eflashes

Lambeth LBC v Loveridge
2013] EWCA Civ 494
Arden, Briggs LJJ, Sir Stanley Burnton
May 10, 2013

The Court of Appeal has held that, when calculating statutory damages under s.28, Housing Act 1988 in a case of unlawful eviction by a local authority, the valuation exercise must proceed on the basis that any sale of the landlord’s interest would result in the tenant becoming an assured tenant, rather than remaining a secure tenant.

Andrew Arden QC led for the successful Appellant.

Willoughby v Solihull MBC
Court of Appeal
Lord Justice Maurice-Kay (Vice President of Court of Appeal, Civil Division)
Lord Justice Pitchford, Lord Justice Richards
May 08, 2013

The Court of Appeal has held that, in committal proceedings, custodial sentences are the most serious sanction a court can impose and ought to be kept to the minimum period necessary.

Emily Orme of Arden Chambers represented the successful Appellant.

R (JL) v Secretary of State for Defence
[2013] EWCA Civ 449
Arden LJ, Sullivan LJ, Briggs LJ
May 07, 2013

The Court of Appeal has held that a court can consider the issue of proportionality both when making the possession order and when dealing with the enforcement of that order (e.g. suspending a warrant), but that, if the issue has been considered when making the possession order, there will need to be a change in circumstances before it could be reconsidered at the enforcement stage; it may also be an abuse of process for an occupier to raise proportionality for the first time at the enforcement stage if it was not raised when the order was made.

Burr v OM Property Management Ltd
[2013] EWCA Civ 479
Lord Dyson MR, Elias, Patten LJJ
May 03, 2013

The Court of Appeal has held that costs are not “incurred” for the purposes of s.20B, Landlord and Tenant Act 1985 on the mere provision of a service or supply, but only when the liability had crystallised (whether on payment or presentation of an invoice).

Andrew Arden QC and Justin Bates appeared for the successful respondent.

Ewing v Camden LBC
[2013] EWHC 961 (Admin)
Turner J
March 15, 2013

The High Court has held that a local authority has standing to make submissions to the court in relation to a vexatious litigant’s application for permission to bring proceedings against them.

John McCafferty of Arden Chambers drafted the skeleton argument on behalf of the authority.

Renting Homes in Wales
Law Commission (Law Com No 337)
April, 2013

The Law Commission has published a report on Renting Homes in Wales, having been asked by the Welsh Government to update its 2006 report.

R (ES) v Barking and Dagenham LBC
[2013] EWHC 691 (Admin)
Robin Purchas QC (sitting as a deputy judge of the High Court)
April, 2013

The High Court has held that a local authority had unlawfully failed to carry out an assessment under s.17, Children Act 1989.

News from Arden Chambers
April, 2013

After 20 years, Andrew Arden QC is stepping down as Head of the Chambers he founded, from which he will continue to practise, and which will continue to be known as Arden Chambers.

Islington LBC v Unite Group Plc
[2013] EWHC 508 (Admin)
Blake J
March 22, 2013

The High Court has held that a flat in multiple occupation situated in a block of three storeys or more does not have to be licensed under the mandatory licensing scheme in Pt 2, Housing Act 2004. In calculating the number of storeys for the purposes of art.3(2) and (3), Licensing of Houses in Multiple Occupation (Prescribed Descriptions) (England) Order 2006 (SI 2006/371), it is only the storeys within the HMO itself which are relevant, together with any storeys of business premises above or below the HMO.

Andrew Arden QC and Andrew Dymond of Arden Chambers appeared on behalf of Unite Group Plc.

Birmingham City Council v Howell and Beech
[2013] EWHC 513 (QB)
Keith J
March 15, 2013

The High Court has held that a local authority had not obtained a notice to quit from an elderly tenant by undue influence or unconscionable behaviour; that, following the expiry of the notice to quit, its decision not to grant a new tenancy to the former tenant’s daughter was not unlawful; and that the eviction of the daughter was not disproportionate. The court refused to make a declaration of incompatibility, in relation to the succession provisions of the Housing Act 1985 on the ground that that remedy was irrelevant.

Jonathan Manning of Arden Chambers appeared for Birmingham CC.

R (Buckley) v Sheffield City Council; R (Congreaves) v Sheffield City Council; R (Mills) v Sheffield City Council
[2013] EWHC 512 (Admin)
Supperstone J
March 13, 2013

The Administrative Court has held that the Council Tax Reduction Scheme adopted by Sheffield City Council was lawfully consulted on and that the authority had lawfully complied with its public sector equality duty under s.149 Equality Act 2010.

Jonathan Manning of Arden Chambers appeared for Sheffield City Council.

Daejan Investments Ltd v Benson and others
[2013] UKSC 14
Lords Neuberger, Hope, Clarke, Wilson and Sumption
March 6, 2013

The Supreme Court has held that, in considering whether to grant dispensation from the consultation requirements in relation to service charges, a leasehold valuation tribunal (LVT) should consider the prejudice suffered by the tenants as a result of the landlord’s failure. The seriousness (or otherwise) of the breach the requirements is not of itself a relevant factor. The LVT has power to impose conditions on the grant of dispensation and, where financial prejudice has been identified, the service charge should be reduced by that amount. The landlord should also be required to pay the tenants’ reasonable costs of the application seeking dispensation.

Brent LBC v Tudor
[2013] EWCA Civ 157
Arden, Jackson and Beatson LJJ
March 6, 2013

The Court of Appeal has dismissed an appeal by a local authority against a
finding in a claim for possession under Housing Act 1985, Sch.2, ground 16, that the defendant’s brother and his children were living with the defendant. Although the judgment was not clearly structured, the judge had acknowledged both the inconsistencies in the evidence from the defendant’s witnesses and the effect that this had on their credibility. He had been entitled to rely on those parts of the witnesses’ evidence that were supported by documentary evidence.

James Sandham of Arden Chambers appeared on behalf of the defendant tenant.

Sharif v London Borough of Camden
[2013] UKSC 10
Lords Hope, Walker, Lady Hale, Lords Kerr and Carnwath
February 20, 2013

The Supreme Court has held (Lord Kerr dissenting) that “accommodation” for the purpose of s.176 of the Housing Act 1996 is not to be equated with the provision of a single “unit of accommodation” for the homeless applicant and his family, but may be satisfied by providing separate units of accommodation if they are so located that they enable the family to live together in practical terms. It is a question of fact for a local housing authority.

Andrew Arden Q.C. and Iain Colville of Arden Chambers appeared on behalf of the London Borough of Camden.

R (AT, AG and HG) v Islington LBC
Administrative Court, Queen’s Bench Division
Mr Mott QC
February 1, 2013

The High Court held that the defendant authority had produced a lawful assessment of the claimants’ needs pursuant to s.17, Children Act 1989.  It is not the function of the Administrative Court to substitute its assessment of need for that of the authority.

Stephanie Smith of Arden Chambers appeared for the defendant local authority.

Sims v Dacorum Borough Council
[2013] EWCA Civ 12
Mummery and Etherton LJJ and Sir Scott Baker
January 24, 2013

The Court of Appeal has held that the rule in Hammersmith and Fulham LBC v Monk [1992] A.C. 478, HL, pursuant to which a periodic joint residential tenancy terminates if one joint tenant, without the concurrence of the other, serves notice to quit on the landlord, is not incompatible with Article 8 of the ECHR or Article 1 of the First Protocol.

Andrew Arden QC and Toby Vanhegan of Arden Chambers appeared for the appellant.

R (Chatting) v (1) Viridian Housing, (2) Wandsworth LBC
[2012] EWHC 3595 (Admin)
Nicholas Paines QC, sitting as a Deputy High Court Judge
December 13, 2012

The Administrative Court has held that a housing association was not prevented, either by a previous compromise agreement or under art 8, from transferring to a new service provider the delivery of care services for an elderly and infirm person placed in the housing association’s accommodation and care for many years by a local authority under s21 National Assistance Act 1948.

Christopher Baker of Arden Chambers acted for Viridian Housing.

Judicial Review: proposals for reform
Ministry of Justice Consultation Paper (CP25/2012)
December 13, 2012

The Ministry of Justice has launched a consultation on reforms to judicial review, relating to time-limits, procedure and fees.

Islington LBC v Doey
Court of Appeal
Jackson LJ and Sir Stanley Burnton
December 11, 2012

The Court of Appeal has dismissed an appeal against a sentence imposed for breach of an injunction made under the Housing Act 1996.

Sarah McKeown of Arden Chambers appeared on behalf of the local authority.

The Housing Act 1996 (Additional Preference for Armed Forces) (England) Regulations 2012 (SI 2012/2989)

Allocation schemes for local housing authorities in England must give additional preference for certain members of the armed forces who have urgent housing needs.

Benefit Cap (Housing Benefit) Regulations 2012 (SI 2012/2994)

From April 15, 2013, all local authorities, which are responsible for administering housing benefit, will be required to cap a claimant’s entitlement to housing benefit where his total entitlement to welfare benefits exceeds either £350 per week (for single claimants) or £500 per week (for all other claimants).

R(Southern Landlords Association) v Thanet District Council
EWHC 3187 (Admin)
Cranston J
November 13, 2012

The High Court has dismissed a claim seeking to quash an authority’s designation of part of their area as being subject to selective licensing under Pt 3, Housing Act 2004. It was held that the authority had applied the correct tests for assessing whether there had been anti-social behaviour in the area and for deciding whether the area was suffering from low housing demand. Further, there was no basis for arguing that the requirement to consider an alternative to selective licensing had not been met where history showed that the authority’s earlier initiatives had not brought about regeneration in the area.

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

Birmingham City Council v Ashton
[2012] EWCA Civ 1557
Mummery, Patten and Treacy LJJ
November 29, 2012

The Court of Appeal has held that, where a court is considering whether to suspend an order for possession in cases of anti-social behaviour, the onus is on the tenant to provide cogent evidence that the anti-social behaviour will not re-occur or will be unlikely to do so.

Jonathan Manning and Rebecca Chan of Arden Chambers appeared for the Appellant authority.

Wadi Samin v Westminster City Council
[2012] EWCA Civ 1468
Hughes, Etherton and Tomlinson LJJ
November 21, 2012

The Court of Appeal has held that it is a question of fact whether a person is “temporarily unable to work as a result of an illness or accident” for the purposes of Reg.6(2)(a), Immigration (European Economic Area) Regulations 2006, SI 2006/1003.  In answering the question, it will generally be helpful to ask whether there is or is not a realistic prospect of the person returning to work.

David Cowan of Arden Chambers appeared as junior counsel for Mr Samin.

Thurrock BC v West
[2012] EWCA Civ 1435
Hallett, Etherton LJJ and Dame Janet Smith
November 08, 2012

The Court of Appeal has held that a district judge was wrong to have held that it would be disproportionate to grant a possession order. The circumstances of the defendant and his family were far from being exceptional and his defence should have been struck out as unarguable.

Supplementary Guidance on the homelessness changes in the Localism Act 2011 and on the Homelessness (Suitability of Accommodation) (England) Order 2012
CLG
November 2012

When discharging their functions under Pt.7, Housing Act 1996, an authority must ensure that any accommodation secured is suitable (s.206, Housing Act 1996). The Secretary of State has power to specify circumstances in which accommodation is not to be regarded as suitable and to specify matters to be taken into account or disregarded when determining whether or not accommodation is suitable (s.210).

The Homelessness (Suitability of Accommodation) (England) Order 2012, S.I. 2012/2601, deals with matters that an authority must take into account when considering the location of the accommodation. It also makes provision for circumstances in which a private rented sector offer is not to be regarded as suitable (as to private rented sector offers, see generally, s.148, Localism Act 2011, amending s.193, Housing Act 1996).

The Secretary of State has issued statutory guidance to which authorities in England must have regard.

Swan Housing Association Ltd v Gill
[2012] EWHC 3129 (QB)
Eady J
November 07, 2012

The High Court has held that a court cannot determine whether someone has acquired title by adverse possession under the Land Registration Act 2002 unless the question of adverse possession is raised as a defence to a claim for possession. Subject to that exception, it is for the Land Registry to determine issues of adverse possession. Accordingly, in the present case, the court should have adjourned the county court claim to allow the defendant’s application to the Land Registry to be determined.

Stuart Armstrong of Arden Chambers appeared for the defendant.

News at Arden Chambers

Chambers and Partners
We are delighted to be described as a “long-term leader in the field of social housing” and for providing a “first-class” service to our clients.

Day v Hosebay Ltd
Howard de Walden Estates Ltd v Lexgorge Ltd
[2012] UKSC 41
Lords Phillips, Walker, Mance, Clarke, Wilson, Sumption and Carnwath
October 10, 2012

The Supreme Court has held that, in deciding whether a building can reasonably be called a “house” for the purposes of the Leasehold Reform Act 1967, the external and internal physical character and appearance of the property is not determinative. The use of the property is a crucial factor bearing in mind that the Act is concerned about houses as places to live in.

Quiet Enjoyment: Arden and Partington’s guide for harassment and illegal eviction

Legal Action Group has published the 7th Edition of Quiet Enjoyment by Andrew Arden QC, Rebecca Chan and Sam Madge-Wyld.

59th Update to the Civil Procedure Rules: s.204 appeals

On October 1, 2012, Part 52 of the Civil Procedure Rules was amended to include new rules governing appeals under Housing Act 1996, s.204

Solihull MBC v Hickin
[2012] UKSC 39
Lords Hope, Walker, Mance, Clarke and Sumption
July 25, 2012

The Supreme Court has held (by a 3-2 majority) that the common law right of survivorship to a joint tenancy is not displaced by the statutory provisions relating to succession to a secure tenancy contained in Pt 4, Housing Act 1985.

Birmingham City Council v Lloyd
Court of Appeal: Master of the Rolls, Longmore and Gross LJJ
July 04, 2012

The Court of Appeal has held that a trespasser will be unable to defeat a claim for possession by invoking Art.8, ECHR, save for the in the most exceptional circumstances.

Jonathan Manning and Sam Madge-Wyld appeared for the appellant authority.

Allocation of accommodation: guidance for local housing authorities in England
CLG
June, 2012

The Secretary of State has issued guidance to local housing authorities in England under s.169, Housing Act 1996. Authorities are required to have regard to it when exercising their functions under Pt.6, 1996 Act.

R (CRANFIELD-ADAMS) v RICHMOND UPON THAMES LBC
QBD (Admin)
Jeremy Stuart-Smith QC
June 19, 2012

The High Court has held that it was lawful for a local authority to defer a homeless person’s application for housing under Pt 6, Housing Act 1996, where he had previously refused an offer of suitable accommodation made under Pt 6.

John McCafferty of Arden Chambers appeared for the claimant.

London Borough of Camden v Stafford
[2012] EWCA Civ 839
Maurice Kay LJ, Etherton, Aikens LJJ
June 20, 2012

The Court of Appeal has held that a review decision under s.129, Housing Act 1996 (of a decision to bring possession proceedings against an introductory tenant) cannot be expressed in equivocal terms and must simply either uphold or withdraw the original decision.

Andrew Arden QC led for the authority.

MEDIATION AT ARDEN CHAMBERS

In a recent statement, the acting Chair of the Civil Mediation Council described mediation as “a huge success story, helping to save businesses, citizens and the Government from some of the huge expense and uncertainty involved in court cases”. Arden Chambers is pleased to announce that Andrew Arden QC, Head of Arden Chambers, is now also practising as a mediator.

Putting victims first: More effective responses to anti-social behaviour

The Secretary of State for the Home Department has published a White Paper setting out proposed new remedies for providers of social housing and the police to tackle anti-social behaviour.

Maswaku v Westminster City Council
[2012] EWCA Civ 669
Mummery, Moore-Bick and Black LJJ
May 18, 2012

The Court of Appeal has held that, when informing a homeless applicant of the possible consequence of refusing an offer of accommodation, pursuant to s.193(5), Housing Act 1996, the authority need only refer to the consequence that a refusal may lead the authority to decide that they had discharged their housing duty; it was not necessary to refer to any other statutory consequence of refusal. Nor had the authority breached Regs 6(2)(a) or 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (SI 1999/71) (the “Regulations”).

Jonathan Manning and Stephanie Smith of Arden Chambers appeared for the appellant.

El Goure v Royal Borough of Kensington & Chelsea
[2012] EWCA Civ 670
Mummery, Moore-Bick and Black LJJ
May 18, 2012

The Court of Appeal has held that a local authority was not obliged, by Reg.6(2)(a), Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (SI 1999/71), to inform a homeless applicant of his right to make representations on a homelessness review when it had informed his solicitors of their right to do so. Nor had the authority misdirected itself as to the statutory test for priority need under s.189, 1996 Act, when informing him that his case was not considered “exceptional”.

Jonathan Manning and Stephanie Smith of Arden Chambers appeared for the appellant.

Brazilian Point Ltd v In Shops Ltd
High Court (QBD) (transcript not yet published unavailable)
Swift J
April 30, 2012

The High Court has held that, on a claim for relief from forfeiture of a commercial lease for non-payment of rent and service charges, the county court judge was entitled to grant relief on terms that the tenant pay the whole sum claimed by the landlord notwithstanding that the exact figure for the arrears was unclear because payments had been made by the tenant. The tenant was protected from the risk of double recovery by a recital in the order that the landlord was not entitled to unjust enrichment.

James Sandham of Arden Chambers appeared on behalf of the respondent landlord.

Helena Partnership Ltd (formerly Helena Housing Ltd) v Commissioners for Her Majesty’s Revenue and Customs
[2012] EWCA Civ 569
May 09, 2012

The Court of Appeal has held that the objects of a housing association were not charitable. The provision of housing without regard to a relevant charitable need is not a charitable activity. The association’s objects could not be categorised as charitable activities which were beneficial to the community because the degree of individual benefit afforded by the provision of housing is so substantial that it cannot properly be regarded as subordinate to the public benefit of the availability of a stock of suitable housing.

Barking and Dagenham LBC v Bakare
Court of Appeal
Sir Andrew Morritt (Chancellor), Hughes and Macfarlane LJJ
May 02, 2012

The Court of Appeal, in dismissing the tenant’s appeal, held that there was no basis on which to interfere with the circuit judge’s decision to a vary a suspended possession order (made in 2005 for rent arrears) to an outright order based on anti-social behaviour perpetrated by the tenant’s son.

Annette Cafferkey of Arden Chambers appeared for the authority.

R (Greenwich Community Law Centre) v Greenwich London Borough Council
[2012] EWCA Civ 496
Ward, Elias and Black LJJ
April 24, 2012

The Court of Appeal has upheld the decision of the High Court that a local authority had properly performed its public sector equality duty under s.149 of the Equality Act 2010 when deciding to withdraw funding from a law centre and award it to other organisations.

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

Anas v Arora (2012)
[2012] EWHC (QB)
High Court of Justice, Queen’s Bench Division
Mr Justice MacDuff
April 02, 2012

The High Court has held that the County Court was justified in declining jurisdiction to stay the of execution of warrant in circumstances where an application for a stay was already before the Court of Appeal pending an application for permission to appeal.  Once the Court of Appeal had refused permission to appeal against the making of the possession order the appeal against the refusal of of the Court Court to stay execution was no longer justified where the appeal procedure in relation to the possession order had been exhausted.  An extended civil restraint order was made preventing the Appellant, without permission, from issuing any new proceedings, applications, appeals or applications for a stay for two years.

James Sandham of Arden Chambers appeared on behalf of the Respondent.

Localism Act 2011

Arden Chambers is pleased to announce that the Current Law Statutes annotations to the Localism Act 2011 were published by Sweet & Maxwell on March 23, 2012. The Act contains a wide range of significant measures in both local government and in housing, including changes to homelessness and allocations, and the introduction of “flexible tenancies” outside security.

Sheridan & Ors v Basildon Borough Council
[2012] EWCA Civ 335
Sir Andrew Morritt, Chancellor, Patten and Pitchford LJJ
March 21, 2012

The Court of Appeal has dismissed three appeals brought by former residents of Dale Farm against challenges to the suitability of offers of conventional “bricks and mortar” accommodation made to them. The authority had taken into account all relevant considerations in making the offers. There were no suitable sites which could be provided to the appellants. Further, it was not realistic to expect an officer conducting a review under s.202, Housing Act 1996, to enquire as to the adequacy of the provision of caravan sites in the area as such matters raised issues of wider planning policy and were beyond the expertise of a housing officer.

New Writing Team Members at Arden Chambers
Head of Chambers, Andrew Arden QC writes

I am pleased to introduce a number of changes in the teams which help me to produce the range of works for which I am responsible.

Harripaul v Lewisham LBC
[2012] EWCA Civ 266
Rimer L.J.
March 14, 2012

The Court of Appeal has held that, where a respondent authority concedes a homelessness appeal following the grant of permission to appeal by the Court of Appeal, the consequence of the respondent’s concession is that the appellant is to be regarded as the successful party on the appeal and that the starting point is that he should be entitled to his costs.

Clare Roberts of Arden Chambers appeared for the appellant.

Corby BC v Scott
[2012] EWCA Civ 276
Lord Neuberger MR, Richards and Davis LJJ
March 13, 2012

The Court of Appeal has held that a Circuit Judge was wrong to have held that it would be disproportionate to grant a possession order against an introductory tenant on the grounds that the introductory tenant’s personal circumstances were exceptional. Exceptionality was not the test, and the personal circumstances relied on had had nothing to do with the possession claim or the respect for the home to which the tenant was entitled. The defence should not have gone to trial as it came nowhere near justifying a claim of disproportionality.

Jonathan Manning of Arden Chambers appeared for the Appellant local authority.

Derivatives - Have they got a prayer?
February 20, 2012
Andrew Arden QC

Does the Localism Act 2011 allow authorities to use derivates in the management of their financial affairs? Andrew Arden QC discusses the question in a piece first posted on the website Room 151 designed for Chief Financial Officers.

R (Moore) v Wandsworth London Borough Council
[2012] EWHC (Admin)
Stadlin J
January 17, 2012

The High Court has quashed a local authority’s decision not to grant a tenancy under their policy on granting tenancies to relatives of deceased secure tenants who have no statutory right to succeed. The officer who took the decision did not have the authority to do so. Further, the authority had acted unfairly in that they had failed properly to assess the material presented by the claimant.

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