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Housing case law update - December 2020

Christopher Skinner, Sarah Christy and Ian Larkins round up the latest judgments affecting housing associations and local authorities.

Curo Places Ltd v Pimlett [2020] EWCA Civ 1621

Court of Appeal, 1 December 2020

The Court of Appeal has held that the terms of a tenancy agreement entitled the landlord to add grounds maintenance to the services for which it could charge.

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Mr Pimlett, an assured tenant, had resided in a self-contained bungalow within a sheltered housing scheme for older persons since August 2008. The housing association (Curo Places) wanted to charge Mr Pimlett for grounds 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. Curo Homes appealed.

The Court of Appeal, in allowing the appeal, held that the meaning of the power to add “extra services” was a power that enabled the landlord to add to the list of services that had originally been specified in the tenancy agreement. As the grounds maintenance was not an original listed service, it could be added and the costs of the service recovered through the service charge.

It should be pointed out that the Upper Tribunal was expressly asked not to consider whether the clause in the tenancy agreement was an unfair contract term under the Unfair Terms in Consumer Contract Regulations, and this was not argued by the Court of Appeal.

A copy of the judgment is here.

London Borough of Bromley v Broderick [2020] EWCA Civ 1522

Court of Appeal, 16 November 2020

The Court of Appeal has held that when considering whether a local authority's housing duty had come to an end following an applicant’s refusal of an offer of accommodation, the accommodation’s “suitability” had to be determined by reference to the position at the date when the offer was made.

Miss Broderick, a victim of domestic abuse, and her four-year-old son applied to the London Borough of Bromley for accommodation. London Borough of Bromley accepted that it owed her a housing duty under section 193 of the Housing Act 1996 and offered her temporary accommodation in Kent. Miss Broderick, who suffered from anxiety and depression, was concerned about the 30 miles distance between the property and her family in Bromley. She subsequently refused the offer and nine days later London Borough of Bromley told her that its duty towards her had ceased. Miss Broderick requested a review of the decision, but the reviewing officer upheld the original decision, stating that there was a lack of suitable social housing in the borough and that most temporary accommodation was located outside of the borough. Miss Broderick appealed to the County Court, which allowed the appeal, finding that London Borough of Bromley had taken a “restrictive approach” in their consideration of availability of accommodation in-borough and had provided no reasons as to why further inquiries were not made into the availability of accommodation after the date of the offer letter and Miss Broderick’s refusal of accommodation. Therefore, London Borough of Bromley still owed a housing duty to Miss Broderick. London Borough of Bromley appealed.

The Court of Appeal, in allowing the appeal, held that the suitability of accommodation only needs to be considered once and that the housing duty under section 193 of the Housing Act 1996 can cease once a suitable offer has been made to an applicant. The suitability of an offer of accommodation should be determined “on the basis of the position at the date the offer was made”.

A copy of the judgment is here.

Hussain and others v London Borough of Waltham Forest [2020] EWCA Civ 1539

Court of Appeal, 19 November 2020

The Court of Appeal has held that licensing authorities are entitled to take into account an applicant’s conduct underlying spent convictions before issuing an HMO licence.

Mr and Mrs Hussein owned and managed residential rental properties. The properties were subject to houses in multiple occupation (HMO) licensing requirements under the Housing Act 2004. In 2016, Mrs Hussein applied for HMO licences for seven properties, but falsely claimed that they did not contain any gas appliances. When the London Borough of Waltham Forest challenged these HMO applications, Mr Hussein provided forged gas certificates and was convicted of forgery. His conviction became spent in June 2019 under the Rehabilitation of Offenders Act 1974. Mrs Hussein was also convicted for supplying false information on the gas appliances and this conviction became spent in May 2018. As a consequence of the convictions, London Borough of Waltham Forest rejected the 2016 HMO applications and revoked 29 existing HMO licences. The Husseins appealed against the decision, arguing that London Borough of Waltham Forest and the court could not take into account their spent convictions or their criminal conduct which resulted in those convictions, but this was rejected by the First-tier Tribunal. On appeal, the Upper Tribunal (Lands Chamber) found in favour of London Borough of Waltham Forest, ruling that behaviour underlying a conviction that is spent can be taken into account when a local authority is considering whether someone is a “fit and proper person” to hold an HMO licence. The Husseins appealed.

The Court of Appeal, in dismissing the appeal, held that whilst the Rehabilitation of Offenders Act 1974 prevented the spent conviction being considered, it did not prevent London Borough of Waltham Forest (or the courts) from considering the facts that led to the Husseins’ criminal convictions.

The decision will be of interest to housing authorities for when they are determining whether an HMO applicant is a “fit and proper person”, and it provides clarity on how the courts will treat spent convictions.

A copy of the judgment is here.

Nikolaeva v London Borough of Redbridge [2020] EWCA Civ 1586

Court of Appeal, 27 November 2020

The Court of Appeal has held that the nomination of a housing applicant to a housing association by a local authority did not amount to a “final offer of accommodation”, as accommodation may never be provided.

Ms Nikolaeva applied to London Borough of Redbridge for housing assistance on account that she was homeless. London Borough of Redbridge accepted that it owed Ms Nikolaeva the main housing duty under section 193(2) of the Housing Act 1996 and nominated her for a housing association property. However, it also stipulated that if the nomination was successful and she was offered a property, the offer would constitute a final offer of accommodation and that if she refused the offer, its housing duty would cease. Ms Nikolaeva was subsequently offered the property but refused to sign the tenancy agreement due to concerns with some of the terms. Although she did not refuse the property, London Borough of Redbridge said that the refusal to sign the tenancy amounted to a refusal of a “final offer of accommodation”. A reviewing officer confirmed the decision. Ms Nikolaeva appealed, but the County Court dismissed it, ruling that the reviewing officer had been correct to find that the offer had been refused. Ms Nikolaeva appealed the decision.

The Court of Appeal, in dismissing the appeal, held that the reviewing officer had been entitled to find that Ms Nikolaeva had refused the offer. It confirmed that a nomination was not itself a “final offer of accommodation” as a property may not be provided, but in this particular case the nomination was successful and the offer of a tenancy therefore amounted to a “final offer of accommodation”.

The decision confirms to local authorities that a nomination to a housing association does not amount to a “final offer of accommodation” and that an actual tenancy needs to be offered. Local authorities should also take note of the Court’s criticism of the reviewing officer’s “confusing” report, with the judge commenting that review decisions must be “concise where possible, contain an accurate record of the relevant facts and are structured in a way which enables the reader easily to follow the conclusions which have been reached and the reasons for those conclusions.”

A copy of the judgment is here.

XXX v Camden London Borough Council [2020] EWCA Civ 1468

Court of Appeal, 11 November 2020

The Court of Appeal has dismissed an appeal against a court’s refusal to make orders anonymising the appellant's name and redacting certain personal details from published judgments in judicial review proceedings relating to the allocation of social housing.

The appellant (“XXX”) brought a judicial review claim against Camden London Borough Council after she had applied for social housing but been awarded zero points in respect of medical conditions. She did not apply for anonymity at any of the hearings and the judgments were given in open court. Her claim was dismissed. She subsequently sought an anonymity order to retrospectively prevent the publication of her name and sensitive personal information regarding her physical and mental health disabilities, but this application was dismissed by the High Court (although it granted her anonymity in relation to the High Court hearing). XXX appealed.

The Court of Appeal dismissed the appeal. Section 166(4) of the Housing Act 1996 prevented the disclosure, without consent, of the fact that a person was an applicant for an allocation of housing accommodation. However, the Court of Appeal held that this section did not extend to providing anonymity to claimants seeking judicial review of housing allocation decisions made by councils.

A copy of the judgment is here.

Stanley v Welwyn Hatfield Borough Council [2020] EWCA Civ 1458

Court of Appeal, 6 November 2020

The Court of Appeal has held that the parties in a homelessness review can agree an extension of time for the local authority to reach its review decision without the parties having to agree on a specific date by which a decision will be made.

Ms Stanley applied to Welwyn Hatfield Borough Council for homelessness assistance under section 184 of the Housing Act 1996 . However, after assessing her application, Welwyn Hatfield Borough Council concluded that she was intentionally homeless. Ms Stanley requested a review of the decision under section 202 of the Housing Act 1996, and both parties agreed to an extension of time for the review and then a later date for representations. When the date passed without the review decision, the parties continued to correspond, but Ms Stanley’s legal representatives then said that the review was out of time. Welwyn Hatfield Borough Council then gave its review decision, which upheld its original decision. Ms Stanley appealed to the County Court against the original decision and the decision of the review, but they were struck out and dismissed respectively. Ms Stanley appealed against the striking out of the first appeal.

The Court of Appeal, in dismissing the appeal, held that the two parties had agreed to an extension of the time for notification of the review decision, and a specific end date was not required. It also said that if a local authority failed to notify an applicant of a review decision in time, the applicant could only bring an appeal against the original decision or the review decision (but not both).

Local authorities will welcome the decision, as the Court of Appeal has held that a review decision which is reached late may still be valid.

A copy of the judgment is here.

Bullale v City of Westminster Council [2020] EWCA Civ 1587

Court of Appeal, 25 November 2020

The Court of Appeal has held that a local authority’s decision that a homelessness applicant had not been in settled accommodation was “legally flawed” as it had not considered all of the relevant factors when making its decision.

Ms Bullale and her three daughters were living in temporary hostel accommodation provided by London Borough of Hammersmith and Fulham. When she was offered suitable accommodation by the authority, she refused it and consequently had to leave the hostel as the authority’s housing duty had ended. She subsequently obtained a studio flat on an assured shorthold tenancy from a private landlord in the area of City of Westminster Council. However, a few months later the landlord obtained a possession order after complaining that the property was severely overcrowded (despite Ms Bullale arguing that the landlord knew how many people would be living there). Ms Bullale applied to City of Westminster Council for assistance on the basis that she was homeless, but the Council determined that she had become intentionally homeless when she turned down the offer of accommodation and left the original hostel, and that the studio flat had not been settled accommodation because it was overcrowded and could not be seen as suitable. A reviewing officer upheld the decision, finding that Ms Bullale’s last settled accommodation had been the hostel. Following an appeal, the County Court confirmed the decision. Ms Bullale appealed.

The Court of Appeal, in allowing the appeal, held that City of Westminster Council had been wrong to find that Ms Bullale had been intentionally homeless because her accommodation had not been settled due to overcrowding. It held that when determining whether a property amounted to “settled accommodation”, all relevant factors needed to be looked at, including the nature of the occupation; length of the tenancy; whether the arrangement is a commercial one or one between family members or friends; affordability; and overcrowding. City of Westminster Council had only considered the overcrowding issue. The decision was therefore flawed. It was quashed and the matter was remitted to City of Westminster Council for reconsideration.

The decision provides useful guidance to local authorities, highlighting what they need to consider when deciding on what is settled accommodation.

A copy of the judgment is here.

Christopher Skinner is a partner and Sarah Christy and Ian Larkins are associates at Capsticks.

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