HOUSING LAW UPDATE

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HOUSING LAW UPDATE

• JENNY OSCROFT

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SWINDON v REDPATH2009 EWCA Civ 393

• Meaning of housing related conduct for purposes
  of s.153A
• Mr R an ST of Swindon. Mr J his owner/occupier
  neighbour
• Feb 2003 convicted of various alcohol and driving
  offences result of Mr J informing police
• Campaign of harassment by Mr R vs Mr J
• July 2005 SPO against Mr R
• June 2006 SPO gt PPO. ASBI granted excluding Mr R
  from area

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() SWINDON v REDPATH

• July 2006 Mr R evicted. ASBI breached ASBI 2
• March 2008 Mr R returned to the area, more
  troubleASBI 3
• LJ Rix no requirement for Mr R to be a council
  tenant or his victims council tenants
• Mr Rs haunting of bus shelter / council garages
  let to tenants in the area housing related
  conduct
• Piecemeal conduct to be viewed as a whole
• Approach to legislation should not be
  artificially restrictive

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OMBUDSMANS DECISIONCOMPLAINT AGAINST CARDIFF CC

• Council failure to deal with noise nuisance
  threatening behaviour from Mr W against Mr D
  Miss B
• 2005 Mr W introductory tenant, serious
  persistent complaints received.Secure tenancy
  confirmed
• 2006 threatening behaviour, criminal conviction
• NSP served, no further action
• 2007 continued nuisance, threats to kill, music
• 2008 Mr D Miss B withdrew statements
  requested transfers
• 2008 Mr W transferred to property on same estate

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() OMBUDSMANS DECISIONCOMPLAINT AGAINST
CARDIFF CC

• Ombudsman highly critical, identified range of
  options open to Council ASBIs, EPA, intro
  demoted tenancies, eviction Councils own ASB
  policy
• ASB had been left to pollution control entirely
• No referral to dedicated ASB unit
• Officers evidence varied disjointed
• Finding of maladministration
• Ombudsman recommendations
• - Ms B to be transferred to suitable location
  within 3 months
• - Ms B to be paid 7,500 for 3 yrs complaint
• - Council to revise ASB policy further training

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CIRCLE 33 HOUSING TRUST v KATHIRKMANATHAN 2009
EWCA Civ 921

• Appeal of committal for breach of undertaking
  following complaints of noise nuisance by Mr K,
  assured tenant of Circle 33
• ...not to, whether by himself or by instructing
  or encouraging any other person- 1) engage or
  threaten to engage in conduct capable of causing
  a nuisance or annoyance to Ms X Ms Y 2)
  create excessive noise, such that a reasonable
  person would consider it anti-social, inside 63
  Peel Close
• Appeal on 3 grounds 1) Judge had misconstrued
  undertaking 2) no evidence Mr K responsible for
  nuisance and 3) sentence excessive
• CJ held undertaking meant Mr K responsible for
  children/others

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() CIRCLE 33 HOUSING TRUST v KATHIRKMANATHAN
2009 EWCA Civ 921

• CA disagreed (Ward LJ Jacob LJ)
• - neither allowing nor permitting appeared
  in the undertaking
• - breach of injunction a serious matter
  involving deprivation of liberty
• - injunctions should be drafted with
  considerable care
• - lack of evidence against Mr K personally
• - no evidence sufficient to identify Mr K as
  source
• - on sentencing primary objective to punish for
  contempt and to use sanction coercively to
  prevent recurrence
• - the right sentence would therefore have been
  suspended and 4 weeks suggested appropriate

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MANCHESTER CC v PINNOCK 2009 EWCA Civ 852

• Evidence to be taken into account to justify
  breach of a demoted tenancy at review panel
  test of proportionality under Art 8 at CC
• Mr P had lived at 65 Meldon Rd 30 years with
  partner and 5 children
• Children prolific offenders, ASBOs, ASBIs,
  breaches
• Demoted tenancy order made including new terms on
  nuisance and harassment etc.
• NSP served during demoted term on basis of
  childrens behaviour, Mr P not implicated
  personally
• Mr P sought oral review, panel felt although
  children not living at property, still returned
  there and posed a risk on basis of further
  offences since NSP

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() MANCHESTER CC v PINNOCK 2009 EWCA Civ 852

• County Court hearing s.143N HA 1996, DJ held none
  of matters in possession notice sufficient alone,
  panel had addressed the childrens residence
  issue, entitled to rely on matters occurring
  after NSP
• Court of Appeal
• Whole process from outset needed to be considered
  in context of article 8 rights
• Where a demotion order made the court has found
  the removal of security a necessary and
  proportionate response to the conduct of the
  tenant or those residing with him
• .where conduct serious enough to justify
  Demotion Order at 2nd stage very little is
  required to justify the landlords decision to
  obtain possession

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() MANCHESTER CC v PINNOCK 2009 EWCA Civ 852

• Proportionality at the 2nd stage
• is not a high test, and I see no real
  difference at the second stage between it and the
  domestic requirement .. that the landlords
  decision must not be one that a reasonable person
  would consider justifiable. If on review the
  landlord considers for good reason that it is
  necessary or appropriate to obtain possession of
  a dwelling-house let on a demoted tenancy, and
  its decision must not be one that no reasonable
  person would consider justifiable, the
  requirement of proportionality will be satisfied.
• Appeal potential to HL on whether review
  procedure article 6 compliant

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WANDSWORTH LBC v DIXON2009 EWHC 27 (Admin)

• Common law rule in Hammersmith v Monk (1992) 1 AC
  478
• entitled LA to recover possession following JTs
  NTQ not invalidated by enactment of HRA 1998 and
  repossession did not interfere with tenants
  Article 8 rights
• Ds application to set aside possession order
• D had occupied 2 bed flat under JT with sister
  over 20 years
• 2005 sister served NTQ, LA offered alternative
  accommodation
• Prior to execution of order police found cannabis
  in flat, LA decided ineligible for re-housing

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() WANDSWORTH LBC v DIXON2009 EWHC 27 (Admin)

• Held
• (1) clear from Lord Hope in Qazi v Harrow that
  rule in Monk not a violation of article 8, which
  meant that possession order inevitable. McCann
  persuasive and distinguishable
• (2) whereas Doherty an exceptional case because
  of discriminatory effect of statutory scheme, Ds
  case not in any way exceptional as required by
  Kay, but rather Ds challenge based on his
  personal circumstances. Kay was binding
  authority and decision of LA to seek possession
  could only be challenged on basis that decision
  one that no reasonable person could consider
  justifiable. Distinction between LA considering
  article 8 rights and proportionality and court
  substituting own view. LAs decision accorded
  with article 8.

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MANCHESTER CC v MORAN2008 EWCA Civ 378

• A womans refuge could be described as bricks
  and mortar accommodation for the purpose of HA
  1996 Pt 7 and it could be reasonable for a woman
  to continue to occupy a refuge
• Decision to the contrary in R v Ealing ex parte
  Sidhu inconsistent with HL in R v Brent ex parte
  Awua and R v Hillingdon ex parte Puhlhofer and
  was wrong
• It could be reasonable for a woman to occupy a
  refuge, particular matters fell to be considered
  in addition to general matters under s.175(3) or
  s.191(1)

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() MANCHESTER CC v MORAN2008 EWCA Civ 378

• General matters size, type quality of
  accommodation available , terms of agreement,
  ability to afford it, location for her
  children, facilities for her children
• Particular matters nature of the refuge, scale
  of support, length or period expected to reside,
  length of period women generally resided, whether
  full, evidence that applicants occupation
  prevented it from being available to another DV
  victim, reasonableness of conditions attached to
  occupation, extent of her need, and of her
  ability to accept such physical and emotional
  support as it offered.

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DE-WINTER HEALD ORS v BRENT COUNCIL2009 EWCA
Civ 930

• Appeals by A1, A2, A3 and A4 from decisions of
  HHJ McDowall, at Willesden CC and from the
  decisions of HHJ Mitchell at Central London CC.
• A1 and A3 had requested review of the Councils
  decision that they were not homeless.
• A2 and A4 had requested a review of the
  suitability of temporary accommodation provided
  by the Council.
• They contended that it was unlawful for the
  Council to contract out the carrying out of its
  reviews making the reviews ultra vires and
  unlawful. They further contended that P appeared
  biased and their reviews were unfairly conducted
  infringing their rights under Article 6 of the
  ECHR.

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() DE-WINTER HEALD ORS v BRENT COUNCIL2009
EWCA Civ 930

• Reviews could be contracted out by the terms of
  Reg 2 of the Allocation of Housing and
  Homelessness (Review Procedures) Regs 1999.
• A decision by an elected councillor, whose tenure
  depended on his re-election would be even less
  independent than an employee could be even more
  influenced by the financial implications of an
  acceptance of a duty to accommodate, making him
  more likely to be biased.
• That was consistent with the Homelessness Code of
  Guidance. The Council was entitled to have the
  review carried out by P.
• P's decisions were accepted by the Council and
  upheld by the local courts because his decision
  letters addressed the issues raised and the
  information put before him. The decisions in the
  present cases were not made by someone who was
  materially less independent than an officer of
  the authority itself.

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WATCH THIS SPACE

• Birmingham v Qasim off to the Court of Appeal on
  renegade housing officer handing out tenancies
  outside allocations scheme
• Powell v Hounslow off to the Court of Appeal 15th
  November on whether an Art 8 defence can be made
  by a non-secure tenant in possession proceedings
• Ibrahim v Harrow has been heard at the ECJ, A-G
  opinion to be handed down on 20th October 2009.