eflash archive 2008
The following eflashes have been archived as they were published during 2008. For our recent eflashes, please visit our main eflash page or click here to return to the archive.
| 334 | Brent LBC v Muse [2008] EWCA Civ 1447 December 19, 2008, Court of Appeal The Court of Appeal has held that, where a local housing authority secures temporary accommodation for a homeless applicant pursuant to s.193(2), Housing Act 1996, and that accommodation becomes unsuitable by virtue of the applicant's change of circumstances, s.193(5) operates to bring to an end the authority's duty if the applicant refuses an offer of suitable alternative accommodation. |
12/08 | download (pdf) |
| 333 | Banks v Kingston-upon-Thames Royal London Borough Council [2008] EWCA Civ 1443, Court of Appeal, 17 December 2008 The Court of Appeal has held that a decision made pursuant to s.184, Housing Act 1996, that a local housing authority do not owe a person a homelessness duty is "deficient" for the purposes of reg.8(2), The Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (S.I. 1999/71), if it does not address an issue which the reviewing officer relied on to uphold the decision that no duty was owed. |
12/08 | download (pdf) |
| 332 | Earl Cadogan v Pitts and Wang Earl Cadogan v Sportelli Earl Cadogan v 27/29 Sloane Gardens Ltd Earl Cadogan v Grandeden Management Ltd Earl Cadogan v Atlantic Telecasters Ltd [2008] UKHL 71 The House of Lords has held that "hope value" is not to be included in the purchase price for the freehold of a house under the Leasehold Reform Act 1967. Likewise, hope value is not to be included in the premium for a new lease granted under the Leasehold Reform, Housing and Urban Development Act 1993. In an application for collective enfranchisement under the 1993 Act, however, hope value attributable to non-participating tenants can be taken into account in the purchase price for the freehold. |
12/08 | download (pdf) |
| 331 | Knowsley Housing Trust v White Porter v Shepherds Bush Housing Association Honeygan-Green v Islington LBC House of Lords, 10 December 2008 Andrew Arden QC and Iain Colville apppeared for Islington LBC; Christopher Baker represented the Secretary of State for Communities and Local Government (intervening in Knowsley HT and Porter). The House of Lords has held that: (a) the case law on "tolerated trespassers" did not apply to an assured tenant, because the tenancy was not terminated by a possession order until the moment of eviction or delivery up of possession, (b) a secure tenant was entitled to apply to the court to revive the tenancy, having paid off all the arrears due and thus rendered a suspended possession order unenforceable by the landlord, despite having previously failed to comply with the terms of the order, and (c) a secure tenant was entitled to continue to exercise a right to buy claim despite the intervening termination and later revival of the tenancy. |
12/08 | download (pdf) |
| 330 | Grosvenor Estates Limited v Prospect Estates Limited [2008] EWCA Civ 1281 The Court of Appeal held that for the purposes of s.2(1), Leasehold Reform Act 1967, a building which was originally built as and still resembled a house but was let predominantly for use as office accommodation was not a house "reasonably so called" with the consequence that the tenant could not acquire the freehold. |
11/08 | download (pdf) |
| 329 | Wandsworth London Borough Council v Whibley [2008] EWCA Civ 1259 November 14, 2008. Where an authority apply for a date for possession to be fixed after a postponed possession order has been made but the tenant disputes the allegations made against him, the court should hold a hearing to determine whether the terms of the possession order have been breached. |
11/08 | download (pdf) |
| 328 | Webb v Wandsworth LBC Court of Appeal November 12 2008. The Court of Appeal has allowed an appeal against a postponed possession order made against a secure tenant, which order had been based on the anti-social behaviour of the tenant’s son. In exercising her discretion, the judge had wrongly taken into account three prosecutions brought against the son for breach of an ASBO, despite the fact that all three prosecutions had been unsuccessful. |
11/08 | download (pdf) |
| 327 | R (on the application of B) v Greenwich Magistrates Court & Metropolitan Police Service Divisional Court November 10, 2008 The High Court has held that a term in an ASBO prohibiting a person from wearing hooded tops was necessary and proportionate where the purpose of that term was to prevent the defendant from causing fear. |
11/08 | download (pdf) |
| 326 | Mich-Onyibe v Wandsworth LBC November 04, 2008 The Court of Appeal has quashed a judge’s decision to dismiss an appeal under s.204, Housing Act 1996, because the judge failed to give a fully reasoned decision explaining how he dealt with the appellant’s grounds of appeal. The Court of Appeal declined to hear the s.204 appeal themselves and remitted it to the county court for rehearing. |
11/08 | download (pdf) |
| 325 | Birmingham City Council v Shafi & Ellis [2008] EWCA Civ 1186 A local authority that wishes to suppress anti-social behaviour within their area must apply for an ASBO whenever possible. It would be wrong in principle for a court to grant an injunction under s.222, Local Government Act 1972, where the subject matter of the complaint or the terms sought could be dealt with by an ASBO. There may be exceptional cases where s.222 injunctions are appropriate but, in those cases, the court should apply a criminal standard of proof. |
11/08 | download (pdf) |
| 324 | Truro Diocesan Board of Finance v Foley Court of Appeal May and Moore-Bick L.JJ. and Sir John Chadwick October 22, 2008 The Court of Appeal has held that - for the purposes of s.34(1)(b), Housing Act 1988 - “a tenancy” does not include “an agreement for a tenancy”; accordingly, an agreement to grant a Rent Act tenant an assured shorthold tenancy, following the surrender of his protected tenancy and vacation of the property for a 24 hour period, was not caught by the transitional protection afforded by s.34(1)(b). The agreement to grant an assured shorthold tenancy did not take effect as an immediate grant, in accordance with the parties’ intention - rather, it was an agreement for a tenancy to be granted in the future. Nor does s.34(1)(b), interpreted in accordance with the natural meaning of the words used, give rise to an infringement of the tenant’s rights under Article 8 of the Convention. |
10/08 | download (pdf) |
| 323 | Simms v Islington London Borough Council [2008] EWCA Civ 1083 Court of Appeal October 16, 2008 The Court of Appeal has upheld an authority’s decision that a homeless person who suffered from a history of drug addiction was not in priority need under s.189, Housing Act 1996. The authority had taken all the relevant information into account and their decision could not be said to be perverse. Iain Colville of Arden Chambers appeared for the London Borough of Islington. |
10/08 | download (pdf) |
| 322 | Texeira v Lambeth LBC and the Secretary of State for the Home Department [2008] EWCA Civ 1088 2008 The Court of Appeal has made a reference to the European Court of Justice on the question of whether a Portuguese national who has ceased to work in the UK but who has a child in education here retains a right to reside in the UK. Toby Vanhegan of Arden Chambers appeared for the Lambeth London Borough Council. |
2008 | download (pdf) |
| 321 | Cantrell v Wycombe District Council [2008] EWCA Civ 866 August 2008 The Court of Appeal has held that on the correct construction of s.609, Housing Act 1985, positive covenants cannot be enforced against a subsequent purchaser of a relevant freehold, regardless of an express clause to the contrary contained in an agreement registered as a charge on the property. |
2008 | download (pdf) |
| 320 | Onwuama v Ealing London Borough Council [2008] EWHC 1704 (QB) August 2008 The High Court has held that the principles of issue estoppel apply to claims brought for breach of repairing covenants implied by s.11, Landlord and Tenant Act 1985. |
2008 | download (pdf) |
| 319 | R (on the application of M) v Slough Borough Council [2008] UKHL 58 August 2008 For a person to be in “need of care and attention” for the purposes of s.21(1)(a), National Assistance Act 1948, it is necessary for him to need “looking after”. Looking after someone means doing something for a person which he cannot or should not be expected to do for himself, i.e. household tasks or personal care. An asylum seeker who was HIV positive who needed to visit his doctor every three months and keep his medicine refrigerated was not entitled to residential accommodation under the Act. |
2008 | download (pdf) |
| 318 | R (on the application of Heffernan) v Rent Service [2008] UKHL 58 July 2008 The House of Lords has held that a rent officer had adopted the wrong approach in deciding that the whole of Sheffield constituted the relevant “locality” when determining the local reference rent on an application for housing benefit by a tenant who lived in central Sheffield. |
2008 | download (pdf) |
| 317 | Birmingham City Council v Doherty [2008] UKHL Civ 57 July 2008 The House of Lords has held that Kay v Lambeth LBC remains good law and is unaffected by the decision of the ECtHR in McCann v UK. In so holding, the Committee gave further guidance as to the nature of the public law defence that may be raised by a trespasser against a claim for possession. Andrew Arden QC and Terry Gallivan were involved in providing written submissions for Birmingham City Council to the Committee on the effect of McCann. |
2008 | download (pdf) |
| 316 | Manton Securities Ltd v Nazam [2008] EWCA Civ 805 July 2008 The Court of Appeal has held that a tenant had successfully established his right to a tenancy of commercial premises under the doctrine of proprietary estoppel and that the claim to the tenancy should not be defeated simply because the tenant had persistently delayed in paying rent to the landlord. |
2008 | download (pdf) |
| 315 | The Housing and Regeneration Act 2008 July 2008 The Housing and Regeneration Act 2008 received Royal Assent on July 22, 2008. The Act introduces the Homes and Communities Agency, creates the Office for Tenants and Social Landlords (a new regulator for providers of social housing to replace the Housing Corporation) and makes various amendments to existing legislation, including provisions designed to abolish the status of tolerated trespasser. |
2008 | download (pdf) |
| 314 | Newport City Council v Charles Court of Appeal 17 July, 2008 A tenant who continued to pay rent and council tax in the name of his dead mother had made a representation that she was still alive, until after the time limits for the use by the authority of Ground 16 (underoccupation), which gave rise to an effective estoppel; that estoppel was not, however, a proprietary estoppel so that the authority could not use it as the for a claim for possession. Andrew Arden QC was leading counsel for the authority. |
2008 | download (pdf) |
| 313 | Barrett v Southwark LBC [2008] EWHC 1568 July 2008 Whether there is a “good reason” for extending time for appealing against a homelessness decision under s.204(2A), Housing Act 1996, is a question of fact and value judgment. The court should have regard to all the circumstances of the case including whether the appellant’s state of health would probably have caused a reasonable person of his age and experience to act (or fail to act) as he did. |
2008 | download (pdf) |
| 312 | Green v Westleigh Properties Limits [2008] EWHC 1474 (QB) July 2008 The High Court has emphasised that in considering the validity of a statutory notice, it is important to have regard to the context in which the notice is served. Accordingly, it held that a purchase notice served under s.12, Landlord and Tenant Act 1987, was valid, despite the fact that it contained a number of errors. |
2008 | download (pdf) |
| 311 | R (Gilboy) v Liverpool City Council [2008] EWCA Civ 751 July 2008 The Court of Appeal has held that the procedure for review of a local authority’s decision to bring possession proceedings against a demoted tenant provided by the Demoted Tenancies (Review of Decisions) (England) Regulations 2004 (SI 2004/1679) is compatible with Art.8 (right to respect for the home) and Art. 6 (right to a fair hearing). |
2008 | download (pdf) |
| 310 | Lambeth LBC v Johnston [2008] EWCA Civ 690 June 2008 The Court of Appeal has held that where a reviewing officer considers that there is a deficiency in a decision made under s.184, Housing Act 1996, but is minded nonetheless to decide against an applicant, the officer must send a “minded to decide” notice under reg.8(2), Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, even if the officer considers that it is unnecessary to do so in the circumstances. |
2008 | download (pdf) |
| 309 | Lewisham London Borough Council v Malcolm [2008] UKHL 43 June 2008 The House of Lords has held that where a landlord seeks possession against a disabled tenant because of a breach of his tenancy agreement, there is no discrimination contrary to the Disability Discrimination Act 1995 if the landlord would have taken the same action against a tenant who was not disabled but who had committed the same breach. |
2008 | download (pdf) |
| 308 | R (Weaver) v London & Quadrant Housing Trust [2008] EWCA 1377 (Admin) Richards LJ and Swift J 24 June, 2008 The Administrative Court has held that a registered social landlord was a public authority for the purposes of the Human Rights Act 1998 in respect of the management and allocation of its housing stock (including the termination of a tenancy) and accordingly also amenable to judicial review on conventional public law grounds; but that there had been no legitimate expectation or any breach thereof in respect of the landlord’s decision to serve on the Claimant tenant a notice of seeking possession in respect of rent arrears relying on Ground 8, Sched 2, Housing Act 1988. Andrew Arden QC and Christopher Baker of Arden Chambers appeared on behalf of London & Quadrant Housing Trust. |
2008 | download (pdf) |
| 307 | Jones v Merton London Borough Council [2008] EWCA Civ 660 June 2008 The Court of Appeal has held that a tolerated trespasser ceases to be liable to pay mesne profits on the day on which he gives up possession of the property even if he does not notify his former landlord that he has done so. |
2008 | download (pdf) |
| 306 | Hanoman v Southwark LBC [2008] EWCA Civ 624 June 2008 The Court of Appeal has held that where a secure tenant who is exercising his right to buy serves an operative notice of delay under s.153B, Housing Act 1985, subsequent payments of housing benefit may be deducted from the purchase price as if they were payments of rent made by the tenant himself. |
2008 | download (pdf) |
| 305 | The Governors of the Peabody Trust v Reeve High Court, Mr G Moses QC 05 June, 2008 The High Court has held that on a proper construction of a registered social landlord’s assured tenancy agreement, the terms of that agreement could not be varied without the tenant’s agreement. |
2008 | download (pdf) |
| 304 | McCann v The United Kingdom European Court of Human Rights (Application No. 19009/04) 13 May, 2008 The European Court of Human Rights has held that where a local authority obtained a possession order against a former joint secure tenant following termination of the tenancy by notice to quit served by the other joint tenant, there was a breach of Art.8 (right to respect for the home). The applicant’s eviction was not attended by the necessary procedural safeguards in that there was no possibility of an independent tribunal determining whether the interference with his right was proportionate. |
2008 | download (pdf) |
| 303 | Harrow LBC v Ibrahim & Secretary of State for the Home Department [2008] EWCA Civ 386 April 2008 In the context of eligibility for assistance under Pt 7, Housing Act 1996, the Court of Appeal has referred to the ECJ a number of questions relating to the circumstances in which a person may derive a right to remain in the UK through his children. |
2008 | download (pdf) |
| 302 | Honeygan-Green v Islington London Borough Council [2008] EWCA Civ 363 22 April, 2008 The Court of Appeal has held that where a secure tenant applies to exercise the right to buy but then becomes a tolerated trespasser, if the tenancy is subsequently revived by the court, his right to buy application is also revived so it is not necessary for him to commence a fresh application. Iain Colville of Arden Chambers appeared for Islington LBC. |
2008 | download (pdf) |
| 301 | Moran v Manchester CC Richards v Ipswich BC [2008] EWCA Civ 378 Sir Anthony Clarke MR, Tuckey and Wilson L.JJ. April 2008 The Court of Appeal has held that a women’s refuge is capable of being accommodation which it would be reasonable for a person to continue to occupy for the purposes of the Housing Act 1996. |
2008 | download (pdf) |
| 300 | R (Gargett) v Lambeth London Borough Council [2008] EWHC 663 (Admin) April 2008 The High Court has held that a local authority had no power to make a discretionary housing payment under the Discretionary Financial Assistance Regulations 2001 to discharge a tenant’s rent arrears because those arrears accrued while the tenant was not in receipt of housing benefit. |
2008 | download (pdf) |
| 299 | R (Bath) v North Somerset Council Administrative Court April 2008 The Administrative Court has held that a local authority’s decision, following a change of political administration, to alter the manner in which they had proposed in a tenant consultation document to spend the net capital receipt from a large-scale voluntary transfer of the authority’s housing stock, was not in breach of any legitimate expectation. |
2008 | download (pdf) |
| 298 | S v Floyd [2008] EWCA Civ 201 Mummery, Lawrence Collins LJJ and Munby J March 2008 The Court of Appeal has considered the circumstances in which a court should adjourn proceedings in a possession claim based on ground 8, Sch.2, Housing Act 1988, Where there may be a defence based on the Disability Discrimination Act 1995. |
2008 | download (pdf) |
| 297 | Professor Martin Partington CBE made honorary QC Barrister at Arden Chambers has been recognised for his work at the Law Commission on housing and tribunal law. March 2008 Professor Martin Partington CBE has been appointed an honorary Queen’s Counsel alongside four other leading individuals in the legal profession. |
2008 | download (pdf) |
| 296 | R (Shrewsbury & Atcham BC and Congleton BC) v Secretary of State for Communities and Local Government Court of Appeal: Waller, Carnwath and Richards LJJ [2008] EWCA Civ 148 March 2008 The Court of Appeal has held that a process of local government reorganisation conducted by the Secretary of State prior to the passage into law of the Local Government and Public Involvement in Health Act 2007 (the “2007 Act”) was not unlawful. The steps taken had had no legal effect before the commencement of the 2007 Act, section 21 of which authorised those steps, even if only retrospectively. |
2008 | download (pdf) |
| 295 | R (Ahmad) v Newham LBC Court of Appeal Sir Anthony Clarke MR, May and Richards LJJ [2008] EWCA Civ 140 February 2008 The Court of Appeal has held that a local authority’s housing allocation scheme was unlawful where it did not have a sufficient mechanism to cater for composite need. |
2008 | download (pdf) |
| 294 | R (on the application of M) (FC) v Hammersmith London Borough Council House of Lords Lords Hoffmann, Scott and Walker, Baroness Hale and Lord Brown [2008] UKHL 14 February 2008 The House of Lords has held that a child who was provided with interim accommodation by a local authority under s.188, Housing Act 1996, but who was not referred to the authority’s social services department could not be said to have been provided with accommodation under s.20, Children Act 1989, even though she may well have been a “child in need” at the time. |
2008 | download (pdf) |
| 293 | National Westminster Bank PLC v Ashe (Trustee in Bankruptcy of Babai)Court of Appeal Mummery and Hughes LJJ and David Richards J [2008] EWCA Civ 55 February 2008 The Court of Appeal has held that a lender lost its right to claim possession of a house where more than twelve years had elapsed since the last payment made under the mortgage. It could not be said that the mortgagors occupied the house with the implied permission of the lender with the consequence that they were in adverse possession. |
2008 | download (pdf) |
| 291 | Wragg & Ors v Surrey County Council Court of Appeal Pill, Moore-Bick and Richards LJJ [2008] EWCA Civ 19 February 2008 The Court of Appeal has held that where a local authority employee is required by his contract of employment to occupy specified accommodation, he is a service occupier within para.2(1), Sch.1, Housing Act 1985, if, as a matter of fact, that requirement is imposed for the better performance of his duties. The essential question is whether the required occupation is intended to promote and is reasonably capable of promoting the better performance of the employee’s duties. |
2008 | download (pdf) |
| 289 | Boss Holdings Ltd v Grosvenor West End Properties [2008] UKHL 5 January 2008 The House of Lords has held that a property may be a house for the purposes of the Leasehold Reform Act 1967 notwithstanding that it is not physically fit for immediate residential occupation when the tenant commences the enfranchisement process. |
2008 | download (pdf) |
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