 6b) is satisfied and Ms Mohamed has no security of tenure. The difficulties of applying the construction of paragraph 6b) proposed by Mr Lee is apparent when applied to the facts of this case. Clause 5.2 provides for Rent Connect to take possession on not less than 14 days’ notice. It is difficult to see how there can be any security of tenure with a provision such as this. Yet on Mr Lee’s interpretation there would be security of tenure because Clause 5.2 does not also provide for possession at the expiry of every month.“
At the risk of breaching Patrice Evra’s copyright, I love the public sector equality duty (see my article from 30 July 2019 here). On 23 May 2019 Mr Justice Turner delivered a typically impressive judgment in London & Quadrant Housing Trust v Patrick  EWHC 1263 (Admin).
The High Court reviewed existing authorities and set out the factors that might be relevant to the exercise of the public sector equality duty to possession claims issued by a social landlord. It concluded that the tenant’s service of evidence of his disability two days before the hearing of a possession claim brought the duty into play, but did not mean that the judge was required to postpone the determination of the possession claim.
Mr Justice Turner’s conclusion is expressed at para. 51 of the judgment:
“I am satisfied that, in the instant case, although Mr Salmon completed his formal assessment after the possession order had been granted, the timing was not such as to undermine the decision to enforce possession. It would have been open to the Trust, in the light of any further consideration of its PSED, to decide not to proceed to take possession. Mr Salmon’s assessment, however, provided no basis upon which such a course would be considered to have been appropriate. Even if the Trust were in breach of its PSED, as the Judge below was willing to assume, there is no good reason on the facts of this case to categorise such a breach as being incapable of remedy through subsequent compliance.“
In R(Z & anor) v (1) LB Hackney (2) Agudas Israel Housing Association  EWCA Civ 1099 the Court of Appeal heard an appeal from a judgment of the Divisional Court in February 2019 (the case review is here) and found that a housing association had not unlawfully discriminated against other applicants by allocating social housing only to members of the Orthodox Jewish community. Matt Hutchings QC acted for the successful authority.
Lord Justice Lewison concluded at para. 87:
“In short, I consider that the Divisional Court answered the questions posed by Coll:
i) The disadvantage to non-members of the Orthodox Jewish community was the withdrawal of 1 per cent of the potentially available units of accommodation.
ii) The scale of that disadvantage was minuscule.
iii) The needs of the Orthodox Jewish community linked to the relevant protected characteristic were many and compelling.
iv) The allocation of properties to non-members of the Orthodox Jewish community would fundamentally undermine AIHA’s charitable objectives. Thus there was no more limited way of achieving the legitimate aim.
v) Weighing these factors together, AIHA’s allocation policy was proportionate.”
As noted in September 2018, we had the Court of Appeal judgment this month in Livewest Homes and the same court’s judgment in Forward (see January 2019).
I have though chosen Yildiz v LB Hackney  EWCA Civ 1331. This post-succession possession claim appeal decided that in issuing proceedings to seek possession of a property in reliance on Ground 15A of Schedule 2 to the Housing Act 1985, a local authority had failed to issue proceedings either within the currency of the notice itself or within 12 months of the relevant date specified in it.
Lord Justice Newey said at para. 16 of the judgment:
“Where a landlord brings proceedings for possession relying on ground 15A, notice of those proceedings must, as I see it, have been served under section 83 less than 12 months after the “relevant date”. Section 83 provides, however, for a notice to cease to be in force 12 months after the date specified in it. The better view, I think, is that that means that a notice cannot constitute notice of proceedings begun more than 12 months later than the specified date. In other words, it is not good enough that the landlord at some stage, however long ago, served a notice which, pursuant to both its own terms and those of section 83, is now spent. A notice must still be current if a landlord is to issue possession proceedings on the strength of it. In the absence of a relevant notice (because either none was ever served or any notice that was served had expired), a claim for possession based on ground 15A will be possible only if the proceedings were begun less than 12 months after the ‘relevant date’.“
There may have been other housing cases decided this month which were worthy of selection, such as the section 204(4) interim accommodation matter of R(Laryea) v LB Enfield  8 WLUK 164, but how could I not select Adesotu v LB Lewisham  EWCA Civ 1405, an appeal from an order of HHJ Luba QC.
Dean Underwood successfully led Riccardo Calzavara in this homelessness/discrimination appeal. The Court of Appeal determined that an appeal against a homelessness decision based on disability discrimination and brought under section 204(1), Housing Act 1996 was not “a claim for judicial review” within the meaning of the Equality Act 2010, section 113(3)(a) and therefore had to be brought in accordance with section 113(1) of the 2010 Act.
As the case note on this judgment said:
“The Court of Appeal has today affirmed in Adesotu v Lewisham LBC, EHRC intervening  EWCA Civ 1405 that in a homelessness appeal under s.204 of the Housing Act 1996 (“HA 1996”) the County Court does not have jurisdiction to determine claims of alleged disability and/or indirect discrimination in the discharge of a local housing authority’s homelessness functions. The effect is that applicants must litigate any such allegations in a County Court claim.“
I saw at first hand the tremendous work of Dean at first instance, and the impressive efforts of both him and Riccardo on appeal. This case left open for another day the question of the challenge in a section 204 appeal to an antecedent policy, where the challenge does not arise from the review decision.
So there we have it. 12 cases all helping us understand housing law that little bit better. Of course, the reader may well, as already noted, have chosen different cases, and much good work goes on on all sides in other courts and tribunals, but the cases demonstrate the importance, range and potential complexity of housing law.