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Social Housing Case Bulletin – July 2015

We are delighted to provide you with our monthly case law update which includes cases within the last month from the higher jurisdiction courts in England and Wales that are relevant to the affordable housing sector.

We trust that this update will be helpful and we welcome any queries or further help that we can provide by contacting the partners mentioned below.

Keeping abreast of the latest case law is an important aspect of advice to our clients in delivering the highest quality legal services and we trust you will find this a useful update within your business.

Ansari v London Borough of Southwark

[2015] UKUT 0204 Lands Chamber
22 May 2015

Housing – Prohibition Orders – Limitation

This case considered whether a person subject to a prohibition order was entitled to appeal that order more than three years after it was made. Under the Housing Act 2004, the Appellant had 28 days in which to appeal, but it was some three years (after some efforts to resolve the issues relating to the prohibition order), before she did so. The First-tier Tribunal had not erred in its judgment regarding whether the appeal was permissible. Furthermore, the doctrine of waiver did not apply. Appeal dismissed.

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Cardiff Community Housing v Smith

Cardiff County Court
27 May 2015

Breach of anti-social behaviour injunction – Exclusion zones – Sentence

This case involved the breach of an injunction relating to anti-social behaviour. The terms of the injunction ordered the Defendant not to set foot within a hundred metres of two specified properties. The Defendant admitted that he had breached the injunction, but had done so only when invited to one of the properties by its tenant. The injunction was extended a further six months and a sentence of 28 days imprisonment handed down, suspended on the condition that the Defendant complied fully with the terms of the injunction.

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Gorman v Newark & Sherwood Homes

Court of Appeal
3 June 2015

Housing – Introductory tenancies – Trial periods

The Appellant had been granted a tenancy and, following rent arrears, the Respondent had issued a claim for possession. An issue arose as to whether the Appellant’s tenancy was an introductory tenancy. The High Court held that an introductory tenancy regime had been implemented under the Housing Act 1996 s.124(1). The Appellant appealed contending that the Respondent had elected to operate an introductory tenancy regime for a trial period of one year only, after which it had finished, and that his tenancy was a secure tenancy. The Respondent’s housing director had not advised the operation of the introductory tenancy regime for only one year, or for a trial period, but on a trial basis subject to monitoring for one year. Appeal dismissed.

No transcript currently available.

Guinness Partnership v Gardner

Gloucester & Cheltenham County Court
24 April 2015

Breach of anti-social behaviour injunction – Noise – Sentence

This case involved a breach of an injunction relating to anti-social behaviour. The terms of the injunction ordered the Defendant not to cause, or engage in conduct capable of causing, nuisance, or annoyance or threat, or to cause noise nuisance so that it could be heard outside the property by banging, shouting, singing and playing loud music and slamming doors. The Defendant stated that, as she was dyslexic, she had not retained that information, but the professionals involved in the case had made a great effort to ensure that the terms of the injunction were properly explained. There were no circumstances to justify any degree of suspension. The injunction had simply been ignored. The Defendant was sentenced to 28 days imprisonment.

Footnote: since the end of the sentence, the Defendant had committed further breaches and was sentenced to a further 56 days in prison. See the transcript for more details.

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Johnston v City of Westminster

[2015] EWCA Civ 554 Court of Appeal
3 June 2015

Local authorities’ powers and duties – Homelessness – Accommodation

This appeal was against a decision of the Respondent Council that the Appellant was not homeless within the meaning of s.175 of the Housing Act 1996. The decision was upheld in the High Court, but appealed. The Appellant’s case turned on whether accommodation which was to be offered by an alternative Council was “notional” or “hypothetical”. The alternative Council was under a statutory duty to provide suitable accommodation. The analogy drawn in the High Court was that of a hotel guest who, having booked a room in advance, had an implied licence to occupy a room at the hotel even if the room was not specifically allocated until the guest arrived. Appeal dismissed. The Respondent no longer owed any housing duty to the Appellant.

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Mears v Shoreline Housing Partnership Ltd

[2015] EWHC 1396 Technology and Construction Court
20 May 2015

Contracts – Estoppel – Deductions

This dispute related to c£300,000 alleged to have been overpaid under the terms of a substantial repair and maintenance term contract, which was signed some six months after work started and retrospectively applied. Over twelve thousand small jobs were done and paid for on a basis that the contract did not recognise. The dispute related mainly to whether, by way of estoppels, this basis of payment was effectively agreed or otherwise enforceable. There was an effective estoppel by convention but also by representation, such that it would be unjust and unconscionable for the Defendant to make and retain a deduction of £300,522. Judgment for the Claimant.

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One Housing Group v Kingham

[2015] UKUT 205 Lands Chamber
5 May 2015

Landlord and tenant – Service Charges – PFI contract

The fact that the leaseholders had not been charged for the maintenance for ten years did not mean that the Appellant was prevented from levying the charge to which it was entitled. The reasonable fear which the Respondents harboured before they had sight of the PFI agreement could be seen to be unjustified. The Respondents and the other leaseholders had not been asked to contribute towards the capital cost. Appeal allowed.

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R. (on the application of Alemi) v Westminster City Council

[2015] EWHC 1765 Administrative Court
22 June 2015

Housing – Local authorities powers and duties – Allocation schemes

This case was a claim for Judicial Review of the Defendant’s Housing Allocation Scheme as it applied to persons who had become unintentionally homeless. The claim was made on the ground that the scheme breached the duty imposed by s166A(3) of the Housing Act 1996 as it suspended an applicant’s ability to bid for social housing until 12 months had elapsed following their acceptance as an unintentionally homeless eligible person in priority need, thus creating a sub-group. Part VI of the 1996 Act did not permit the removal of a whole sub-group from a group which s.166A(3) required to be given reasonable preference in the allocation of social housing. Judgment for the Claimant. Declaration of unlawfulness of the Defendant’s Scheme made in this respect.

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RCT Homes Ltd v Lewis

Pontypridd County Court
8 May 2015

Breach of anti-social behaviour injunction – Exclusion zones – Sentence

The Defendant in this case was in breach of an injunction which excluded him from being near specified properties owned by the Claimant. In his absence, he had been sentenced to six months imprisonment for contempt of court, but due to his contrition and attempts to begin to tackle his issues related to alcohol, the judge reduced this to four months, to run concurrently with a sentence from the Magistrates’ Court for breaching a Restraining Order.

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Southward Housing Co-operative Ltd v Walker

[2015] EWHC 1615 Chancery Division
8 June 2015

Possession – Housing co-operatives – Tenancies – Human rights

This case concerned the nature of tenancies granted by fully mutual housing co-operatives. The Claimant contended that it had validly terminated the tenancy agreement; that the agreement did not confer any security of tenure, and that it was entitled to a possession order. The Defendants defended the claim on four grounds: (1) that, the agreement was to be treated as one for an uncertain term which, by virtue of s.149(6) of the Law of Property Act 1925, meant as a tenancy for a term of 90 years; (2) the statutory provisions excluding fully mutual housing-co-operatives from security of tenure should be interpreted in light of Articles 8 and 14 of the European Convention on Human Rights; (3) the decision to serve a notice was unlawful, and (4) the making of a possession order would be disproportionate. The court found for the Claimant and made orders for possession, in respect of arrears of rent, occupation charges and costs.

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Sovereign Housing Association v Rutherford

Gloucester & Cheltenham County Court
12 May 2015

Breach of anti-social behaviour injunction – Exclusion zones – Sentence

The Claimant applied for and was granted an anti-social behaviour injunction against the Defendant. Within the time limits of the injunction, the Defendant was arrested in the exclusion area imposed by the injunction. The Defendant admitted the breach. Because that was his first offence and because he had spent some time in the police cells, no penalty was imposed on that occasion, but a warning was given. The time limit of the injunction was extended by a year. However, further breaches had taken place and the Defendant was sentenced to 28 days imprisonment. Since then, yet further breaches had taken place. In the circumstances, a 42 day custodial sentence for each breach, to run concurrently, was appropriate.

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Trustees of the Israel Moss Children’s Trust v Bandy

[2015] UKUT 0276 Lands Chamber
1 June 2015

Landlord and tenant – Fair rent – Regulated tenancies

This appeal raised a point concerning the sufficiency of the reasons given by the First-tier Tribunal (FTT) when explaining its determination of a fair rent for residential premises let by the Appellant to the Respondent on a regulated tenancy under the Rent Act 1977. The Appellant had sought to increase the rent, but the Respondent considered that the new rent was too high and referred it to the FTT for reconsideration. The decision of the FTT was flawed in failing adequately to explain its calculations. Appeal allowed, the original decision set aside and remitted for redetermination.

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