Housing case law update: July 2019
Charlotte Rawson and Ian Larkins round up the latest housing law cases, including judgments on housing policies supporting people with protected characteristics, alleged discrimination in not offering housing, and homelessness following shortfalls in benefits.
Livewest Homes Ltd v Bamber [2019] EWCA Civ 1174
Court of Appeal, 10 July 2019
The Court of Appeal has held that ending a fixed term assured shorthold tenancy using a break clause does not require six months’ notice under the Housing Act 1988.
A tenant (Ms Bamber) had a seven-year fixed-term assured shorthold tenancy, which included a 12-month starter period. The tenancy agreement contained a provision by which the tenancy could be ended by the landlord (Livewest Homes) by giving two months' written notice during the starter period. Following repeated breaches of the tenancy agreement, Livewest Homes initiated possession proceedings. However, Ms Bamber argued that the written notice did not comply with the Housing Act 1988, which required a landlord to give at least six months' notice before a possession order could be made. A district court held that Livewest Homes should have served at least six months' notice in writing in accordance with the Housing Act 1988. Livewest Homes successfully appealed this decision, but Ms Bamber appealed.
The Court of Appeal, in dismissing the appeal, held that that the requirement to serve six months’ notice not to renew an assured shorthold tenancy under the Housing Act 1988 only arises where the fixed term tenancy “expires by effluxion of time” and not where a break clause is used.
The decision will be welcomed by social landlords, who will continue to be able to obtain possession during the starter period without being required to give the tenant six months’ notice.
Capsticks represented Livewest Homes.
A copy of the judgment is here.
R (Z and another) v London Borough of Hackney and another [2019] EWCA Civ 1099
Court of Appeal, 27 June 2019
The Court of Appeal has held that a housing association did not unlawfully discriminate against other housing applicants under the Equality Act 2010 by allocating social housing only to members of the Orthodox Jewish community.
In a previous judgment (covered in our February 2019 update – see here), the High Court held that that Agudas Israel Housing Association Limited had been justified in taking “positive action” under the Equality Act 2010 because members of the Orthodox Jewish community suffered substantial disadvantages, harassment and had different needs. The housing association’s policy was also deemed lawful because of its status as a charity that was established to let its properties to Orthodox Jews. The appellants appealed, arguing that the High Court had misapplied the proportionality assessments required by the Equality Act 2010.
The Court of Appeal, in dismissing the appeal, held that (1) section 193(2)(b) of the Equality Act 2010 did not require a proportionality assessment, and that (2) the appellants had failed to establish that the housing allocations policy was within the ambit of articles 8 and 9 of the European Convention on Human Rights.
The decision will be welcomed by organisations whose objectives are to support specific groups of people with protected characteristics.
A copy of the judgment is here.
R (Samuels) v Birmingham City Council [2019] UKSC 28
Supreme Court, 12 June 2019
The Supreme Court has ruled against a local authority that had declared a mother “intentionally homeless” because she had been unable to meet the shortfall between her housing benefit and rent.
A single mother (Ms Samuels) was an assured shorthold tenant of a privately-rented property and was dependent on social security benefits. Her housing benefit did not sufficiently cover her rent and when she fell into arrears, she was subsequently given notice to leave the property. When she applied to Birmingham City Council for accommodation, the council deemed that she was intentionally homeless under the Housing Act 1996 because her rented accommodation was affordable and she could have made up the shortfall in rent through more efficient financial budgeting. Ms Samuels’ subsequent appeals to the County Court and Court of Appeal were dismissed, so she appealed to the Supreme Court.
The Supreme Court, in allowing the appeal, held that Birmingham City Council had adopted the wrong approach when examining whether Ms Samuels’ privately-rented accommodation was affordable.
In finding that Ms Samuels was intentionally homeless, Birmingham City Council had relied on the subjective view of the reviewing officer, rather than an objective assessment of what constituted ‘reasonable living expenses’ in her situation.
The case highlights the need for local authorities to objectively assess the reasonableness of a housing applicant’s living expenses, and not to judge whether the applicant could have better managed their finances.
A copy of the judgment is here.
Ades v Camden London Borough Council [2019] EWHC 1489 (Admin)
High Court, 13 June 2019
The High Court has dismissed a claim that a local authority had acted discriminately by not offering housing to an applicant.
The claimant (Ms Ades) had sought asylum in the UK and was now naturalised in the UK. She applied to the local authority (Camden London Borough Council) for secure council housing on the basis that it would assist her in recovering from her various mental and physical health issues, which she claimed had been exacerbated whilst living in her poorly maintained privately-rented accommodation. Her application failed and she sought judicial review of the decision, arguing that Camden London Borough Council had failed to take proper account of the medical evidence, and that she had been discriminated against on the basis of her race, religion and disability because she was a Jewish refugee and had been referred to the charity Jewish Care when she was assessed as not being eligible for social housing.
The High Court, in dismissing the request for judicial review, held that Camden London Borough Council’s decision had taken into account all the medical evidence available and set out the reasoning behind the decision made. It also held that the council had not been discriminatory, as the suggestion that she seek support from a charity was not inappropriate.
A copy of the judgment is here.
Cornerstone Telecommunications Infrastructure Ltd v (1) Central Saint Giles General Partner Ltd and (2) Clarion Housing Association [2019] UKUT 183 (LC)
Upper Tribunal (Lands Chamber), 7 June 2019
A Tribunal has awarded a landowner and tenant a small proportion of the costs they incurred in relation to a claim under the Electronic Communications Code 2017.
The claimant telecoms operator (Cornerstone Telecommunications Infrastructure Ltd) sought permission from the freeholder (Central Saint Giles General Partner Ltd), under the Electronic Communications Code 2017, to access a block of residential flats to see if it was a suitable replacement for an existing site on which to put communications equipment. Central Saint Giles General Partner Ltd (and its tenant, Clarion Housing Association) initially agreed to allow access, but a dispute arose over the broad terms on which access was sought and the level of an indemnity that Cornerstone Telecommunications Infrastructure Ltd would offer, to cover any claims that might arise from the exercise of the rights.
Whilst the underlying dispute was resolved, Central Saint Giles General Partner Ltd and Clarion Housing Association sought payment of the costs they had incurred in relation to it. The total costs for all parties was more than £100,000, but the Tribunal, who criticised the conduct of all the parties, ordered Cornerstone Telecommunications Infrastructure to pay them only £5,000 each towards their costs, far less than they had paid out.
The low costs award is a warning to parties who dispute the exercise of rights under the Electronic Communications Code 2017 and who try, in the courts’ opinion, to be unnecessarily obstructive regarding the rights of telecoms operators. Whilst warning operators that they “cannot simply demand unquestioning cooperation from property owners”, the Tribunal also stated that it wished “it to be known by other parties who refuse access to their land or buildings for surveys that, whatever the outcome, they cannot expect to recover costs on the scale incurred by the parties in these proceedings”.
A copy of the judgment is here.
Howe v Mahamood [2019] UKUT 155 (LC)
Upper Tribunal (Lands Chamber), 10 May 2019
The Upper Tribunal (Lands Chamber) found that the First-Tier Tribunal had incorrectly determined that it lacked jurisdiction to consider an application contesting a liability and to pay service charges and went on to review the case on the papers.
A tenant (Mr Howe) had applied for a determination of liability to pay and reasonableness of service charges, which included insurance premiums contributions, for the years 2005 to 2017 inclusive. The tenant argued that his contribution towards insurance premiums was not a properly payable amount. The tenant raised different questions for each of the years in questions. However, his application mainly related to whether the landlord (Mr Mahamood) failed to insure the building in accordance with the lease provisions by taking out four separate insurance policies covering, thus leaving out some areas uninsured, and whether the premium demanded by the landlord for each year was correctly calculated in accordance with the lease provisions. At first instance, the First-Tier Tribunal decided that the questions asked by the tenant were not within their jurisdiction, and could not therefore be answered, and that the evidence presented to them was incomplete.
The Upper Tribunal quashed the decision of the First-Tier Tribunal, ruling that it did in fact have jurisdiction to determine the application on the basis of s.27A of the Landlord and Tenant Act 1985. The Upper Tribunal considered the application and found that the lease did not provide for the landlord to place a single insurance for the entire building and rejected the applicant’s argument that parts of the building were left uninsured. The Tribunal held that as the applicant had, in most of the disputed years, already made payment to the insurance brokers directly, his conduct amounted to an agreement or admission so he was no longer entitled to challenge those years. For the later three years, the Upper Tribunal calculated the appropriate amount for the applicant’s contribution despite there being a lack of clarity in the paperwork.
The decision will be welcomed by social landlords, who are being challenged by leaseholders on the reasonableness of, and responsibility for, contributions to insurance premiums.
A copy of the judgment is here.
Charlotte Rawson and Ian Larkins are Associates at Capsticks. Charlotte can be reached on 0121 230 1500 or by email, while Ian can be contacted on 01257 448 154 or by email. This article first appeared on the Capsticks website.
