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Social Housing Case Bulletin – September 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.

Irwell Valley Housing Association v O’Grady

[2015] UKUT 310 Lands Chamber
25 June 2015

Housing – Rent – Valuation

The Appellant housing association appealed against the First-tier Tribunal’s (FTT) valuation of the rent for the Respondent’s flat. In reviewing the property’s rent under the Housing Act 1988 s.13(4), the FTT had erred in identifying a comparable property without allowing the parties the opportunity to comment on the weight which should be given to that comparison. Appeal allowed and remitted to a newly constituted tribunal for fresh consideration.

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One Housing Group Limited v Clifton

Central London County Court
9 July 2015

Anti-social behaviour – Contempt of Court – Sentencing

This case involved the persistent and flagrant breaching of an anti-social behaviour injunction. The Defendant had, on ten separate occasions, each filmed on CCTV, deliberately entered premises which she knew were prohibited under the terms of the injunction, causing distress to residents and to employees of the Claimant housing association. The Defendant’s plea in mitigation was dismissed in light of the evidence. Due to the repeated nature of the breaches, the judge handed down an immediate custodial sentence of eight months imprisonment.

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R. (on the application of the Croydon Property Forum) v London Borough of Croydon

[2015] EWHC 2403 Administrative Court
13 August 2015

Local authorities – Selective licensing schemes – Consultation

The Defendant Council designated its entire borough for a selective licensing scheme under the provisions of the Housing Act 2004. The Claimant body was formed to challenge the scheme on the grounds that local developers and landlords had not been adequately consulted. The Claimant contended that the Council was under a statutory duty set out in s.80(9) of the 2004 Act “to take reasonable steps to consult” before making the designation. The Council countered that it complied with its statutory obligation. The Council had “a comparatively wide discretion” as to how the consultation process could be conducted. The obligation was only to take reasonable steps, not all steps or even all reasonable steps. Application refused.

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Mohamoud & anor v Royal Borough of Kensington and Chelsea

[2015] EWCA Civ 780 Court of Appeal
21 July 2015

Local authorities’ powers and duties – Housing – Intentional homelessness

The Appellants were given temporary accommodation by the Respondent local authority on the ground that they were homeless and in priority need. Following assessment, it was determined that the Appellants were intentionally homeless within the meaning of Part VII of the Housing Act 1996. The Respondent took steps to regain possession and orders for possession were made. Permission to appeal was granted on one ground only: that the judge was wrong in law to decide that the Respondent had complied with its duty under s.11 of the Children Act 2004. There were stages when the Appellants had had the opportunity to identify any significant features relating to their position or their children which might be relevant to the proportionality of the decisions. No such facts were identified at the time, or at any stage. There was no basis for interfering with the possession orders that were made. Appeal dismissed.

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R. (on the application of HA) v Ealing Borough Council

[2015] EWHC 2375 Administrative Court
7 August 2015

Housing – Allocations policy – Domestic violence

This application was for judicial review of the Defendant’s revised Housing Allocations Policy and its application to the Claimant’s case. The policy was challenged on six grounds. In particular, that the policy was contrary to the statutory scheme provided for by Part VI of the Housing Act 1996 and that it unlawfully discriminated against women who were victims of domestic violence. It was held that the decision in the Claimant’s case was unlawful, as was the Defendant’s Housing Allocation Policy, and both were quashed.

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R. (on the application of Forster) v Secretary of State, Tower Hamlets LBC & Swan Housing Association Ltd

[2015] EWHC 2367 Administrative Court
6 August 2015

Town and country planning – Nuisance – Noise

The site of a public house had been granted planning permission for its demolition and the construction of a three-storey building in its place, with commercial use on the ground floor and flats above. The Claimant was the owner of the public house who wished to maintain a musical and artistic venue at the site. The application had been rejected because of likely noise disturbance to the tenants above. The Claimant contended that the inspector’s approach to the evidence of third Defendant’s noise consultants had been incorrect and had failed to consider properly the proposed measures to mitigate the effects of noise. There was no evidence that the inspector had felt bound by the results of the noise consultants’ report. Application dismissed.

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R. (on the application of PC) v Hertfordshire County Council

[2015] EWHC 1936 Administrative Court

Local authorities’ powers and duties – Children – Accommodation

The Claimant challenged the failure of the Defendant local authority to provide her with support in her care of a child, in breach of its duty under ss.20-23 of the Children Act 1989. Section 20(1) imposes a duty to accommodate children in need. The arrangements made by the Claimant were voluntary in nature and did not come about through any statutory power or duty by the Defendant. It had been reasonable for the Defendant to conclude that the child did not require accommodation. Application refused.

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Wandsworth London Borough Council v Tompkins

[2015] EWCA Civ 846 Court of Appeal
31 July 2015

Local authorities’ powers and duties – Secure tenancies – Certificates

The Appellant tenants appealed against a decision that the property they rented from the Respondent Council was not under a secure tenancy. They argued the introductory tenancy granted by the Respondent under s.124 of the Housing Act 1996 had since become a secure tenancy. The Respondent’s case was that this was impossible as the Appellants had never enjoyed anything more than a non-secure tenancy. The signing of a certificate of acceptance of the introductory tenancy by the tenant did not amount to notification by the local authority of a secure tenancy. Appeal dismissed.

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West Berkshire District Council & Reading Borough Council v Department for Communities and Local Government

[2015] EWHC 2222 Administrative Court
31 July 2015

Town and country planning – Affordable housing – Ministerial statements

The Claimant local authorities challenged the decision of the Defendant to make alterations to national policy in respect of planning obligations for affordable housing by way of a Written Ministerial Statement. The Court ruled that the national policy was inconsistent with the statutory framework for local plans; that the consultation process carried out by the Defendant was unfair and that it had failed to take into account material considerations. The challenge to the national policy changes succeeded and the relevant parts of the national policy guidance were quashed.

Clarke Willmott comment at this link.

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