Housing Law Update December 2021

Introduction

This month I have found a lot of very useful / interesting material at 42 Bedford Row's Housing Group website and on their YouTube Channel.

I have created this page which sets out the links I use to find housing law updates.  Please can anyone who knows of other sources let me know by leaving a comment.

Case Law

Ciftci v Haringey - Intentional Homelessness 

The council were held to be entitled to find that Ms Ciftco was intentionally homeless because she gave up accommodation in Switzerland and came to London where her sister had found a job for her and arranged for her to stay with a friend. The job did not last and she was asked to leave the friend's home. She argued that she was not intentionally homeless because she had believed the arrangements which her sister had made were sufficient to prevent her from becoming homeless. It was held that she could not argue this in good faith because she had failed to consider whether these arrangements were likely to last long enough to enable her to find accommodation of her own.
The full judgment is here. There is a good summary of this case on Lime Legal's site  - You need to scroll down to the New Housing Cases Section and on Nearly Legal

One passing thought I have is how much a problem intentionally homelessness is for applicants following the Homelessness Reduction Act 2017 and for those with children. It is likely that even if an applicant is not found to be intentionally homeless nowadays the most likely outcome of their application will be an offer of private sector accommodation. A relief duty would still be owed to someone who is intentionally homeless as this duty arises without consideration of intentionality. The duty is likely to be discharged by the council assisting the applicant in obtaining private sector accommodation. An intentionally homeless applicant with a child will still be owed a duty under Section 190 of the Housing Act 1996 and will be entitled to assistance under Section 17 of the Children Act 1989. Both of these routes will again be likely to lead to offers of private sector accommodation. It seems therefore that arguments about intentionality are a bit outdated now and belong in a past age where a successfully unintentionally homeless applicants could expect to receive an offer of social housing . Please feel free to correct me on this If you think I am wrong.

Global 100 Ltd v Laleva (2021) EWCA Civ 1835 - Possession 

An arrangement for Ms Laleva to move into a property was held to give rise to a licence and not tenancy. The Court of Appeal held that the County Court Judge who first considered the case had been entitled to make a Possession Order at the first hearing on the basis that the defence based on a tenancy having been created had no realistic prospect of success.

It might be argued that the decision in this case is of limited application and only effects people who enter into arrangements where they become property guardians. On the other hand the case can be seen as alarming in that it appears to undermine what housing lawyers have treated as the rule from Street v Mountford that where someone has exclusive occupation of even party of a property for which they pay rent they have a tenancy and the statutory protection which goes with it. The worry is that other landlords may be able to treat their tenants as licensees as a result of this decision.

The judgment also deals with the question of when a judge can make a Possession Order at the first hearing of a claim having found that there is no arguable defence. In a nutshell the court held that the test is the same as the test for making a summary judgment. This may give rise to more summary Possession Orders being made in the future.
The full judgment is here. For more on this case see Nearly Legal 

Metropolitan Housing v TM - Possession 

In this case the Court of Appeal held that although it was possible for a breach of the Public Sector Equality Duty to be remedied during a case and even in the course of evidence given a trial this should be avoided. This was due to the danger of confirmation bias preventing the landlord from carrying out a fair and balanced assessment and preferring to justify the defective decision to take possession action. It will always be preferable for the landlord to carry out a proper reassessment when new evidence comes to light showing that the original decision to take possession was possibly defective and in breach of the duty.

This case was a good example of what can go wrong if an internal review of new material is not carried out. The landlord accepted that had the new evidence been considered at the time of the original decision then they would not have taken possession action. However, they still thought that carrying on with the proceedings now that they had been issued was a proportionate response to the incidents giving rise to the possession proceedings.  Lord Justice Nugee stated at paragraph 66, "Absent considerable forensic gymnastics these two positions are inconsistent." That seems like a polite way of saying that the position was nonsensical.

My worry here is that the case would probably have gone the other way if an internal review had been carried out and had given rise to a carefully worded decision that it was appropriate to carry on with the proceedings. It might also have gone the other way if the housing officer had not conceded in the witness box that he would not have made the decision to take possession action if he had seen the evidence which was available by the time of the trial. Nevertheless this is a very important decision which shows that the Public Sector Equality Duty can not be ignored by landlords and that any breaches can be remedied if necessary at trial which is what most people were starting to think before this ruling.
The full judgment is here. For more on this case see this discussion by Robert Winspear of 42 Bedford Row.

R oao BG and KG v Suffolk County Council 2021 - Community Care
The Court held that Suffolk County Council were wrong in law to decide that they did not have power to assist two disabled men to have holidays and use recreational facilities. This case about community care rather than housing. It does however set out a useful and detailed consideration of the law relating to the care and support available under the Care Act 2014.
The full judgment is here. 

Webinars

New Webinars

Domestic Abuse And The Interaction With Housing Law Webinar - DG Legal

This webinar from DG Legal  considers the law in this area in detail and the implications of the Domestic Abuse Act 2021

Navigating Capacity Issues - Garden Court Chambers

This webinar from Garden Court Chambers Community Care Team considers the issues of capacity in specific areas which is of interest and use to housing lawyers as well as community care specialists

How To Understand Damp and Mould Claims - 42 Bedford Row

This webinar makes important viewing following renewed interest in damp and mould growth following the October 2021 Ombudsman report Spotlight on Damp And Mould Growth - Ombudsman Report.

Recommended Older Webinars

The above case of Metropolitan Housing v TM 2021 (see above) has renewed interest in the Public Sector Equality Duty as something not to be overlooked in possession proceedings. Before the decision in TM many lawyers had been tempted to write off the Public Sector Equality Duty because it did not give rise to an obligation to do anything in particular and becasue breaches could be remedied later on.

This Doughty Street Chambers - The Public Sector Equality Duty: Is It Dead In The Water? looks at the pre TM position from a tenant lawyer perspective whilst the Cornerstone Barristers webinar PSED Defence and Residential Claims does the same from a landlord lawyer perspective

 

 

Property Guardians: Who Are They And What Are Their Rights? - 42 Bedford Row

This webinar from February 2021 provide useful background information relevant to the above case of Global 100 Ltd v Laleva (2021) EWCA Civ 1835

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