Housing case law update

Jonathan Hulley, Michael Owen and Helen Gascoigne review the latest housing law cases, which cover issues such as tenancy agreements and the provision of extra services, housing allocation and residence requirements, and the adoption of a new housing enforcement policy.

Curo Places Ltd v Pimlett [2019] UKUT 130 (LC)

Upper Tribunal (Lands Chamber), 18 April 2019

The Upper Tribunal has held that a landlord was unable to vary a tenancy agreement and add extra services.

The respondent (Mr Pimlett), an assured tenant, had resided in a self-contained bungalow within a sheltered housing scheme for older persons since August 2008. The appellant housing association (Curo Places) wanted to charge Mr Pimlett for ground maintenance. Historically, the landlord had no right to charge for this through the service charge; however, for tenancies granted from 2010 onwards, the wording in the tenancy agreement was changed to require tenants to pay a contribution towards ground maintenance through the service charge. No change was made for existing tenants (including Mr Pimlett), but later Curo Homes decided to operate a clause in the tenancy agreement which allowed it to “provide extra services if it believes this would be useful”. They argued that clause entitled them to charge the tenants for ground maintenance.

Curo Homes argued that the expression “extra services” meant services extra to those listed in the tenancy agreement. However, the First-tier tribunal held that Curo Homes was not entitled to recover the extra charge, as “extra” services meant services from which tenants had not previously benefited. Curo Homes appealed.

The Upper Tribunal, in dismissing the appeal, held that when the tenancy was granted, both the landlord and tenant were aware that the grounds were maintained by the landlord and there was nothing to indicate any prospect of the situation changing. The purpose of the tenancy agreement was to provide Mr Pimlett with a bungalow in attractive grounds, which could be expected to be maintained (rather than neglected) by the landlord. These were the facts and circumstances known or assumed by the parties when the tenancy agreement was executed.

The Upper Tribunal was expressly asked not to consider whether the clause was an Unfair contract term under the relevant consumer contract regulations. It is our view that such clauses, which allow one party to unilaterally change the terms of the agreement are likely to be unfair and unenforceable.

A copy of the judgment is here.

Mohamed v London Borough of Barnet [2019] EWHC 1012 (QB)

High Court, 17 April 2019

The High Court has held that the occupation of temporary accommodation provided by a local authority did not attract security of tenure because the licence to occupy the property enabled the landlord to obtain vacant possession when required.

The London Borough of Barnet had placed the tenant (Ms Mohamed) in a privately-owned property, which was managed by an agent. The licence agreement between the agent and London Borough of Barnet was initially for 12 months and thereafter on a monthly basis; termination of the licence required 14 days’ notice. When Ms Mohamed occupied the property, the agreement had become a periodic monthly licence.

At a later date, the London Borough of Barnet sought possession and issued a notice to quit. The County Court held that Ms Mohamed did not have security of tenure. Ms Mohamed appealed, arguing that she was a secure tenant.

The High Court, in dismissing the appeal, confirmed that where a licence agreement becomes periodic, it will be sufficient for it to contain a term enabling a landlord to terminate by giving a certain period of notice (i.e. 14 days in this case).

This decision will be of interest to local authorities - and those that have similar agreements in place with private landlords should ensure that any periodic licence agreements have been adjusted in order to prevent increased security arising.

A copy of the judgment is here.

R (on the application of Ward and others) v The London Borough of Hillingdon and others [2019] EWCA Civ 692

Court of Appeal, 16 April 2019

The Court of Appeal has held that a council’s housing allocations scheme, which included a ten-year residence requirement, indirectly discriminated against Irish Travellers and non-UK nationals.

The London Borough of Hillingdon had amended its social housing policy in 2016, which included a condition that only households with at least 10 years’ continuous residence in-borough could qualify to join its housing register. Despite undertaking several equality impact assessments prior to the change in policy, these assessments did not consider the impact of the residence requirement on Irish Travellers or non-UK nationals, who were significantly less likely to have resided in a particular location in the UK continuously for at least ten years. Those applicants that did not satisfy the necessary residence requirement, but fell under the reasonable preference category, would be placed onto the housing register under a newly created Band D (the lowest band available).

In this conjoined case, an Irish Traveller and a Kurd of Turkish nationality, who had refugee status, were both placed in Band D. Both parties claimed that they were at a disadvantage in being able to satisfy the 10-year residence requirement, in order to receive housing

The Court of Appeal, in allowing the appeal, held that the policy unlawfully discriminated against Irish Travellers and non-UK nationals.

The decision is of importance to local housing authorities that have similar residence requirements in their housing allocations schemes, and who may need to justify a similar policy that could indirectly discriminate against particular groups. It will be interesting to see how the London Borough of Hillingdon revises its scheme in light of this ruling.

A copy of the judgment is here.

Humber Landlords Association v Hull City Council [2019] EWHC 332 (Admin)

High Court, 6 March 2019

The High Court has refused an application by a landlords' association for judicial review of a council's decision to adopt a new housing enforcement policy.

Humber Landlords Association sought judicial review of Hull City Council’s decision to revise and replace its private sector housing enforcement policy 2018 - 2022. The policy set out how it intended to carry out its obligations under Part 1 of the Housing Act 2004, to enforce housing standards and address hazardous housing conditions in the private rental sector.

The policy stated that informal enforcement action would be taken where there was a hazard and the landlord was a member of the Council’s new Hull Accredited Landlord Scheme (HALS), or where insignificant category 2 hazards were found. Humber Landlords Association sought a judicial review in order to quash this revised policy. Much of the Association's objection to the policy was based on the proposition that the Council would take formal enforcement action in all other cases.

The High Court, in refusing the application, held that the Association’s interpretation of the policy was incorrect - policy interpretation was a matter for the court itself. It also rejected the Association’s arguments that the Council’s motivation to protect tenants from retaliatory evictions and to compel landlords to join the new HALS were unlawful – they were in fact relevant factors to be considered when drafting the new policy.

The decision will be of particular interest to local authorities looking to draft or revise their policies.

A copy of the judgment is here.

Investigation into a complaint against Royal Borough of Kensington & Chelsea (reference number: 18 002 277)

The Local Government and Social Care Ombudsman, 5 March 2019

The Local Government and Social Care Ombudsman has held that a local authority provided unsuitable temporary accommodation to a disabled woman, resulting in her remaining in the property for 14 months longer than was necessary.

The woman (Ms X) had applied to the Royal Borough of Kensington & Chelsea for housing assistance. She had been sleeping in an airport and suffered from balance problems and dizziness. A housing officer incorrectly recorded that she was able to climb several flights of stairs, which resulted in her being offered temporary accommodation on the fourth floor of a B&B hotel. Ms X subsequently requested a review of the suitability of the accommodation, which was supported by a GP report. The report was not passed on to the Council’s placement team. Ms X was eventually informed that she was owed the full housing duty - 55 weeks from the date of the original application.

The Local Government and Social Care Ombudsman ordered the Royal Borough of Kensington & Chelsea to pay Ms X £3,500 due to the hardship, and deterioration in her health, caused by her 14-month stay in the unsuitable accommodation.

The decision is a warning to local authorities to ensure that homelessness review decisions are carried out in a timely fashion and within the time limits prescribed by the Homelessness (Review Procedure etc.) Regulations 2018

A copy of the decision is here.

Jonathan Hulley and Michael Owen are partners and Helen Gascoigne is an associate at Capsticks. The original version of this article is available on the Capsticks website.