Clarke Willmott LLP’s social housing team 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.
 EWHC 1112 Administrative Court
17 May 2017
Local authorities – Committal proceedings – Misleading statements
The Applicant applied for permission to make a committal application against the Respondent in response to his being suspended and then excluded from their housing register. The Applicant alleged that the Respondent’s lawyer had made a false statement of truth in the Acknowledgment of Service, verifying the Summary Grounds of Defence which contained three false and/or deliberately misleading statements. There was nothing fraudulent about the Respondent’s statement nor had there been any procedural unfairness. The Applicant failed to establish a strong prima facie case. Application refused.
 EWHC 1113 Administrative Court
17 May 2017
Housing – Housing registers – Judicial review
The Claimant applied for permission to apply for judicial review of the Defendant Council’s decision to exclude him from its housing register. The Claimant had filed a notice of discontinuance in respect of the several grounds, but stated in his claim form that he intended to continue with other grounds: unlawfulness and misapplication of the Defendant’s Housing Allocation Scheme; violation of the Data Protection Act 1998 and violation of the Freedom of Information Act 2000. This was yet another claim wholly without merit which the Claimant had made against the Defendant. The Claimant had failed to establish any arguable grounds for judicial review. Application refused.
Employment Appeal Tribunal
30 March 2017
Employment – Constructive dismissal – Transfer of undertakings
The Claimant’s case of constructive unfair dismissal had been unsuccessful in the Employment Tribunal. He had been transferred by operation of TUPE on two occasions, but his only contract came from his first employers (the Respondent being the last). That contract contained a flexibility clause, but the Claimant contended that whilst employed by his second employer, a variation had been agreed whereby he was required to work only on “void” property. The Claimant had since found documentation indicating as much. The issue on appeal was whether the new evidence fulfilled the test that it probably would have had an important influence on the result of the case. The new evidence did not have status as a contract or statement of terms and conditions, nor could it override the flexibility clause. Appeal dismissed.
 UKUT 213 Lands Chamber
25 May 2017
Landlord and tenant – Rent Determination – Fair rent
The issue in this case was whether the First-tier Tribunal (FTT) had provided an adequate explanation of its determination of the fair rent for the Appellant’s flat which more than doubled the amount payable. The Rent Acts (Maximum Fair Rent) Order 1999 imposed a maximum increase by reference to the UK retail prices index plus 5%. However, the flat had undergone several improvements and the FTT concluded that the exemption in Article 2 of the 1999 Order applied. The Appellant appealed on the ground that the FTT had not provided a proper explanation for its conclusion. The Upper Tribunal held it was necessary for the Respondent to provide the figures on which it based its decision. The FTT’s judgment was set aside and remitted for reconsideration.
 EWHC 1190 Administrative Court
19 May 2017
Housing – Local authorities’ powers and duties – Housing assistance
The Claimant was wheelchair-bound following an accident. He applied for housing assistance in one borough, but was refused. After moving to the Defendant Council’s borough his application was, for the most part, accepted, although he was said to have no local connection and a referral sent to the first borough. Two weeks after the initial application, the Defendant sent a further letter now detailing its complete refusal. The judge held that fairness demanded not just that the Defendant should provide reasons to justify its second decision (which it had done) but also the reasons to support that it was entitled to make a second decision. The Defendant owed a duty under s.200 of the Housing Act 1996 which would continue until the referral issue was resolved.
No transcript currently available.
25 May 2017
Civil procedure – Town and country planning – Consent orders
The Appellant and the Respondent housing association owned adjoining properties. The court had granted an order in favour of the Respondent in an appeal from a party wall award and a Part 8 claim. The Part 8 proceedings concerned a consent order between the Appellant and an acquiring authority which had since transferred the property to the Respondent. The Appellant submitted that, as payments under the consent order had not been made within the specified period, he was not bound by the order’s other provisions. He further argued that planning permission granted in 2003 still applied, negating the Respondent’s proceeding with a later permission. As the Appellant had ultimately accepted payment, the consent order could not be questioned. It was also evident that more than one planning permission could be granted to a piece of land, but there was no obligation to proceed with the earliest permission. Appeal dismissed.
 EWCA Civ 359
Court of Appeal
18 May 2017
Contracts – Minimum acceptable performance
The Appellant in this case managed the housing stock of a local authority while the Respondent specialised in the maintenance and repair of housing. The case was an appeal against the dismissal of the Appellant’s claim under a construction contract. The principal issue was whether the figures set out for minimum acceptable performance (MAP) in three tables headed “example” were contractually binding or solely illustrative. The examples were clear that in every case the MAP was 3% lower than the target figure. That was the ratio which the parties had agreed. The MAPs for 2014/2015, therefore, had to be 3% lower than the target figures set out in the framework agreement. That was the only rational interpretation. Appeal allowed.
 EWCA Civ 364
Court of Appeal
19 May 2017
Housing – Local government – Improvement notices
The Upper Tribunal (UT) quashed an improvement notice served by the Appellant Council which had offered alternative schemes for the remedial work. The UT found it was irrational for the Appellant to have required the implementation of a different scheme when a reasonable, less expensive alternative was available. The local authority appealed. Although the UT’s overall conclusion was correct, the Court of Appeal’s reasoning was different. The tribunal could vary or choose what it thought the best option for remedying the situation, but that did not mean that either notice was unlawful. Appeal dismissed.