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Case Law Update and ASB –
moving forward
By Lindsay Felstead
and Paul Lloyd
‘These materials and slides are intended for guidance only and not
as a substitute for legal advice or using formal reference
documents such as current legislation and case law.’
Case Law Update
‘These materials and slides are intended for guidance only and not
as a substitute for legal advice or using formal reference
documents such as current legislation and case law.’
NTQ – Joint tenancy
Sims v Dacorum BC [2013] EWCA Civ 12
– 2002 - Joint tenancy granted to husband & wife
– 2010 – wife left property due to alleged DV
– NTQ served by wife
– Possession proceedings issued against husband
– Defended on basis of rule re: NTQ ending joint
tenancy is incompatible with Article 8 rights
• Leapfrog appeal to Court of Appeal
• Permission to appeal to Supreme Court?
• Appeal refused – no incompatibility
NTQ – Elderly tenant
Birmingham CC v Howell & Beech [2013]EWHC 513
Joint secure tenancy granted to (W) & husband
W succeeded to tenancy upon husbands death
Daughter (H) & her husband (B) moved in
Daughter sought to have name added to
tenancy
W went into hospital & then care home
HO attended care home & obtained NTQ
Possession proceedings issued
Proceedings defended on 4 grounds:
1. NTQ invalid – undue influence or unconscionable behaviour of HO
2. Decision not to allow joint tenancy or new tenancy following death of W unlawful
3. Art 8 – proportionality
4. Survivorship incompatible with Art 8
• Order = possession of the property
• NTQ valid
• Refusal to add as joint tenant lawful
• Decision not to grant a new tenancy lawful
• Proportionality test of “seriously arguable” not
satisfied
• Incompatibility argument not engaged
Public law – following of p&p
Leicester CC v Shearer [2013] EWCA Civ 1467
• Mr S secure tenant following succession
• Mr S resided at property with wife & children
• Mrs S & children vacated property – children still visited
• Mr S died - Mrs S moved back into property
• Council operated a Choice Based Letting Scheme = ability to
make direct offer of accommodation in exceptional
circumstances
• Mrs S advised that couldn’t remain at property
• Mrs not told about possibility of direct offer
• Possession proceedings issued
• County Court refused possession – appeal to CoA
CoA – dismissed Authority’s appeal:
– Authority provided misleading advice
– Although not bound to make a direct offer they
had acted unlawfully by failing to give proper
consideration to her exceptional circumstances
Squatters & Article 8
Malik v Fassenfelt, McGahon & Persons Unknown [2013] EWCA Civ 798
• Squatters (x) entered land without permission &
established a home
• M applied for possession
• Judge held that Court a public authority & so ECHA
capable of application
• X argued possession disproportionate (Art 8)
• Possession order made
• Appeal that no discretion to suspend a po in case of
trespassers should be relaxed so as to comply with Art 8
• CoA held:
• - entitled to protection of Art 8
• - difficult to imagine exceptional circumstances
Proportionality at all stages
R(JL) v Secret. of State for Defence [2013] EWCA Civ
449
• JL lived in accommodation owned by MoD
• JL disabled and in a wheelchair
• Lived with 2 adult daughters & grandchild
• 1 daughter had mental health problems
• Grandson suffered from Crohn’s disease
• Possession proceedings issued & Art 8 raised unsuccessfully
• Appeal to CoA dismissed – Judge right to consider that all
relevant factors taken account of.
• Court could in principle consider proportionality at possession
AND enforcement stage but:
– change in circumstances required
– Possible abuse of process if not raised at order stage
Use of hearsay
Boyd v Incommunities Ltd [2013] EWCA Civ 756
• Possession sought on Grounds 10, 12 & 14 of HA ‘88
• ASB alleged Jan 2010 – Nov 2010 & that property
used as a drug den in Dec 2010
• Judge found all grounds proven save for property used
as drug den
• SPO made
• Appeal to CoA relating to courts finding of ASB based
solely on 3 anonymous w/s exhibited to HO w/s. Art 6
– unable to test evidence as accusers not known
• At trial, objection raised to use of hearsay statements
& substantial xx as to circumstances & manner in
which statements had been taken
• CoA held that Judge had not erred in accepting
the anonymous evidence in preference to that of
the Defendant
• Practice of admitting hearsay evidence well
established
• Judge had referred to guidance given in previous
judgments
• Judge had acted properly in finding that
reasonable for the 3 residents to remain
anonymous
• Note – ensure that w/s are Civil Evidence Act
compliant!
Discretion as to cause of action
Birmingham CC v James [2013] EWCA Civ 552
• J appealed against the grant of an Injunction to
Restrain Gang Violence
• mens rea necessary & hadn’t deliberately
provoked violence
• Court wrong to find Injunction was necessary
when alternative remedy of a “closer fit” was
available i.e. ASBO
• Held: Judge entitled to consider test satisfied on
the evidence & there is no “closest fit” principle.
Refusal to make ASBI
Swan HA v Gill [2013] EWCA Civ 1566
• S applied for an ASBI as a result of G’s asb
• Judge found that G had engaged in asb but noted that
S had recently become aware that G had Asperger’s
syndrome.
• No medical evidence of conditon
• Held that S should have reviewed position upon
awareness of condition = contravened EA 2010 & s149
public sector equality duty
• Held that grant of Injunction would allow S to
contravene & subject G to considerable detriment
• Finding of Asperger’s syndrome not properly supported
by evidence
• S arguably was a public authority for s149, court was not
• S35 EA only applied to a person who was actually
disabled
• Asperger’s manifested itself across a wide spectrum from
slight to severe = medical evidence necessary to identify
extent & effect
• Injunction order made
Suitable Alternative Accommodation
Holt v Reading BC [2013] EWCA Civ 641
• Appellant resided with mother (secure tenant) succeeded
to tenancy
• Respondent served Notice relying on Ground 16
• Appellant refused offers of alternative accommodation
• Possession proceedings issued
• No liver offer of a particular property at the time of the
trial
• Possession order made conditional on offer of property
• Appealed on basis that should be no order until a specific
property identified
• CoA = appeal dismissed. Court has to be satisfied that
sac will be available at the time the order takes effect
Section 21 Notices
Spencer v Taylor
• AST granted to T in Feb 2006 – period was Sun to Sat
• Oct 2011 s21(4)(a) Notice served stating:
“possession of the dwelling house…(a) after 1/1/2012 or (b) at
the end of your period of tenancy which will end next after the
expiration of two months from service of this notice upon you”
• Defence – Notice invalid in that relied on 2 dates
• S accepted that date wrong but relied on save all clause
• CoA = Notice complied with S21(1) even though not purported
to. Therefore no need to specify a date.
• In any event notice valid as there could only be one lawful date
produced by the Notice.
Service Charges
MacGregor v B M Samuels Finance Group
• Respondent company freehold owner of 2 blocks of flats A & B
• Appellant leaseholder of 2 flats in Block B
• Company brought an application to LVT against a number of leaseholders for a determination of s/c
• LVT made reductions to a number of s/c items
• Upper Tribunal granted appellant permission to appeal
• Appellant – if successful in establishing that costs had not been reasonably incurred company obliged to reimburse s/c account with all money shown not to be reasonably incurred
• Held = jurisdiction limited to determining whether s/c are payable by those leaseholders who are parties to the application
Anti-Social Behaviour –
moving forward
‘These materials and slides are intended for guidance only and not
as a substitute for legal advice or using formal reference
documents such as current legislation and case law.’
Anti-Social Behaviour, Crime and Policing Bill
Aims and Objectives
• Reduce inflexibility of current tools
• Speedy and effective tools
• Focus on victims
• Streamline the tools
• Multi agency co-operation
Current tools replaced by:
• IPNA
• CBO
• CPN
• CPO (Public Space)
• CPO (Closure)
• Directions Powers
Additional Matters:
• Mandatory possession
• Community remedies
Registered Provider - focus
• IPNA
• CPN / CPO
• Mandatory Possession
• Community Remedies
IPNA – Injunction to prevent
nuisance and annoyance
• Civil order
• County court jurisdiction
• Youth court jurisdiction
IPNA – Injunction to prevent
nuisance and annoyance
• Test
i. Engaged or threaten to engage in
conduct capable of causing nuisance or
annoyance
ii. Just and convenient to prevent further
ASB
IPNA – Injunction to prevent
nuisance and annoyance
• Injunction terms:
– Prohibitions
– Positive Requirements
Housing Providers must show impact on
HM functions
IPNA – Injunction to prevent
nuisance and annoyance
• 10 years and above
• Show consultation
• Powers of arrest and exclusions
• Powers to remand
• Breach is contempt – (special rules for
minors)
Challenges to Bill
• Nuisance and annoyance – clarify by objective
test of reasonableness
• Civil Standard or Criminal Standard!
• Should Clause 13 be removed?
• Limit the power to exclude from a respondents
home to Adults!
Pressure from sources including:
• Reform Clause 1 – pressure group in Parliament
• Liberty
Criminal Behaviour Order (CBO)
• Replaces ASBO on Conviction
• Application by prosecution conditions
i. Conviction of offence
ii. Engaged in behaviour which caused or was
likely to cause harassment, alarm or distress
iii. Order will help prevent further behaviour
• Can include, prohibitions and for requirements
Community Protection
• Notice
• Issued by “Authorised Person”
– A constable
– Relevant Local Authority
– A designated person
Community Protection Notices
(CPN)
• The conduct of the individual or body is
having a detrimental effect of a
persistent or continuing nature, on the
quality of life of those in the locality,
and
• The conduct is unreasonable
Prior Action
• Must have given written warning
• CPN – imposes a requirement
– To stop doing something
– Requirement something to be done
– Reasonable steps to achieve specified
results
Failure to Comply
• LA notice to do works
• Breach CPN – summary conviction
• Guilty – body corporate – up to 20k
• Forfeiture of items
• Fixed penality notice
Absolute Possession
• Conditions –
– Serious offence
– Breach of IPNA
– Breach of CBO
– Dwelling subject to closure order
– Breach of abatement notice
Community Trigger
• Idea?
– Resolution of long running problems
– Ownership
• Trials
– Manchester
– Brighton and Hove
– West Lindsay
– Richmond LB
Lessons Learnt:
• Clearly agree threshold with agencies
• Consult victims and communities about the threshold
• Professionals working with the vulnerable must be aware of the trigger
• Publicity is essential
• Agencies must not rely on victims knowing about the trigger
• Clear guidance on management
• Victims need to know what may be achieved
• Agencies must understand the trigger
• It should be clear whether the trigger can be commenced anonymously
Summary Report – of trials May 2013
Prevention of Social Housing
Fraud Act 2013
• Commenced: 15th October 2013
Aims:
• “Ensure social housing is occupied by
those to whom it was allocated”
• It extends and applies to England and
Wales
Sections 1 and 2
• 2 Offences:
1. Sub-let or part with possession of
– Whole
– Part
Without landlords permission in breach of an
express or implied term of the tenancy knowing to
do so is a breach, the tenant ceases to occupy as
their only or principal home.
Sections 1 and 2…cont’d
2. Sub-let or part with possession of
– Whole
– Part
Without landlords permission in breach of
an express or implied term of the tenancy,
and does so dishonestly. The tenant
ceasing to occupy the property as their
only or principal home.
What is the result of a breach
• Offence 1 – summary conviction, a fine
not exceeding level 5 (£5,000)
• Offence 2 – 2 parts
i. Summary conviction 6 months and/or
£5,000
ii. Conviction on indictment 2 years and/or
£5,000
Defences
• If the offence occurred due to a threat of violence
towards tenant or member of family who resided
with them immediately before the offence.
• No offence if the person in occupation
– Entitled to apply to Court to have a right to
occupy or have the tenancy transferred
– If a person could apply to have the tenancy
transferred to the occupier or to someone to hold
it for the benefit of the occupier
Prosecution
• By local authority
• Within 6 months
• Not after 3 years
Unlawful Profit Orders – Section
4 and 5
• Application available in criminal and
civil proceedings
Assured Tenancy Status
• Section 15 Housing Act 1988 –
amended
– Will not regain security if offence
established
• Brings Assured Tenancies in line with
Secure Tenancies
Summary
• 2 offences
• Dishonesty – more serious
• Can be prosecuted
• Unlawful Profit Orders available
• Assured status can be lost
Dishonesty???
R v GHOSH [1982] QB 1053
“……There are, sad to say, infinite categories of
dishonesty…. Now it is your turn today having heard what
you have to consider contemporary standards of honesty
and dishonesty in the context of all that you have heard. I
cannot really expand on this too much, but probably it is
something rather like getting something for nothing, sharp
practice, manipulating systems and many other matters
which come to your mind.”
The Public Services (Social Value) Act 2012
• RA – 8th March 2012
• Commenced – 31st January 2013
Public Bodies – England & Wales
• Requirement – consider:
“How the services you commission and procure
might improve the economic, social and
environmental well being of the area.”
What is social value?
• Look beyond price – “Value”
• How can scarce resources be used to
generate a benefit which goes beyond
the payment of monies for the
performance of a contract.
Examples:
• Apprenticeships
• Work placements
• Engagement in social enterprise
• Other added value benefits
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