eflash archive 2011

Southwark LBC v Leaseholders of Southwark LBC
[2011] UKUT 438 (LC)
Upper Tribunal (Lands Chamber), George Bartlett QC, President
December 19, 2011

The Upper Tribunal (Lands Chamber) has dismissed an appeal against a leasehold valuation tribunal’s refusal to grant dispensation from part of the consultation requirements in the Service Charges (Consultation Requirements) (England) Regulations 2003 (SI 2003/1987), on the ground that the landlord authority was able to comply with the Regulations.

Andrew Dymond of Arden Chambers appeared on behalf of the Leaseholders Association of Southwark (LAS) 2000, a company formed to represent the interests of the authority’s leaseholders.

R (Greenwich Community Law Centre) v Greenwich London Borough Council
[2011] EWHC 3463 (Admin)
Cranston J
December 21, 2011

The High Court has held that a local authority was not required to carry out an assessment of the risks of withdrawing funding from a law centre and that s.149 of the Equality Act 2010 did not require an equality impact assessment to be conducted before awarding funding to other organisations instead of that law centre.

Jonathan Manning and Robert Brown of Arden Chambers appeared for the claimant law centre.

Islington Borough Council v Boyle
[2011] CA Civ 1450
Mummery, Etherton, Patten LJJ
December 06, 2011

The Court of Appeal has allowed an appeal against the dismissal of a claim for possession by a local authority brought on the basis that the tenant had lost security of tenure under the Housing Act 1985. Although the judge had found that the tenant, who was living elsewhere, had intended to return to her flat, he had failed to address which property was her principal home. The Court gave guidance on how to approach “two homes” cases.

Iain Colville of Arden Chambers appeared on behalf of the authority.

Francis v Southwark London Borough Council
[2011] EWCA Civ 1418
Carnwath, Lloyd and Toulson LJJ
December 01, 2011

The Court of Appeal has held where an authority incorrectly deny a secure tenant’s entitlement to exercise the right to buy in a notice served under s.124, Housing Act 1985, the tenant is not entitled to damages for breach of statutory duty.

Jones v Kernott
[2011] UKSC 53
Supreme Court: Lord Walker, Lady Hale, Lords Collins, Kerr and Wilson
November 09, 2011

The Supreme Court has held that, where a co-habiting couple purchase a family home in joint names, the starting point is that they are joint tenants both in law and equity. That presumption can be displaced by showing that: (i) the parties had a different common intention at the date of acquisition of the home; or (ii) they later formed the common intention that their respective shares would change. Their common intention is to be deduced objectively from their conduct and their shares in the property are to be determined by what the court considers fair having regard to the whole course of dealing in relation to the property.

Berrisford v Mexfield Housing Co-operative Ltd
[2011] UKSC 52
Lords Hope and Walker, Lady Hale, Lords Mance, Neuberger, Clarke and Dyson
November 09, 2011

The Supreme Court has allowed an appeal against a possession order made against a tenant of a fully mutual housing association. The tenancy agreement did not, as the association contended, create a periodic tenancy. Rather, it could only be determined in the circumstances specified in the agreement. Consequently, the agreement was for an uncertain term creating a lease for life which, by virtue of s.149(6), Law of Property Act 1925, took effect as the grant of a lease for 90 years.

Berrisford v Mexfield Housing Co-operative Ltd
[2011] UKSC 52
Lords Hope and Walker, Lady Hale, Lords Mance, Neuberger, Clarke and Dyson
November 09, 2011

The Supreme Court has allowed an appeal against a possession order made against a tenant of a fully mutual housing association. The tenancy agreement did not, as the association contended, create a periodic tenancy. Rather, it could only be determined in the circumstances specified in the agreement. Consequently, the agreement was for an uncertain term creating a lease for life which, by virtue of s.149(6), Law of Property Act 1925, took effect as the grant of a lease for 90 years.

Bubb v LB Wandsworth
[2011] EWCA Civ 1285
Lord Neuberger, MR Jackson, Gross LJJ
November 09, 2011

The Court of Appeal has held that there is no jurisdiction for the county court to exercise a fact finding jurisdiction in appeals under s.204, Housing Act 1996 and that its role is limited to considering whether the review officer has reached a lawful decision.

Andrew Arden QC of Arden Chambers led for the local authority. Toby Vanhegan of Arden Chambers was junior counsel for the appellant.

R (VC) v Newcastle City Council
[2011] EWHC 2673 (Admin)
Administrative Court: Munby L.J. & Langstaff J.
October 24, 2011

The Administrative Court has held that it was unlawful for an authority to cease providing accommodation to a failed asylum-seeker and her children under s.17, Children Act 1989, on the basis that the family could obtain accommodation from the UK Border Agency under s.4, Immigration and Asylum Act 1999.

Saxon Weald Homes Ltd v Chadwick
[2011] EWCA Civ 1202
Mummery and Davis L.JJ. and Dame Janet Smith
October 26, 2011

The Court of Appeal has held that a letter sent by a landlord in error, which told an assured shorthold tenant that he had become an assured tenant, was not ambiguous and constituted a notice under the Housing Act 1988, Sch.2A, para.2.

Abdullah v Westminster City Council
[2011] EWCA Civ 1171
Mummery, Lloyd and McFarlane L.JJ.
October 19, 2011

Where a tenancy of a matrimonial home is in the joint names of one spouse and a third party, the other spouse retains home rights in the property under s.30, Family Law Act 1996, so that she cannot be evicted from it without leave of the court if the third party serves notice to quit.Christopher Baker and Victoria Osler of Arden Chambers appeared for the appellant.

Rochdale Metropolitan Borough Council v Dixon
[2011] EWCA Civ 1173
Court of Appeal, Rix, Rimer and Elias L.JJ.
October 20, 2011

The Court of Appeal has upheld the validity of an agreement between a local authority and a water undertaker, under which the authority were required to collect water charges from their secure tenants under a term of their standard tenancy agreement. The court also held that the preliminary notice of variation served by the authority under s.103(2), Housing Act 1985, was valid, notwithstanding that it did not expressly warn that, once an obligation to pay water charges was included in the tenancy agreement, tenants could be evicted for non-payment of water charges. The obligation itself was not an unfair term pursuant to the Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083).

Andrew Arden QC and Andrew Dymond of Arden Chambers appeared on behalf of the local authority..

Charles Terence Estates Ltd v Cornwall Council
[2011] EWHC 2542 (QB)
Cranston J
October 07, 2011

The High Court has held that leases entered into by two local authorities with a company to provide temporary accommodation were void because the authorities had failed to have regard to the market rent for the accommodation and had accordingly breached their fiduciary duty to the council tax payer in entering into the agreements. A restitutionary claim for rent paid under those agreements, however, was defeated by a defence of change of position.

Bah v UK
European Court of Human Rights
September 27, 2011

The European Court of Human Rights has held that the requirement in Pt 7, Housing Act 1996, that a member of a homeless person’s household, who is ineligible for assistance because of his immigration status, must be disregarded in determining whether the applicant has a priority need for accommodation is a legitimate and proportionate means of managing limited housing resources and was therefore not contrary to the prohibition on discrimination in Art.14, European Convention on Human Rights.

R (Offerton Park Parish Council) v Stockport MBC
[2011] EWHC 2247 (Admin)
HHJ Raynor QC, sitting as a judge of the High Court
August 24, 2011

The High Court has held that an authority were not rationally entitled to conclude that a majority of residents favoured the abolition of a parish and parish council in circumstances where, despite a clear and consistent majority of respondents favouring abolition, a larger proportion had failed to express any view.

Andrew Arden QC and Justin Bates appeared for Stockport MBC.

Barnsley MBC v Norton & Ors
[2011] EWCA Civ 834
Maurice Kay, Carnwath and Lloyd L.JJ.
July 21, 2011

The Court of Appeal has held that an authority which brought possession proceedings against a school caretaker, whose daughter was disabled, were in breach of their duty under s.49A, Disability Discrimination Act 1995. The caretaker’s appeal was dismissed, however, because the daughter’s needs would be met during the family’s application for assistance under Pt 7, Housing Act 1996.

Sharples v Places for People Homes Ltd - Godfrey v A2 Dominion Homes Ltd
[2011] EWCA Civ 813
Mummery, Wilson and Etherton L.JJ.
July 15, 2011

An order for possession made on the ground of rent arrears is not a “remedy in respect of the debt” for the purposes of either s.285(3) (bankruptcy) or s.251G (Debt Relief Orders) of the Insolvency Act 1986. The fact that arrears of rent are either provable in a tenant’s bankruptcy or form part of the tenant’s DRO does not preclude the landlord from recovering possession based on those rent arrears. Where, however, an order for possession is suspended or postponed on terms, those terms may not require the tenant to repay the arrears.

Jonathan Manning and Victoria Osler of Arden Chambers appeared on behalf of the respondent landlord in Godfrey.

R (Peat and others) v Hyndburn District Council
[2011] EWHC 1739 (Admin)
McCombe J

The High Court has held that, when consulting on a proposed selective licensing designation under Pt.3, Housing Act 2004, an authority must give consultees precise information as to the proposed area of designation, together with details of proposed license conditions and reasons why the authority regards it as appropriate to impose a designation.

Jonathan Manning and Justin Bates of Arden Chambers appeared for the claimants.

R. (Babakandi) v Westminster CC
[2011] EWHC 1756 (Admin)
Nicol J.
July 6, 2011

The High Court has held that the statutory requirement to afford certain groups of person a “reasonable preference” under an allocation scheme (s.167(2), Housing Act 1996), does not require a local authority to ensure that the preference is available at all times and in relation to all properties. It is sufficient if preference is given over the course of a reasonable period.

Victoria Osler of Arden Chambers appeared for the claimant.

Making Land Work: Easements, Covenants and Profits à Prendre
Law Commission (Law Com No.327)
June 8, 2011

The Law Commission has published its proposals for reforming the law relating to easements, covenants and profits à prendre and has issued a draft Law of Property Bill to implement the proposals.

Gladehurst Properties Ltd v Hashemi
[2011] EWCA Civ 604
Court of Appeal: Carnwath and Patten LJJ and Baron J
May 19, 2011

The Court of Appeal has held that, where a landlord has failed to deal with a deposit in accordance with an authorised tenancy deposit scheme, a tenant cannot apply for an award of three times the amount of the deposit under s.214(4), Housing Act 2004, if his assured shorthold tenancy has already come to an end.

Laura West of Arden Chambers represented the appellant landlord.

R (W and others) v Birmingham City Council
[2011] EWHC 1147 (Admin)
Administrative Court, Walker J
May 19, 2011

The High Court has held that an authority, in determining a budget in respect of Adult Social Care and changing the eligibility threshold for such services from “substantial” needs to “critical” needs only, had acted unlawfully by (1) failing to give sufficient regard to matters concerning disabled people under s49A(1) Disability Discrimination Act 1995 and (2) a lack of clarity in material issued for consultation. The court refused, however, to grant relief in respect of the authority’s budget.

Andrew Arden QC and Christopher Baker of Arden Chambers acted for the local authority.

Oxford City Council v Bull
[2011] EWCA Civ 609
Pill LJ, Jackson, Tomlinson LJJ
May 18, 2011

The authority were correct to determine that an applicant was intentionally homeless where he permitted his children to come and live with him in a room in a shared house, such that - as a result of the overcrowding – with the inevitable consequence that the landlord gave notice to quit, as the children could have been housed and cared for by their mother.

Andrew Arden QC led for the authority.

Sharif v Camden London Borough Council
[2011] CA Civ 463
Court of Appeal, Jacob, Wilson and Etherton LJJ
April 20, 2011

The Court of Appeal has held that s.176, Housing Act 1996, requires that accommodation secured by an authority in discharge of their duty under s.193(2) must be a single unit of accommodation. It was not sufficient for the authority to offer accommodation to a family in two adjacent flats.

Iain Colville of Arden Chambers appeared on behalf of the authority.

Mears Ltd v Leeds City Council
[2011] EWHC 40 (QB) and [2011] EWHC 1031 (TCC)
Queen’s Bench Division, Ramsey J
January19, 2011 and April 19, 2011

The High Court has held that a local authority had not, in certain respects, breached the requirements for transparency and disclosure under the Public Contracts Regulations 2006 (SI 2006/5) in relation to the award of proposed contracts with an estimated value of up to c£420m for large-scale works to housing stock. Guidance issued by the authority to personnel evaluating bidders’ answers to a series of questions in the procurement document, including a scoring table and model answers, had not in general been required to be disclosed to bidders, but there had been a breach of the Regulations for failing to disclose, in one respect, the relative weighting of questions and in relation to two of the model answers. The court - at a trial of preliminary issues, held partly in private because of the confidentiality of the model answers – refused, however, to order the setting aside of the authority’s decision to award the contracts and confined the claimant to an award of damages to be assessed. At an earlier hearing, an order for disclosure of the content of the model answers had been made, but subject to a “confidentiality ring”; further allegations of breaches of the Regulations had also been struck out for being out of time.

Andrew Arden QC and Christopher Baker of Arden Chambers acted for the local authority.

Akhtar v Birmingham CC
[2011] EWCA Civ 383
Court of Appeal, Maurice Kay, Rimer and Etherton L.JJ
April 12, 2011

The Court of Appeal has held that where a local authority make an offer of accommodation to a homeless applicant under Pt 7, Housing Act 1996, they are not obliged, in the offer letter, to give reasons for their view that the accommodation offered is suitable, nor, on a review of the suitability of the accommodation, are they obliged to give reasons for a decision in the homeless person’s favour that the accommodation was not suitable.

Jonathan Manning and Emily Orme of Arden Chambers appeared for Birmingham City Council.

Makisi v Birmingham CC; Yosief v Birmingham CC; Nagi v Birmingham CC
[2011] EWCA Civ 355
Court of Appeal, Maurice Kay, Rimer, Etherton LJJ
March 30, 2011

The Court of Appeal has held that where there is a deficiency or irregularity in an original decision made on a homeless application under Part 7, Housing Act 1996, and the applicant requests a review of that decision, Regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 requires a local authority to make arrangements to receive oral representations at a face-to-face interview if such an interview is requested by the homeless applicant. The Applicant is not, however, entitled to a full oral hearing or to call or cross-examine witnesses.

Jonathan Manning, Annette Cafferkey, Emily Orme and Stephanie Smith of Arden Chambers appeared for Birmingham City Council.

Baxter v Mannion
[2011] EWCA Civ 120
Court of Appeal: Mummery, Jacob and Tomlinson LJJ

The Court of Appeal has held that the power under Land Registration Act 2002, Sch.4, para.5(a), to rectify an entry in the Land Register to correct a mistake is not limited to correction of errors made by the Registry. Accordingly, where a person successfully applied to become the registered owner of land on the basis that he had acquired title through adverse possession but it subsequently transpired that he had not been in adverse possession, there was power to amend Register.