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Housing case law update: October 21

Daniel Skinner, Sarah Christy and Kirsten Taylor round up the latest housing law judgments and Ombudsman reports of interest to housing associations and local authorities.

Fairhurst v Woodard

County Court (Oxford), 12 October 2021

The County Court has ruled that the use of security cameras on a home breached the Data Protection Act 2018 and the General Data Protection Regulation in regard to his neighbour’s privacy.

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The Claimant (Dr Fairhurst) launched an invasion of privacy claim against her neighbour (Mr Woodard). Mr Woodard had installed a smart doorbell camera and placed another camera on his shed, which Dr Fairhurst said infringed her privacy, as the location of the cameras meant that she felt she was under constant surveillance. Mr Woodard said that he had installed the two cameras to monitor the car park in order to help prevent his car from being stolen. Both parties’ houses backed onto a shared car park. Whilst, the doorbell camera system captured Mr Woodard’s driveway, Dr Fairhurst claimed that it also monitored her house and garden, whilst the camera on the shed was capable of displaying and recording images of her moving around her property.

The County Court, in allowing the claim in part, held that whilst Mr Woodard may have been justified in installing the cameras for crime prevention reasons, he had breached the Data Protection Act 2018 and the General Data Protection Regulation, as his surveillance system captured personal data and images of people outside the boundary of his home. Damages were to de decided at a later date.

The ruling is thought to be the first of its kind in the UK and could set a precedent for future claims.

A copy of the judgment is here.

R (Ibrahim) v Westminster City Council [2021] EWHC 2616 (Admin)

High Court, 1 October 2021

The High Court has held that a council’s refusal to treat a homeless person’s further application for accommodation as a new application was wrong.

The applicant (Ms Ibrahim) had sought homelessness assistance from Westminster City Council under the Housing Act 1996. Ms Ibrahim, who had been granted asylum in the UK, had previously been provided with accommodation in Middlesbrough but had left it after a neighbour had entered her flat uninvited, triggering her post-traumatic stress disorder. However, Westminster City Council decided that Ms Ibrahim had made herself intentionally homeless, which it confirmed following a review. Ms Ibrahim later made a fresh application, which was supported by a report from a consultant psychiatrist that stated that her mental health would further deteriorate if she had to return to Middlesbrough. However, Westminster City Council refused to treat this second application as a new application, stating that there had been no change in the facts or circumstances. Ms Ibrahim applied for a judicial review of the decision.

The High Court, in granting the application, rejected Westminster City Council’s finding that a new application is dependent on the occurrence of a new fact, circumstance or event that postdates the original decision. The Court held that Westminster City Council needed to compare the facts and circumstances that it was aware of at the time of its original decision with those identified in what Ms Ibrahim considered to be a new application. If it had done so, it should have realised that the medical evidence provided by the consultant psychiatrist went beyond what it had previously considered. Consequently, the Court found that the two applications were not the same.

A copy of the judgment is here.

Spahi-Shoaib v Kingston upon Thames Royal London Borough Council

County Court (Central London), 31 August 2021

A County Court has held that a council had erred in its determination of whether a father was in priority need for housing.

A mother, who had a history of drug use, was unable to look after her teenage children. The children’s father applied to Kingston upon Thames Royal London Borough Council for accommodation and was placed in temporary accommodation outside of the Borough while his application was being considered. The children stayed with a family member. After assessing the application, Kingston upon Thames Royal London Borough Council decided that the father did not have a priority need for housing, as (1) his children were not living with him, and (2) section 189 of the Housing Act 1996 (“priority need for accommodation”) did not apply, as the children were not currently ‘dependent’ on him (as they lived with another family member). The father appealed.

In allowing the appeal, the County Court, held that Kingston upon Thames Royal London Borough Council should have considered whether the children may reasonably be expected to be dependent on their father, rather than whether they were currently dependent on him, and if so, whether it could reasonably be expected that they may live with him at some point in the future.

A transcript of this decision is not available.

Stonecrest Marble Ltd v Shepherds Bush Housing Association Ltd [2021] EWHC 2621 (Ch)

High Court, 23 September 2021

The High Court has held that a landlord was not liable for damage caused to the tenant’s property by water ingress, resulting from its failure to clean or repair the parts of the building of which it retained control.

The tenant (Stonecrest Marble Limited) notified its landlord (Shepherds Bush Housing Association Limited) of water ingress at its property, caused by a blocked downpipe and an overflowing gutter, which eventually caused substantial damage that resulted in the property becoming unusable for the permitted use. The lease allowed Stonecrest Marble Limited quiet enjoyment of the property and required Shepherds Bush Housing Association Limited to clean, maintain and repair the common parts. Shepherds Bush Housing Association Limited had to insure the property against “insured risks”, including “flood ... and overflowing of water ... apparatus”, although it had no obligation to repair anything that it did not have to insure. Stonecrest Marble Limited accepted that the accumulation of debris in the gutter was not an “insured risk”. However, Stonecrest Marble Limited claimed that Shepherds Bush Housing Association Limited was in breach of the covenant for quiet enjoyment for failing to investigate the cause of the water ingress and carry out the necessary work to unblock the gutter.

The High Court, in dismissing the claim, held that Shepherds Bush Housing Association Limited did not owe a duty to Stonecrest Marble Limited to prevent the water ingress and, consequently, was not liable for any loss it suffered. The lease did not include an obligation to inspect, clean or maintain the guttering, and Shepherds Bush Housing Association Limited did not have to insure against the risk of damage to the property by water ingress caused by an overflowing gutter. There had been no breach of the covenant for quiet enjoyment

A copy of the judgment is here.

Investigation into a complaint against Birmingham City Council (reference number: 20 007 658)

Local Government and Social Care Ombudsman, 6 October 2021

The Local Government and Social Care Ombudsman (LGSCO) has upheld a complaint made against Birmingham City Council after a housing applicant faced excessive delays in the processing of her application to join its housing register and was then allocated the wrong priority band.

Mrs X, whose husband had a mental illness and whose children all slept in one bedroom, applied to join Birmingham City Council’s housing register. Her application was placed in Band 3 but Mrs X asked Birmingham City Council to reconsider its decision; this resulted in her application being placed in Band 2 (for applicants who don’t have two bedrooms or whose health is directly affected by their current accommodation), although it wasn’t backdated. The whole process took five months.

The LGSCO held that Mrs X should originally have been in Band 2 and that the application process should have only taken four to six weeks (not five months). Mrs X had been placed at a disadvantage, as other applicants had joined the housing register. Birmingham City Council was told to apologise to Mrs X and backdate her priority band date to the date when she first applied to join the housing register.

A copy of the decision is here.

Daniel Skinner is a partner, Sarah Christy is an associate and Kirsten Taylor is a solicitor at Capsticks.

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