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Possession ArchivesSat, 08 Nov 2014 16:26:08 +0000The extremely slow work of adding downloadable, searchable PDFs of the NL archives continues. In addition to the homelessness archives, there are now PDFs of the possession case posts from 2006 to date on the PDF Archive page.As before, these are unedited, uncorrected and generally as is. Not least because they are free. But they might come in handy for those times without internet connection.

Human Rights Round-Up Part 1Tue, 11 Nov 2014 20:50:01 +0000Tijardovic v Croatia [2014] ECHR 637 (19/6/2014)Mrs T and her family occupied a flat in Split, Croatia, which her father-in-law had held under a specially protected tenancy with the Split Municipality, from 1983 onwards. Between 1985 and his death in 1998, Mrs T's father-in-law resided at another flat in Split. After his death, Mrs T applied to purchase the flat but the Municipality refused, seeking instead Mrs T's eviction from the flat on the basis that she had no legal right to occupy it.Mrs T complained before the national courts that the flat had been the family home for nearly 30 years, that she had paid the rent and other bills for the property, that the municipality had never asked her to leave once her father-in-law moved out in 1985 and that her modest income would hamper her in finding alternative accommodation.The parties accepted before the ECtHR that the flat was Mrs T's 'home' for Article 8 purposes (even though no formal licence or tenancy was ever granted to Mrs T) and the question boiled down to whether the eviction (which had not yet been executed) was proportionate and 'necessary in a democratic society.'The ECtHR found that by confining themselves to considering whether Mrs T had a legal entitlement over the flat, the national courts had not analysed the proportionality of the eviction and had thereby deprived Mrs T of the necessary procedural Article 8 safeguards. Particular weight was given in the Court's assessment to both the length of the applicant's occupation and the State's acquiescence to her occupation of the flat once her father-in-law moved out in 1985 (a feature too of the Brezec v Croatia judgement-see our note here)The Chamber therefore found a violation of Art 8 but declined to award damages.

R & L, SRO v Czech Republic [2014] ECHR 703 (3/7/2014)The applicants were the owners of flats in various locations within the Czech Republic, the tenancies for which were subject to regulated rents that were far below the amounts the applicants could expect to obtain on the open market. The applicants sought compensation from the State for the difference in value between the amount of rent they actually received and the market rent they might have received. The national courts dismissed those claims.The applicants then complained to the ECtHR that the regulation of the rent was an unlawful interference with their property rights under Article 1 Protocol 1 of the Convention. Firstly, the Court rejected the argument that in purchasing their flats, the applicants had consented to the regulated rents which were in place. The applicants could only waive their right to set a market rent if they had the right to exercise that waiver in the first place, which they did not. There was accordingly an interference with their property rights.

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In finding the interference to be unlawful, the ECtHR pointed to various orders of the Constitutional Court declaring the continued operation of the rent control scheme unconstitutional. It was not therefore necessary for the Court to consider whether that interference was disproportionate. The Court found that A1P1 had been violated and it reserved the question of just satisfaction.

Statileo v Croatia [2014] ECHR 743 (10/7/2014)In a similar A1P1 case, the applicant was the owner of a flat in Split that was subject to a protected lease, whose rent was substantially below the market rent. The applicant refused to conclude a new lease with the tenant following a change in the law in 1996 and the tenant sought a declaration from the court that the tenancy was subject to a protected rent (14 Euros pcm). At the same time, the applicant brought possession proceedings against the tenant. The national courts found in favour of the tenant and the applicant petitioned the ECtHR.The Court accepted that the restriction was in accordance with the law but found that the interference was disproportionate. Given that the applicant would be unable to let out the property at a market rent during his lifetime and the significant disparity between the market and protected rents, the Court found this case to be one where a disproportionate and excessive burden had been placed on the applicant as landlord and that A1P1 had been violated. Damages of 9,700 Euros and costs were awarded to the applicant's heir.

Berger-Krall v Slovenia [2014] ECHR 603 (12/6/2014)This is a lengthy judgement running to over 300 paragraphs and given the narrow application of the facts, this note will be short. The applicants were previously holders of specially protected tenancies, which were converted to normal leases during a process of post-Communist law reform. This entailed a change from state controlled rent to a fully negotiated contractual rent. The applicants complained about the excessive nature of the changes to the ECtHR but the Court dismissed their various claims under A1P1, Art 8, Art 6 and Art 14. In what is effectively a mirror image of the R&L and Statileo cases above, the Court found that, in balancing the difficult and sensitive issues affecting both owners and tenants, the State did not exceed its margin of appreciation and the applicants' Convention rights were not violated.

Monk silencedSat, 15 Nov 2014 22:29:58 +0000Sims v Dacorum Borough Council [2014] UKSC 63



If there is a positive to take from this, it is that it is a Supreme Court judgment that won't take long to discuss. The issue of the rule in Monk that notice by one joint tenant determines the whole tenancy came before the Court, on the issue of A1 P1 rights to property and Art 8 rights. We noted the Court of Appeal decision here.The simple version of the facts is that Mr Sims was a joint tenant with his then wife in a Dacorum secure tenancy. She left and served notice ending the tenancy. Dacorum brought possession proceedings and a first instance possession order was made, after hearing Mr S defences.It is, frankly, to see how the Appellant's argument before the Supreme Court were put. They are dispatched with brevity, indeed vim, in the judgment. But on both A1 P1 and Art 8, the argument was that the common law rule in Monk meant that there was a breach of Mr S's rights as he had no possible part or say in the determination of the tenancy.On A1 P1, though, Mr S ran into the problem that his tenancy agreement stated

"100. Where either joint tenant wishes to terminate their interest in a tenancy they must terminate the full tenancy as in (92) above. 101. We will then decide whether any of the other joint tenants can remain in the property or be offered more suitable accommodation."

So, property rights were subject to the contractual terms.The only two arguments which I think Mr Sims could even conceivably raise in those circumstances would be (i) that clause 100 is irrational or at least so unreasonable as to offend the right to enjoy the property concerned, or (ii) that Dacorum unfairly or irrationally operated clause 101. Assuming (without deciding) that those arguments are open to him in principle in relation to his A1P1 claim, it is nonetheless plain that they fail on the facts. Clause 100 is consistent with a common law principle which is not now attacked, and its effect is anyway mitigated by clause 101. Further, it is not an unreasonable provision, in that someone's interest has to suffer when one of two joint periodic tenants serves a notice to quit. If the result is not as decided in Monk, either the tenant who served the notice is forced to remain a tenant against her will, or the landlord is landed with one tenant instead of two, which means less security - and, in a case such as the present, a family property occupied by a single person. Just as a joint tenant in Mr Sims's position can claim that the outcome determined as correct in Monk is harsh, so could a joint tenant in Mrs Sims's position or a landlord in Dacorum's position contend that either of the alternative outcomes is harsh.

On Art 8, Mr S was entitled to raise the proportionality of eviction at the possession hearing, and indeed, the first instance Judge had

carefully considered that question, and, in relation to Mr Sims's case on article 8, she came to the conclusion that Dacorum's "careful decision-making process amply accorded with article 8.1 [and] that the decision that the Council made was one to which it could reasonably have come". She then said that "[h]aving reviewed all the relevant factors myself, in my judgment it is lawful and proportionate to make an order for possession in this case". Again, I consider that this was plainly correct.

The suggestion that the service of the notice to quit itself was a violation of article 8 rights did not go down well.The fact that the service of the notice to quit put Mr Sims's right to stay in his home at risk does not mean that it therefore operated as an infringement of his right to respect for his home. No judgment of the Strasbourg court begins to justify such a proposition. Mrs Sims had the right to serve the notice, and, as already observed, the service of such a notice and its consequences were specifically covered by the agreement which gave Mr Sims the right to occupy the house as his home in the first place (see clauses 100 and 101).I accept that the effect of the service of the notice to quit was to put at risk Mr Sims's enjoyment of his home. I also accept that different considerations may very well apply for article 8 purposes to Mr Sims, who is at risk of losing what has been his family home for many years, from those considerations that apply to temporarily housed homeless people who are at risk of losing their temporary accommodation as in R (CN) v Lewisham. However, I do not consider that that undermines the point that full respect for Mr Sims's article 8 rights was accorded by the facts that (i) his tenancy was determined in accordance with its contractual terms to which he had agreed in clause 100 of the tenancy agreement, (ii) he was entitled to the benefit of clause 101 of his tenancy agreement, (iii) under the Protection from Eviction Act 1977, he could



not be evicted without a court order, and (iv) the court would have to be satisfied that Dacorum was entitled to evict him as a matter of domestic law, and (v) the court could not make such an order without permitting him to raise a claim that it would be disproportionate to evict him, in accordance with the reasoning in Pinnock and Powell.

As above, the first instance judgment had indeed paid clear and careful attention to the proportionality of the possession claim and Dacorum's consideration of circumstances under clause 101 of the tenancy agreement.So, the appeal failed, foundering on the contractual term, and, for a Local Authority tenant at least, the availability of an art 8 proportionality consideration in possession proceedings.Comment I'm not sure that this close things down completely. The Council had not procured the departed tenant's notice to quit on this occasion, unlike other cases, and it may be that such a procurement would raise additional art 8 issues (the ECtHR has suggested as much), and certainly possible public law defences.It is also unfortunate that the test case on the rule in Monk involved a tenancy agreement which made notice by one of the joint tenants a contractual provision.But complications and distinctions apart, it is now clear that the rule in Monk stands and does so without challenge.

Human Rights Round-Up Part 2Sun, 30 Nov 2014 23:12:30 +0000Lemo and others v Croatia [2014] ECHR 755 (10/7/2014)Both the facts and the outcome in this case are highly reminiscent of Brezec v Croatia (see our note here). The applicants had occupied flats under protected tenancies from the 1970s until their eviction on 19/11/2010. The properties were initially publicly owned but the company which owned the properties (Mlini Hotels) became privatised at some point during the 1990s. At various points during the 2000s, the company sought the applicants' eviction from their homes and despite arguments about the length of their occupation, the intended use of the flats as permanent accommodation and their likely homelessness, the national courts held that the applicants' occupation was without legal basis and possession was granted to Mlini Hotels.In finding that Article 8 was violated, the ECtHR found that no analysis had been undertaken of the proportionality of the eviction, with reference to the applicants' arguments before the national courts and the fact that the owner had delayed several years before taking a position over the applicants' legal entitlement to occupy their homes. Damages ranging from 5,500-7,500 EUR were awarded.This case provides useful further grist to the Article 8/private sector mill. In McDonald v McDonald (our note here), the Court of Appeal noted that there was no constant or clear line of ECtHR cases demonstrating that Art.8 applied to the private sector. This case would be unlikely to shake the CoA's view but it can only add to the weight of case-law when the matter is eventually considered by a higher court.

Dzemyuk v Ukraine ECHR 894 (4/9/2014)The applicant is the owner of a property in Tatariv, Ukraine, the drinking water for which is supplied by a well drawing groundwater from two nearby rivers. In August 2000, the local council constructed a cemetery, whose boundary was situated within 38 metres of the well. Between 2001 and 2002, the Local and Regional Health Inspectorates concluded that the proximity of the cemetery to Mr D's land did not meet health and safety norms and that there was a significant risk of contamination. A 2009 report concluded that the e-coli level within Mr D's drinking water was unacceptably high. Although Mr D showed no signs of infection, he did suffer from hypertension and heart disease.



Between 2003 and 2008, proposals were formulated to relocate Mr D and his family or alternatively, the cemetery. However, neither of these proposals could be realised. Court proceedings resulted in an Order on 26/12/2003 for the Council to close the cemetery and to pay Mr D compensation. The Council failed to obey both this Order and the enforcement proceedings which followed. Mr D then brought his complaint to the ECtHR for breach of Art.8.The first question for the Court was whether there was an interference with Art.8. Despite the lack of obvious adverse effects on Mr D's health and the absence of evidence linking the rise in e-coli levels to the cemetery, the Court found that there was a sufficiently close link between the construction of the cemetery and the impairment of Mr D's quality of life to engage Art.8. The Court had no problem in finding a violation of Art.8. The clear breaches of the 26/12/2003 Order and of Health and Safety Regulations resulted in an award of 6000 EUR non-pecuniary compensation.

JL v UK ECHR (30/9/2014)We reported on the progress of R (JL) v SSD [2013] EWCA Civ 449 in the domestic Courts here. JL's petition to the ECtHR for breach of Art.8 centred on the failure of the High Court to evaluate her proportionality defence at the time of the making of the possession order. To recap, the possession order was made before the decision of the Supreme Court in Manchester CC v Pinnock [2010] UKSC 45 and at a time when the Court was still bound by Kay and Doherty. The judicial review and the appeal to the Court of Appeal concerned the enforcement of the possession order.Unfortunately for JL, the ECtHR was unimpressed by the argument that she was deprived of the necessary Art.8 safeguards. The Court commented at para.46:

The High Court fully considered the applicant’s longstanding mobility and ill-health difficulties; her daughter’s longstanding psychiatric disorder and the impact a forced eviction would have on her; the family’s need for particular and accessible accommodation; and the hardship they would face if required to move, but considered that those circumstances did not render it disproportionate to seek enforcement of the possession order. The applicant was able to appeal the decision of the High Court to the Court of Appeal. Consequently, it cannot be said that these proceedings were not properly equipped with the procedural tools and safeguards to conduct the proportionality review at the enforcement stage.

And at para.47:The full and careful assessment of proportionality carried out by the British courts at two levels of jurisdiction was, in the Court’s view, adequate for the purposes of ensuring the protection afforded by Article 8 of the Convention.

The Court considered that JL was no longer a victim even though proportionality was not considered at the possession stage and that her complaint was manifestly ill-founded. The complaint was therefore declared inadmissible.

Aboufadda v France ECHR 348 (27/11/2014)The applicants were owners of a property in France, which was confiscated following their son's conviction for supply of cannabis and their own conviction for failing to demonstrate resources corresponding to their lifestyle. The domestic courts found that the applicants' assets had been financed with the proceeds of drug trafficking and that the confiscation of the family home, albeit that the interests of a disabled child were at stake, was justified. The applicants petitioned the ECtHR for breaches of A1P1 and Art.8.In declaring the complaints manifestly ill-founded, the Court held that the State enjoyed a wide margin of appreciation when pursuing measures aimed at the prevention of crime and disorder and to deter the dissipation and concealment of illegally obtained funds. As far as Art. 8 was concerned, the Court observed that the applicants had been given 18 months from the making of the confiscation order to find alternative accommodation.



Angels Dancing on the Head of Anti-Social BehaviourSun, 23 Nov 2014 22:01:14 +0000Telchadder v Wickland Holdings Ltd [2014] UKSC 57I will admit to being a bit cool on static caravan parks. I used to live in an area surrounded by them and could never understand why people would want to holiday in them, much less live in them permanently. I get that they appear to represent a budget option but in practice the security of tenure is poor and there is limited protection from service charges. They are in fact a rapidly growing area and now house around 85,000 households, many of which are elderly. However, this appeal is about much more than mobile homes and involves a careful analysis of common law rules on remediability of breaches in regard to anti-social behaviour.Law For those of you not steeped in static caravans, they are not normally permanently affixed to the ground and so you cannot normally have a tenancy of one. More usually the caravan is in fact owned by the occupier and they then hold a tenancy of the ground on which it sits. In order to provide some security of tenure to the occupiers of static caravans a series of Mobile Homes Acts were brought into place, starting in the 1960s. These were of mixed success and led ultimately to the Mobile Homes Act 1983, with which this case was concerned.The 1983 Act created a degree of security by providing for a minimum term for such tenancies, setting out compulsory information to be given to the tenant, and creating compulsory notice provisions before such tenancies could be terminated for breach. Those notice provisions contained more than a passing nod to those found in s146, Law of Property Act 1925, but more of that shortly. One of the implied terms created by the 1983 Act permits the agreement to be terminated if a judicial body considers, on application, that the occupier has not complied with a term of the agreement and, the owner having been served with the notice of the breach, has not remedied the situation within a reasonable time.Facts Wickland are the owners of a mobile home park. It is not used for holiday purposes and the 200 or so residents occupy on a permanent basis. Most of the occupiers own their own caravans. The homes are close together and so, as the Supreme Court put it, there is “a premium on good-neighbourliness.” T entered into an agreement to place his mobile home on the site for permanent residence from 1 June 2006 and this was subject to the 1983 Act. The above-mentioned implied term was therefore included along with an express term requiring T not to cause nuisance or annoyance to other park residents and a requirement to obey the annexed rules of the park. These rules included a further repetition of the enquire rent no to cause nuisance or annoyance to other residents as well as a requirement not to carry an offensive weapon.Behaviour T’s behaviour on the park and the appropriate responses to that were the key issue here. Before I describe this I should say that I make no judgement at all on his behaviour. T was found by the first instance judge to exhibit behaviour on the autistic spectrum, have a learning disability and to be eccentric and have various mental health issues. These facts were not particularly relevant to the situation other than they provide some explanation for his behaviour. At the end of July 2006, therefore early in his residence, another resident of the park complained that T had leapt out in front of her wearing full camouflage clothing along with face veil and waved at her. This had, unsurprisingly, scared her a fair bit. In mid-August , Wickland wrote to T warning him that his behaviour was not acceptable, that he must not cover his face outside his home and that he must not approach other residents of the park. Presumably this notice had the desired effect in that nothing much happened until 2009. Further letters had been sent to T in 2007 and 2008 but these apparently relayed to minor complaints and minor breaches and no weight was attached to them. However in July 2009 T informed another resident that two women had reported him for jumping out at them and said he was going to kill them. In the ensuing exchange T also threatened to kill the other resident.Proceedings Wickland reacted predictably to the events of July 2009, writing to T in August 2009 that it intended to seek possession due to his behaviour. Proceedings were then issued in early September 2009. Oddly the hearing of this claim did not in fact begin until August 2011, some two years later. During this time there had been other incidents involving T and residents including incidents in which T had appeared before the Magistrate.



Key Issues The main issue on appeal was how a breach of a term relating to anti-social behaviour and nuisance should be dealt with. The implied termination term created by the 1983 Act simply states that a notice should be served and if the breach is not remedied then proceedings can be commenced for the Court to make a possession order. It is phrased as follows:

… satisfied that the occupier has breached a term of the agreement and, after service of a notice to remedy the breach, has not complied with the notice within a reasonable time;

However, it is not clear what should occur of this breach is not in fact capable of remedy at all. How can a notice be served and a reasonable time elapse without remedy occurring if no remedy is possible? Arguably the notice would in fact be entirely without purpose if no remedy is contemplated. The predecessor to the 1983 Act dealt with this by using the alternative wording:

...the right of the owner to determine the agreement for breach of an undertaking, subject to the requirement, in the case of a breach which is capable of being remedied, that he has served written notice of the breach upon the occupier and has given the occupier a reasonable opportunity of remedying it;

This wording seemed to have taken s146 as its model as this also talks of notices to remedy breaches requiring a remedy only “if the breach is capable of remedy”.Findings The Supreme Court took a coolly practical approach holding that a notice which required remedy of a breach which was not in fact capable of remedy was a nonsense and therefore that it should attach no particular weight to the wording of the precious legislation that had not been carried over into the 1983 Act.Remediability of Anti-Social Behaviour As the Supreme Court noted, it is easy to fix a breach of a positive covenant to do some act. The act should simply be done belatedly and any compensation paid. There may be some positive covenants that cannot be so easily remedied, such as a massive breach of a repairing covenant that causes a property to collapse. Negative covenants are less easy to remedy. The deed is done, the forbidden act already committed. In some cases simply stopping doing that which is forbidden may be enough. However, some breaches, use of a property as a brothel for example, will carry a lasting taint which cannot be undone. So what of anti-social behaviour. The obvious cure is to cease the behaviour. However, some anti social behaviour may be so serious that merely stopping it may not be enough. There is also the question as to how long it might take before a specific piece of anti-social behaviour might be said to have been remedied. The Supreme Court found that a value judgement had to be made as between the nature of the behaviour and the length of time without recurrences. It suggested that if T had caused injury during the first incident in 2006 then that would quite probably been a breach incapable of remedy and, based on its previous conclusions, Wickland would not have been required to serve a notice of remedy but could simply have informed T that it was seeking possession and proceeded to Court to do so. However, the 2006 breach was not that serious and the Supreme Court found that a notice should be served on T, as it was, requiring him to remedy the breach within a reasonable period. The Supreme Court held that in the case of a negative covenant such as this the proper reading of the the Act was that T should be required not to commit a further breach for a reasonable period of time. The Supreme Court differed from the Court of Appeal by holding that the “reasonable period of time” for such a notice was not the rest of T’s occupation. It was not prepared to set a specific “tariff” for a breach and considers the concept of “expiration” of notices and offences unhelpful. To conclude as the Court of Appeal did, that the notice once served lasted forever, was to permit the eviction of persons for behaviour committed many years in the past. The counter-argument of Wickland that the allowance of remedy for poor behaviour potentially allowed a malicious resident to play “cat and mouse” with park owners by behaving badly, being served with a notice, waiting for a reasonable period to elapse so that the breach was remedied, and then doing it again, was dismissed as unrealistic.Conclusion The Supreme Court noted that this was the first detailed analysis of anti-social behaviour. The upshot is as follows: Some anti-social behaviour of a serious character is irremediable; Less serious anti-social behaviour is remediable; The remedy for less serious breaches is to cease the behaviour and not repeat it within a reasonable period, the length of which will depend on the behaviour; Under the Mobile Homes Act 1983, notice of breach is only required for remediable breaches. Irremediable breaches allow notice to be given of proceedings and for those proceedings to be commenced forthwith. For T, this meant that the considerable period which had elapsed between the 2006 notice and his breach in 2009 meant that he had remedied the breach. The proper course in 2009 was for Wickland to serve another notice specifying a breach and allowing for it to be remedied, absent which they could have proceeded to Court. As they had not done this, t’s appeal would succeed and the possession order granted against him would be set aside.



Minority Views This appeal was a unanimous decision in the sense that all members of the Court agreed that T’s appeal should be allowed. Lord Wilson (who gave the leading decision that forms the basis of the report above) was agreed with by Lady Hale and Lord Toulson. The minority opinion of Lord Carnwarth (Lord Reed agreeing) was that once a notice was served the obligation not to commit the same breach by way of anti-social behaviour continues indefinitely (to that extent echoing the Court of Appeal) but that there must be a causal or temporal link between the original breach and the breach which gives rise to possession which they did not find in this case.Comment I am not sure the minority opinion is terribly helpful. The minority felt that Lord Wilson’s interpretation did “unnecessary violence” to the language of the statute. Their solution was to hold that a the obligation continued forever but that there must be an implied nexus in time between the original breach and subsequent breaches such that the breach of covenant giving rise to the notice can be said to be ongoing and therefore not remedied. I am not convinced this is markedly less violent to the statute and does not create a more confused result. In practice, I doubt there is a vast difference between the two positions. To that extent there is a certain amount of angels dancing on the head of a pin, or the roof of a mobile home.

Southwark: Not appealingTue, 25 Nov 2014 23:29:13 +0000It is not unknown for losing parties in a case to not be happy, indeed very upset. There are two basic options. To shut up and put up with it, or appeal. Rather unusually, faced with one of the most coruscating High Court judgments I can recall, in AA V LB Southwark [our report here], the senior officers of Southwark Council have chosen to do neither. Instead, Southwark's Housing and Communities Strategic Director has chosen to publicly announce that the judgment was 'unjust' and 'clearly wrong', but that Southwark aren't going to appeal it.[Disclaimer. What follows is my view alone, not that of any of the others who write for NL]In a report on the AA case, put before the Council Housing & Community Safety Scrutiny Sub-Committee for the meeting tonight (25 November), the Strategic Director makes an argument that Southwark was basically right and, surprise, a few individual officers were to blame for the bits that Southwark had actually admitted to - the destruction of Mr AA's belongings.Now, as my report makes clear, I had some concerns about one specific finding of the High Court, that there was a conspiracy to evict in the first place - purely on the basis that the judgment did not really set out evidence that would convince me of such a finding, not least because Southwark did not call the relevant officers as witnesses.However, even given my concerns, this report is disingenuous in the extreme. And given that Southwark's officers have chosen the extremely unusual route of publicly repudiating a judgment while not appealing it, it deserves some detailed attention. So, paragraph by paragraph:

BACKGROUND 1. Mr AA, a secure tenant, was evicted on 23 April 2013 for rent arrears. The rent arrears were substantial and ongoing – at the time of eviction he owed £2,353.26.

Given the complete failure by Southwark to add direction deduction from benefits payments to Mr AA's rent account over 27 months between 2002 and 2005, amounting to £1343.90 (as at 82 of the judgment) assertions about arrears should be made with caution. No mention is made of Mr AA's proposals for payment. This bald statement simply attempt to justify Southwark's actions fro the start.

2. The eviction was not attended by an income or resident officer, despite it being a procedural requirement for both to do so. No action was taken by the officer responsible to conduct an inventory of goods remaining at the address at the time of eviction or to arrange for the goods to be put into storage. Consequently, Mr AA’s belongings were destroyed and he therefore took a claim against the council for damages at the High Court.



'Consequently' doesn't cover it. The collection of the belongings, for them to be destroyed, was actively arranged. (See 176 and 180 of the judgment). Further, Mr AA took a claim for unlawful eviction, breach of quiet enjoyment etc. etc. As Southwark's own internal communications set out in the Matthews Report reveal, the Housing dept did not think he was bringing a claim on his belongings but for re-entry. So, a misstatement both of Mr AA's claim and of what Southwark believed it to be when it was made.

ACTION AT THE TIME 3. Action at the time was taken on the basis of the removal and destruction of Mr AA’s property. Senior management were advised and the matter was immediately referred for an internal investigation. 4. A full investigation was undertaken by an independent senior manager in line with council processes and concluded in August 2013. The following recommendations were made: • The actions of two income officers and one resident officer clearly amounted to gross misconduct and should proceed to disciplinary panels. • The actions of one income officer clearly amounted to misconduct and should proceed to a disciplinary panel. • The actions of one resident services manager and one income and debt manager clearly amounted to a lack of supervision. 5. In each case charges were levelled and heard by independent disciplinary panels. This resulted in sanctions being issued to all the staff involved.

That is 6 separate officers, at various levels of superiority. Now what the sanctions are is not set out, but 6 officers, including managers, does not amount to an isolated problem.

PROCEDURAL CHANGES 6. The relevant process is laid down in the rent income and arrears procedure. This is a significant procedure document and includes sections relating to the following: • Rent composition and payment methods • Working with tenants to prevent rent arrears • Housing benefit • Supporting the tenant • Managing tenancies • Dealing with secure tenants in arrears • Introductory tenancies • DIY possessions • Other remedies • Eviction • Former tenant arrears • Bankruptcy7. The eviction section includes clear instructions on the removal and storage of property left behind following an eviction for rent arrears. There is also reference to the more general goods storage or disposal procedure.8. It is important to note that the procedures in place at the time were fit for purpose - the issue was that the procedures were not followed by the officers involved. In any case, the procedures were reviewed and some minor amendments were made to ensure absolute clarity.

I think there is a serious confusion between 'policy' and 'procedure' here. The policy might have been clear, but whether the procedure was fit for purpose depends on whether the policy was being followed and how it was managed - not just by these 6 officers but more widely. A bland assurance that the 'procedure' is fit for purpose is empty nonsense without more.

9. Immediate communications were issued to all officers responsible for eviction procedures. There was a clear management instruction to always follow processes and procedures, particularly in relation the importance of staff always attending evictions.10. Immediate refresher training was put in place to ensure all relevant officers understood processes and procedures.

Is this an admission that there was a failing in training? or oversight? If the procedures were fit for purpose then no need (but by procedure, Southwark mean policy, of course).

THE TRIAL 11. Mr AA claimed in the High Court for £2.4 million in damages. The trial took place on 18, 19, 20, 28 and 29 November and 23 December 2013. The judgment was formally handed down on 14 October 2014, prior to which the council had reached a confidential settlement with Mr AA.

Mr AA was a litigant in person. If the report is going to set out the amount he claimed in order to cast a bad light on his claim, then it should disclose the amount Southwark settled for, to see how Southwark's assertions look in the light of that figure.

KEY LEGAL ISSUES Unlawful eviction 12. Master Kay QC, who had dealt with the early hearings in the case, gave summary judgment for Mr AA on the council’s admission that the destruction of the contents of the flat was unlawful. He set the case down for a trial essentially to establish three things: • Which items on



a list of 36 were removed from the flat and destroyed • Whether they belonged to Mr AA or not • Their value Master Kay’s directions said nothing about any claim for unlawful eviction.

This is quite stunningly disingenuous. The directions at the two hearings before Master Kay QC were as noted at 232 - 235 of the judgment:

First hearing before the Master on 18 July 2013. Thus, the Master had to deal with directions in relation to the whole claim and a summary judgment and interim payment application in relation to the special damages part of the claim. The Master directed that there should be a hearing on 18 July 2013 at which AA's application would be considered and case management directions would be given if appropriate. At that hearing, the Master entered judgment for damages to be assessed in respect of LBS's admitted unlawful disposal of AA's goods as recited in the order made by Stuart-Smith J dated 5 June 2013. It also ordered an interim payment of £6,190.00. The balance of the application and a consideration of the pleadings would be adjourned to a hearing on 24 July 2013.Second hearing before the Master on 24 July 2013. Prior to the adjourned hearing, LBS issued an application which sought permission to amend its defence, a response from AA to its request for particulars and an order striking out all references in the claim form and/or particular of claim to conspiracy as disclosing no reasonable cause of action and/or lacking specificity. The Master made a detailed procedural order at the hearing. This order granted LBS permission to file an amended defence and directed AA to answer the request for particulars. It provided for standard disclosure by list, exchange of witness statements and the provision for one expert from each party to value AA's belongings and set down for trial the assessment of damages. The order then provided as follows: "9. The assessment of damages shall take place between 11th November 2013 and 28th February 2014 ("the trial window"), with a time estimate of two to three days. … 10. Each party shall file and serve a completed pre-trial check list as directed by the Clerk of the Lists and there be a Pre-Trial Review on a date to be arranged by the Clerk of the Lists with a time estimate of 11/2 – 2 hours."The Master's order expressly adjourned the striking out application in relation to AA's principal claim for conspiracy and that application was never restored or determined. It follows that both his discovery and witness statement orders extended to all claims for conspiracy and for all recoverable heads of special and general damages. Thus, the assessment of damages trial directed to be set down extended to all claims for general damages and within those claims was a claim for damages for conspiracy.

In short, there was a direction for further particulars from Mr AA and an amended defence from Southwark - these would have been wholly irrelevant if the only issue was the assessment of damages on the specific head of the unlawful disposal of belongings to which Southwark had admitted. Moreover, Southwark's strike out application was adjourned, so expressly not decided.Southwark's officers (and more worryingly one presumes also Southwark Legal) appear to be completely unaware that it is entirely possible to have summary judgment on one - admitted - head of claim, while the remainder of the claim proceeds on a contested basis. Well, either unaware, or trying it on. Whether this was pure ignorance or an attempt to steamroller a litigant in person, we can't know at this point, but whichever it was, it was poor practice.

13. The council acted with fairness throughout all the litigation but especially in the early stages when the matter was in Master Kay’s hands by admitting liability for unlawful interference with goods and by volunteering interim payments to Mr AA to ensure that he had funds whilst awaiting a ruling from the court on the overall valuation of his claim.

Oh dear, oh dear. Let us see. Southwark failed to disclose the Matthews report, despite stating in its defence that it would be disclosed when completed (and the rule is that any document referred to in pleadings or witness evidence mustbe disclosed). Southwark failed to disclose Mr AA's tenancy file until ordered to do so at trial and still failed to disclose the EDMS entries created by Residential Team officers. Southwark attempted to impose its view of proceedings on a litigant in person, without actually following through its application to strike out the rest of Mr AA's claim, although it remained open and adjourned.Interim payments were not 'volunteered'. An interim payment of £6,190.00 was ordered by Master Kay QC. This was a court order, not a generous gesture.



14. Throughout the court case Mr AA acted as a litigant in person. The council contributed £5,000 for Mr AA to obtain independent legal advice.

This is misleading and inaccurate. The Court ordered a payment of £5000 back in March. See note 2 to the Judgment. It looks like an interim damages payment. The council didn't 'contribute' £5000, they were ordered to pay it.

15. Southwark Council maintained throughout the trial that the grounds for eviction were lawful.And they were wrong to do so. So what?

16. The finding of unlawful eviction against the council could be argued to be unjust because it was not considered to be an issue before the court. As noted above it did not feature in Master Kay’s directions. However, as a discrete legal point it is not straight-forward. The general position is that a warrant for possession cannot be issued after 6 years from the date of the possession order unless the court gives permission. In this case 6 years had expired and permission was neither sought nor given, at least not expressly. A new form of order and court procedure was introduced in 2007 following a Court of Appeal decision in Hassan which provided for an application to fix a date for possession prior to the issue of a warrant. The council applied to fix a date for possession in 2008 in order to issue a warrant, this being within the last 6 years. The judge held that this application to fix a date did not amount to permission and hence the eviction was unlawful.

No, no, no. Southwark might have convinced itself that it wasn't an issue before the court and failed to prepare accordingly - or Southwark might have not wanted to put forward any actual evidence on the issue because it would have had to have come from the officers concerned - but either way, that does not make the trial unjust. It simply means that Southwark messed up.In any event, Southwark put detailed argument before the court as to whether the eviction was lawful - as noted here. The court found against them, on thoroughly reasonable grounds. There may be arguments against that finding, but it is very, very far from unreasonable or unjust. Southwark now claiming that 'it is not a straightforward point' is ridiculous. it has been decided, and on clear grounds. Appeal it or shut the hell up.In any event, any suggestion that the housing officers concerned in the unlawful eviction were relying on an obscure view about the effect of a postponed possession order being made two years after a suspended possession order in deciding whether 6 years had passed since the order is ridiculous. That is an argument made by a QC.

Appealing the decision 17. The judgment of His Honour Anthony Thornton QC has been extremely critical of the council and its employees. The judge in his findings found that council staff had conspired to evict Mr AA from his home and acted in bad faith.

As I have said, I am not particularly comfortable with the finding of conspiracy to evict, on the evidence mentioned in the judgment. On the other hand, there is ample evidence for findings of acting in bad faith and conspiracy to cover up the events of the eviction. All of that evidence was in Southwark's hands before the trial.

18. It is arguable that the decision of the judge is appealable for various reasons; primarily because the council’s view is that the conclusions on conspiracy and misfeasance at least were clearly wrong and also because the trial itself was unjust. It is rare for an appeal to be brought on the latter ground but the circumstances of this case were exceptional. Finally the lawfulness of the warrant of possession is a difficult issue on which the Court of Appeal could find against the council.

Some of the conclusions on misfeasance look pretty unappealable to me, just on the basis of the mentioned findings of the Matthews Report. Any appeal that the trial was 'unjust' would be deeply misconceived, as far as I can see.So while an appeal might succeed on one or two limited issues, the broad findings of unlawful eviction, and conspiracy to cover up the events look pretty solid. If the argument about which possession order counts for the six year period really still looks so attractive to Southwark, then it should be appealed. Otherwise, the rule is that you shut up - it is unlawful unless or until overturned by a higher court.

19. An appeal now would be difficult and not financially prudent. The council has never disputed that it was at fault for the destruction of Mr AA's belongings. The claim has been settled and the proceedings discontinued. While the Court of Appeal may look critically at both the judge’s findings on conspiracy and



misfeasance and also on his conduct of the case generally, the appeal would not change the settlement between the council and Mr AA. Consequently there would be no material benefit to the council in successfully appealing Judge Thornton’s judgment. On the contrary, the exercise would involve the council in further costs which it could not recover.

Proceedings have not ben discontinued. They have been settled. Discontinued means abandoned. Mr AA did not abandon them. he won at trial and accepted a settlement on damages. If Southwark feel so aggrieved on a point of law - the unlawful eviction point - they should damn well appeal it, as they clearly consider it has broader significance (and so it would have).

20. In relation to Mr AA’s possessions, Southwark Council accepted full responsibility from the outset for the disposal and destruction of Mr AA’s property. Our internal processes found that the incident was a result of misconduct on the basis of the failure to follow our own processes and procedures by the officers involved - not as a result of conspiracy and misfeasance in public office to evict the tenant at all costs and deliberately destroy his possessions.

This ignores the evidence of conspiracy on a cover up itself detailed in the Matthews Report, as quoted in the Judgment. It also ignores the number of people apparently involved at levels from officers (and experienced officers at that) to managers.

CURRENT STATUS Original investigation review 21. The original investigating manager conducted a page by page review of the findings of the judgment against the original investigation findings. This was to clarify whether any new evidence or fact came to light as part of the court case that was not considered at the time.

Southwark did not disclose any other evidence. Southwark did not put the officers concerned forward as witnesses. Southwark failed to disclose all the tenancy files and even that which was disclosed was missing all relevant documents for the period. So...

22. Following on from this review, it is the view of the investigating officer that the judgment has no additional evidence in it of potential wrongdoing by staff which was not already known at the time of the investigation and subsequent disciplinary proceedings.

Well doh. All that was before the Court was what Southwark had been ordered, at trial, to disclose (despite the fact that all of these documents should have been disclosed in the usual course of proceedings). It appears that this diligent investigating manager did not look for any other documents or records or evidence that had not been disclosed. It has hardly surprising that no new evidence sprang to light. They don't look for any.

23. During the review of the judgment, the investigating officer also did not consider that the evidence obtained disclosed a conspiracy by staff to act in an unlawful manner. It was the view of the investigating officer that this remained a case of gross negligence, incompetence, lack of supervision and poor record keeping.

Again, I have my misgivings about whether the Court could reach some of the findings it did on the available evidence. But, and let us be absolutely clear about this, the view of an unnamed internal Southwark 'investigating manager' does not get to trump a high court judgment. That being, well, the law.

24. The officers named within the judgment who were subject to disciplinary panels were placed on temporary leave until further notice. This was to both to protect the council's interests and to fulfil our duty of care as an employer.

Since June 2013?Evictions review 25. Officers are conducting a review of all evictions carried out from the start of 2013/14 to date 2014/15. A large sample will be assessed against the following criteria: • Grounds for eviction • Orders and any potential timing concerns • Presence of the correct officers • Removal and storage of goods 26. This review will report before the end of the calendar year. Senior officers will take any action required based on the findings of this review.



Will the findings of the review be public? Because anecdotal experience from duty scheme and elsewhere is that Southwark do mess up on procedure and evidence at possession proceedings and stay of eviction hearings. Quite often. Which is OK if the tenants are represented, but...

Process and procedure 27. Processes and procedures are subject to regular and frequent review and action is taken to ensure that all procedures are followed by officers.

What actions? When? Or is this prospective, to be taken? If so, why wasn't this monitored before?28. Eviction procedures are being reviewed in order to ensure that the calculation of the six year period is taken from the earliest possession order rather than any subsequent order or application whereby the date for possession is fixed.

As they would have to be in order to ensure the evictions were, well, lawful. Whatever Southwark's senior officer's publicly voiced opinions may be.What is missing here? Any review of Southwark's conduct of the case. Any review of the failings that led to their exposure at trial. Any review of their failure to disclose relevant documents when required to do so, or until ordered to on the second day of trial. And perhaps, any review of whether the housing department actually listened to legal advice, or just went its own sweet way.If you have six (six!) housing officers and managers behaving badly, and evidence of an attempted coverup of that behaviour, and you then have an internal report setting out this misconduct and evidence of attempted coverup - which report you have mentioned in pleadings - and you then try to hide that report and other documents from both the tenant/claimant and the Court, well, then you have a much bigger problem than just a few officers not following procedure.And that problem is what this report to the council seeks to avoid.

Stop Retaliating!Thu, 27 Nov 2014 08:36:12 +0000The Tenancies Reform Bill has now been formally published following its second reading. The Bill has changed substantially from the original version that was put forward by Sarah Teather MP and drafted by Shelter. We commented on the Bill before as we had seen the version produced at first reading. The Bill has now benefitted from the gentle caress of the Parliamentary Draftsman’s office so it looks entirely different.The Bill is slightly inaccurately named. It is primarily a reform of s21 of the Housing Act 1988 and only in respect of the private rented sector. It is primarily concerned with preventing the giving of a s21 notice within 6 months of a complaint of disrepair in the property, which is perceived as the most common disrepair scenario.Condition Therefore, where a tenant has made a complaint about the condition of a property either to the landlord in writing or to the local authority then it is not permissible to give an s21 notice for a period of 6 months unless the landlord can convince the Court that the complaint was “totally without merit”. Where the tenant has made a complaint and the local authority has then served a Hazard Awareness Notice, Improvement Notice, or carried put emergency remedial action under the HHSRS it will then any s21 notice served between the complaint being made and the local authority action being taken will be invalidated. It will also be a defence to possession proceedings to show that a complaint was made to a landlord or local authority and that the local authority have yet to inspect the property or make a decision on whether to take action under the HHSRS. Where a notice under the HHSRS has been revoked because the work has now been done or the decision to take action has been quashed by the Tribunal then the defence will not exist and there will be no restriction on s21 at all. This structure is a change from the original Bill, which also allowed for written tenant complaints to be taken into account on their own without a specific notice from the local authority. There is also a generic power for further requirements to be prescribed around the condition of the property and its energy performance and failure to comply with these will prevent the giving of an s21 notice in England.



The Relationship with the Disrepair Obligation Landlords are of course obligated to keep a property in repair in accordance with s11, Landlord & Tenant Act 1985. However, this is a civil duty which gives the tenant a right to claim money from the landlord and does not protect them against eviction, unless it is used as a defence to a claim for rent arrears. It is also worth noting that the HHSRS requires a higher standard than s11. In my experience, while many tenants do want compensation for disrepair this is more prevalent in the more mobile parts of the market. Other tenants will be more attracted by the repair being done and being able to stay in the property. To some extent this may be the death knell for s11 in England. In Scotland and Northern Ireland there is already a far higher standard and Wales seems set to adopt a higher standard as part of the Renting Homes Bill. These changes may see England effectively doing the same thing as most landlords will be very wary of losing their ability to recover possession under s21.Other S21 Changes The Bill alters s21(4)(a) to remove the obligation that the notice must expire on the last day of a period of the tenancy in England only. Therefore the notice must now merely be 2 calendar months and not less notice than a common law notice to quit. This will mean that the line of cases involving saving provisions such as Lower St Properties v Jones are now irrelevant. However, given the changes wrought by Spencer v Taylor and the oddness of removing the end of period provision but not the NtQ provision it might have been easier all round to simply get rid of s21(4)(a) altogether.Time Limits for S21 The Bill will also insert new time limits on s21. The most important is a ‘use it or lose it’ provision which states that proceedings may not be commenced once a period of 6 months has passed from the date that the s21 notice was given to the tenant. This must be an error. The original bill specified a period of 6 months from the date the notice expired. Given that s21(4)(a) notices retain the requirement that a notice must not give less notice than a common law notice to quit then, following Church Commissioners v Meya, some s21(4)(a) notices could require notice periods of up to half a year. These provisions would make the giving of notice impossible in some situations. There are also restrictions on the date in which the notice can be given. It will not be permissible in England to give an s21 notice for 4 months after the start date of the tenancy or four months from the date of a renewal. These provisions will not apply to statutory periodic tenancies. I do not see the purpose of these provisions to be honest and it seems to be an unnecessary obstacle which will end up causing difficulty.S21 Notice Form There is a new requirement for an s21 notice to be a prescribed form in England and this will no doubt become available soon.Apportionment One of the unexpected additional changes to s21 deals with apportionment of rent. Again this applies to England only. This requirement states that where a landlord gives an s21 notice part way through a rental period then he is obliged to apportion the rent on a daily basis for the remainder of that period. Apportionment only applies to rent paid in arrears so this issue has been a complaint of tenants for some time. However, this change will only have limited effect. It will not apply to any form of agreed surrender for example and will not apply where a tenant gives notice under a break clause. I am not clear how many tenants are actually affected by this problem but some will not doubt be pleased. Where proceedings for possession are taken using s21 then the Court is empowered to make an order requiring a payment in respect of apportioned rent where the landlord has not already made this payment themselves.Implementation There is still some way for this Bill to go. It may well be amended at various stages of its progress. Given the current political situation one assumes that the Government will seek to move it on rapidly in order to have it passed prior to the election in 2015. The changes will not apply to tenancies that are in place at the time the Bill is implemented. They will not apply to any statutory periodic tenancy that arises from those tenancies either although they will probably apply if the tenancy is renewed. However, three years after the provisions come into force they will automatically begin to apply to all tenancies, even those that began before the Act was passed.Comment This Bill is, IMHO, a bit of a mess right now. I am not suggesting that retaliatory eviction should be allowed, far from it. It should not. However, this is a very untidy and bureaucratic way of dealing with the issue which takes no account of the work being done by local authorities and the pressures they face. Currently local authorities are poorly resourced in terms of their ability to do HHSRS assessments. These also take a skilled officer some time to do properly and they are not an easy thing to do well as the fairly large number of appeals, not all of which have gone well from the local authority point of view, will attest to. Therefore I am not sure they will welcome the potential massive increase in the volume of inspection requests from tenants. I also don’t’ see how they will service the requirement. Additionally, I think that a lot of private sector landlords will be horrified by what they will see as a fetter on their ability to recover possession through s21, which many use in every case because it is easier, and will fear spurious claims by tenants to stymie eviction. Given that there is a defence that a local authority has yet to make an inspection after tenant complaint and that local authorities are likely to be unable to meet demand this could result in a massive block on the ability of landlords to use s21 at all. The original bill had an obligation on local authorities to carry out checks. This has been



removed and so there is no clear picture on how promptly this will be done. Many private landlords will be deeply concerned by the potential uncertainty this will bring. I do wonder whether in practice this might be enough of a fetter on s21 to be seen as a breach of Article 1, Protocol 1 of the ECHR but that may be a stretch! I am also amused by the removal of the requirement from s21(4)(a) for the notice to expire at the end of a period of the tenancy. Most landlords will be oblivious to this after Spencer v Taylor but my interest in this case is well known to be excessive! However, it remains the case that an s21 notice cannot give less notice than a common law notice to quit so this change only removes one common error area in the use of s21(4)(a). A more structured s21 notice is probably welcome relief. Many people think that there is a standard form to s21 notices anyway so providing such a structure will probably make things better all round. The issue of apportionment is interesting. However, I am not convinced this actually occurs as much as the government thinks. If landlords decline to apportion rent it is far more likely to happen on a break clause or in relation to a tenant’s notice which is not covered by this change. This is also a messy way of dealing with the issue. A better and more thorough solution would be to fix the Apportionment Act so that it applies to rent paid in advance and not just rent paid in arrears. There will end up being a lot of confusion here in a provision which is already confusing. Some of the changes make sense, others less so. Many changes also apply only in England and not Wales and so the current process of creating Wales as a separate Housing jurisdiction will continue.

Conscious Re-coupling and SuccessionSun, 14 Dec 2014 18:24:24 +0000In R (Turley) v LB Wandsworth , the Claimant was the partner of the late Mr Doyle, who was the secure tenant of a property at Battersea Park Rd, London, SW8 from 1995 until his death on 17/3/2012. Mr D and Ms T had 4 children together and they lived at the property throughout, apart from a critically important period of separation between December 2010 and January 2012.Ms T applied to succeed to the secure tenancy but the council decided that because she had not resided at the property for the 12 months immediately preceding Mr D's death, she did not qualify to succeed. Ms T brought judicial review proceedings against that decision.There were ancillary issues in the claim concerning delay and the tenancy status of the late Mr D but the central issue was whether the 12 month requirement interfered with Ms T's rights under Articles 8 and 14 of the ECHR. The tenancy pre-dated the changes to the 1985 Housing Act brought in by the Localism Act 2011 on 1/4/2012, which meant that because Ms T and Mr D were an unmarried couple, s.87(b) applied to Ms T's application. Ms T could not therefore benefit from the new s.86A(5)(a), which extends the right of spouses to unmarried couples so that the additional 12 month requirement does not apply.*Ms T argued that co-habitation was such a well-established practice in modern society that it would be undemocratic to deny unmarried individuals the same benefits that married individuals enjoy. The High Court's view, however, was that the 12 month condition was directed to satisfying the Authority that the relationship was comparable to that of a married couple. The condition served a legitimate aim and the fact that s.86A(5) extended rights to unmarried couples did not alter the position that both versions of the legislation were within the State's margin of appreciation and that any interference with Arts 8 and 14 was justified. The fact that the legislation did not have retrospective effect was a matter for Parliament and it was not appropriate for the Court to intervene. Furthermore, it was not irrational or perverse of the local authority to apply the relevant law to Ms T's application.The claim was therefore dismissed.CommentIt was, I think, always going to be an uphill struggle to persuade the High Court to make a declaration of incompatibility in this case. I understand that the Claimant is seeking to appeal the decision so it will be interesting to see what view the Court of Appeal takes of the legislation's compatibility with the Convention. Although States do enjoy a wide margin of appreciation in complying with Art 14, 'regard' must still be had to changes to the legal and social consensus (Tekeli v Turkey). The question for an appeal would I suppose be whether the judge had 'sufficient' regard to the changed consensus. We will have to see how this pans out.



*except for Welsh tenancies

Shared ownership - new guidanceSun, 14 Dec 2014 10:56:56 +0000The CML, NHF, HCA, BSA have produced new guidance on handling arrears and possession sales of shared ownership properties (the previous guidance was in 2010 and the contact details provided were out of date). I am not sure that there is a huge difference between the 2010 and new guidance - the documents are slight on detail, but the key point is the stress on contact and relationships between providers and lenders, which (I gather) may be an issue in practice. Readers of this blog may be interested in the only really specific (enough?) guidance:

The key rule when considering taking action over arrears is not to seek possession where there is a reasonable alternative. If this is not possible, HAs are legally entitled to use Ground 8, which is one of the mandatory grounds for possession of an assured tenancy listed in Housing Act 1988 Schedule 2. However, the use of Ground 8 is an extreme step in the context of shared ownership housing, the effect of which is similar to forfeiture. It should not be necessary where the HA and lender work jointly to resolve the problem, if possible with the shared owner. When the use of Ground 8 is unavoidable, the decision should be taken at an appropriately senior level in an organisation, and the lender should be told that this course of action is intended at least 28 days before notice is served. It is most important that both parties understand the requirements placed on the other in respect of the borrower/tenant, and take these fully into account when dealing with arrears/possession.

Various bodies are suggesting and recommending that shared ownership is the way out of the housing crisis, but it does contain risks to all parties. Many of these risks are blended out by the application process, but, by its nature, risk is contingent on future events and unpredictable. Conveyancers and advisors should be aware of this guidance and advise buyers accordingly.

Of Penalties and PossessionWed, 17 Dec 2014 00:01:44 +0000Charalambous & Anor v Maureen Rosairie Ng & Anor [2014] EWCA Civ 1604The Court of Appeal has again thrown the cat among the tenancy deposit protection pigeons.In Charalambous it had to grapple with the, admittedly fairly rare scenario, of a deposit taken entirely before the tenancy deposit protection schemes came into force where the tenancy had become periodic also prior to the protection schemes coming into force. To be clear in Superstrike v Rodrigues the deposit had been taken before the schemes came into force but the tenancy had then become periodic after the schemes came into force. Following Superstrike most commentators, me included, took the view that as there had been no receipt of the deposit during the time in which the tenancy deposit protection rules were in force there was no issue. Clearly we were wrong, at least LJ Lewiston who gave the sole decision thinks so.Facts Here N had given a tenancy which commenced in August 2002 for a fixed terms of one year. It was renewed for a further year in 2003 and 2004 then from 2005 became a statutory periodic tenancy and remained so. A notification under s21, Housing Act 1988 was served in October 2012. It was held valid at first instance and the tenants appealed.



Financial Penalties There was no suggestion by the Court that the landlord was liable for any of the financial penalties. It was argued for N that she was not liable for the penalties under s213 and s214 and that the law should not be interpreted in such a way as to suggest that Parliament had intended that those penalties should apply to N immediately on the legislation coming into force. There was a fair bit of discussion here as to the nature of retrospective legislation. The upshot of this is that the Court made clear that retrospective legislation is possible but it must be clear that this is what Parliament intended.S213 or S215 The Court resolved this issue by agreeing that s213 did not apply here as the deposit had not been received by the landlord at a time when the legislation applied. Accordingly, Parliament had not applied any form of retrospective penalty. However, the Court did not accept the follow on argument that s213 and s215 were inextricably linked such that a landlord could only be liable for penalties under s215 if they had fallen foul of s213. This is an interesting point. It is accepted that a landlord can be liable for penalties under s213 where they are not liable under s215 if they have acted to rectify their mistake in one of the ways permitted by s215. However, the Court has now created the converse situation. It looked closely at s215 which now reads:

215 Sanctions for non-compliance(1) Subject to subsection (2A), if a tenancy deposit has been paid in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy at a time when–

(a) the deposit is not being held in accordance with an authorised scheme, or (b) section 213 (3) has not been complied with in relation to the deposit.

(2) Subject to subsection (2A), if section 213 (6) is not complied with in relation to a deposit given in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy until such time as section 213 (6) (a) is complied with.(2A) Subsections (1) and (2) do not apply in a case where—

(a) the deposit has been returned to the tenant in full or with such deductions as are agreed between the landlord and tenant, or (b) an application to the county court has been made under section 214 (1) and has been determined by the court, withdrawn or settled by agreement between the parties.

The Court made much of the phrase "at a time" in s215(1). It held that this phrase meant that there might be "a time" when the requirements of s215(a) or (b) had not been complied with even if there was a previous time when they had been. Additionally, it held that the two obligations in s215(a) and s215(b) were disjunctive. A landlord had to meet both of them to avoid the penalty applying. There was some discussion about whether the landlord had met the requirement in s215(b) but the Court declined to rule on this definitively as it was not required. It indicated that if it had to rule it would probably have concluded that the requirement in s215(b) had not been breached as N was not obligated to protect the deposit under s213. However, the Court ruled that the requirement in s215(a) was breached because the deposit was not being held within an authorised scheme. Accordingly, therefore it took the view that the notification served by the landlord under s21 could not be valid because of the clear restriction in s215(1) and the fact that the landlord had not been able to rely on any of the savings found in s215(2A).Retrospection and the Order The Court drew further support for its conclusion on the main point and on the retrospective penalty argument from the wording of the Localism Act 2011 (Commencement No. 4 and Transitional, Transitory and Saving Provisions) Order 2012. This brought the amended tenancy deposit provisions provided by the Localism Act into force on 6 April 2012. However, a provision contained in Article 16 of that Order which held that the amendments would apply to any assured shorthold tenancy "in effect on or after 6th April 2012". The Court found that it was clear from this provision that Parliament fully intended at the time of the Localism Act being introduced, if it did not before, that there should be a degree of retrospection about this matter and that the penalties should bite to some degree on all tenancies then in existence. It gained yet more support from this because the Article gave a "grace period" for landlords to resurrect their position of 30 days from 6 April 2012 when they could place a tenancy deposit into an authorised scheme.I should mention that the Court appeared to indicate that it would have taken the same view irrespective of whether it was considering the law under s213 and s215 as originally enacted or whether it was considering the law, as it was, after amendment by the Localism Act 2011.



Deregulation and Amendment Interestingly, the deposit legislation is in the process of being amended (again) by way of s30 of the Deregulation Bill which has recently finished its committee stage in the Lords. This inserts new sections 215A to 215C into the Housing Act 2004 primarily to resolve issues caused by Superstrike. Initially I though that this might also resolve the problems in this case. Unfortunately it doesn't. As the Court of Appeal itself noted the Deregulation Bill changes do not fix this situation. S215A which has the potential to resolve the issue does not resolve this issue because it only protects landlords where a deposit was taken prior to the introduction of the tenancy deposit legislation (s215A(1)(a)) and the tenancy became periodic “on or after” 6 April 2007 (s215A(1)(b)). The Court of Appeal has pointed out that the vehicle is there to fix the issue. From my reading of the Deregulation Bill changes the fix is actually easy. If the wording of s215A(1)(b) is altered so that instead of beginning “on or after” it begins “before or after” that would resolve the issue immediately. Whether the government will do this remains to be seen. I don't doubt that there will be lobby groups encouraging them strongly to do so.Comments One other side point worth noting is that in the past there has been some doubt as to what the situation is if a landlord protects a deposit with a scheme but, due to the landlord no longer paying he scheme membership fee for example, that protection terminates. Arguably the penalties under s213 and s214 do not bite because at the trigger event, the receipt, the landlord had dealt properly with the deposit and there does not immediately appear to be an ongoing obligation in those sections. However, it is clear from this decision that the penalties under s215 would bite and a landlord would not in that case be able to serve a notification under s21.For those (relatively) few landlords breathing a sigh of relief because they see themselves as not being captured by Superstrike this will be a worrying decision. They will not be caught by the financial penalties but they will now have to return the deposit or protect it in order to avoid being unable to recover possession of their properties using the powers provided by s21, Housing Act 1988.As a final aside this decision also means that the decision in R(Tummond) v Reading County Court must be incorrect.Appeal allowed, possession on notification under s21 set aside as the notification is invalidly served.

Too late for Art 8?Mon, 29 Dec 2014 00:12:53 +0000When should an article 8 defence be raised? And are there different kinds of social landlords, such that the analysis of Article 8 defences in Pinnock and Powell might not be applicable to all? These were questions in Lawal & Anor v Circle 33 Housing Trust [2014] EWCA Civ 1514.In what the Court of Appeal described as 'an exceptional course of litigation', there were also at stake issues about the ability to stay an eviction longer than 6 weeks after an outright possession order in Notice to Quit based proceedings and whether the occupier should put forward details of what would be required to avoid an art 8 breach in raising an art 8 defence.The history is more than a little complicated. This appeal was actually of a refusal to set aside a possession order and/or stay a warrant. There had been a previous application for permission to appeal the possession order. However, this present appeal was the first in which the appellants were represented. As we will see, this gave rise to difficulties on orders made on the previous appeal.Mr Lawal had been the tenant of Circle 33 (via its predecessor) since 1974. The tenancy was a secure tenancy from 1985.Mr and Mrs Laval raised 6 children in the property, but after 1981 Mr Lawal spent much of his tie in Nigeria. Mrs Lawal died in 2002. Between 2002 and 2010, his daughter Jaicee spent much time at the property while living elsewhere, then lived at the property from 2010. Mr Lawal returned to the property in 2011. However, in May 2011, Circle 33 served a notice to quit. "Although Mr. Lawal was occupying the Property at the time of the notice to quit, Circle 33 considered that he was not occupying it as his "only or principal home" for the purposes of sections 79(1) and 81 of the 1985 Act, and that he had therefore lost his status as a secure tenant."



Circle 33 sought possession on various grounds, but the significant one was based on the notice to quit. Mr L and Janice defended in person. At first instance trial:

On the issue whether Mr. Lawal had been occupying the Property as his "only or principal home" within the meaning of section 81 of the 1985 Act, Judge May had regard particularly to the following matters: (1) Mr. Lawal's evidence that he went "home" to Nigeria to seek work in 1981 after his father's death and from then until 2002 was living and pursuing work opportunities in Nigeria, making brief visits back to see his family; (2) the statement in a letter dated 10 January 2003, apparently bearing Mr Lawal's signature, recording that he had been living up to then in Nigeria; (3) Mr Lawal's evidence that, after his wife's death, he had "increased" the amount of time he spent in Nigeria; (4) the fact that in the 70 months before the expiry of the notice to quit Mr. Lawal had spent just seven months in the UK, for no more than one and a half months at a time; and (5) Mr. Lawal's daughters had assumed responsibility for the Property for eight years prior to the notice to quit conducting themselves as the tenants, paying rent and applying to exercise a "right to buy" in their names. Judge May also found that Mr Lawal intended to return promptly to Nigeria after July 2011 but he then stayed in London only because the possession proceedings had been issued.Taking into account those matters and all the other evidence, Judge May concluded that the Property was not Mr Lawal's only or principal home in July 2011 and had not been for some considerable time before that. Mr Lawal had, therefore, ceased to satisfy the tenant condition in sections 79 and 81 of the 1985 Act and, accordingly, he had lost his status as a secure tenant. It followed that Circle 33 had validly terminated the tenancy by serving the notice to quit and was entitled to possession. In Jaicee's oral closing submissions for herself and her father, the appellants had for the first time advanced a defence under Article 8 of the Convention but Judge May did not make any reference to that defence in her judgment.

At the end of the trial on 25 July 2013 Judge May ordered possession of the Property on or before 5 September 2013.Mr L sought permission to appeal the possession order to the Court of Appeal, at least in part on the basis that Judge May had failed to consider the Article 8 defence raised or Mr L's circumstances. At renewed oral permission hearing on 12 November 2013, Arden LJ dismissed the application, but added:

"16. I am bound to say that there must be a correlation between any right to respect for home and the judge's finding that the home at Ashbrook House was not a principal home. In favour of Article 8 is, of course, the point that Mr. Lawal has lived in the property for some 39 years and is now 76; in other words, a long-time connection with the property. But as against that, of course, it has to be said that the judge had found it was not his principal home and that is a point on which I cannot give permission to appeal. 17. However it is, in my judgment, a point that Mr. Lawal was entitled to have considered by the Court and if it was not considered by the Court on making the possession order it would, it seems to me, have been the judge's intention that it should have been dealt with before a warrant for possession was issued. 18. It appears a warrant for possession has been issued. I have had a brief look at the Rules while in court and … it seems to me … that the person in actual occupation of [the Property] should have received notice of proceedings to get a warrant for possession. …[I]t seems to me that there must be the possibility that there was some procedure then or now capable of being used in the county court for the purpose of having that claim adjudicated upon. … 19. If there is a procedural requirement, as I believe there was, in the Shoreditch County Court, then as I see it that requirement will be very closely connected with the notice of appeal which is before the court and it may be a matter which can be brought within it. What I propose to do is to grant a stay for 14 days to allow Mr. and Ms. Lawal to investigate whether or not there is a procedure within the Shoreditch County Court for them to raise the Article 8 point by way of asking for the warrant for possession to be rescinded or varied, or for further time to be given. Only if that procedure is not available would there be any question of any further consideration by this court which would have to be by way of letter to the court."

The resulting order stated "(1) the application for permission to appeal and a stay of execution was refused, and (2) a stay was granted for 14 days to enable the appellants to ascertain from the County Court whether they could apply in respect of their Article 8 claim and, if not, to file a further notice of appeal in respect of that refusal or (if so advised) to seek to reopen the appeal."Mr L then applied to Shoreditch County Court to set aside the possession order and/or stay the warrant. Before the hearing, Mr L obtained representation. That application was dismissed by Judge Mitchell in March 2014. He held:



i) the application under CPR 3.7(1) was dismissed because there had been neither a material change in circumstances since that order was made nor any misstatement or omission in the material placed before Judge May. ii) he felt bound by Arden LJ's observation on the application for permission to appeal Judge May's order that Judge May had probably intended that the Article 8 issue could be raised at the enforcement stage. iii) On the proportionality of eviction, Circle 33 was under a charitable duty to provide housing to those in need and it was likely to make the properties available to those owed the main housing duty by a local authority. The property was under-occupied and of a much needed size. Jaicee's ill -health was not of a nature to qualify her for priority need for housing. Mr L on the other hand, was in poor health and in receipt of attendance allowance. It was arguable that he was entitled to have Jaicee with him as a full time carer. However, Mr L had not established that he would be homeless if evicted. In addition, he had only spent 10 of the 70 months prior to the NTQ in the property. iv) Section 89 Housing Act 1980 had effect. The Court was bound by the Supreme Court in LB Hounslow v Powell [2011] UKSC 8 to the effect that section 89(1) could not read down under section 3(1) of the Human Rights Act 1998 ("the HRA 1998") so as to provide a longer period of postponement than six weeks in a case where that would otherwise be required to give effect to the Article 8 right of an occupier. 6 weeks had expired since the possession order. v) "assuming that it is for [Circle 33] to prove that possession would not be disproportionate, [Mr. Lawal and Jaicee] can reasonably be expected to indicate which, if any, of these two alternatives [granting an extended period for possession or suspending the order for possession on the happening of an event] would be proportionate and to provide some detail, for example, of the length of the period or terms of the suspension" and neither Mr L or Jaicee had provided the required level of detail, Mr L having simply stated he should be provided with suitable accommodation or stay at the property indefinitely.Mr L and Ms L sought permission to appeal this order, and were also represented on this appeal. The grounds of appeal were:

(1) Judge Mitchell misdirected himself in finding that it was not possible for the county court to prevent or suspend execution of a warrant for possession on the grounds that execution would be a breach of the appellants' rights to respect for their home under Article 8. (2) In so far as Judge Mitchell proceeded on the alternative basis that he had jurisdiction to consider such Article 8 rights his approach was flawed in that he: (a) failed to take into account that Circle 33 was a housing trust (not a local housing authority) and adapt the approach taken by the Supreme Court in Manchester City Council v Pinnock accordingly; (b) put the onus on the appellants to establish how long it would be proportionate to allow them to remain in the Property and on what terms. The correct question was whether evicting them immediately was proportionate as at the date of the hearing. (3) In so far as the Judge proceeded on the alternative basis that he had jurisdiction to consider such Article 8 rights, his approach was flawed in that he took into account the following irrelevant considerations: (i) the fact that the possible location of any alternative accommodation Mr Lawal might accept and the statutory basis and terms of any occupation agreement were unknown; and (ii) the terms on which the Mr Lawal would remain in the Property if allowed to do so by the court were unknown and he might continue to occupy the Property on the same terms as previously.

There was also an application under CPR 52.17 to reopen the original appeal from Judge May's possession order.On the CPR 52.15 application, the Court set out the principles to be applied.

CPR 52.17(1) sets out the essential pre-requisites for invoking the jurisdiction to re-open an appeal or a refusal of permission to appeal. More generally, it is to be interpreted and applied in accordance with the principles laid down in Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528. Accordingly, [...], the jurisdiction under CPR 52.17 can only be invoked where it is demonstrated that the integrity of the earlier litigation process has been critically undermined. [...] The broad principle is that, for an appeal to be re-opened, the injustice that would be perpetrated if the appeal is not reopened must be so grave as to overbear the pressing claim of finality in litigation. Fourth, it also follows that the fact that a wrong result was reached earlier, or that there is fresh evidence, or that the amounts in issue are very large, or that the point in issue is very important to one or more of the parties or is of general importance is not of itself sufficient to displace the fundamental public importance of the need for finality.

In this case, there was force in the appellant's submissions that their art 8 argument should have been considered before the making of the possession order. Moreover, on the permission hearing:

Arden LJ was in a difficult position. She was not shown any transcript of the proceedings before Judge May. The appellants were representing themselves before her. No one appeared for Circle 33. She decided to take the pragmatic course of suggesting to the appellants that they explore the possibility of raising the



Article 8 point at the stage of enforcement of the possession order if that were possible. What she did not appreciate was that section 89(1) of the 1980 Act deprived the county court of any jurisdiction to stay or suspend the possession order because more than six weeks had passed since the possession order was made. It is now common ground between the parties that there was no power under CPR 3.1(7) for a county court to set aside Judge May's possession order. In those circumstances, but unknown to Arden LJ, the county court had no power to entertain the appellants' Article 8 defence at the enforcement stage.Arden LJ envisaged that, should that prove to be the case, the appellants would be able to return to the Court of Appeal to re-open the application for permission to appeal. She made no reference, however, to the exceptional and restricted circumstances for invoking CPR 52.17. It seems highly likely that, had she been conscious of the difficulties of re-opening the application for permission to appeal pursuant to CPR 52.17 and that the county court had no power to entertain the appellants' Article 8 defence at the enforcement stage, she would have granted permission to appeal on the Article 8 point.

However, this was not enough to pass the CPR 52.17 threshold, as the appellant's case amounted to no more than a criticism of Arden LJ's refusal to give permission. Moreover, Mitchell J had subsequently considered the merits of the article 8 defence, thus remedying the injustice that might have been contained in the first instance possession order and Arden LJ's decision.On the substance of the appeal, it was wrong to criticise Mitchell J for not drawing a distinction between Circle 33 and local authority landlords in applying Powell. In West Kent Housing Association Limited v Haycraft [2012] EWCA Civ 276 the Court of Appeal made no distinction between the position of the claimant housing association and a local authority in the application of the Pinnock and Powell principles. R(Weaver) v London & Quadrant Housing Trust[2009] EWCA Civ 587 held that housing management decisions by an RSL were public functions for the purpose of judicial review and

the Supreme Court stated expressly in Pinnock (at para. [3]) that its judgment applied equally to other social landlords to the extent that they are public authorities under the HRA 1998. That point was also made clear in paragraph [54] of its judgment. In Powell Lord Hope, with whom the other Justices agreed, stated (at [35]) that both local authorities and other social landlords hold their housing stock for the benefit of the whole community, and that great weight must be given to their decisions as to how that stock should best be administered, decisions which the court is not equipped to make.

Further, Mitchell J was right "in applying the analysis in Pinnock and Powell that, in the case of possession proceedings by a local authority, (1) the evidential burden lies in the first instance on the defendant to satisfy the court that an order for evicting the defendant is not a proportionate means of achieving a legitimate aim, and (2) the threshold raising an arguable case on proportionality is a high one."So "While I have no doubt that it would be helpful and best practice for a social landlord such as Circle 33 to provide brief details of the matters on which Mr Luba submitted evidence should have been adduced in the present case relating to Circle 33's housing functions and policies, I do not accept that Judge Mitchell was wrong in the present case to follow the statements in Pinnock and Powell that the same principles as to Article 8 proportionality apply to both local authorities and other social landlords". The under occupation of the property was a relevant factor. So, the Judge was entitled to find that an order for possession of the Property and the eviction of the appellants were for a legitimate aim and a proportionate means of achieving it.It followed that, if Judge May had considered the article 8 defence at trial and before a possession order, she would have dismissed that defence.The appeal and the application were dismissed. The Court also went on to make observations on the timing of Art 8 defences:

As was made clear in the judgment of Briggs LJ in R (JL) v Secretary of State for Defence [2013] EWCA Civ 449, with which the other members of the Court of Appeal agreed, save in exceptional circumstances an Article 8 defence ought to be raised during the possession proceedings and in particular at the trial. To raise an Article 8 argument at the enforcement stage, when it could and should have been raised earlier, will almost always be an abuse of process. In the present case, there were exceptional circumstances, namely that (1) an Article 8 argument was in fact advanced by the appellants in their closing submissions at the trial but Judge May either declined to hear it or peremptorily dismissed it but in either case she gave no reasons



for doing so in her formal judgment, and (2) Arden LJ, on the application for permission to appeal, took the view that rather than granting permission to appeal it would be better for the appellants, then acting in person, to pursue their Article 8 point at the enforcement stage. With hindsight, and with the benefit that Arden LJ did not have of legal argument and the transcript of what took place before Judge May, there is a compelling case that it would have been better if permission to appeal had been granted.

It is also worth noting the fate of an argument by Circle 33, "that in light of the reasoning of the European Court of Human Rights ("the ECrtHR") in JL v The United Kingdom (30.9.2014) (Application No. 66387/10) there is no scope at all for the application of Article 8 in the present case. The argument is that, by stipulating the tenant condition in section 81 of the 1985 Act, Parliament has already struck the Article 8 balancing exercise that requires respect for an occupier's home and there is no basis for the court to make separate enquiries into Article 8 issues if the court finds that the occupier has failed to satisfy that condition".The trouble for that argument was that the paragraph of JL that Circle 33 relied upon actually said the opposite, that it was precisely notwithstanding that the right of occupation had come to an end that the court should be able to consider art 8 issues. So, unsurprisingly, that argument was rejected and the court of appeal took time in the judgment to do so, presumably to stop it ever being raised again.CommentThis was frankly a mess of a case, not helped by Arden LJ's permission (non)decision. But even the apparent unfairness to litigants in person in finding that they should have sought to reopen that appeal, rather than pursue the (hopeless) route of a set aside/stay of warrant application in the County Court, was rejected on the basis that once the appellants had legal advice, they could have abandoned the application and sought to re-open the appeal.Circle 33's arguments on the appeal largely came to nothing as well. Their consistent attempts to argue abuse of process in the appellants' seeking to reopen the art 8 defence were rejected as simply wrong, given Arden LJ's findings. And then there was the hopeless argument based on JL.But what is clear from the judgment is that:i) An article 8 defence must be raised at or before trial, if at all possible. If not, it cannot be raised at warrant/enforcement stage, without there having exceptional circumstances to justify it not having been raised before.ii) There is no reason to differentiate between local authority and RSL (PRP) landlords, either in the applicability of article 8, or in the presumption of legitimate aim as per Powell, (at least unless some clear, strong basis can be advanced for that differentiation, and even then, the point is uncertain).iii) That said, it would be good practice for RSLs to put forward some evidence as to why the presumption of legitimate aim should apply in their case.iv) S.89 Housing Act 1980 remains as an 'all or nothing' issue for Art 8 defences - in effect, no possession order or 6 weeks maximum suspension as alternatives. I rather suspect that permission will be sought to go to the Supreme Court on the issue of the compatibility of s.89 on this case. We shall see.v) The evidential burden remains on the Defendants to show why eviction would be disproportionate, though it would not, it seems, require the Defendants to show how long they should remain in the property and on what terms for an order to be proportionate.

Asking for reliefSat, 10 Jan 2015 23:46:00 +0000This is a housing case, but the procedural issue in this decision is only tangentially related to that. Nonetheless, it is a matter worth noting.



Cutler v Barnet LBC [2014] EWHC 4445 (QB) [Not on Bailii yet, we've seen a transcript].Ms C had been Barnet's secure tenant. Barnet served Notice to Quit on alleged non-occupation and began possession proceedings. The non-occupation was denied. We won't go into the details, for reasons that will become clear.The Court gave directions, including for disclosure.

On 31 October 2013, the matter came before Deputy District Judge Shaw. He made an order which allocated the claim to multi track provided that the appellant should file any defence by 28 November and that each party should give disclosure by list by 4 pm on 9 January 2014. The parties were to exchange statements of witness of fact by 4 o'clock on 20 February. The appellant did not give disclosure, and on 20 February the respondent applied both for summary judgment and for an order striking out the defence for non-compliance with directions given by Deputy District Judge Shaw.

In a depressingly familiar turn, Ms C had been represented, but the Legal Aid Certificate had been cancelled, and despite the efforts of her solicitors to re-instate legal aid, Ms C was not represented and did not attend the hearing of the application on 28 February 2014. An Unless order was made, debarring Ms C from defending if she had not given disclosure within 14 days. She was served with the order on 20 March, so was to comply by 3 April.The Claimant/respondent argued that Ms C had not fully complied with the unless order. At a hearing on 8 May 2014, the Court agreed that the disclosure given did not comply with the order. During that hearing, Ms C's counsel made an oral application for relief from sanction, citing also a paper application to vary the order of 31 October and witness statement in support that had been filed by Ms C's solicitors in April 2014 and a further statement from Ms C's solicitor dated 2 May 2014.The Court decided that any application for relief from sanction had to be made formally (in writing) under CPR 23. There was therefore no application before the Court. Ms C's defence was therefore stuck out.Ms C appealed. The grounds were that the Judge had erred in:

(1) finding that he had no discretion to consider an oral application for relief from sanction; (2) finding that there was no application for relief from sanction; (3) finding that such an application had to be made formally in writing; (4) thereby failing to consider his broad discretion in case management powers under CPR 3.1(2) and Rule 3.3(1); (5) failing to consider the respondent's failure to comply with the mandatory requirement under CPR 3.5.5; and (6) failing to consider the appellant's right to a fair trial under common law and Article 6 ECHR, in particular given that this case involves the loss of the appellant's home.

The High Court put grounds 1-4 together and held:24. In my judgment, the absence of a formal application under CPR 23 does not conclude the matter. At the hearing before the judge, Mr Grigg [counsel for C] made an oral application for relief from sanctions which was supported by the statement of Mr Calendar, the appellant's solicitor, dated 11 April 2014, in support of the application to amend the directions of Deputy District Judge Shaw made on 31 October 2013 and, in addition, there is the statement of Mr Calendar of 2 May 2014.25. CPR 3.8 does not require the application to be made in writing, nor does CPR 3.9. In my judgment, the learned judge had power under Rule 3.8 to determine the application that was made before him on the appellant's behalf, as indeed he could have done if he considered it appropriate to do so on his own initiative.26. The decisions made by the Court of Appeal in Keen Philips v Field and Marcan Shipping, to which I have referred in this regard, remain in my view good law. That the court can of its own motion consider whether there should be such relief has been confirmed recently by the Court of Appeal in Circle Thirty Three Housing Trust Ltd v Nelson [2014] EWCA Civ 106 (see the judgment of Sir Robin Jacob at paragraph 18).

Given this, grounds 5 and 6 were dealt with quickly. Ground 5 was not a separate ground of appeal, but on ground 6:



28. [...] Mr Grigg [for Ms C], in support of ground 6, referred me to the decision of the Court of Appeal in Folashade Rashida Momson v Dauda Abiodun Azeez [2009] EWCA civ 202, where the Court of Appeal considered the application of Article 6 to relief from sanctions.29. In my judgment, applying the principles set out in Folashade, the learned judge should have balanced the Part 3.9 factors and considered proportionality and the overriding objective. This he failed to do. In my view, debarring the appellant from defending possession of her home purely on the basis that there had been no formal application issued under CPR 23, does amount to a breach of Article 6, ECHR.

The order of 8 May was set aside.So, there is no requirement for an application for relief from sanction to be made formally under CPR 23 (though obviously this would be a good idea!).And on a matter so significant as defending a possession claim for the defendant's home, it would seem that a purely technical strike out may amount to a breach of Article 6, though the extent of this finding will no doubt be tested in other cases, as here it is only related to debarring a defence in the absence of a formal application for relief.

Just because you are paranoid...Sat, 24 Jan 2015 23:42:06 +0000... doesn't mean that they aren't out to get you.The MoJ and Legal Aid Agency have put out a leaflet on Legal aid and "Help for people at risk of losing their home". The trouble is that it doesn't mention, anywhere, at all, not even in little small print, that tenants facing possession proceedings can seek face to face advice from a solicitor. Instead, all requests for help are channelled to the LAA phone line.Now, while mortgage possession cases might have to go via the telephone gateway (due to an entirely arbitrary reclassification of such cases as 'debt' matters, just to give the phone line something to do), tenant possession cases can be funded as face to face cases from the get go, with no phone line involvement. Strangely enough, the LAA leaflet doesn't mention that, while at the same time, the LAA announces that fewer housing matter starts have been used than was expected.Of course, this dodgy advice leaflet might be an accident. I have asked the MoJ. But answer came there none.[Given the comments, here and on twitter, can I just make absolutely clear that nothing I said above is intended, or actually does, reflect in any way on the quality of advice provide by the phone advisors, or indeed whether there should be a phone advice service. As for the mandatory 'debt' thing, as I said in the comments below, 'the point about mortgage possession being given ‘mandatory’ telephone gateway status was that the ‘new’ gateway had to have something reserved to it. This was a political and policy decision'. It had nothing to do with whether this work was 'better' dealt with by the phone gateway, or about generating work for the gateway - which, I have been assured, had and has no shortage. The point about mandatory status was to lay down the marker that this was the trajectory for all civil legal aid. Now if someone wants to give me an argument about why this would be a good thing, come and have a go.]

ECtHR UpdateSun, 08 Feb 2015 15:18:02 +0000Anthony Aquilina v Malta 11/12/14



This is the latest in a line of judgements from the ECtHR dealing with rent control and Article 1 of Protocol 1 (see previous reports here and here).Mr A was the owner of a property in Malta, which he had inherited from his parents in 1984. Mr A's mother leased the property to a couple in 1970 and the rent payable for the property was capped at a level which was substantially lower than the level that could be obtained on the open market. A court-appointed architect valued the market rent at 2,900 EUR p.a., whereas the rent payable was only 382 EUR p.a. (or 13%).The national courts dismissed Mr A's application and on 20/12/2011, he petitioned the Strasbourg Court. The question for the Court was whether the national legislation struck a fair balance between the interests of the general community and Mr A's fundamental property rights. The Court noted that only 2% of the Maltese population requested assistance with social housing, the Government had provided no information on the numbers of tenants who still benefited from protected rents, the Maltese minimum wage had increased from 1979, when rent controls were introduced, the tenants in question were spending a only a small fraction of their yearly income on rent and it was only possible for Mr A to recover possession where there had been a breach of the tenancy agreement. The Court therefore found that a disproportionate and excessive burden had been placed on Mr A, who was forced to bear the social and financial costs of supplying affordable housing to his tenants.The Court awarded damages of 14050 EUR and costs.

Akhverdiev v Azerbaijan 29/1/15On 8/10/05 Mr A acquired ownership of a property in Baku, Azerbaijan. On 14/5/04 the Baku Executive Authority issued an order granting permission for the design of a commercial and residential complex on land of which Mr A's property was part. Towards the end of 2009, Mr A was asked to relocate to a 5 room flat which had been built over a relocated cemetery. Mr A refused, arguing that there was no lawful basis for the demand. Mr A and his family were forced to move out because of the surrounding construction works and the property was demolished in December 2009.The national courts dismissed Mr A's claim for compensation, finding that he had been 'compensated in kind' by virtue of the offers of alternative accommodation.The ECtHR found that the expropriation was not in accordance with the law and that Mr A had been unlawfully deprived of his possessions under A1P1. It was surprising that the Authority had asserted Mr A's right to ownership of the property a year after the order which, the Government claimed, provided the authority to expropriate it. Furthermore, the order was merely in the form of a permission to a private developer and there was no formal notification to Mr A of the legal basis of the proposals. Furthermore, the Authority appeared to have no jurisdiction to make an expropriation order and the Housing Code upon which the offer of compensation was made was inapplicable.The Court reserved its decision on just satisfaction.[NB this case is to be compared with another recent case, Saghinadze v Georgia, where the Court accepted the governments proposals for relocation of the applicant to accommodation which provided living space similar to that which the applicant and his family occupied previously, plus 3000 EUR in pecuniary damages]

Stolyarova v Russia 29/1/15Ms S became the owner of a flat in Moscow on 17/3/05, which followed a series of transactions later impugned by the Moscow housing department as improper and unlawful (namely there had been an exchange of flats after one of the parties had in fact died). Ms S argued that she was the bona fide purchaser of the flat and she contested the department's application to rescind her title to the flat and to have her evicted. The national courts granted the department's application and Ms S petitioned the ECtHR.Notwithstanding the government's argument that States enjoyed a wide margin of appreciation in taking steps to preserve their housing stock, The Court found a violation of A1P1. It was not for a bona fide purchaser to pay the price for inadequate supervision by the State of earlier transactions. The State must assume full responsibility for its errors and Russia failed to strike a fair balance between the public interest and Ms S's property rights.



The Court also found that the interference was not necessary in a democratic society under Article 8 and it makes the following interesting observation (at para.61):

The Court observes that the applicant’s home has been repossessed by the State, and not by a private party whose interests in the flat would have been at stake (see Orlić, cited above, § 69). Insufficient details were given about the intended beneficiaries allegedly on the waiting list for social housing to allow the Court to weigh their personal circumstances against those of the applicant. In any event, no individual on the waiting list would have had the same attachment to the flat as the applicant; nor would he or she have had a vested interest in that particular dwelling, as opposed to a similar one.

This suggests that there are cases (although perhaps only where private ownership rights are at stake) where the State is expected to particularise the intended recipients of social housing.Russia was ordered to restore Ms S's title to the flat and to pay her 7500 EUR in non-pecuniary damages, plus costs.

The revenge of retaliatory eviction lawThu, 05 Feb 2015 22:43:54 +0000After the Teather 'revenge eviction' member's bill was talked out by a couple of Tory MPs, (Chope and Davis), the question was would the proposals survive in another form before the election.Well today, the DCLG announced the Government's proposed amendments to the Deregulation Bill - just headed to the Lords before Third reading in the Commons. We assume that Chope and Davis won't pull silly games with Govt amendments...The proposals aren't wholly the same as the Teather version. There are some distinct problems, both practically and legally, but also some additional amendments around s.21 that are of interest.The substance of the retaliatory eviction amendments are:

Preventing Retaliatory eviction(1) Where a relevant notice is served in relation to a dwelling-house in England, a section 21 notice may not be given in relation to an assured shorthold tenancy of the dwelling-house- (a) within six months beginning with the day of service of the relevant notice, or (b) where the operation of the relevant notice has been suspended, within six months beginning with the day on which the suspension ends.(2) A section 21 notice given in relation to an assured shorthold tenancy of a dwelling-house in England is invalid where- (a) before the section 21 notice was given, the tenant made a complaint in writing to the landlord regarding the condition of the dwelling-house at the time of the complaint, (b) the landlord- (i) did not provide a response to the complaint within 14 days beginning with the day on which the complaint was given, (ii) provided a response to the complaint that was not an adequate response, or (iii) gave a section 21 notice in relation to the dwelling-house following the complaint, (c) the tenant then made a complaint to the relevant local housing authority about the same, or substantially the same, subject matter as the complaint to the landlord, (d) the relevant local housing authority served a relevant notice in relation to the dwelling-house in response to the complaint, and (e) if the section 21 notice was not given before the tenant’s complaint to the local housing authority, it was given before the service of the relevant notice.(3) The reference in subsection (2) to an adequate response by the landlord is to a response in writing which-



(a) provides a description of the action that the landlord proposes to take to address the complaint, and (b) sets out a reasonable timescale within which that action will be taken.(4) Subsection (2) applies despite the requirement in paragraph (a) for a complaint to be in writing not having been met where the tenant does not know the landlord’s postal or e-mail address.(5) Subsection (2) applies despite the requirements in paragraphs (a) and (b) not having been met where the tenant made reasonable efforts to contact the landlord to complain about the condition of the dwelling-house but was unable to do so.(6) The court must strike out proceedings for an order for possession under section 21 of the Housing Act 1988 in relation to a dwelling-house in England if, before the order is made, the section 21 notice that would otherwise require the court to make an order for possession in relation to the dwelling-house has become invalid under subsection (2).(7) An order for possession of a dwelling-house in England made under section 21 of the Housing Act 1988 must not be set aside on the ground that a relevant notice was served in relation to the dwelling-house after the order for possession was made.

A 'Relevant Notice' is(a) a notice served under section 11 of the Housing Act 2004 (improvement notices relating to category 1 hazards), (b) a notice served under section 12 of that Act (improvement notices relating to category 2 hazards), or(c) a notice served under section 40(7) of that Act (emergency remedial action);“section 21 notice” means a notice given under section 21(1)(b) or (4)(a) of the Housing Act 1988 (recovery of possession on termination of shorthold tenancy).

Note, not a hazard warning, or an EPA s.80 notice. Nor an early notification letter from a legal representative, or service of an expert's report under the pre-action protocol, or anything else one might reasonably regard as a trigger event for the landlord having failed to carry out repairs.So, the process is: tenant writes to landlord or agent (assuming either can be found) giving notice of problem. landlord has reasonable time to sort. If not, tenant complains to Council. EHO inspects. Improvement/remedial action notice issued. At that point, any s.21 issued after the tenant's written notice becomes invalid, including in ongoing possession proceedings (see (6)).What this means is not only that an Improvement/Remedial notice is the only way to trigger the 'invalid s.21', but that there is a definite timescale - if a possession order has already been made, a subsequent notice by the Council is of no effect in overturning the possession order.There is an exception for the defect/issue being caused by untenant-like behaviour (which will be fun with mould issues), or where the property is up for sale (with restrictions).The whole shebang is utterly reliant on Council EHOs reacting and serving notice within the 'section 21 notice period and possession proceedings before possession order' timescale. Say 3 months - but could be less, depending on 'reasonable period from tenant's notice and date of service of s.21. This action by the council is crucial.And of course, tenants will have to know to go to the Council EHOs (and persevere in doing so).Also, Housing Associations are excepted (why?) and this will, for the first three years, only apply to new ASTs after the Act to be is in force. This latter puzzles me, as service of a s.21 after the commencement date would not be retrospective legislation. Does the DCLG want to give landlord a chance to retaliatorily evict their existing tenants?The other interesting bits are a ban on service of a s.21 with the first 4 months of an AST and a provision that:

21A Compliance with prescribed legal requirements



(1) A notice under subsection (1) or (4) of section 21 may not be given in relation to an assured shorthold tenancy of a dwelling-house in England at a time when the landlord is in breach of a prescribed requirement.(2) The requirements that may be prescribed are requirements imposed on landlords by any enactment and which relate to- (a) the condition of dwelling-houses or their common parts, (b) the health and safety of occupiers of dwelling-houses, or (c) the energy performance of dwelling-houses.(3) In subsection (2) “enactment” includes an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978.(4) For the purposes of subsection (2)(a) “.common parts” has the same meaning as in Ground 13 in Part 2 of Schedule 2.(5) A statutory instrument containing regulations made under this section is subject to annulment in pursuance of a resolution of either House of Parliament.

So, we shall see what, if anything, turn out to be prescribed requirements.There is a further provision for a requirement for provision of information to the tenant by the landlord, such as may be prescribed by regulation. Again, we shall see.And I can't resist - given that the RLA maintain their ridiculous claim about already existing defences to a s.21 possession claim, despite it being dismantled - pointing that the RLA put out a press release claiming that the Govt amends meant that a s.21 notice was invalid if served after a tenant had made a repair complaint. The RLA really do have an interesting approach to legal analysis.

Ending flexible tenancies - a reminderTue, 24 Feb 2015 20:30:44 +0000We don't usually (indeed ever) repost previous material on NL. But I'm making an exception for this one, because I think it is timely. Flexible tenancies have been in existence for a while in some boroughs and I would expect that it is round about now that possession proceedings for a fault based grounds (rather than the end of the term and non-renewal of the flexible tenancy) would be starting to happen. I haven't seen any yet, but my local boroughs don't have flexible tenancies.So, for tenant advisors and indeed for council landlords, here is a reminder of the high degree of complication involved in ending a flexible tenancy during the term, and the many opportunities for getting it wrong.As before, this is based on an excellent article in the Journal of Housing Law (Vol 17 Issue 1) by Andrew Dymond of Arden Chambers. His article really should be read – anything of interest in the following is due to him, and any errors are of course my own. (Also, if you are not reading the JHL, why not? It routinely has very good and useful pieces in it.)The first thing to note is that because a flexible tenancy is not a weekly or monthly periodic secure tenancy, Housing Act 1985 s.82(1), (1A) and (2) do not apply. Instead sections (3) and (4) do.

(3) Where a secure tenancy is a tenancy for a term certain but with a provision for re-entry or forfeiture, the court shall not order possession of the dwelling-house in pursuance of that provision, but in a case where the court would have made such an order it shall instead make an order terminating the tenancy on a date specified in the order and section 86 (periodic tenancy arising on termination of fixed term) shall apply.(4) Section 146 of the Law of Property Act 1925 (restriction on and relief against forfeiture), except subsection (4) (vesting in under-lessee), and any other enactment or rule of law relating to forfeiture, shall



apply in relation to proceedings for an order under subsection (3) of this section as if they were proceedings to enforce a right of re-entry or forfeiture.

So, i) the tenancy agreement must have a provision for re-entry or forfeiture. ii) A possession claim is actually forfeiture proceedings. iii) when an order is made under s.82(3), it terminates the fixed term, but a periodic tenancy arises, via s.86:

(1)Where a secure tenancy (“the first tenancy”) is a tenancy for a term certain and comes to an end— (a)by effluxion of time, or (b)by an order of the court under section 82(3) (termination in pursuance of provision for re-entry or forfeiture),a periodic tenancy of the same dwelling-house arises by virtue of this section, unless the tenant is granted another secure tenancy of the same dwelling-house (whether a tenancy for a term certain or a periodic tenancy) to begin on the coming to an end of the first tenancy. (2)Where a periodic tenancy arises by virtue of this section— (a)the periods of the tenancy are the same as those for which rent was last payable under the first tenancy, and (b)the parties and the terms of the tenancy are the same as those of the first tenancy at the end of it;except that the terms are confined to those which are compatible with a periodic tenancy and do not include any provision for re-entry or forfeiture.

This means, I think, that any claim to bring to an end a flexible (fixed term) secure tenancy as a forfeiture claim should also simultaneously be pleaded a claim for possession against the periodic tenancy that arises via s.86 on an order made under s.82(3). I suspect this may not be widely understood.The grounds for possession are the familiar grounds of Schedule 2 Housing Act 1985, and there are the usual requirements for it to be reasonable to make a possession order and/or suitable alternative accommodation being available. But the notice seeking possession is in a different prescribed form, as per Part II of the Schedule to the Secure tenancies (Notices) Regulations 1987.And then to the good bits. Remember s.82(4) HA 1985 above?

Section 146 of the Law of Property Act 1925 (restriction on and relief against forfeiture), except subsection (4) (vesting in under-lessee), and any other enactment or rule of law relating to forfeiture, shall apply in relation to proceedings for an order under subsection (3) of this section as if they were proceedings to enforce a right of re-entry or forfeiture.

I suspect not that many housing lawyers, let alone Council housing departments, will be altogether familiar with the enactments and rules surrounding forfeiture. A few quick points…The forfeiture clause in the tenancy agreement, for rent arrears cases, must specify that the right to forfeit arises ‘whether rent has been formally demanded or not’. If it doesn’t then the landlord must formally demand the rent before the right to forfeit arises on arrears of rent.Rent arrears claims do not require the additional step of a notice under s.146 Law of Property Act 1925, on which more below. But they are not without perils of their own for the landlord.The provisions for relief from forfeiture in the County Courts Act 1984 apply.S.138(2) provides that if the lessee (tenant) pays all the arrears of rent and the costs of the action into court or to the landlord not less than 5 clear days before the return day of the claim (first hearing), then the action shall cease and the tenancy continue without interruption. This is perhaps a little unclear, as forfeiture ends a tenancy on issue of claim – hence the emphasis on ‘without interruption’ - but s.82(3) requires an order of the court to end the tenancy. Quite what the courts will make of that remains to be seen, but the best guess is that making the payments in s.138(2) at least 5 clear days ahead of hearing would stop the landlord obtaining an order ending the fixed term.But, if this payment of arrears and costs is not made 5 clear days ahead of hearing, then s.138(3) applies. This means an order for possession must give at least 4 weeks before date of possession, and if the arrears and costs are paid within that 4 weeks, the possession order will not take effect. In terms of a flexible tenancy, this presumably (though not certainly) means that the fixed term would be re-instated.For non-rent arrears claims (e.g ASB, or other breach of tenancy), there must be another step. S.146 Law of Property Act 1925 requires service of a notice, which must:



1. Specify the breach complained of2. If the breach is capable of remedy, require the tenant to remedy it (no time period needs to be specified but a

reasonable time must elapse before proceedings)3. require compensation in money for the breach (though a failure to require compensation does not invalidate the

notice)This, it is worth noting, is in addition to the Notice Seeking Possession. It is a separate notice.There is also a requirement, for non-rent forfeiture claims, for a court or tribunal (First Tier Tribunal (Property Chamber)) to have determined that a breach of tenancy conditions has occurred before a s.146 notice can be served (which is 14 days after the date for appeal of the determination has passed). As far as I can see, this would apply to flexible tenancies. So, for instance, a possession claim based on tenant nuisance would require a court or tribunal to have determined that a breach had occurred before a s.146 notice could be served - possibly at the same time as the Part II 1987 regulations notice - and then the possession claim commenced. So, a whole preliminary set of proceedings.Then there is a whole set of case law on whether nuisance and annoyance is a remediable breach, entirely separate and quite different from the Housing Acts. I’m not going to go into detail here, but this is something people should be aware of.It is also worth noting the very wide discretion of the court to grant relief from forfeiture under s.146(2):

Where a lessor is proceeding, by action or otherwise, to enforce such a right of re-entry or forfeiture, the lessee may, in the lessor’s action, if any, or in any action brought by himself, apply to the court for relief; and the court may grant or refuse relief, as the court, having regard to the proceedings and conduct of the parties under the foregoing provisions of this section, and to all the other circumstances, thinks fit; and in case of relief may grant it on such terms, if any, as to costs, expenses, damages, compensation, penalty, or otherwise, including the granting of an injunction to restrain any like breach in the future, as the court, in the circumstances of each case, thinks fit.

Again, relief from forfeiture would presumably mean that the fixed term tenancy continued. But if forfeiture is granted, as noted above, a periodic tenancy arises under s.86 Housing Act 1985. So the possession claim must deal with both.Waiver. Now waiver is going to be an issue! If the law on forfeiture applies, as s.82(4) states, then the common law rules on waiver must also apply.Once the landlord has elected to forfeit, any action incompatible with the decision to forfeit can (and often does) amount to the landlord having waived the breach. The most common example of waiver would be a demand for, or acceptance of rent after service of a s.146 notice. So, if there is a demand for, or acceptance of rent by the landlord, in the period between electing to forfeit (service of notice seeking possession and/or a s.146 notice) and the issuing of proceedings, there is an arguable waiver of the right to forfeit.While in rent arrears cases any payment will usually be appropriated to the arrears, and thus not be taken as an acceptance of post-election rent, it remains the case that a demand for rent – for example, a post-NSP letter demanding payment of arrears and current rent – could arguably be a form of waiver in non-rent arrears based proceedings. If the courts do apply the law of forfeiture rigorously, this will present difficulties for the local authority landlord.S.86 also has a curious effect on the mandatory ground for possession under s.107D Housing Act 1985 (as amended). This is the ground for possession at the end of the fixed term. But consider the position if the landlord has brought possession proceedings during the fixed term (so not under s.107D), and has either not sought at the same time to terminate the periodic tenancy that arises under s.86, or perhaps the court has terminated the fixed term but made a suspended possession order on the periodic that arises.The fixed term has been terminated, so s.107D is of no use to the landlord (including all the potential reasons for not granting a further term – earning too much, not being in employment or training etc.). But a periodic secure tenancy has raised by operation of s.86 and has not been terminated. The result is that the tenant has an old style secure periodic tenancy, albeit potentially one with an SPO hanging over it. Perversely, then, the former ‘flexible tenant’ who has faced possession proceedings may be in a rather better position than a flexible tenant who hasn’t.



Overall, there appears to be quite a lot of action in the courts ahead to be had. Housing lawyers should be doing a crash course in forfeiture, for starters…

MiscellaneousFri, 27 Feb 2015 22:24:38 +0000Assorted things of note.The closing date for applications for the Tower Hamlets Law Centre Housing Solicitor post has been extended to 11 March 2015.Southend have been refused permission to appeal to the Supreme Court in Southend v Amour (our report on the Court of Appeal hearing here). So this is a successful article 8 defence to possession, effectively confirmed by the Supreme Court.In 2014, Leeds City Council obtained an injunction, applying to the city centre and Leeds City Station, "preventing all persons from sitting or loitering on a thoroughfare or Leeds City Station with any article to be used for begging, such as caps, hats, boxes or similar receptacles." under s.222 Local Government Act 1972. That injunction has now been discharged, on the basis that it could not actually be maintained against anybody. For more details - and this is a significant case on the use of s.222 injunction powers to effectively make byelaws - see the Garden Court North website.As a cautionary tale, do not effect a surrender by operation of law of a lease when expecting compensation under a compulsory purchase order. Obichukwu v London Borough Of Enfield [2015] UKUT 64 (LC)And our friends Charles Henry & Co (the "not solicitors", aka Legal Action) have also seen more action in the High Court: Law Society (Solicitors Regulation Authority) v (1) Charles Henry & Co (2) Kevin Gregory (2015) QBD (Elisabeth Laing J) 29/01/2015 [not on Bailii. Note on Lawtel]When last we saw Kevin Gregory, in August 2014, it was the making of a General Civil restraint Order against him. A GCRO against Charles Henry/Legal Action was adjourned. It appears that a GCRO was subsequently made against Charles Henry/Legal Action too, as it is noted in this judgment. As per that previous case, the SRA might not have regulated Charles Henry/Legal Action as a 'charity', they were interested in the solicitors recorded as working for them. That interest continues, bolstered by the GCROs. We saw that the solicitors had previously said that none of them really had anything much to do with Charles Henry/Legal Action, honest, but the SRA applied for, and got, a disclosure order against Charles Henry/Legal Action for various documents concerning the solicitors' involvement in matters (despite a 'lengthy witness statement' from Mr Gregory. And we have seen just how opaque that involvement by solicitors could be).The charity appealed but did not seek a stay and remained in breach. The SRA then sought a disclosure order against Kevin Gregory personally. Mr Gregory put in another witness statement stating variously "that the documents were in paper form only, had been destroyed, were in the possession of clients, or were confidential". (Uncharitably, I have tended to consider such assertions as the 'dog ate it' defence. Which may of course be true, depending on the dog.)Counsel was instructed for this hearing, so the Defendant was actually there on this occasion. Mr Gregory, via counsel, further argued, variously that:

(1) the statutory test for the making of the order had not been met; (2) he could not be joined to proceedings which had been concluded; (3) in respect of each file sought the SRA had to show what misconduct was alleged and the roles played by the solicitors; (4) the order would breach his art.8 rights as files were sought in respect of cases in which he was the claimant; (5) the SRA was unable to establish that the files were in his possession, custody or control.

This did not go well. The Court held:



(1) The statutory test had already been made out against the charity at the previous hearing. There had been no change in circumstances. The practice manager had been involved in the unmeritorious actions in respect of which the SRA was seeking documents. Mr Gregory's first witness statement had contained irrelevant matters which gave the court cause to doubt the statement's reliability. His second statement night have been shorter but wholly ignored the fact that an order had already been made. (2) The proceedings would not be at an end until the order was complied with and the SRA had received the documents it sought. (3) It was sufficient under the Solicitors Act 1974 s.44BB that the SRA had a general concern that the three solicitors had not supervised litigation conducted by the charity and the practice manager, and that GCROs had been made against the charity and practice manager while the solicitors were practising at their office. (4) While there would be an interference with Mr Gregory's Art 8 rights, such interference was taken into account by the statutory scheme, which involved a balancing exercise between the public's interest in the investigation of solicitors' misconduct and their art 8 rights. Requiring disclosure of the files was not therefore disproportionate. (5) Mr Gregory's second statement was vague and only referred to paper files. It could not be the case that there were only paper files in this day and age.A disclosure order was made against Kevin Gregory.We await the next instalment breathlessly, but as ever must note that 'Legal Action' has nothing at all to do with the estimable Legal Action Group.

Relief from sanctions for not turning up?Tue, 24 Mar 2015 12:48:41 +0000In Home Group v Matrejek [2015] EWHC 441 (QB), the High Court has applied Rule 3.9 of the Civil Procedure Rules and the guidance on applications for relief from sanctions in Denton v TH White Ltd [2014] EWCA Civ 906 (our note here) to a possession claim based on nuisance and anti-social behaviour.Ms M has been an assured tenant with Home Group of a property in Braintree, Essex since November 2002. Between 2011 and 2013, Ms M was accused of acting in a anti-social manner towards her neighbours, a notice seeking Possession was served on 23/8/2013 and a claim was issued in Chelmsford County Court in October 2013.On 12/2/2014, HHJ Lochrane listed the matter for a directions hearing on 28/4/2014, the purpose of which was to co-ordinate the possession claim with a Children Act application involving Ms M's children. In the week before the hearing on 28/4/2014, both parties' legal representatives sought an adjournment and the landlord's solicitor believed that no further directions were required. No response was received from the Court and Ms M's representatives attended Court on her behalf.The Claimant's legal representatives elected not to attend the hearing and informed neither the Court nor Ms M's solicitors that they would not attend. The result was that HHJ Lochrane found that he was unable to manage both claims and so he dismissed the possession claim and ordered Home Group to pay Ms M's costs.Home Group applied for relief from sanctions and on 9/6/2014, HHJ Lochrane granted the application and restored the possession claim. The leading authority at the time was Mitchell v News Group [2013] EWCA Civ 1537 (our note here). The judge found that, although Home Group's solicitor had acted deliberately, their decision not to attend was perhaps explicable given that the purpose of the hearing was not made clear and there was just about a reasonable excuse. Justice also dictated that the claim be reinstated.By the time Ms M's appeal was heard by the High Court on 28/10/14, the leading authority was Denton and judgement was given on 23/2/2014. Sweeney J held that the decision not to attend the directions hearing was serious but at the second stage, he agreed with the Circuit Judge that Home Group had "just about a reasonable excuse" for not attending. While the other circumstances of the case would not, in the Court's judgement, carry particular weight on their own, the Court's finding that there was a reasonable excuse allowed the Court to weigh those circumstances (e.g. the effect on neighbours) in the balance. The Appeal was therefore dismissed.Comment



Shortly after this judgement was handed down, the Law Society Gazette published an article beginning "The High Court has shown a further sign of lenience towards non-compliance." Lenience was of course meant to be curbed by both the Mitchell and Denton judgments and this appeal raises the question whether a reasonable excuse and deliberate conduct can amount to a good reason within the scope of Denton.We understand that an appeal has been lodged against the High Court's decision so we shall see whether the Court of Appeal is prepared to look again at its CPR 3.9 guidance.

Regulations and damn regulations.Thu, 26 Mar 2015 23:35:05 +0000Two quite different sets of secondary legislation.First: there is a new prescribed form for section 6(2), section 8 and section 13(2) notices for assured (including shorthold) tenancies from 6 April 2015. The regulations are here and the prescribed forms are in the schedules. Section 6(2) is terms for a periodic tenancy. Section 8, of course, is notice seeking possession on Schedule 2 Housing Act 1988 grounds, and section 13(2) is the notice for proposing a new rent.These notices are obligatory, so a failure to comply with the precise required notice format could be significant.Second: Following on from the quashing as unlawful of the MoJ regulations on legal aid for judicial review on Monday 23 March, today - Thursday 26 March and the last day of the present parliament - the Government, (Grayling and MoJ) laid new regulations, to come into force tomorrow, 27 March. The regulations are here. At a first read through, they have exactly the same effect as the previous ones - no legal aid payments for judicial review claims that do not get (or reach) permission, save that sections 2(c), (d) and (e) are designed to address the grounds on which the High Court found the previous regulations unlawful (and just, barely, those reasons).I will restrain my language and simply call this a shoddy, cynical, petulant act, and as such entirely fitting as the last action of the present Lord Chancellor in this Parliament.

Disability discrimination goes to full trialSun, 29 Mar 2015 21:25:53 +0000Akerman-Livingstone v Aster Communities Ltd [2015] UKSC 15When the Court of Appeal held that a disability discrimination defence to possession under Equality Act 2010 had to face the same 'seriously arguable' summary test as an Article 8 defence, we were surprised, and very unimpressed. It seems the Supreme Court felt similarly (and unanimously), although sadly it did not help the tenant in this case.The possession claim was for temporary accommodation provided for Mendip Council by Aster. Mendip's Part VII duty to Mr A-L had been discharged, following Mr A-L's refusal of a suitable offer of accommodation on the same street. That refusal may very well have been related to Mr A-L's mental health problems, but there was no s.202 review of the decision, or the offer (apparently because there could be no dispute about the suitability of the property). Mr A-L had defended on the basis of disability discrimination under Equality Act.



The issue for the Supreme Court was whether the issues involved in an Article 8 human rights defence and an Equality Act defence could be equated to the point that an Equality Act defence could also be disposed of by summary assessment and the 'seriously arguable' threshold test - did the proportionality of the eviction face the same test in each defence?Baroness Hale's main judgment first breaks down the differences between the Convention rights - Article 8 - and Equality Act defences based on direct or disability related discrimination.

"the substantive right to equal treatment protected by the Equality Act is different from the substantive right which is protected by article 8. All occupiers have a right to respect for their home. Parliament has expressly provided for an extra right to equal treatment - for people to be protected against direct or indirect discrimination in relation to eviction. Parliament has further expressly provided, in sections 15 and 35, for disabled people to have rights in respect of the accommodation which they occupy which are different from and extra to the rights of non-disabled people. Landlords may be required to accommodate, or to continue to accommodate, a disabled person when they would not be required to accommodate, or continue to accommodate, a non-disabled person."

While the 'twin aims' presumed for a public body landlord in Pinnock - "to vindicate the local authority's property rights, and secondly, to enable the authority to comply with its statutory duties in the allocation and management of the housing stock available to it" - might "almost always trump any right to respect which is due to the occupier's home", it doesn't follow that they will trump the occupier's equality rights:

"Equality rights prohibit both direct and indirect discrimination, as well as the special concept of disability discrimination. But they all have the same aim, which is to secure equality of treatment, by prohibiting inequality of treatment on grounds of a protected characteristic. Thus, save as expressly provided, there is no defence to direct discrimination. No landlord is allowed to evict a black tenant in circumstances where he would not evict a white tenant. The fact that the landlord is thereby vindicating his property rights is neither here nor there. No landlord is allowed to adopt a lettings or eviction policy which indirectly discriminates against black people, unless he can show that it is a proportionate means of achieving some independent aim. The aim of vindicating his property rights would indeed be a "given", but is scarcely likely to be sufficient to justify a discriminatory provision, criterion or practice."

There are further differences in the public policy considerations between those of 'the general run' of social housing cases, and Equality Act issues.As a result:

"When a disability discrimination defence is raised, the question is not simply whether the social landlord is entitled to recover the property in order to fulfil its or the local authority's public housing functions, but also whether the landlord or the local authority has done all that can reasonably be expected of it to accommodate the consequences of the disabled person's disability and whether, at the end of the day, the "twin aims" are sufficient to outweigh the effect upon the disabled person. These are questions which a court is well-equipped to address."

Further, there are distinct differences in the operation of the burden of proof."I am prepared to accept that, in possession actions brought by social landlords against tenants who otherwise have no right to remain in the property, it can generally be taken for granted that the landlord is acting in pursuance of the twin aims; and further that those twin aims are entitled to weigh heavily in a proportionality exercise. However, as already explained, that is not by itself enough to counter a discrimination defence. Once facts are established that could give rise to a discrimination claim, the burden shifts to the landlord to prove otherwise. This will depend upon the particular type of discrimination alleged. If it is a claim (or defence) of direct discrimination, for example that a disabled person has been evicted when a non-disabled person in the same or similar circumstances has not, then the landlord would have to show that the disability was not the reason for the difference in treatment. If it is a claim of indirect discrimination, for example that the landlord has imposed a requirement upon its tenants which puts disabled tenants at a particular disadvantage, then the landlord would have to show that there was a good independent reason for the requirement. If it is a claim of disability discrimination under section 15, then the landlord would have to show that there was no less drastic means of solving the problem and that the



effect upon the occupier was outweighed by the advantages. The express burden of proof provisions in the Equality Act cannot simply be ignored because there are some elements in the proportionality exercise which can be taken for granted."

For this reason, Equality Act defences are not suited for summary disposal, unless perhaps in the rare case where the Claimant could immediately show:i) that the defendant had no real prospect of proving that he was disabled within the meaning of the Act; or (ii) that it was plain that possession was not being sought because of something arising in consequence of his disability; or (iii) that bringing and enforcing the claim were plainly a proportionate means of achieving a legitimate aimOtherwise, the test is as per CPR 55.8(2). If the claim is "genuinely disputed on grounds that appear to be substantial" directions to trial should be given.In the present case, the approach to summary disposal of the defence had been wrong.

"There are, however, two problems with Judge Denyer's approach. The first is that he appears to have regarded his role as akin to the role of the county court judge in homelessness appeals under section 204 of the 1996 Act, in other words, as akin to a judicial review role. It is, however, clear that in possession actions generally, and in discrimination cases in particular, the role of the court is not akin to judicial review. It has to undertake the proportionality exercise itself. The second problem is that he regarded the proportionality exercise under section 15 as the same as the proportionality exercise under article 8. For the reasons given earlier, it cannot be exactly the same. While some things can be taken for granted, and some cases may be so clear that summary disposal is warranted, the issues are not all the same.In this particular case, the first issue was whether the appellant's inability even to take up an offer of accommodation in the same street was something which arose out of his mental illness. Mr Callow's evidence raised a substantial case that it was. If he was right about that (and of course his evidence could have been challenged), then the next question was whether there was any lesser action that could have been taken and, if there was not, whether the harm to the appellant of forcing him to move was outweighed by the benefit to the landlord, the local authority, to the other homeless people in the area, and to the public generally, of being able to obtain possession of this particular property. The landlord might very well have been able to show that it was. There may have been good reasons why it was not practicable to leave the appellant where he was and put the alternative accommodation in the same road to the use to which it was wished to put his flat. But in my view the time which Judge Denyer devoted to this case ought to have been spent on considering the merits of the appellant's defence rather than listening to a day's legal argument devoted to whether to do that".

However, and unfortunately for Mr A-L, while Baroness Hale, and indeed others, would have remitted the case for trial, there had been supervening events.Aster held the properties on fixed term leases which expired in February 2014. The freeholder, under, pressure from its mortgagees, served notice to quit on Aker, leaving Aker with no interest in the property save a licence to enforce the original possession order when it could. Aka was left at risk of a claim for damages by the freeholder.In these circumstances, as Lord Wilson put it:

"My view is that, no doubt with the utmost reluctance, the judge at any full trial of the action would feel bound to conclude that the eviction would strike a fair balance between the claimant's need to accomplish its objectives and the disadvantages thereby caused to the defendant; that therefore the eviction would be a proportionate means of achieving a legitimate aim; and that, by securing his eviction, the claimant would therefore not be discriminating against him."

The appeal was therefore dismissed, despite the argument on principle and procedure having been wholly successful.CommentWell, thank goodness for that on the summary disposal issue. That just had to be right, not just given the policy reasons underlying the Equality Act, with clear statutory prohibitions on eviction, but also the very different position on burden of proof to that set out in Pinnock and Powell.



Worth noting that both Baroness Hale and Lord Neuberger are careful to refer to Article 8 defences as applying to "social housing" and "a public sector occupier", I presume so as to avoid any suggestion of pre-judging McDonald v McDonald.

Mystery Pre Action ProtocolsMon, 06 Apr 2015 19:23:11 +0000There are new pre-action protocols in force from today, 6 April 2015, including the following:

• The Pre-Action Protocol for Judicial Review• The Pre-Action Protocol for Housing Disrepair Cases• The Pre-Action Protocol for Possession Claims by Social Landlords• The Pre-Action Protocol for Possession Claims Based on Mortgage or Home Purchase Plan Arrears in Respect of

Residential PropertyThe only problem is that they haven't been made available. The Justice.gov.uk protocols page was last updated on 21 October 2014.

So, while hoping that they magically appear first thing on the morning of 7 April 2015, we are currently required to rely on and comply with completely mysterious pre-action protocols.

Protocol ProblemsTue, 14 Apr 2015 17:05:11 +0000Now that the new pre-action protocols are sort of available, and have been in force since 6 April 2015 even when they were not available, people are having a look at them. And coming up with some issues.The new Pre-action Protocol for Possession Claims by Social Landlords, (at page 108 on in this PDF, which is all we have for now), has caused head scratching. Parts 1.1 to 1.3, on the scope and application of the Protocol read as follows:

1.1. This Protocol applies to residential possession claims by social landlords (such as local authorities, Registered Social Landlords and Housing Action Trusts) and private registered providers of social housing. Part 2 relates to claims which are based solely on claims for rent arrears. Part 3 relates to claims where



the Court’s discretion to postpone possession is limited by s89(1) Housing Act 1980. The protocol does not apply to claims in respect of long leases or to claims for possession where there is no security of tenure.1.2. Part 3 of the protocol does not apply to cases brought by social landlords solely on grounds where if the case is proved, there is a restriction on the Court’s discretion on making an order for possession and/or to which s89 Housing Act 1980 applies.

Part 2 is straightforward enough, being by and large the old rent arrears protocol. But then at Part 3, under 3,1, is this.3.1 This part applies in cases where if a social landlord proves its case, there is a restriction on the Court’s discretion on making an order for possession and/or to which s. 89 Housing Act 1980 applies (e.g. non-secure tenancies, unlawful occupiers, succession claims, and severing of joint tenancies).

So what kinds of claim does Part 3 apply to?1.1 seems to be straightforward about it - Part 3 covers claims where the Court's discretion to postpone possession is limited by s.89(1) Housing Act 1980. This would cover any 'mandatory' possession order, including those in Schedule 2 Housing Act 1988, and indeed a claim via section 21. But it would seem to exclude 'Notice to Quit' cases, where there was no security of tenure, or security had been lost, as "The protocol does not apply to claims in respect of long leases or to claims for possession where there is no security of tenure".But then 1.2 says Part 3 does not apply where the case is brought "solely on grounds where if the case is proved, there is a restriction on the Court’s discretion on making an order for possession and/or to which s.89 Housing Act 1980 applies".So if a claim is brought solely on Ground 8 Housing Act 1988, (or indeed, s.21, or introductory or demoted tenancy claims) Part 3 would not apply?But if it was a rent arrears claim brought on grounds 8, 10 and 11, Part 3 would apply, as the s.89(1) HA 1980 limit would apply if the court made a mandatory order under the ground 8 claim, but the claim is not solely on that ground?What is more, 1.2 seems to be in direct contradiction to 3.1, which gives as examples of where Part 3 applies exactly the kind of case where the claim is brought solely on grounds that if proved would result in the s.89(1) limit on discretion applying - non-secure tenancies, unlawful occupiers, unsuccessful successions, and 'severing of joint tenancies' (which I take to mean NTQ by one joint tenant and possession claim against the remaining occupier).Except that the kinds of cases listed as examples in 3.1 all seem to be cases where "there is no security of tenure" (or at least allegedly no security) and based on Notices to Quit. And 1.1 says the protocol does not apply "to claims for possession where there is no security of tenure".Am I missing an obvious interpretation? I did rather wonder if 1.2 actually meant to refer to Part 2, not Part 3, which would sort of make sense But then then would exclude possession claims based solely on ground 8 HA 1988 from the rent arrears pre action protocol in part 2. And it still wouldn't solve the 'no security of tenure' issue between 1.1 and 3.1.My head hurts.

Housing and immigration. Bombshells and bombastSat, 23 May 2015 15:50:09 +0000In a speech timed to hide the release of the latest figures on net migration, the Prime Minister made an assortment of announcements on forthcoming policies.The part that concern us here, went as follows:



There are other ways we can identify those who shouldn’t be here, for example through housing. For the first time we’ve had landlords checking whether their tenants are here legally. The Liberal Democrats only wanted us to run a pilot on that one. But now we’ve got a majority, we will roll it out nationwide, and we’ll change the rules so landlords can evict illegal immigrants more quickly.We’ll also crack down on the unscrupulous landlords who cram houses full of illegal migrants, by introducing a new mandatory licensing regime. And, a bit like ending jobs when visas expire, we’ll consult on cancelling tenancies automatically at the same point.

The unsurprising part is the commitment to roll out the 'right to rent' nationally from the West Midlands pilot (even though no evaluation of the pilot has yet taken place). We originally called this legislation 'odious and badly thought out'. Now it is to be a national, odious and badly thought out scheme.The rest, however, contains some bombshells and some incredibly stupid ideas.No-one, least of all the landlord organisations, foresaw the introduction of mandatory licensing for landlords. Nor, it appears, did the housing minister, Brandon Lewis, who just the day before rejected 'unnecessary and expensive regulation on the private rented sector'. Obviously, a lot will depend on the detail, but in itself, this is not an odious plan.And what to make of 'quicker' evictions? Let alone a proposed complete rewriting of the fundamental tenets of landlord and tenant law by creating 'conditional' tenancies, that automatically end on a condition being met (or not met)? It may be that these bright ideas quietly wither and die once someone figures out what an utter mess implementing them would turn out to be.Still, anyone expecting housing law to be relatively quiet in this parliament has just been disabused of the idea.

Co-ops again ...Wed, 10 Jun 2015 13:45:34 +0000Often, I will read a judgment with which I disagree; but it is rare that I read one that I think is just plainly wrong. The judgment of Hildyard J in Southward Housing Co-Operative Ltd v Walker and Hay [2015] EWHC 1615 (Ch) falls in to the latter category, made all the more odd that it took nearly five months to hand down the decision. Perhaps, in that period, Hildyard J should have read one of Mark Wonnacott's rather good, but decidedly specialist, landlord and tenant historical monographs. It is based on a wrong reading of the Supreme Court judgment in Berrisford v Mexfield Housing Co-Operative Ltd [2011] UKSC 52 (our note here). And that wrong reading gets Hildyard J in to all sorts of bother. His judgment on the other bits - in particular section 6 and Article 14, Sch 1 Human Rights Act 1998 - is also almost certainly wrong imho. But it will take you a long time to read (it's 45 pages long) before you get that kind of visceral reaction to it. I gather that there is an appeal in the offing, but I don't really think that should have been necessary. It seems to me to be a relatively straightforward case, but there we go.In short, Southward granted the Defendants a weekly periodic tenancy in April 2011. The tenancy could only be determined in accordance with the service of a notice to quit on limited grounds, such a non-payment of rent. The Defendants defaulted, Southward served a notice, and the whole thing became a problem at that stage.Now, my understanding of Berrisford is that the tenancy was clearly void on its face as uncertain in accordance with the standard doctrine; Berrisford adds that, in such cases, prior to 1925, such an agreement would constitute a tenancy for life but that, as a result of section 149(6), Law of Property Act 1925, the tenancy automatically becomes a 90 year term subject to earlier determination on death or in accordance with the contract. I fully appreciate that this goes against the property lawyers' grain, which is that (objective) intention rules. But there we go - that is the "Carrollian" effect of the rule to which both Lord Neuberger and Baroness Hale referred. Although my students had difficulties with Berrisford, it seems pretty clear to me.So, Hildyard J begins correctly by saying that this case is analagous to Berrisford; he also says, again correctly, that the tenancy term is uncertain (there is some odd stuff that others better than me will, no doubt, explain about whether the



notice affects the claim for possession or the determination of the tenancy: [55]-[63]). But then he goes off the rails. He holds that the agreement created a contractual licence. By what process of legal alchemy does he turn a tenancy, which objectively both parties intended to create, to a licence?He argues that the result in Berrisford was dependent on the parties' intentions in that case. Now, it is true that the UKSC contented themselves by saying that the outcome did appear to be in tune with the parties' intentions - I'm not so convinced - but the point was that was entirely unnecessary to the judgment. The tenancy for life analysis, whatever one thinks of it (and it is fair to say that its reception in academic life has been critical), and Section 149(6) operate automatically. Hildyard J, however, found a solution, in accordance with the maxim ut res magis valeat quam pereat(better to save a thing than let it perish - a maxim of absolutely no use in this matter because the tenancy is, in law, saved),

... with diffidence and anxiety, I have eventually concluded that there is a solution which does give effect to the intention of the parties. The solution revolves around the difference between, on the one hand, accepting (as plainly one must) that the 'rule' can be applied in circumstances where the parties had no inkling or intention that it would, and, on the other hand, accepting that its application is mandatory even where the parties' intentions were to the contrary and their agreement contains fundamental terms that simply cannot be carried over into a 90 year lease.

The solution was that the contractual licence analysis was open to the court. There is no reasoning for this abrupt conclusion, other than a desire to avoid the consequences of the automatic operation of the rule and that this appears to be the Scottish solution. Of course, even prior to Berrisford, such a solution would have been regarded as untenable - Prudential, for example, where the term was void for uncertainty, simply became an annual periodic tenancy (nb the result in Prudential would remain the same today because of its corporate status).HIldyard J goes on, on the (correct) assumption that he is wrong, to ask how the 90 year agreement could be determined. The Defendants here had an interesting argument. They said that, in the absence of a forfeiture clause, the notice provision was inadequate to determine the 90 year agreement. I am unconvinced by this as a proposition, but Hildyard J found their argument "so unpalatable, and so alien to the parties' intentions, that some solution must be found" ([111]); and, as if by magic, a solution was found - to treat the notice clause as an innominate process for termination", a forfeiture clause. The Defendants then deployed the full range of arguments around the forfeiture of a long lease, , which may follow (from one point of view) from Berrisford, particularly taking in to account sections 76 and 77, Commonhold and Leasehold Reform Act 2002. Again, although I'm not convinced by this analysis, what is interesting is that the Claimant followed the Defendants and argued it on their turf, so to speak. Section 76 specifically includes section 149(6) leases as "long leases" but section 77 excludes some leases on certain conditions, which seemed to include the Southward lease. So, of course, Southward managed alchemically to get round all of that inconvenient law on forfeiture, waiver, and rent claimed etc; and there was no sense that relief from forfeiture should be granted.We then get to what Hildyard J describes as the public law issues, which are those deriving their force from the Human Rights Act 1998. For some time, I along with others better than me have puzzled over the human rights issues deriving from co-operative cases. There is no security of tenure, as they are excluded from the various security provisions, given the satisfaction of certain criteria. Instinctively, that seems wrong - the Welsh government have, of course (given that they are light years ahead of the English), corrected the position in the Housing (Wales) Act. In Southward, the Defendants argued the incompatibility point and Hildyard J magisterially rejected those arguments. There is an "interesting" discussion of the "other status" element of Article 14, it having been argued that being a tenant of a fully mutual housing co-op is an "other status" as part of a broader discrimination argument. At [187], Hildyard J said

In my judgment, that which is said in this case to occasion the Defendants' differential treatment is difficult to describe as a "personal characteristic". The characteristic is not innate but acquired; it has nothing to do with what the person is, as distinct from what that person has chosen to do; the choice made is most unlikely either to reflect or to have affected the person's character; and the circumstances of fully mutual housing association tenants differ greatly. In short, any circle is far from the centre.

I imagine that point will be conceded on appeal. On surer footing, Hildyard J found that any distinctions were justified; in any event, the Defendants had signed up to contractual protections which were the equivalent, if not greater rights. Here, and in parenthesis, I was struck by the witness statement from the civil servant at the DCLG who argued ([202]) that



The fundamental difference between housing co-operatives and other housing associations is the absence of a landlord and tenant relationship in the case of co-operatives. Other housing associations tend to operate their tenancies according to a strong landlord and tenant relationship, with tenants generally having little direct input into the decisions made in relation to the management of where they live. In contrast, housing co-operatives are locally owned by the members themselves, and decisions are taken locally and exclusively by members/tenants. Those who work and live in the sector would argue that every part of a co-operative's operations differ substantially from those of other housing associations because in a co-operative the interests of the tenants and landlord are indivisible; they are the same people.

My strong suspicion is that such a position would be entirely alien to the operation of most housing associations and their tenant participation officers as well as their tenants and tenant board members.In any event, a fully mutual housing co-operative was not a public authority for these purposes. Here again, I am afraid the analysis (at [223]) is, at best weak. Hildyard J said that Southward does not rely on public subsidy (although it received capital grant, erm a bit like L&Q); it only has an informal nominations agreement with the local authority as it can refuse a nominee (erm a bit like any other housing association, including L&Q); it does not charge market rents (erm a bit like L&Q's general needs) but does not provide subsidised housing as it exists for the benefit of its members; although there is public benefit, this is incidental because it exists for the benefit of its members (erm a bit like L&Q); fully mutuals are not subject to statutory regulation in the same way as other housing associations (by which I think he meant the security of tenure regimes, the stuff about which the complaint was made); Southward is regulated by the FCA and HCA as a co-op and, therefore, the regulation is light touch (but there is regulation and its rationale is because they are providing social housing).Finally, and in any event, there was nothing exceptional anyway (a position from which he probably should have started his analysis).All I can say is blimey, what a load of old cobblers (meaning no disrespect to cobblers).

An inconvenient problemWed, 10 Jun 2015 20:43:07 +0000This is not a usual blog post. I was asked to do an analysis of the proposed £23,000 pa benefit cap, its impact on housing, homelessness and the legal position, with a focus on London, for use elsewhere and for a purpose which shall remain nameless. But I feel this needs wider sharing.I analysed the likely effects based on all the available information I could find, which is sourced. In doing so, I was replicating much of the work done by Joe Halewood, but my analysis is my own, based on the available figures and to the extent that I come to similar conclusions to Joe, simply confirms the position. The focus on London was because of the nature of the request made to me. However, the impact on the rest of the country will be significant. While London may continue to be the most affected region, the effect on areas out of London will be much greater than the £26,000 cap. Some of the 'out of London' effect is mentioned and more can be deduced from the data in this post.I should also make clear that this is a very conservative view. For example, the social/affordable average rent figures used are from 2013/14, not 14/15, let alone 15/16. These were the most recent set I could find. My figures for HB shortfalls should be considered as certainly understated for that reason. I have also taken no account of rent increases, or benefit increases over subsequent years from the likely introduction of the £23,000 cap. This will undoubtedly, inevitably, mean that the situation worsens and shortfalls increase.Finally, this is not a rant about the merits or otherwise of the cap. It is an analysis of the most likely factual outcomes.Summary findings



Numbers subject to the current £26,000 cap have remained fairly constant since introduction, despite a flux of over half the cumulative total. Those households no longer subject to the cap have therefore largely been replaced by households newly subject to the cap. There is no reason to believe that a reduced cap would have a different pattern.Households can be subject to the cap for a period of unemployment, of months or weeks (after an initial grace period of 39 weeks if employed for 50 of the previous 52 weeks). But rent arrears will accrue during that time (as it is housing benefit that is capped in practice).On a reduced £23,000 cap, some households (2 parent, 3 child & single parent, 4 child) would received housing benefit payments significantly lower than the London social rent for a 3 bedroom or 4 bedroom property. For both types of household, the housing benefit payment would be lower than the out of London social rent for a 4 bedroom property, and for a single parent 4 child household, lead to a shortfall on a 3 bedroom property, giving rise to the real possibility that for some of these households, no adequately sized social property in England would be affordable.On a £23,000 cap, a 2 parent, 2 child household would have a significant shortfall in housing benefit on rent due for a 2 bedroom or above London ‘affordable rent’ property.No private sector accommodation in London would be affordable to households with two children subject to a £23,000 cap.At a £23,000 cap temporary accommodation for the homeless in London, at current rent rates, is in excess of benefit capped housing benefit for any household with more than 1 child, presenting a severe financial and resource problem for Local Authorities.DHP funding to Local Authorities has been cut by £40 million in 2015/16.An estimated 90,000 additional households would be subject to a £23,000 cap, giving a total of some 110,000 households. An estimated 60% are in private sector accommodation and 40% in social accommodation. Some 20% of households receiving out of work benefits (and so subject to the cap) have 3 or 4 children. A further 31% have two children.London would be worst affected, with an estimated 40,500 households subject to a £23,000 cap. There is a clear risk of some 6,000 or more households being made homeless from private sector accommodation within a year, leading to a 35% increase in homeless applications to Local Authorities. Households of a type potentially subject to the £23,000 cap, should they become unemployed, will be viewed as a risk by private landlords and have difficulty in finding accommodation. Eviction from private sector tenancies as a cause of homelessness have risen from 11% of those accepted as homeless in 2010 to 39% of those accepted in Q4 2014. This will rise further.Eviction due to benefit cap based arrears should not be classed as intentional homelessness and Local Authorities would owe the full housing duty to those households, placing a huge strain on an already overburdened system, with the added difficulty of being unable to provide temporary accommodation without further subsidy from Local Authority funds.Longer term, social housing providers in London will see increased arrears from some households subject to the cap, even of only for a few months of unemployment. More than two or three months of unemployment (after any grace period) could easily give rise to arrears of rent of a level where social landlords would take possession proceedings.Even where arrears don't lead to possession proceedings by social landlords, the fairly constant level of those subject to the cap will mean a consistent increase in arrears, even if spread over disparate households. Social landlord will likely always have a percentage of tenants subject to the cap and with a shortfall in housing benefit, even if the specific tenants change.A £23,000 cap may lead to further judicial review proceedings on the basis that it effectively excludes certain households, principally but not exclusively single parent households, from affording any form of rented accommodation, private, affordable or social.

Sections



A. Overview of statistics on current £26,000 capB. Social and Affordable rent levelsC. Impact of £23,000 cap on social and affordable rent householdsD. Numbers of households affected and composition.E. Homelessness. Impact on Local Authorities.F. Legal position and prospective challenges.

A. DWP statistics and ‘off flows’ on £26,000 cap from April 2013 to Feb 20151. The overall number of households subject to the £26,000 benefit cap at any point in time has decreased by

approximately 5450 households since a peak of 28,434 in December 2013 to 23,093 at February 2015. (Source: https://www.gov.uk/government/statistics/benefit-cap-number-of-households-capped-to-february-2015 )

2. The DWP asserts that a cumulative total of 58,700 households have been subject to the cap. Of those leaving capped status, some 35,600 households cumulatively, 14,400 households were recorded as subsequently receiving working tax credit. The DWP 'off-flow' figures for Job Seekers Allowance state that between 90-94% of claimants ended a JSA claim within 12 months. (NB, this is not a record of moving into work, nor does it include people returning to JSA after a short period. Figures given here suggest 68% of those leaving JSA enter paid work. But "just 36% of JSA claimants will find a job within six months and remain employed for the following seven or eight months").

3. In February 2015:83% of capped households were capped by £100 or less a week.59% of capped households had between 1 and 4 children and 35% had 5 or more children.63% of capped households constituted a single parent with child dependants.

4. What these figures show is that while there is considerable movement out of capped status for various reasons, there is also considerable movement into capped status over the same period. The reduction in ‘point in time’ households capped is less than 10% of the cumulative number of households subject to the cap, and the ‘point in time’ total at February 2015 is 81% of the ‘point in time’ peak.

5. In short, the numbers subject to the benefit cap remain fairly constant. There is movement into employment and changing household composition. There is also loss of employment and entry into jobseekers benefits (after any grace period), and changed household composition (a new child, for example) that make people freshly subject to the cap.

6. On the DWP’s figures, it is clear that households are often subject to the cap for some months of unemployment, or become subject to it through unexpected household change. But a period of a 3 months on a capped deduction of £100 per week, for example, could amount to rent arrears of £1300.

7. The decrease of some 5450 households from the peak figure is largely accounted for some 4000 ‘no longer claiming housing benefit’. These are not households with working tax credit claims, or in receipt of an exempt benefit, or with a changed household structure. They have no recorded post cap status. While it is possible that some households found employment at a level that would exceed tax credit entitlement, or housing benefit



entitlement, it is unlikely that this would be the case for 4000 households. These households have, in effect, vanished.

8. On the reasonable presumption that similar flows out of and into capped status would also apply to a £23,000 cap, and on the basis of an estimate of an additional 90,000 households subject to the cap, this would suggest a fairly continual rate of some 110,000 households subject to the cap at any point in time.

B. Social and Affordable rents

9. (Source: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/387420/CORE_Statistical_Release_2013-14.pdf )In 2013/14London 3 bed Social Rent - £123.86 London 3 bed Affordable Rent - £182.14London 4 bed Social Rent - £142.85 London 4 Bed Affordable Rent - £210.83

C. Impact of £23,000 cap on social and affordable rent householdsExamples - LondonSocial rent2 parent 3 child household2 parent 3 child household gets £334.56 per week in welfare benefit and child tax credit (not including Housing Benefit)Max benefit income under £23,000 cap = £442.31Max Housing Benefit payable under cap = £107.75 per weekShortfall in social rent on 3 bed property (at 2013/14 rents) = £16.11 per weekShortfall in social rent on 4 bed property (at 2103/14 rents) = £35.11 per week(NB Out of London Social rent 4 bed is shortfall of £3.50 per week)

1 Parent 4 child household1 parent 4 child household gets £359.86 per week in welfare benefit and child tax credit (not including Housing Benefit)Max benefit income under £23,000 cap = £442.31



Max Housing Benefit payable under cap = £80.93 per weekShortfall in social rent on a 1 bed property (at 2013/14 rents) = £13.83 per weekShortfall on a 2 bed = £28.06 per weekShortfall on a 3 bed = £42.93 per weekShortfall on a 4 bed = £61.92 per week.(NB Shortfall on Out of London 3 bed social rent = £11.26 per week, and on an Out of London 4 bed shortfall = £30.32 per week.)

Affordable rent2 parent 2 child household2 parent 2 child household gets £267.42 per week in welfare benefit and child tax credit (not including Housing Benefit)Max benefit income under £23,000 cap = £442.31Max Housing Benefit payable under cap = £173.37 per weekShortfall in affordable rent on 2 bed property (at 2013/14 rents) = £2.12 per weekShortfall in affordable rent on 3 bed property (at 2013/14 rents) = £8.77 per weekShortfall in affordable rent on 4 bed property (at 2013/14 rents) = £37.46 per week(London ‘affordable rent’ was at an average of 50% of private market rents in 2013/14.)

D. Numbers of households affected.11. In 2012 – households in receipt of out of work benefits

With 2 children – 30.97% (419,370)With 3 children – 14.34% (194,370)With 4 children – 5.63% (76,310)

(source: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/223241/foi_3222_2012.pdf )12. Social Housing tenants – economic status.



(source: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/387420/CORE_Statistical_Release_2013-14.pdf )

13. As of 2013/14 42% of general social housing tenants are either unemployed jobseekers (23%) or not seeking work (19%). A further 14% are unable to work due to sickness.

14. An estimate is an additional 90,000 households will be subject to the cap at £23,000 (source – National Housing Federation). The estimate suggests 60% will be in private tenancies and 40% in Council or Housing Association tenancies.

15. Given that 45% of those affected by the £26,000 benefit cap were/are in London, it is reasonable to assume that a similar or greater proportion of those subject to a £23,000 cap will be in London, given the higher London private, affordable and social rents. This would mean at least 40,500 households in London.The DWP figures for households affected by the £26,000 cap are: 59% of capped households had between 1 and 4 children and 35% had 5 or more children. 63% of capped households constituted a single parent with child dependants. (Source: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/426846/benefit-cap-statistics-to-feb-2015.pdf ) There is no reason to believe that a £23,000 cap would not have a similar disproportionate impact on households with children and single parent households in particular, across a further estimated 90,000 households.

E. Homelessness and impact on Local Authorities i) Temporary accommodation16. Temporary accommodation arranged by Local Authorities in satisfaction of their obligations to homeless

households under s.188 and s.193 Housing Act 1996 is not exempt from the benefit cap.17. Temporary accommodation in London currently (January 2015) costs as follows: Self contained Studio £35 per

night (£245 pw) 1 bed £36 per night (£252 pw) 2 bed £45 per night (£315 pw) 3 bed £55 per night (£385 pw) 4 bed £64 per night (£448 pw)Shared 1 bed £27 per night (£189 pw) 2 bed £35 per night (£245 pw) 3 bed £43 per night (£301 pw) 4 bed £48 per night (£336 pw) (Source Pan London Nightly Rights Agreement review)

18. This makes suitable temporary accommodation unaffordable for all but single and 1/2 parent, one child households when subject to the £23,000 cap. Any households with 2 children or above face a large shortfall on self contained 1 bed or above, and 2 bed shared or above.

19. The £23, 000 benefit cap would cause very severe difficulties for Local Authorities in finding temporary accommodation for homeless applicants and their households, if they were subject to (or became subject to) the



benefit cap. The usual emergency and temporary accommodation utilised by London councils for homeless applicants would be unaffordable for a large proportion of applicants and for that reason not suitable accommodation.

20. The provision of temporary accommodation is currently funded through housing benefit. If no accommodation is available that would be suitable (as affordable) for the household, there is a clear and significant problem for Local Authorities in fulfilling their obligations.

21. The case of R (OAO Yekini) v LB Southwark [2014] EWHC 2096 (Admin) is worth noting in this regard. In this case, the High Court held that s.206 Housing Act 1996 made levying a charge for temporary accommodation a discretion, not an obligation, and that a peppercorn rent would in any event be legitimate under s.206(2)(a). It would be lawful for a Local Authority to charge a reduced, or nil rent if that were the only way to meet its obligation to provide accommodation (or the rent could be funded under section 17 Children Act 1989). A homeless applicant not being able to afford the standard rent charged for temporary accommodation does not end the Authority’s obligation to secure accommodation for them. The implications for Local Authority resources are self-evident.

22. DHP funding to Local Authorities by the DWP has been cut from £165m in 2014/15 to £125m in 2015/16 (source http://www.insidehousing.co.uk/dwp-cuts-discretionary-housing-payments-by-40m/7008045.article) DHP also has to fund bedroom tax rent shortfalls for disabled and others.

23. This problem will be compounded for Local Authorities seeking to discharge their housing duty by providing the homeless household with permanent accommodation in social housing. As identified above, some households will not have the income necessary to make social housing of adequate size affordable. A property that is unaffordable is not suitable and as such, is not adequate for the Local Authority to discharge its housing duty under Part VII Housing Act 1996.

24. If the Local Authority is unable to discharge its duty by an offer of suitable social housing, as would be the case for 3 or 4 child households subject to the cap, it is very difficult to see how the duty can actually be discharged at all.

ii) Increase in homeless applications25. If the projection is correct that at least 45% of households affected by a £23,000 benefit cap will be in London

(and it is probably higher, given rent levels), that will amount to some 40,500 households. If the national estimate is replicated in London, some 60% of those will be in private tenancies.

26. On the calculations above, it is clear that for a household with two or more children, all adequate private sector and much affordable housing will be unaffordable. For households with two adults and 3 or more children, and single parents with four or more children, adequate social housing will also be unaffordable.

27. Even a period of a few months unemployment could result in significant rent arrears, almost certainly giving rise to the termination of private sector tenancies and quite probably ‘affordable’ and social tenancies as well, albeit more likely over a longer timescale.

28. There is a significant risk that private sector landlords will aim to avoid letting to anyone who is perceived to be at risk of being subject to the benefit cap, particularly low earning households with children, already receiving housing benefit, and that existing tenancies will be terminated to avoid the perceived risk. Eviction from a private sector tenancy is already the largest single cause of homelessness at 29% nationally and 39% in London n Q4 2014 (the London figure in 2010 was 11%) (source https://www.gov.uk/government/statistical-data-sets/live-tables-on-homelessness )

29. Households with children who are threatened with homelessness will, subject to eligibility, be owed the full housing duty by Local Authorities under Part VII Housing Act 1996, unless the applicant is found to have become intentionally homeless.

30. Eviction due to arrears of rent is commonly held to be intentional homelessness by Local Authorities. However, this is not the case where the shortfall in rent was not caused by an act or failing of the applicant and the rent due



was genuinely unaffordable. Arrears accruing largely or solely as a result of a shortfall in housing benefit due to the Benefit Cap will, in the large majority of cases, be unintentional.

31. Local Authorities across London will inevitably face a very significant rise in homeless applications by households with children who are subject to the benefit cap.

32. There can be no precise projection. From this report, it appears that 1 in 6 (17%) of those in private sector accommodation and subject to the benefit cap of £26,000 in London Borough of Wandsworth were accepted as homeless. This proportion can reasonably be expected to rise given both the greater numbers affected and the increased level of shortfall in housing benefit/LHA against rent. If 25% of those currently in a private sector tenancy in London, and who would be subject to a £23,000 cap, apply as homeless in a year, this would amount to some 6,000 homeless applications. In 2014, London councils accepted 17,060 homeless applications in total. A further 6,000 would amount to a 35% increase in a year, an unsustainable figure. (source for 2014 figures https://www.gov.uk/government/statistical-data-sets/live-tables-on-homelessness ).

F. Legal Position and prospective challenges.33. The main challenge to the existing benefit cap regulations was SG & Ors, R (on the application of) v Secretary of

State for Work and Pensions (SSWP) [2015] UKSC 1634. The Supreme Court rejected a challenge to the £26,000 benefit cap regulations as being disproportionate in their

discriminatory impact on women, in breach of Article 14 ECHR. Two key grounds for the rejection of the challenge were the availability of DHPs to mitigate the impact on, for example, those in temporary accommodation or fleeing domestic violence, and the relation between the amount of the cap and the average household income (before in-work benefits). Both of these will change for the £23,000 cap. There is no relation to average income and the DHP funding to Local Authorities has been reduced by £20 million.

35. However, it is unlikely that a challenge to the new regulations would succeed on exactly the same ground.36. A related argument that Article 14 should be read as including Article 3(1) of the UN Convention on the Rights of

Children – the duty to have regard to the best interests of children. While 3 of 5 judges found that the Secretary of State had “failed to show how the regulations are compatible with his obligation to treat the best interests of children as a primary consideration”. However, one of those 3 also found that as an unincorporated treaty, the UNCRC could not be relied upon in the UK courts, and so this ground also failed, 3-2. There can be no further appeal on this ground.

37. Given the likelihood, set out above, that certain households (two parent three child, one parent four child) will face a significant shortfall on rent in virtually any form of accommodation (private, affordable or social) in London or potentially the rest of the country, it is very likely that a further challenge to the revised cap regulations will be brought on grounds of disproportionate interference with Article 8, in conjunction with Article 14 and Article 1 Protocol 1.

How late it was, how lateMon, 29 Jun 2015 19:22:24 +0000Khuja v Chowdhury [2015] EW Misc B18 (CC)A County Court deposit protection case, and an illustration of some of the ways in which landlords still haven't figured out how the deposit rules work.Ms C was the assured shorthold tenant of Mr K, allegedly a 'major landlord in Oxford'. The tenancy started on 7 July 2011. Ms C paid a deposit in June 2011 of £800, though there was then some confusion about rent payments not being



recorded to the account, or not received. Mr K tried to argue that this meant a deposit was not received until some time later, but the Court found otherwise. The deposit was protected but not until June 2013. It was then re-registered in February 2014.In 2014, Mr K got Ms C to come to his office to sign a deposit protection certificate. He then apparently immediately served a section 21 notice and issued possession proceedings. Those proceedings were dismissed on the ground that the s.21 was invalid due to Mr K's failure to serve the prescribed information before service of the notice. The judgment in that case recorded that Mr K had subsequently served the prescribed information, annexed to a witness statement.Mr K then served a section 21 and issued the present proceedings. Ms C defended on the basis that the deposit had been protected out of time - outside the 30 days from receipt - and the deposit had not been returned, so the s.21 was invalid under s.215(1) Housing Act 2004. Ms C also counterclaimed for a penalty under s.214.Mr K raised two initial issues, both of which do rather give away that Mr K was acting in person:

the Defendant could not raise the Defence she had because matters had already been dealt with by Deputy District Judge Drayson [the 2014 case]. I rejected this argument, because the issue in that case concerned the giving of prescribed information, which it was accepted had not been given. But in this case, the Court is concerned with whether or not the section 21 procedure can be used where the deposit was not protected within the relevant time period. Secondly the Claimant said that I could not hear the counterclaim, because the Defendant ought to have made a separate application to the Court. I considered the relevant rules, and noted that District Judge Payne had the Defence before him when he directed the matter to be listed for hearing. It was open to the Claimant when he received that order to apply to the Court to strike out the Defence, or otherwise vary the order so that the Counterclaim be heard separately, but he did not do so. He had been invited by District Judge Payne’s order to file evidence, which could have responded to the Counterclaim, but he did not do so. He was not taken surprise by its contents. The arguments in respect of the Counterclaim are very closely connected to the arguments in respect of the Claim. For all those reasons I concluded that it was appropriate and proportionate to hear the Counterclaim at the same time as the claim for possession.

The Court found that the deposit had been received in June 2011 and protected in June 2013, so outside the 30 days. The deposit had not been returned as per s.215(2A)(a).Mr K argued that:

he had offered to pay £800 at the last hearing (which is not disputed) and the tenant had refused to accept it (also not disputed). However, I do not accept this is equivalent to the money having been paid within the meaning of the statute. On behalf of the Defendant it was said that she did not have the opportunity to take legal advice and the basis upon which the money was being offered at that time was not clear. Had the money been offered to her subsequently, she says that she would have accepted, but it has not. Between then and the hearing before me, the Claimant did not make any further offer to pay the deposit back, or send a cheque to the Defendant. He did reiterate the offer in Court.There is no evidence that the Defendant unreasonably refused the money at the hearing, or that that she has since deliberately refused to accept the return of her deposit in order to avoid possession proceedings.

So the deposit had not been repaid. The s.21 notice was therefore invalid as it could not have been served and the possession claim failed.On the counterclaim, being a post Localism Act claim, it did not matter that the deposit had belatedly been protected. S.214(2) required the court to make an order, but an order that the deposit continue to be protected was not one of the options (either pay the deposit into a scheme or return). Therefore the court must order the return of the deposit.

So far as the payment of a sum between one and three times the amount of the deposit is concerned, there is only one reported case about how the discretion should be exercised; Qkadigbo [Okadigbo v Chan [2014] EWHC 4729 (QB) - our report. Incorrect case reference number in this judgment]. The conduct of the Claimant is to be assessed. At one end of the scale will be cases where there has been a failure to protect a deposit through no fault of the landlord, and the time limit has been missed by a very small amount. At the



other end of the scale will be cases where there has been a flagrant disregard for the rules, and the deposit has been dissipated in some way.This case in my judgment falls somewhere between the two. The landlord is a professional landlord and the rules about deposit protection have been in force for many years now, including the changes incorporated by the Localism Act. He has no good reason not to be fully aware of his responsibilities. His own company manages the property, so he cannot blame an agent. Although he has sought to suggest that he did not know he had the deposit until June 2013, and is being punished for his own leniency in giving his tenant the benefit of the doubt, I do not find that position to be consistent with the evidence. It is clear that he did receive a deposit before his tenant moved in, and it was his responsibility to have the systems in place to ensure that it was protected within the relevant time. On the other hand, the deposit did become protected eventually, the prescribed information was given, and he is in a position to pay it back. I am satisfied there has been no dishonesty.In the circumstances, in my judgment this case falls in the middle of the range, and I therefore make an award based on twice the amount of the deposit and shall give judgment on the counterclaim for £1600.

And with a reminder that the previous s.21 was not retrospectively review by the return of the deposit, that was that.It is worth noting that as the deposit was protected after the 'initial term' of the tenancy, the Deregulation Act 2015 changes would make no difference to the scenario in this case.It is interesting, if perhaps unsurprising, to see a view emerging that the 3x penalty requires 'dishonesty' or perhaps a continued failure to protect. A 2x penalty would look to be the most likely outcome for most landlords who 'ought to have know' the deposit should be protected.Thanks to Caroline Crawford of Shelter, who was Ms C's McKenzie friend for pointing us to this case.

The Something Must Be Done Bill, Calais editionMon, 03 Aug 2015 19:22:47 +0000The Rent Act 1957 introduced the requirement for a court order for eviction from a tenancy. That is 58 years of eviction without due process of law being unlawful. But no matter, for Something Must Be Done to deter people who have spent months on perilous journeys across continents and are currently sleeping under an old tarpaulin. Nothing is more likely to make such desperate, traumatised people turn their faces from England, pick up their tarpaulins and walk away into France than knowing they will not get the security of occupation offered by Housing Act 1988 or Protection from Eviction Act 1977.And that is just one of a whole series of wizard wheezes announced by the Communities Secretary (and Home Office) today. Here is the whole lot - minus, of course, any of the crucial details.

Measures in the forthcoming Immigration Bill will go further, and will enable landlords to evict illegal immigrant tenants more easily, by giving them the means to end a tenancy when a person’s leave to remain in the UK ends - in some circumstances without a court order.This will be triggered by a notice issued by the Home Office confirming that the tenant no longer has the right to rent in the UK. The landlord would then be expected to take action to ensure that the illegal immigrant tenant or occupant leaves the property.

This, of course, runs roughshod over centuries of land law, in which an estate in land in wholly distinct from any mere personal characteristic. Uncertain terms, contractual periods that are potentially no such thing, and of course, eviction on the say so of the Home Office, who always get things right. Where is the route of appeal? Where is the possibility for



scrutiny by the Court? Hard to say until the detail becomes clear, but there is enough here to make it likely that the legislation will be a complicated mess.I spent an idle few minutes earlier today considering how many ECHR rights such legislation might breach. It became easier to count the ones it didn't. Assuming that we haven't actually been taken out of the Convention by the time this enters law, 'proportionality' is going to have do an awful lot of stretching to cover breaches of P1A1, Art 8 and Art 6. Incompatibility beckons...And there I collapse, it is impossible to satirise, or even mock, such a catatonically dim-witted, legally illiterate, wholly unnecessary, thoughtless proposal.But of course, it doesn't end there. Yes, 'right to rent' will be extended nationally. Even though the evaluation of the West Midlands pilot hasn't been completed and despite early evidence that British citizens without a passport were being turned away by landlords. What chance would a Zambrano carer have?This is an odious law. We have always said so. Now we will have a chance to see just how bloody stupid it is on a national scale.And then 'rogue landlords' (but not as we know them).

There will be a new criminal offence targeted at unscrupulous landlords and agents who repeatedly fail to conduct the “right to rent” checks or fail to take steps to remove illegal immigrants from their property. These landlords may face a fine, up to 5 years imprisonment and further sanctions under the Proceeds of Crime Act.

But then again, the NLA welcomed 'stronger eviction powers', their main concern being that these immigrant types, once they lost their right to rent, might turn out to be dangerous to, um, landlords, with Richard Lambert, NLA chief exec saying:

“I do worry in the case of an illegal immigrant you possibly have a despairing person in a desperate situation. That often leads to people doing very desperate things. Who knows? Barricading themselves in? There is the risk of defending themselves with all the force they can muster. It could put people in potential danger."

Yes, Richard, that is the real risk of this proposed legislation. How could we have overlooked it?The DCLG continue:

Forthcoming legislation will create a blacklist of persistent rogue landlords and letting agents, helping councils to focus their enforcement action on where it is most needed, and keeping track of those who have been convicted of housing offences.And new measures will prevent a landlord or letting agent from renting out of properties if they are repeat offenders.

'Rogue landlords'? In a remarkable redefinition, it appears that a rogue landlord will now be someone who doesn't evict their tenants without getting a court order.But I suspect that the PRS landlords will not be remotely happy at the prospect of a 5 year prison sentence for messing up immigration status checks.The 'blacklist'? (perhaps a slightly unfortunate term in the context of anti immigrant legislation) - well we will have to wait and see what is involved there. Given the lengths that the MoJ went to to resist a FOI request for details of prosecutions of landlords, this could be interesting, so long as it is not restricted to breaches of 'right to rent'.The other announced measures are:

• a new tougher fit and proper person test for landlords of properties that have to be licenced, to ensure they do not pose a risk to the welfare or safety of tenants



• extending Rent Repayment Orders so local authorities can claim back rent payments from landlords who abuse the Housing Benefit system by failing to ensure the property is maintained to a good standard

• enabling local authorities to issue penalty notices for certain civil offences, with the money retained by the council and used for housing purposes

• permitting the sharing of Tenancy Deposit Protection data to help councils crack down on rogue landlords who knowingly rent out unsafe and overcrowded accommodation

• enabling landlords to recover abandoned properties more quickly without the need to go to court.Again, the devil will be in the detail. 'Penalty notices for certain civil offences' is downright odd, as a) these are civil offences and b) councils aren't the claimant in civil matters.Sharing of TDS data will, I have no doubt, be with HMRC as well as councils. Landlords and agents take note.Easier recovery of 'abandoned properties' by landlords? Hmmm. Again, devil in the detail, but unlikely to be good.At a time when housing law needs a serious reconsideration overall (and Scotland and Wales have gone some distance in that regard), I despair at this petty, pointless, vicious, knee-jerk pandering. This atrocious Something Must Be Done legerdemain. And we know there is more to come...

Discrimination between death and divorce?Tue, 11 Aug 2015 19:42:36 +0000Samawi v Haringey LBC, Claim no: A01EC488, 3 July 2015 Central London County CourtThanks to an Arden Chambers eflash comes news of a County Court case with interesting potential repercussions, albeit probably some way down the line.Mr Samawi was in many respects, a failed second successor. His father had been granted a secure tenancy by Haringey in the 1990s. On the father's death, his mother succeeded to the tenancy. After the death of his mother, Mr Samawi faced possession proceedings by Haringey on the basis that he had no right to occupy the property.The main ground Mr Samawi’s defence focused on a distinction between s,88(1)(e) and s.88(2) Housing Act 1985.By s.88(1)(e) a person who becomes a sole tenant because the tenancy vests in him/her on the death of the previous tenant - commonly a widow - is a successor. (Call this person the widow for this case)But under s.88(2) a person who becomes a sole tenant because the tenancy is transferred to him or her in the context of relationship breakdown proceedings is not a successor. (Call this person the ex)The widow and her potential successors are treated by the law less beneficially than the ex and her potential successors.Mr Samawi's defence was that this difference in treatment in s.88 had no rational basis or objective justification and was contrary to Art.14, given that his mother's status as a widow was a status for the purposes or Art 14.At first instance, a District Judge found the defence not seriously arguable, but on appeal, a Circuit Judge found that the defence was arguable and remitted the matter for trial.I strongly suspect that whatever the final decision at trial, this one will be heading to appeal. It will be worth keeping an eye on, and maybe a stay application in similar cases.



Of bad banks behaving badly and public bodiesSun, 16 Aug 2015 18:19:10 +0000An intriguing mortgage possession County Court case featuring a 'bad bank'. While the case itself turns on a failure by the bank to obtain relief from sanctions, it features an interesting line of argument that may well be raised again.NRAM plc v X [Name redacted by request]. Central London County Court. 10 July 2015Mrs X was the widow of Mr X. Mr X had had an interest only mortgage on the family home with Northern Rock. That mortgage had ended up with NRAM plc, the 'bad bank' formed after Northern Rock was taken into public ownership. Following the death of Mr X, Mrs X as executor kept paying the mortgage. There was no issue that there was plenty of equity in the property. NRAM took the view that the full mortgage fell payable on Mr X's death (which it did) and began possession proceedings, seeking to evict Mrs X and children. NRAM refused point blank to transfer the mortgage to Mrs X, despite the mortgage having been paid, on time and in full by Mrs X for some 6 years by the time of this hearing. NRAM said the mortgage was 'unaffordable', without more, and would not change position.Mrs X defended, in part, on the basis that NRAM was a public body, and so Convention rights were engaged. After assorted procedural failings, delays and faffing about by NRAM, Mrs X obtained an order for specific disclosure of 'the terms and conditions of the government bailout of Northern Rock’. At a subsequent hearing, there was extended discussion of what this might include, with NRAM referring to “hundreds of documents” and “commercially sensitive documents”.In the event, all that NRAM disclosed in response to the order, without a disclosure statement, was a 2009 European Commission 'State Aid implemented by the UK for Northern Rock C 14/08', an 'analysis' of state intervention into Northern Rock with a copy of the Northern Rock plc Transfer Order 2009/3226, and some print outs from NRAM's website on the 'conditions imposed by the government' on bailing out the bank - e.g. 'no new business'.The Court was not impressed and struck out NRAM's claim. NRAM applied for relief from sanction, arguing that:"The imprecise wording of the unless order, incorporating that used in the Defendants’ application, was the primary reason for the Claimant’s default."(The wording referred to 'terms and conditions of the bailout', NRAM argued that this didn't mean ‘all documents relating to the present extent of government control over lending undertaken by NRAM’, but had to admit that the hearing had made clear that 'the purpose of this disclosure was to determine its alleged status as a public authority'.)In arguing Denton, NRAM also pointed to further disclosure it had made (after being struck out):

• • UKFI Investment Mandate – this sets out the scope of UKFI’s decision-making responsibilities with respect to loan arrangements and the extent to which that decision-making requires the prior approval of HM Treasury before being implemented;

• UKFI Shareholder Relationship Framework Document – this sets out UKFI’s objectives and its relationship to HM Treasury;

• Articles of association of NRAM plc – this includes information relevant to the Defence, such as the fact that the Claimant ‘must have regard to the objectives agreed from time to time with Her Majesty’s Treasury and UKFI including but not limited to those set out in the Relationship Framework Document between UKAR and UKFI’;

• UKAR and UKFI Relationship Framework Document – this sets out how the day-to-day relationship between UKAR and UKFI (acting on behalf of HM Treasury) works in practice;

• HMT and UKAR Accountability Framework Agreement – this contains information relevant to the Defence, such as the fact that ‘UKAR is now classified as a public sector body, in central government’ and that the CEO of UKAR ‘may be called to account for the performance of UKAR in Parliament’ and that ‘UKAR’s accounts are consolidated with HMT’s’; and

• UKAR Group Companies Schedule of Matters Reserved for Decision of the Board or a Duly Authorised Committee of the Board – this sets out which matters affecting NRAM require approval from UKFI.



But this did not avail it. The breach was found to be serious - trial delayed and defence interfered with - and without good reason (after all at the previous hearing on the extent of disclosure, the Judge had observed ‘the Court is unlikely to order disclosure of hundreds of documents. But there must be some documents in whatever format they might be, which go to the level of and ongoing control, which are relevant as to whether the Claimant is a public body’. Belated disclosure after being struck out didn't help). In all the circumstances of the case (the third Denton test), NRAM's failings were such that the efficient progress of the case had been prevented, and the Claimant had sought to rely on a misinterpretation of the wording of a court order.CommentWhile the actual strike out and refusal of relief from sanction are on a relatively familiar Denton basis, the issue of NRAM (and other UKAR 'bad banks') being a public body is in interesting and potentially significant line of argument. I suspect it will not be long before it appears again.And also what the hell well NRAM thinking? In every aspect of this case...[Apparently NRAM have now applied to set aside the disclosure orders. This may be by way of appeal.]

1 October 2015 - section 21 dayMon, 14 Sep 2015 19:55:27 +0000[Update 29/09/2015. New regulations correcting the obvious errors in the new prescribed section 21 notice have now been made. See here.]On 1 October 2015, a whole range of changes come in, which affect whether or not a landlord can serve a s.21 notice on an assured shorthold tenancy (in England). There are some sensible ones, and then there are some which, because of the way the requirements have been set out, will inevitably cause confusion and problems. There is also a whole new prescribed form of section 21 notice, which itself contains a significant error.The changes are a combination of the Deregulation Act 2015 and The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (SI 2015 No. 1646). There are also supposed to be the Smoke Detector regulations, which fell apart in Parliament despite being supposedly in force by 1 October.Specific changes - these apply for all new assured shorthold tenancies starting after 1 October 2015 (and then after 3 years, to all tenancies). By new, that means new - not a statutory periodic arising after 1 October, which is specifically excluded. But will include a 'renewal' tenancy - a fresh AST - granted on or after 1 October.Retaliatory Eviction - the provisions of s.33 and s.34 Deregulation Act will come into effect for all new assured shorthold tenancies granted on or after 1 October 2015. We have discussed these here.End date for a section 21 notice. The new section 21(4ZA) Housing Act 1988 removes the need for any s.21 notice, even under s.21(4)(a), to expire on the last date of a period of a tenancy (at least in England). Two months notice (for a weekly or monthly rent period) is all that is required.To accompany this is the requirement to repay the tenant pro rata the 'unused' proportion of any rent paid in advance where the s.21 expires in the course of a rent period and the tenant leaves. (Bewilderingly, this is to be enforced by any court making an order for possession under s.21. But if there are possession proceedings, the tenant probably didn't leave...).Date for serving a section 21 notice. The new sections (4B) to (4E) of s.21 HA 1988 mean that:

• A s.21 cannot be served in the first 4 months of a tenancy. But not applicable to a statutory periodic arising, or a replacement tenancy (depending on what 'original' means in the new 4B and if it is different to the meaning of



'original tenancy' in the new s.215B(1) Housing Act 2004, which can also be a replacement tenancy by way of s.215B(3) - this is all from the Deregulation Act).

• A possession claim cannot be started on a section 21(1) or (4) notice after the end of 6 months from the date the notice was given. Or for a s.21(4) notice where the notice period has to be longer than two months, a possession claim cannot be started based on that notice more than 4 months after the end date specified in the notice.

Prescribed form of s.21 notice - in the schedule to the SI here. Must be used for all ASTs starting on or after 1 October 2015. May be used for existing tenancies. [NB The notice in the schedule to the SI is wrong! It says at 3 that for a periodic tenancy, the notice is only valid for four months from date of issue. This is simply wrong! Hopefully will be amended quickly.]Prescribed legal requirements. The new s.21A HA 1988 - No s.21 notice can be given unless (from the SI):

• The tenant has been provided with the Energy Performance Certificate for the property (probably before the commencement of the tenancy in order to be compliant)

• The tenant has been provided with a current gas safety certificate. (The regs exclude the 'within 28 days of inspection' requirement, but don't appear to exclude the requirement to provide the latest report before the commencement of the tenant's occupation)

Prescribed information - the new s.21B - no s.21 notice can be given unless the tenant has been given (by landlord or agent) the prescribed information.This prescribed information is the CLG booklet “How to rent: the checklist for renting in England” (Current version). It can be given in hard copy or where the tenant has notified the landlord/agent of an email address where the tenant is prepared to accept service of notices, by email.Now things get a bit complicated. The landlord does not have to provide a further copy whenever the booklet is updated, during the course of the tenancy. However, where a 'new' replacement tenancy has been granted (including a statutory periodic, I think), there is no requirement to give a further copy, unless there is a new version of the booklet out before the first day of the new tenancy.Yes, a stroke of genius there. Rather than make it a 'once only' provision, or alternatively require the booklet to be given at the start of any 'replacement tenancy' as well as the original one, the Regulations make it conditional on whether the booklet has been updated before the start of the replacement tenancy. Never mind, there is to be a review in 5 years.CommentLots to go wrong here. Not least given the relative paucity of information on these changes (and the last minute approval of the regulations).The requirements for providing EPC and gas certificate, arguably before the tenant moves in, will no doubt trip up quite a few landlords and agents. Likewise, the ban on service of a notice within the first 4 months of a tenancy will trip up the inveterate 'serve s.21 on day one of tenancy' brigade.Moreover, the actual provisions make it impossible for a s.21 notice to expire on the last day of a 6 month fixed term. (Can't be served in first four months, but must give two months notice).The 'use it or lose it' provisions will also come as a shock to many, used to letting a s.21 dangle over their tenant's heads for months, if not longer.But it is the 'How to rent' booklet provisions that seem most likely to cause long term chaos to me. The expectation that landlord (and agents) will check before the start of each replacement tenancy to see if the booklet has been updated since, oh, a year ago, strikes me as hopelessly optimistic.It also makes me think that someone had better keep an archive of updated editions of the booklet, with dates, for both landlords and tenants purposes. I'll set up a page for this, I think.In any event, expect there to be a lot of invalid s.21 notices from 1 February 2016 onwards...



(And we shouldn't forget the prescribed form for section 8 notices, required from 7 April 2015 onwards. Form 3 here, (which is itself amended by Reg 4(4)(a) from 1 October, with a subtle change of wording to the instructions about not using Section 8 notice for a section 21 claim, but no new template form has yet been provided). Nor should we forget the now ridiculously complicated deposit regulation requirements after the Deregulation Act, as examined here.)

Doesn't it make you proud to be English?*Sat, 19 Sep 2015 09:20:51 +0000The Immigration Bill 2015 has been published and will have a Second Reading in the House of Commons on October 13, 2015. It contains some truly remarkable provisions about housing. But first, short re-cap to remind you how we got to this stage.The Immigration Act 2014 introduced the concept of the "right to rent". In short, if you don't have a right to rent (very broadly, if you're not lawfully present in the UK), then you're disqualified from renting most residential accommodation. The penalty, however, fell on the landlord or agent, who was liable for a civil penalty (a fine, with a right of appeal).Given that many landlords can't even get the tenancy deposit provisions right, the prospect of requiring them to identify Zambrano carers and other immigration issues was, frankly, ludicrous. So the government announced that the 2014 Act would be introduced on a trial basis in a few local authority areas.Following the general election, the government returned to this topic. The Prime Minister made a speech indicating that he wanted to make it easier to evict persons unlawfully present in the UK and then we got more detail in the Queen's Speech and in a subsequent CLG/Home Office announcement. Whilst this was going on, independent research into the 2014 Act trial areas revealed that the obvious discriminatory risks inherent in the legislation had indeed come to pass.Which brings us back to the 2015 Bill. It amends the Immigration Act 2014 in two ways.First, new criminal offences are created (cl.12, introducing new ss.33A-C, 2014 Act). A landlord commits an offence if (i) his property is "occupied by an adult who is disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement" (i.e. an adult without a 2014 Act "right to rent"); and, (ii) the landlord knows or had reasonable cause to believe that this is so (new s.33A(1)-(3)). It appears that can be committed either through own knowledge/belief or because the Secretary of State has served a notice on the landlord, informing him that the property is so occupied (s.33(5)). It is also possible to commit this offence where a limited right to rent has expired (s.33A(7)). Similar provisions exist for agents (s.33B).The penalty is up to five years imprisonment (on indictment, 12 months on summary conviction) and/or a fine (s.33C). Now, I accept that five years is likely to be reserved for repeat offenders, but still, WTAF?!Secondly, we have some major reforms to the law on eviction. Clause 13 introduces new s.33D, 2014 Act. It works like this. If the Secretary of State becomes aware that a person without a right to rent occupies the property, he serves a notice on the landlord (s.33D(2)). The landlord can then serve a notice on the tenant, giving 28 days notice (s.33D(3)-(4)), bringing the tenancy to an end. That notice is enforceable as if it were an order of the High Court (s.33D(6)). The service of the notice by the Secretary of State has the effect of turning the tenancy into an excluded tenancy (s.3A, Protection from Eviction Act 1977).For assured and Rent Act tenants mandatory grounds for possession are also introduced (s.33E).Comment



There are many, many things to say about this and I suspect my fellow NL authors will want to add to this list in the comments, but, for starters:I'm not entirely clear if the "notice enforceable as if a High Court order" is intended to only apply to lettings which are not governed by the HA 1988 or Rent Act. If they are, what is the point of the new mandatory grounds? Why would you ever use the mandatory ground? Surely it's pretty dangerous to use the "notice enforceable as High Court order" route since, as drafted, the Bill doesn't provide any defence if you turn out to have erroneously evicted someone.What happens if rent is paid in advance and the tenancy is terminated, where are the rent repayment provisions (cf the Deregulation Act 2015 position)?What happens if the Secretary of State serves an erroneous notice? How does the landlord or occupier challenge that? Is it by judicial review and, if so, how is the tenant suppose to know when the landlord has been served? Or can you simply seek an injunction to prevent enforcement because a jurisdictional (or precedent) fact is not made out?How many people are unlawfully present in the UK and are Rent Act tenants? Surely anyone in that position would have an exceptionally strong case to be allowed to remain in the UK given that it'd mean they'd been here since at least1989.

*and it is English, this hateful bilge doesn't extend to Wales, Scotland or NI yet, see cl.15.

Putting section 21 right - again.Tue, 29 Sep 2015 20:22:12 +0000Just a quick note to record that The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) (Amendment) Regulations 2015 have been made. The only purpose of these regulations is to address the mess that had been made of the prescribed section 21 notice included in the The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, which as we noted had, well, problems. This new version at least lacks obvious horrors.Also, after a bit of a hiccough in the Lords, The Smoke and Carbon Monoxide Alarm (England) Regulations 2015 will be in force from 1 October 2015. In short, each storey of a let property must have a smoke alarm. A carbon monoxide detector must be fitted in any residential room with a solid fuel burning appliance. The detectors & alarms must be checked on each new tenancy by the landlord. Local Authorities can enforce any breach and there is no grace period - 1 October 2015 is it.

When is a deposit repaid?Thu, 29 Oct 2015 23:45:56 +0000



Our thanks to Bahareh Amani-Kholsari of SSP Law for this interesting County Court possession/deposit case. As per s.215(2A), if a deposit was not protected in the required time, no s.21 notice can be served until the deposit has been returned to the tenant (subject to all the Deregulation Act changes...). So when is a deposit returned? This is a non-binding County Court decision, but interesting and I think right on the date of return point.Chalmiston Properties Ltd v Boudia. Barnet County Court 27 October 2015Mr B was the assured shorthold tenant of Chalmiston. The tenancy was for 6 months from 10 September 2008. After that term , it became a statutory periodic tenancy. A deposit of £780 was paid at the start of the tenancy.On 14 February 2015, Mr B received a s.21 notice (actually deemed served on 12 February 2015). A possession claim was issued.What had happened with the deposit was less than clear. No prescribed information had been served, either at the start of the tenancy or on the statutory periodic arising. It was not apparent when the deposit had been protected, but at some stage it had been put in the DPS scheme.It then transpired that on 10 February 2015, the landlord had sent a request to DPS to release the deposit to the tenant. On 12 February 2015, DPS had told the landlord that the deposit was released by direct credit to the tenant. However, the credit to the tenant's own account took place on 16 February 2015.The tenant successfully argued that the deposit had not been returned as required by s.215(2A), so the s.21 notice was invalid - it could not be served. The possession claim was dismissed.The key point to take from this is that 'returned' is clearly arguable as meaning exactly that. Not 'released to' or 'on its way to', but actually received by the tenant. The landlord here jumped the gun by sending a s.21 notice on the same day that they requested that the DPS release the deposit, but even relying on the DPS saying the deposit had been sent to the tenant would not have worked.

Closure, possession and legal representationSat, 31 Oct 2015 21:42:57 +0000Courtesy of Jim Shepherd of Doughty Street Chambers comes this account of a county court appeal of a Ground 7A possession claim, following a closure order. The appeal of the possession order was partly on the basis that the Defendant could not get legal aid in time.Goode v Paradigm Housing , October 2015The Appellant had been an assured tenant since 25th March 2013. She is a recovering drug user. On 6th January 2015 Thames Valley police issued a Closure Notice pursuant to Section 76 of the Anti-Social Behaviour Crime and Policing Act 2014 effective for a period of 48 hours. On 8th January 2015 the Closure Notice was extended pending a hearing at High Wycombe Magistrates Court on 21st January 2015. At the hearing on 21st January 2015 the police obtained a Closure Order for a period of 3 months. They did not seek to extend the Closure Order at its expiry as they were entitled to do.On 20th March 2015 the Respondents served the Appellant with a Notice of Seeking Possession on the basis of Grounds 12 and 14 (discretionary grounds) and Ground 7A ( The new mandatory ground). A claim for possession was issued on 24th April 2015 and a hearing date given for 3rd June 2015.



The Appellant sought advice from Carillion Advice Services who provide advice as part the Legal Aid advice telephone line. She was sent a letter by Carillion in which she was told to seek an adjournment to allow her time to secure representation through legal aid. The Appellant attended the hearing with a duty adviser. The Respondents were represented by solicitors and counsel. The Appellant requested an adjournment so that she could secure legal representation. The District Judge refused the adjournment on the basis that the mandatory ground 7A was made out and ordered outright possession.An appeal was brought on the basis that the judge should have adjourned for the Appellant to get legal representation.The failure to grant the adjournment constituted a breach of the Appellant's Art 6 rights. Further, ground 7A is expressly made subject to any available defence based on the tenant's Convention rights. The Appellant had a potential defence because her conduct had improved both before and after the closure order had been made ( relying on Southend v Armour [2014] HLR 23). She had stopped unsavoury elements coming to the premises and had stopped taking drugs.Further the Respondents had not offered her a review of the decision to seek possession contrary to Home Office Guidance (Anti-Social Behaviour, Crime and Policing Act 2014: Reform of ASB powers, Statutory guidance for frontline professionals ,Page 62).The Appellant was granted permission to appeal. The matter was settled with the Respondents agreeing to vary the possession order to a suspended order on terms.The Appellant was represented by Saima Yasin of Hillingdon Law centre and Jim Shepherd of Doughty Street Chambers.

Look inside WestminsterTue, 03 Nov 2015 15:00:03 +0000

In which the Nearly Legal team gain exclusive access to a (highly) fictionalised account of one man’s inside view of legislation currently going through Parliament, insofar as it relates to housing

***Morley Peckwitch, Member of Parliament for Dunny-on-the-Wold, leaned against the bar in the Smoking Room. It was a little after 11pm on 2 November and he was halfway down his fourth glass of port. The last vote on the Housing and Planning Bill had finished at 10:50pm, as it passed its second reading and went off to committee.MPMP (as he liked to imagine he was affectionately nicknamed by the bigger boys in the 1922 Committee), noticed a copy of the Bill that he had just voted for lying around and thought that he might as well read it for a giggle. He skipped past Part 1, which related to planning, because he had some strange sense that if the third-person account of his evening ever came to the attention of a housing law blog they would be more interested in Parts 2-5.He rifled through to Part 2, downing his port and swiftly ordering another. “Rogue landlords and letting agents”, eh? What was that all about? Oh, look, cl.12 helpfully summarised it all:

“(1) This Part is about rogue landlords and letting agents. (2) In summary— (a) Chapter 2 allows a banning order to be made where a landlord or letting agent has been convicted of a banning order offence, (b) Chapter 3 requires a database of rogue landlords and letting agents to be established, (c) Chapter 4 allows a rent repayment order to be made against a landlord who has committed an offence to which that Chapter applies or who has breached a banning order, and (d) Chapter 5 contains definitions.”

Seems like local housing authorities will be able to apply to the First-tier Tribunal for an order banning someone from letting housing in England, engaging in English letting agency work, or engaging in English property management work. According to cl.15, the FTT can make such an order where someone has been convicted of a banning order



offence and they were a residential landlord or a letting agent at the time of the offence. MPMP wondered what a “banning order offence” might be, then saw that the Secretary of State would be given power to specify offences.MPMP turned the page and saw that a banning order would have to be for a minimum of six months and that cl.17 provided that breaches of a banning order would be dealt with by the local housing authority imposing a financial penalty of up to £5,000.Time for another snifter of port and then on to cl.22:

“Database of rogue landlords and letting agents (1) The Secretary of State must establish and operate a database of rogue landlords and letting agents for the purposes of this Chapter. (2) Sections 23 and 24 give local housing authorities in England responsibility for maintaining the content of the database. (3) The Secretary of State must ensure that local housing authorities are able to edit the database for the purpose carrying out their functions under those sections and updating the database under section 28.”

MPMP could barely contain his guffaws. Government and databases just never worked. When would they learn? He shook his head sadly and then remembered that his uncle’s IT consultancy would have to make sure that they tendered for the database. His uncle was really good at Access for Windows 95, so it should be a doddle.What else was there? MPMP turned to Chapter 4 of Part 2 - Rent Repayment Orders. He was vaguely aware that FTTs could already make rent repayment orders under Housing Act 2004 (although he was not aware of the learned commentary on them here, here and here). It looked like a FTT would be able to make a rent repayment order where the landlord had let housing in breach of a banning order or had committed some offences. MPMP checked the list of offences in cl.32. There was violence for securing entry (Criminal Law Act 1977, s.6(1)); eviction or harassment of occupiers (Protection from Eviction Act 1977, ss.1(2), (3), (3A)); failure to comply with improvement notice (Housing Act 2004, s.30(1)); failure to comply with prohibition order etc (Housing Act 2004, s.32(1)); control or management of unlicensed HMO (Housing Act 2004, s.72(1)); and control or management of unlicensed house (Housing Act 2004, s.95(1)).MPMP breathed a sigh of relief. It looked like the “unpleasantness” with the au pair was not included. He read on.Hold the phone, what’s this? FTTs can make an order if satisfied “beyond reasonable doubt” that the landlord has let housing in breach of a banning order (cl.35(1)) or committed one of those offences (cl.37(1)). MPMP chuckled to himself at the thought of the Tribunals grappling with the criminal standard of proof.MPMP ploughed on and turned through to Part 3 - Recovering abandoned premises in England. According to cl.49:

“A private landlord may give a tenant a notice bringing an assured shorthold tenancy to an end on the day on which the notice is given if— (a) the tenancy relates to premises in England, (b) the unpaid rent condition is met (see section 50), (c) the landlord has given the warning notices required by section 51, and (d) neither the tenant nor a named occupier has responded in writing to any of those notices before the date specified in the warning notices.”

He decided he’d better look at cll.50 & 51 too.“50 The unpaid rent condition The unpaid rent condition is met if— (a) rent is payable weekly or fortnightly and at least eight consecutive weeks’ rent is unpaid, (b) rent is payable monthly and at least two consecutive months’ rent is unpaid, (c) rent is payable quarterly and at least one quarter’s rent is more than three months in arrears, or (d)rent is payable yearly and at least three months’ rent is more than three months in arrears.“51 Warning notices (1) Before bringing a tenancy to an end under section 49 the landlord must give the tenant and any named occupier two warning notices, at different times, in accordance with this section. (2) Each warning notice must explain— (a) that the landlord believes the premises to have been abandoned, (b) that the tenant or a named occupier must respond in writing before a specified date if the premises have not been abandoned, and (c) that the landlord proposes to bring the tenancy to an end if neither the tenant nor a named occupier responds in writing before that date. (3) The date specified under subsection (2)(b) must be after the end of the period of 8 weeks beginning with the day on which the first warning notice is given to the tenant. (4) The first warning notice may be given even if the unpaid rent condition is not yet met. (5) The second warning notice may be given only once the unpaid rent condition has been met. (6) The second



warning notice must be given at least two weeks, and no more than 4 weeks, after the first warning notice. (7) In this Part “named occupier” means a person named in the tenancy as a person who may live at the premises to which the tenancy relates.”

Well, that all seemed jolly sensible and very unlikely to lead to problems. It seemed that there was an opportunity for an ex-tenant to apply for their tenancy to be reinstated (cl.52) and then, hello, what now?

“53 Methods for giving notices under sections 49 and 51 (1) A notice under section 49 or 51 may given by delivering it to the tenant or named occupier in person. (2) A notice under section 49 or 51 that is not delivered to the tenant or named occupier in person must be given by— (a) leaving it at, or sending it to, the premises to which the tenancy relates, (b) leaving it at, or sending it to, every other postal address in the United Kingdom that the tenant or named occupier has given the landlord as a contact address for giving notices, and (c) sending it to every email address that the tenant or named occupier has given the landlord as a contact address for giving notices.”

Delivering notices to the tenant of abandoned premises in person? Those clever chaps really had thought of everything!MPMP (and, therefore, us) moved on to Part 4, which was headed “Social Housing in England”. “I didn’t think there was any left”, he muttered. He read on. “Oh, there won’t be. Jolly good wheeze.” Chapter 1 of Part 4 was introducing a right to buy for housing association tenants. And get this - it was being introduced on a “voluntary basis”, just like that time that Cuauhtémoc went along with that nice Cortés on a “voluntary basis”. He remembered seeing something about the right to buy somewhere. It had seemed a dashed good idea when they thought that they might need more votes back in May, but it all seemed a little daft now.And anyway how was this all going to be funded? Ah, here it was in Chapter 2 of Part 4. Local housing authorities will have to sell of their high value housing when it becomes vacant and give the money to the Secretary of State. Well, that ought to keep Paymaster Gideon happy.In his haste, MPMP almost missed Chapter 3 of Part 4:

“The Secretary of State may by regulations amend Part 2 of the Housing and Regeneration Act 2008 for the purpose of reducing regulatory control over private registered providers of social housing or their affairs.”

He was a little worried about this. There was clearly too much regulation of private landlords, something he had recently learned, but he thought that this was just a fancy name for housing associations and he wasn’t sure that they could be trusted as some of them let all sorts have a say on what was going on, even tenants.Now, Chapter 4 of Part 4 looked interesting - “High income social tenants: mandatory rents”. He had thought that this didn’t matter quite so much after Bob Crow died, but there was still Frank Dobson to think about. Clause 74 gave the Secretary of State power to make regulations about “about the levels of rent that a registered provider of social housing must charge a high income tenant of social housing in England”.“Clever chaps”, thought MPMP, “always leaving the detail for the regulations”. And look at cl.79! More regulations, and this time so that local housing authorities would have to pay any extra money over to the Secretary of State. Oh, Gideon really would be happy.Still, apparently some people liked the idea of social housing and there had been that whole brouhaha about tax credits. In hindsight they should have realised that when people voted to cut benefits they obviously didn’t mean their benefits. What if there were problems about this whole “pay to stay” thing too? MPMP recalled that discretionary “pay to stay” had led to some housing associations advertising properties for rent by households with annual income that fell within a range of around £100 or so and that if the threshold was set too low, it might lead to lots of unhappy voters (and they are proposing thresholds of £40,000 in London and £30,000 everywhere else).He paused to consider what would happen if that new bloke in charge at Labour was able to make a really good song and dance over this. If the chap with the sandals could get the media to back him, MPMP feared that his dream/nightmare headline might become a reality: Corbyn Trousers Press.MPMP started to feel a bit unsteady after all the port. “Better stop”, he thought and ordered a sherry instead. He noticed a miscellany of odds and ends in Part 5, including a bit of monkeying around with the duties of local housing authorities in relation to gypsies and travellers (and those living on houseboats). There was also a bit of jiggery pokery with



Housing Act 2004 (and tenancy deposits - AGAIN!) as well as something about premiums for lease extensions, which made MPMP’s head hurt. Although as it could have been the sherry, he decided to order a gin next. He did not pay much attention to rentcharges in cl.91, but then he hadn’t paid any attention to the technical discussion paper on them either.

(Editor’s note: the Public Bill Committee has called for written evidence on this Bill)***

That jolly romp through the Housing and Planning Bill started MPMP thinking about the Immigration Bill, which also had some housing stuff in it and was currently going through committee. Part 2 would amend the Immigration Act 2014, which had introduced the “right to rent”. The idea was to keep all of those foreigners out of good old English houses. Yes, so there had been a rather negative review of the pilot that had been run in the West Midlands, but these things all sort themselves out in the long run. And anyway, Theresa May had said that she thought that the Bill was compatible with that blasted European Convention of Human Rights, so it must all be ok.

(Editor’s note: see our earlier post when the current Immigration Bill was introduced and our comment on the report from the Joint Council for the Welfare of Immigrants; as our fictional(ish) Parliamentarian noted, the Bill has passed

second reading in the Commons and has now had about eight days in committee)***

MPMP was also dimly aware that there was Crown Tenancies Bill due to have its second reading on 6 November. It seemed that Schedule 1, para.11 of the Housing Act 1988 meant that a tenancy could not be assured if the interest of the landlord belongs to “Her Majesty in right of the Crown or to a government department or is held in trust for Her Majesty for the purposes of a government department”. This had been an issue in a case called Nicholas v Secretary of State for Defence [2015] EWCA Civ 53, because it meant that there was no security of tenure. This Bill had been put forward by Mark Pawsey MP and would mean that most Crown tenancies were assured tenancies, but would be subject to mandatory possession grounds where possession was needed either for operation reason in connection with Her Majesty’s forces (new Ground 8A) or in connection with the exercise by the Welsh Ministers of functions under the Welsh Development Agency Act 1975 or the Highways Act 1980 (Ground 8B). But by this point, MPMP was slumped over the bar following a rapid series of gins with brandy chasers.

***(Editor’s note: the final bill we shall consider with the assistance of the Hon. Member for Dunny-on-the-Wold is the Homes (Fitness for Human Habitation) Bill, introduced by Karen Buck MP; We should declare an interest - during

second reading Karen Buck acknowledged support given in drawing up the Bill by our very own Giles Peaker and by friend-of-the-blog Justin Bates (an all round good man, even if he is a Liverpool fan); we take the following account from Peckwitch’s diaries, which he has optimistically slated for publication in 2026 with the intriguing title MPMP’s

diaries 2010-2025: From coalition to the second coming of Blair)***

Friday 16 October 2015Bit of a rum day in the chamber today. Old Filibuster Phil talked both hind legs off of the proverbial donkey and then proceeded to propose that the donkey be prosecuted for the hitherto unknown offence of being a beast of burden with less than three legs, anticipating that the poor creature would plead guilty in order to avoid the criminal courts charge.Anyway, he talked out some private Member’s bill that was designed to make landlords responsible for ensuring that any properties they let out as homes are fit for human habitation. Apparently something called s.8 of the Landlord and Tenant Act 1985 provides that it is an implied term that properties let for human habitation are fit for such at the start of the tenancy and will be kept that way throughout. The slight problem is that it only applies to properties with a maximum annual rent of £80 in London or £52 elsewhere. This Bill would have removed those rent limits and added in some reference to a thing called a Category 1 hazard.Perhaps the gout is making me a bit soft, but I didn’t see too much wrong with those proposals. Fortunately, clever Phil realised that it was “very difficult for a landlord … to keep tabs on every dot of the i and cross of the t that hon.



Members seem to want to impose on landlords, as though they had nothing to do but wade through legislation generated by this House.”The sly cove started speaking at 2:08pm, with the rather excellent observation that there was not “a great deal of time left” and then managed to keep going for a full 22 minutes. He also trotted out that old line about being an accidental landlord. He’s such a card. I don't know how he manages to keep a straight face.Apparently the Bill is coming back in January next year, but I’m sure that either Phil or old Chopey will bring the telephone book along to read out. Parliament really is the best.Anyway, it is nearly time for bed and I still need to source an orange from somewhere, so I will leave you, dear diary, until tomorrow.

***Finally, if you are that way inclined, the Secret Barrister has another view on the Philip Davies approach to law, this

time in relation to crime.

Cities behaving badly and other bitsTue, 10 Nov 2015 20:32:27 +0000

A remarkable note on the Community Law Partnership site sets out what may possibly amount to a mass unlawful eviction of secure tenants by Birmingham City Council.Birmingham CC have been using High Court Sheriffs for evicting secure tenants after a possession order. This is often quicker than county court bailiffs and importantly, there is often no notice given of eviction date, the Sheriffs simply turning up. There is a process to be followed before a county court possession order can be enforced by High Court Sheriffs.CLP and counsel Andrew Byles acted for a tenant, Mr M, on an application by Birmingham for enforcement by High Court Sheriffs. In the course of the hearing, counsel for Birmingham made the remarkable admission that Birmingham "had obtained possession writs against families without following the correct processes". An FOI request then obtained the information that up to 53 High Court Sheriff appointments had previously been obtained by Birmingham. As CLP put it:

It appears that Birmingham City Council implemented a system of using High Court bailiffs without getting proper legal advice. Marstons Group High Court Enforcement Officers handled the applications for bailiff writs and got the procedure wrong.



If this was indeed the case on the other warrants, then there may be some 50 odd unlawful evictions, with those evicted entitled to seek re-entry and damages. Any Birmingham based housing solicitors should be aware of this.More information about this, hopefully including the actual error made, as and when we get it.Birmingham had also apparently not been informing tenants of their right to apply to stay an eviction. As the judgment in this case apparently put it: "I have been concerned about the deliberate policy of Birmingham City Council not to inform tenants of their ability to seek to suspend the writs of possession".While on the topic of landlords not behaving well, DCLG have released a consultation paper on extending the requirement for mandatory licensing for HMOs to smaller properties, based more on number of households/occupiers than the number of storeys in a property. There is also a proposal for a national minimum room size standard - at least for HMOs - in part in response to Clark v Manchester City Council (2015) UKUT 0129 (LC)More prosaically, some of you may have noticed a problem with our email updates of late. An absence of dates in case references to be specific, rendering case references somewhat less than actually useful.To cut a long and tedious story short, this is because the software we use to send out email updates interpreted anything in square brackets as a particular kind of software code and stripped it out of the emails. After extensive correspondence with tech support, some curt if not actually rude words, and some fiddling in the source code, it still isn't fixed. Infuriatingly. It will be. But for the moment, you might have to click through to the site for full case references.By and large, it might have been easier to persuade the higher courts to change their standard reference system to use {2015} instead...

Eviction and High Court EnforcementFri, 13 Nov 2015 11:36:17 +0000A couple of recent cases have highlighted the issues involved in transferring County Court possession orders to the High Court for enforcement by High Court Enforcement Officers.This is done by landlords, by and large, to bypass the wait for a county court bailiff appointment, but also has the effect (not unwelcomed by some landlords, including perhaps Birmingham City Council) of enabling eviction without the tenant being provided with notice of date of eviction.But, where the possession order is against a tenant, rather than against trespassers, there are some very particular steps that have to happen.First, once a possession order has been granted in the County Court, the claimant must apply to the County Court for an order transferring the proceedings to the High Court for the purposes of enforcement (Section 42(2) County Courts Act 1984). This can be an application without notice.However, before any High Court enforcement (at least against tenants) a High Court writ must be issued, CPR 83.13. And the issue of such a writ requires the permission of the High Court, CPR 83.13(2).Enter Nicholas v Secretary of State for Defence, High Court, Chancery Division, August 24, 2015 (no transcript apparently available. Arden Chambers note here). The MoD, having got a possession order after extended proceedings up to and including the Court of Appeal, obtained a High Court writ of possession without notice to Ms N and this was then enforced. The first Ms N knew was when she woke up to find the High Court Enforcers at her door, changing the locks.Ms N applied to set aside the writ. This was successful on the basis of CPR 83.13(8)(a):

(8) Permission referred to in paragraph (2) will not be granted unless it is shown—



(a) that every person in actual possession of the whole or any part of the land ('the occupant') has received such notice of the proceedings as appears to the court sufficient to enable the occupant to apply to the court for any relief to which the occupant may be entitled; and(b) (...)

So permission under CPR 83.13(2) should not have been granted.And exactly the same issue arose in Birmingham City Council v Mondhlani County Court at Birmingham 30 October 2015 (now on Bailli as Birmingham City Council v Mondhlani [2015] EW Misc B41 (CC) (06 November 2015)). This is (the case referenced here). Birmingham had been obtaining permission to enforce in the High Court by without notice applications to the County Court (as they can). But Birmingham then outsourced the obtaining of a writ to an external High Court Enforcement agent and their external solicitors.These external firms then applied for a writ using form N293A and writ form 66. The N293A has at the bottom the words "This judgment or order has been sent to the High Court for enforcement by (Writ of Possession against trespassers) only". Permission of the High Court is not required for the issue of a Writ against trespassers (CPR 83.13(3)). But of course, even after a possession order, a secure tenant (or an assured, or assured shorthold tenant) is not a trespasser. Form N293A should not have been used.It seems that the High Court office, in reliance on the N293A, had simply been issuing Writs. This should not have happened, because permission from a Judge was required - 83.13(2) - and the judge must be satisfied that notice has been given to the occupant(s) in actual possession - 83.13(8).So, this is one to keep an eye open for. Enforcement of a possession order by the High Court Enforcement Officers via a writ of possession must involve notice of an application for a writ to the tenant/occupant sufficient to enable the occupant to apply to the court for relief, save only where the enforcement is against trespassers. If that did not happen, there is a very strong argument that the eviction was unlawful.

Possession claims by trustee in bankruptcySun, 22 Nov 2015 23:30:07 +0000Garwood v Bolter & Anor (2015) Ch D 18 November 2015 (Not on BAILII. Note of extempore judgment on Lawtel)I'm working off the lawtel note, which in some (many) respects doesn't entirely make sense. I'll try to flag the bits where I am 'interpreting'.This was an appeal arising from a claim for possession against three properties by the trustee in bankruptcy of a bankrupt landlord. The lawtel note rather confusingly refers to it as 'accelerated possession proceedings for an order for sale', which it can't possibly have been.It appears that the tenants of the properties had not co-operated with the trustee (which of course they did not have to do) in providing their details. So the possession claims were against 'persons unknown', but it is not clear if they were served on the properties. They were served on the bankrupt, who attended the hearing. The hearing was adjourned when the bankrupt indicated he could provide details of the tenancies of the properties.This was done. Two of the tenancies post-dated the bankruptcy (because landlords are so often responsible like that), but one pre-dated the bankruptcy. The trustee served a section 21 notice on the valid tenant after the first hearing.At the resumed hearing, the Judge refused to make a possession order, because separate possession proceedings had not been brought against the tenants under Pt 55, and that they had not been served with notice of the hearing. The trustee's counsel showed the Judge a copy of the s.21 notice on their phone, but the Judge was not persuaded.The trustee appealed, arguing that:



(1) the judge should have taken a flexible approach to service as, although the evidence was not in the bundle, the trustee had been able to show evidence that the tenants had been served; she could have merely directed another witness statement rather than dismissing the application altogether;(2) the court had wide powers under the jurisdiction in the Insolvency Act 1986 s.363 to make a possession order pursuant to Pt 7, as was the case in the instant matter, so that the normal possession procedure under Pt 55 did not apply;(3) it was clear that there was no defence to the possession proceedings so any irregularity could be dispensed with.The High Court found:On (1) while the first instance Judge could have taken a flexible approach to service of notice, it was right that the tenants should have been parties to the proceedings.On (2) the bankruptcy based possession proceedings under Part 7 were not governed by Part 55. However, the Court had reservations about the idea that, having terminated the tenancy, the trustee coud gain possession without any form of pleading against the tenants. All the trustee had been required to do was to plead that the tenancies had come to an end. But this was far from clear. The claim could not proceed without allegations against the occupiers. The Judge below had been correct about procedure - a Part 55 possession claim following service of the s.21 notice was required, at least (without deciding this point) where no other notice of proceedings had been send to the occupiers.On (3) while there may be no defence to properly constituted possession proceedings against the tenants based on the s.21 notices, it was clearly open to the Judge below not to be willing to dispense with the procedural irregularities.Appeal dismissedCommentAnother case that supports my view that everyone should have a housing lawyer with them at all times. Clearly there weren't any involved here.Trying to decipher both the lawtel note and the basis of the judgment made my head hurt. One can't bring 'accelerated proceedings' - assuming that means accelerated possession proceedings - against 'persons unknown' and without service of a s.21 notice, for starters.And then, a 'pre bankruptcy of the landlord' tenancy surely is and remains a valid tenancy as against the trustee (though not necessarily against a mortgage lender). It can only be terminated via Housing Act 1988 - either s.21 or s.8 and schedule 2 grounds. Counsel for the trustee turning up with a copy of a s.21 notice on their phone, served after the commencement of the proceedings to which the tenant is not even a party, cannot possibly be sufficient.The case against the post-bankruptcy tenants might be quite different - the bankrupt might grant a tenancy but I don't think it could be binding on the trustee. But heaven knows what the trustee thought they were arguing as against the valid tenant. It is just a pity that it is not clearer why the appeal was dismissed.

Promises, promisesSun, 24 Jan 2016 20:40:56 +0000A sad county court case that raises questions over the way in which some housing associations approach ground 8 possession claims and evictions.Christian Action (Enfield) Housing Association Ltd v L Walters, Edmonton County Court, 7 December 2015 (Not published, we've seen a transcript of judgment).Ms W was CA's assured tenant. Her rent was paid by HB. In November 2014, Ms W became a student. She said that she told CA of this and that rent would be paid quarterly, when she received her grant payments. Arrears built up but were



paid off in January 2015. However arrears then built up again (Ms W paying quarterly). CA issued proceedings and in April 2015 a possession order was made under Ground 8. Possession was delayed for the maximum 6 weeks. In July 2015, CA applied for and got a warrant, with an eviction date of 2 September 2015.On 13 August 2015, CA wrote to Ms W, stating unequivocally that she could avoid eviction by paying off the arrears. Ms W said that in a subsequent phone call to CA she was given an arrears figure of £780.90. This she paid before the eviction date (it later transpired that the amount was a few pounds short, but no particular issue was raised about the accuracy of Ms W's account of the call).Despite this, Ms W was evicted on 2 September.Ms W made a without notice application on the same day, seeking re-entry. She was in person and a housing officer appeared for CA. The application was adjourned for full hearing, apparently with re-entry ordered on an interim basis, and the judgment records the Judge's thoughts at that stage:

I was conscious of the decision in Jepson Homes v Moisejevs [2001] 2 All ER 901 and, in fact, referred to that decision that day. However, I had in mind that it was possible that the defendant might legitimately argue one of two courses: Firstly that a promissory estoppel had arisen such as the claimants were no longer entitled to rely upon the court order which they had obtained and would not so be able to rely upon that order and thus would have to take fresh proceedings to obtain possession from the Defendant. In terms that the indications from the claimant were inconsistent with an order made on mandatory ground. Alternatively, I speculated that it was possible to argue that a new tenancy had come into being.

However, a different judge ended up hearing the application, by this point cast as an application to set aside the warrant, and it was dismissed. It is unclear how it was argued.CA then applied for a warrant of restitution (effectively a further warrant based on the possession order) and Ms W, now represented, defended that application, on grounds of abuse of process and oppression. She argued

there is plain oppression on the part of the claimants in the way in which they handled the execution of the warrant for possession, the kernel of his argument being that they indicated to the defendant on a number of occasions that if she took certain steps, then she could avoid the warrant being executed, that she did everything that could be requested of her, including paying off the amount that she had been told was the arrears, and it is plainly unconscionable for the warrant now to stand.

Against this CA pointed that the possession order, on mandatory grounds, stood andthis court is precluded by s.89(1) from staying possession for a period in excess of six weeks. So, she says whilst the claimants’ conduct might have caused the raising of some judicial eyebrows, that does not detract from the basic legal framework.

The court, reluctantly, concurred with CA, at least on the arguments advanced by the parties:I harbour considerable doubts about whether it was right for the claimant to adopt a procedure that was inconsistent with their correspondence and which had raised in the mind of the defendant a legitimate expectation that she could avoid the execution of the warrant. I have to say that if an argument had been advanced not of oppression but of an estoppel then I might well have been minded to list this matter for a further consideration with proper arguments before the court. That has not been the approach of the defendant who has rested on the oppression and by necessary analogy of whether I should stay a warrant for restitution. [...]I have come to the conclusion that it would be inappropriate for me to stay or discharge the warrant of restitution and with something of a heavy heart I have come to the conclusion that I must dismiss the application to stay the warrant of restitution.

No order as to costs.The Judge went on to say:



I do, however, conclude this judgment by urging the claimant to look at the world through the eyes of their tenants, to consider with their lawyers whether their procedures are open and transparent enough as to prevent the sort of situation that has emerged in this case.

CommentIt is a pity that arguments on estoppel and new tenancy were not raised. I am not sure that promissory estoppel would have got much further - facing the same issue of a possession order made on mandatory grounds - but grant of new tenancy may have had some traction.However, what this case does illustrate is the ongoing issues of housing associations using ground 8 as a debt collection mechanism. The deeply unattractive behaviour here is in saying (as is routinely said, in my anecdotal experience) that a warrant won't be enforced if all arrears are paid, then going ahead with an eviction despite payment.But seeking possession on a mandatory ground inevitably restricts both the landlord's and the tenant's ability to resolve the situation, and imposes the crude absolutism of the mandatory ground conditions on situations (like this one) where a degree of flexibility would be merited - this was not a tenant unable or unwilling to pay.Lastly, we should note that CA persisted in seeking a further warrant despite arrears having been cleared in response to its promise. While within its strict legal rights (arguments over new tenancy aside), there are clear questions over this course of conduct as a matter of policy, procedure and administration.

February is the cruellest monthSun, 31 Jan 2016 14:33:48 +0000Monday 1 February 2016 sees the commencement of the 'Right to Rent' regulations in all of England. All new private tenancies, sub-tenancies, lodgings, and licences (including property guardians) will be caught if it is the occupant's main residence. Landlords must check the immigration status of all adults who will be or are occupying the property. We have written at length about why this is a very bad law, and it will get worse when the Immigration Bill 2015 comes into force, complete with eviction without any court proceedings in some circumstances. A very clear explanation of the 'right to rent' requirements is here.Simultaneously, there will be a new edition of the DCLG 'How to rent' booklet, which I will be adding here. This is important because for tenancies started on or after 1 October 2015, the booklet must be served on any new tenants, and if updated, on any renewal tenancies in order for a s.21 notice to be valid. See details here.

Find a new place to dwellFri, 05 Feb 2016 23:41:18 +0000Or spousal rights after notice to quit served by joint tenant.Derwent Housing Association Limited v Taylor, Court of Appeal (Civ Div) 19 January 2016 (unreported as far as I can see, apart from this note by Shoosmiths, for which we are suitably grateful).



Derwent HA were Mrs T's landlord, on a sole assured tenancy. Mrs and Mr T lived in the property as the matrimonial home. She left in 2013 and in February 2014 served a notice to quit (allegedly defective), Derwent accepted as terminating the tenancy. Mr T remained and defended possession proceedings when issued by Derwent. At first instance, Mr T lost.On appeal, Mr T argued:

• Under s.30(4) Family Law Act 1996 his continued occupation was to be treated as occupation by Mrs Taylor as tenant;

• The scheme under the Act gave effect to his rights under Article 1 (protection of property) and 8 (right to respect for privacy of family life and home) of the First Protocol of the European Convention on Human Rights (ECHR). Derwent was under a positive obligation to protect Mr Taylor's enjoyment of these rights and an order for possession would violate them.

The Court of Appeal dismissed the appeal.Mrs T's notice was a sufficient in common law to end the tenancy.S.30 Family Law Act only applied where there was a continuing entitlement to occupy, not when that entitlement had been ended. There was no occupation or tenancy of Mrs T for Mr T to base continuing s.30 rights on.No ECHR violation.CommentNo huge surprise here. Get those FLA 1996 injunctions in before any NTQ by the departed spouse...

High Court enforcement continuedSat, 13 Feb 2016 23:18:52 +0000In what has turned into a continuing series, there are further updates on enforcement of possession orders via the High Court, obtaining writs and the scandalous conduct of many High Court Enforcement Officers. (Previous posts here and here)Secretary of State for Defence v Nicholas, High Court (CH Div) (15 January 2016) (copy of Judgment).We saw the first writ related round in this matter last year - indeed, it kickstarted a wider investigation into what was going on in High Court enforcement. In that case, the SSoD had obtained a writ, with the permission of a Master, but without mentioning a pending application for permission to the Supreme Court and, crucially, without any notice of the writ application to the occupier (CPR 83.13(8)(a) ). The writ was set aside. Permission to appeal that decision was refused. In the original court of appeal hearing in February 2015, Ms N was refused an injunction to restrain issue of a writ pending application for permission to the Supreme Court. The SSoD then applied again for a writ, this time sending copies of the application to Ms Nicholas' solicitors by email and post.The High Court refused to stay the application pending the Supreme Court decision on permission to appeal (which was in any event refused shortly after this judgment). Deputy Chancery Master Cousins was also satisfied that the notice provisions of CPR 83.13(8)(a) had now been met. The writ was approved.So, further proof, as if it were needed, that a) the permission of the court is needed to issue a writ of possession against a tenant, and b) that the court must be satisfied that sufficient notice has been given to the occupiers "sufficient to enable the occupant to apply to the court for any relief to which the occupant may be entitled", which, on these binding decisions, means notice of the application for a writ.



Meanwhile, it appears that a number of HCEOs have tried to circumvent the requirement for permission to 'transfer up' by the County Court under section 42 County Courts Act 1984 by instead directly applying to the High Court to take over the matter under section 41 CCA. The HECOs' excuses were:

The HCEOs have informed the Masters that that County Court Officers are refusing to certify Form 293As, without explanation. We have also been told that when applications are made under S.42, some County Courts can take some 6-8 weeks to deal with them, and in the case of Possession Orders this means a significant loss of rental income to the Judgment Creditors. Thus it is much more efficient for Judgment Creditors/Parties with the benefit of a Possession Order, to enforce through a HCEO rather than via County Court Bailiffs, so the HCEOs have no alternative but to make applications under S41, where they can get an immediate Order and issue a Writ of Control/Possession straight away.

The HCEOs will have to find an alternative, because the Queens Bench Senior Master issued a practice note on 14 December 2015, which goes on to state:

The QB Practice Masters have been dealing with such applications, and making S41 orders. However, as the County Court file and log for the case is not available to the QB Masters, in a number of cases their orders have conflicted with orders made by Judges in the County Court. This has caused considerable problems in some cases.Accordingly, after consultation with the Deputy Head of Civil Justice, the President of the Queen's Bench Division, and the appropriate policy officials of the Ministry of Justice and of HM Courts & Tribunal Services, I have determined that the QB Masters will not make Orders for Transfer for Enforcement under S.41 unless on notice, and therefore all applications for transfer of County Court Orders and Judgments for Enforcement should be made either by an application under S.42 to the District Judge making the order, or, if for a Writ of Control or of Possession in a claim against Trespassers, by lodging a properly completed Form N293A at a County Court Office.

Turning to HCEOs seeking writs of possession against tenants (not trespassers), via the use of form N293A (the one which certifies it is for a writ of possession against trespassers), since this post, I received some, shall we say robust responses from HCEOs, including the Sheriffs Office and Vicks Enforcement. Both of these firms stated publicly and definitely that they used form N293A for writs against tenants and that this was perfectly fine and in accordance with 'guidance' (though they would never say what guidance). Vicks then blocked me on twitter.So, I wrote to the the High Court Enforcement Officers Association, asking them to tell their members to stop this practice. They replied:

We are aware that a number of our members are issuing and enforcing Writs of Possession in the manner you describe. I can also advise that the issues arising out of the Judgment of District Judge Salmon, and specifically the use of the N293A, have been raised with Senior Master Fontaine. We have sought clarification from the Senior Master in respect of the procedure to be used by our members.



As soon as we receive a response from the Senior Master I will respond to you fully to set out the association's position.

So, I wrote to Senior Master Fontaine (QBD) as well.As I understand it, a new practice note on this issue will be published shortly. I expect a public apology from the Sheriffs Office and Vicks Enforcement, amongst other HCEOs, together with a public acknowledgment that their practice in respect of using and advising the use of N293A for tenant evictions has been utterly wrong all along. But somehow I don't imagine that this will happen before the practice note is published.So, there will have to be at least one more post on this issue, once the practice note is issued. At least since Nicholas v SSoD last year, it has become apparent that bad practice is widespread in the HCEO field. Hopefully, it will soon be stamped out. Credit for raising the issue in difficult circumstances goes to Amy Just of Arden Chambers. Nothing we've done would have been possible without her work.

Righting wrong writs. High Court enforcement.Mon, 21 Mar 2016 21:56:33 +0000This has been a bit of an epic. First, the problem of High Court Enforcement Officers using form N293A to obtain writs of possession against tenants was raised by us in November 2015, then the scale of that use became clear by January 2016, and there were updates in February. Now, the coup de grace (which, if I am entirely honest, I've known was coming for a while).Senior Master Fontaine of the High Court, Queens Bench Division, has issued a practice note. The practice note is here, but what it says is:

I have received complaints that some High Court Enforcement Officers (“HCEOs”) have been using Form N293A to transfer County Court Possession Orders against tenants for enforcement to the High Court. This procedure is wrong because:The Form is intended for enforcement of possession orders against trespassers only (as stated in the notes at the bottom of the form; and CPR 83.13(2) requires the permission of the High Court before a High Court Writ of Possession can be issued; and CPR 83.13(8) (a) requires sufficient notice to be given to all occupants of the premises to enable them to apply to the court for any relief to which they may be entitled.There have also been recent decisions where the misuse of Form N293A has been identified, e.g. Birmingham City Council v Mondhlani [2015] EW Misc (CC) (6 Nov. 2015); and lack of notice required under CPR 83.13(8) e.g. Nicholas v Secretary of State for Defence [2015] EWHC 4064 (Ch) (24 August 2015) Rose J. (unrep.).In order to ensure that this practice does not continue:The Queen’s Bench Division Enforcement Section will not accept Form N293A for transfer to the High Court for enforcement of a possession order of the County Court other than for possession orders against trespassers. By distributing a copy of this note to Designated Civil Judges in District Registries I shall request that the same instructions be given to court staff in District Registries.The Queen’s Bench Masters will not accept applications under Section 41 of the County Court Act 1984 for transfer of a County Court possession claim for enforcement and such applications must be made under



Section 42 of the County Court Act 1984 to a judge of the hearing centre of the County Court where the possession order was made, so that judge can satisfy themselves that the appropriate notice has been given under CPR 83.13(8).The Civil Procedure Rule Committee (“CPRC”) subcommittee on court forms has:re-drafted Form N293A with greater emphasis on the restriction of the use of the form to requests for writs of control and writs of possession against trespassers only; anddrafted a new form of draft order (PF52) giving permission to enforce a judgment or order for giving possession of land in the County Court (other than a claim against trespassers under Part 55), which make it clear that applications for such permission must provide evidence to satisfy the judge determining such application that the requirements of Rule 83.13(8) are met.It is anticipated that these will be available for use in April 2016.The Senior Master 21 March 2016

Now this is, of course, exactly what we were saying the law and the Civil Procedure Rules actually meant.The three key points:

1. N293A is not to be used against tenants (and never was, because wrong)2. Application for permission for a writ must be made and requires approval by the High Court (a Judge, not the

court office/District Registry).3. The application must include evidence that the occupiers are on sufficient notice of the application as to comply

with CPR 83.13(8).It is fair to say I got a certain amount of grief from some HCEO firms for publicly raising this issue. I am going to resist the temptation to be triumphalist. But I was publicly told by one firm that I was 'misinformed', and that N293A was 'perfectly legal' in such circumstances.

The Sheriffs Office - and David Carter - have seen the practice note and posted on it here. I suspect it is the closest I'll get to an apology.They get the odd thing wrong still. This does not concern mortgagees, for instance, against whom the court's permission is not required. And they do not address the need for the Court's permission, or notice to the occupiers of an application for a writ. The new form pF52 is not a form for application for a writ, it is a form of draft order for permission for a writ. Still, they do at least admit using N293A against tenants 'was not what it was intended for'. Well, yes it wasn't, but then the admission is in these terms:



"Whilst this established procedure had been used for many years and was accepted by Judges and the Courts alike, it was not what form N239A was intended for."No, it was not an 'established procedure'. It was just what went on until it was found out.No, it was not 'accepted by Judges and the Courts' - after all, the whole point of an N293A was that it was approved as an administrative act by the court office and never actually went in front of a Judge or the Court. And, as was pretty well known, a Judge wrote in January 2014, describing the use of N293A against tenants as 'apparent contempt of court'. Now a High Court senior master has described the practice as 'wrong' - not mistaken, just wrong.My understanding is that the guidance should have been circulated to all members of the High Court Enforcement Officers Association, so any HCEO trying the N293A route from here on in is not just wrong in law, they are knowingly breaching a specific practice direction of the Queens Bench Senior Master. And the requirements on the court's permission and notice to the occupiers of the application are clear.By the way, the recording of Nicholas v Secretary of State for Defence, High Court, Chancery Division, August 24, 2015 (our note) has been discovered, after so many people have requested it for so long. I've seen a transcript and hopefully it will be on Bailii soon.Much credit is due to Amy Just of Arden Chambers for raising and persisting with this issue. But I'm also claiming it as a victory for NL, both in publicising it and taking it up with the senior master.

AirBnBreachMon, 04 Apr 2016 22:27:02 +0000The Govt seems very keen on Airbnb-style short term letting. First, the planning change in London to permit short term letting for up to 90 days in any year, then Osborne's £1000 tax break for Airbnb style landlords in the March 2016 budget.Of course, the up to 90 days a year (in London) rule seems to be subject to huge and widespread breaches, with some 4680 'year round' listings in London in September 2015. This is a headache for the council planning enforcement teams.But, the distant fear of council enforcement aside, and as any landlord and tenant lawyer would expect, things are not so simple for the Airbnb letters. Letting property, even on a short term basis rarely is...Exhibit 1. Mortgage lenders are not keen. It appears that the terms of most residential mortgages would be broken by allowing a short term let of the entire property. And many mortgage lenders would require consent (and a fee) even for short term renting out of a room.While lenders aren't (yet) exactly poring over the Airbnb listings to establish breaches, it could mean an unexpected demand to repay the whole mortgage immediately.Exhibit 2. Breach of lease/tenancy.A First Tier Tribunal (Property Chamber) decision - LON/o0AY/LBC/2015/0021 on an application to determine a breach of lease.The rather splendidly named St John Guy Rogers was the lessee of a 3 bedroomed penthouse flat in London SW2, the ever so slightly less splendid Streatham Hill. The applicant freeholder's case was that:

the Respondent is subletting rooms within the Property by advertising on various websites including Air BNB, Prime Location and Holiday Lettings, contrary to paragraph 25.1 of the Eighth Schedule Part I to the Lease. Those who are renting those rooms are using the Property for noisy and at time riotous parties which involves the playing of loud music after the hours of iipm (contrary to paragraph 8 of the Eighth



Schedule Part II to the Lease) and is causing noise nuisance and annoyance to other occupiers in the Building (contrary to paragraph 6 of the Eighth Schedule Part II to the Lease). By the letting of rooms and separately to whether this amounts to a breach of paragraph 25.1, the Applicant asserts that letting rooms in this way amounts to use of the Property "otherwise than as a private residence for occupation by a single household" and that the Respondent is carrying out a trade or business from the Property. The Applicant also asserts that the Respondent is letting out the Property to other commercial agents for photo shoots which lends support to him using the Property as a trade or business. This constitutes a breach of paragraph 1 of the Eighth Schedule Part I to the Lease.

There was no dispute on facts in witness evidence.Mr Guy Rogers asserted that he hadn't sublet because he hadn't parted with possession of the whole and the rest really wasn't his fault because things happened outside of his control (I paraphrase slightly). Mr Guy Rogers also had applied for an adjournment on the basis that his solicitors had told him that 6 weeks was not long enough to find counsel for the hearing, so he was in person, but this was not accepted by the Tribunal (and indeed, it would be very hard not to get counsel at 6 weeks notice.)Paragraph 25.1 of the Eighth Schedule Part I to the Lease prohibited subletting the whole or part of the Property without prior written consent of the Lessor.The tribunal found that there was not a breach of this because, while Mr Guy Rogers had let out rooms on a short term basis:

on the facts here what the Respondent is doing is more akin to running a guest house from the Property. He is letting rooms for a day or possibly a week but on a serviced basis (eg providing bedding). Although he did say that one of the rooms was capable of being locked, and although one of the advertisements does refer to the Property being "generally" offered hosted, the Tribunal had no reason not to accept the Respondent's evidence that he is present during the lets and indeed the reviews read as from "guests" and not from persons who consider themselves to be obtaining any right to possession of any part of the Property exclusively.

But while there was no parting with possession on whole or in part, Mr Guy Rogers fell foul of paragraph 1 of the Eighth Schedule Part II to the Lease by allowing the Property to be used "otherwise than as a private residence for occupation by a single household" and for carrying out a trade, business or profession from the Property.And, to remove any doubt, the Tribunal added that:

the Respondent is in breach of paragraphs 6 and 8 of the Eighth Schedule Part II to the Lease by allowing or suffering the Property to be used for "any act or thing which shall or may become a nuisance damage annoyance or inconvenience to the Lessor or to the lessors or occupiers" of other properties in the building in which the Property is situated.

Breach of lease found (apparently for the second time, with a previous finding on similar grounds in 2013).CommentI know of at least two other cases, both in the county court, involving Airbnb and breaches of lease/tenancy.One in which a possession claim involved a finding that the Defendant was in breach of a clause in his assured shorthold tenancy (yes, an AST) restricting use of the property to being a private residence for the tenant and his immediate family. Remarkably, the tenant tried to argue that the additional people in the property made it an HMO such that the s.21 notice was invalidated. This was rightly slapped down as a) it was not a mandatorily licensable HMO in any event and b) it was his breach of tenancy that he was seeking to rely on.Then there is another case I've heard of, ongoing, involving a leaseholder, with alleged breaches of a clause for use as a private residence.I suspect that things are beginning to build up now, with freeholders, freehold management companies and landlords taking action on leaseholder's and tenant's Airbnb activities, particularly where these are causing a nuisance to other lessees or tenants.



It should, of course be noted that Airbnb's terms and conditions state - for those listing their properties: Accordingly, you represent and warrant that any Listing you post and the booking of, or a Guest's stay at, an Accommodation in a Listing you post (i) will not breach any agreements you have entered into with any third parties, such as homeowners association, condominium, lease or rental agreements, and (ii) will (a) be in compliance with all applicable laws (such as zoning laws and laws governing rentals of residential and other properties), Tax requirements, Intellectual Property laws, and rules and regulations that may apply to any Accommodation included in a Listing you post (including having all required permits, licenses and registrations), and (b) not conflict with the rights of third parties.

Perhaps people should check their leases and tenancy conditions rather more closely. Because forfeiture or possession proceedings may be the result.I would be very interested to hear of other cases from readers on this issue, particularly concluded ones.

Tis aw a muddle - costs editionWed, 04 May 2016 21:24:55 +0000Morales v Enver (2016) QBD (Irwin J) 28/04/2016 (Not on Bailli - note of judgment on Lawtel)Another case to file under 'things not to do'.Mr M had brought injunction for re-entry proceedings against a landlord and agents. Mr M was the tenant of a flat owned by the landlord. He stayed on after the end of a six month term. The Lawtel note describes this as a 'licence agreement' and adds that 'it was unclear if Mr M was a tenant or a lodger'. Heaven knows how this was unclear, but there we are. Rent arrears apparently built up.The landlord owned other flats in the same street. He engaged the agents to evict tenants of another flat. Possession proceedings were begun and, apparently, the court decided that that occupant was a lodger and no possession order was required. Accordingly a notice was fixed to the door of that property by the agent saying that the locks had been changed and the occupant had no right to continue to occupy.So far, so straightforward (ish). But then the same notice appeared on Mr M's door, on the agent's headed paper but with the other occupant's name crossed out and Mr M's written above it. The locks had been changed.Mr M found solicitors. They contacted the agents, who after being confused for a while about whether the solicitors were acting for the other occupant, denied having anything to do with the notice on Mr M's door and referred them to the landlord.Mr M (through his solicitors) for reasons also opaque, issued injunction for re-entry proceedings against the landlord and against the agents.At an on-notice hearing, the landlord did not attend and was not represented, despite an order. The agent attended. The injunction was granted against the landlord, but not the agent. The court held (hardly surprisingly) that the agents should not have been made a party and ordered costs - but the order was against both Mr M and the landlord, unless the landlord filed evidence of a contractual relationship with the agents within 7 days. The landlord didn't.



The landlord then apparently appealed the costs order, on the basis that• he had not misled any party as to the facts, in particular as to the agent's involvement• he had not joined the agent as a party, so he should not have to pay its costs.

The agent contested the appeal, arguing that the landlord had been in breach of the order requiring him to attend court, which justified the costs order.The High Court held:An appeal of a costs order could only succeed if the costs order was wrong (I presume on the usual basis of outside the Judge's discretion as wrong in law or a wholly unreasonable conclusion on the facts).Here Mr M should not have joined the agents as a party. But the landlord's failings in the case had also caused the agents to incur costs. On that basis, the first instance Judge's conclusion on costs had been reasonable.CommentA mess - an everyday mess, perhaps, but a mess nonetheless. Mr M (or his solicitors) should not have brought the injunction proceedings against the agents in any event. But the landlord really brought the rest on himself by deliberately not taking part in those proceedings, then trying to appeal a costs award (never really a great idea) to the High Court (on what must have been limited costs against him).So, lessons for everyone. Except those of us puzzled as to how any of these occupants were lodgers, but that, I suspect, will remain lost in the gaps of the lawtel note.

Curiosities and wondersMon, 09 May 2016 21:16:11 +0000When the First Respondent in a possession case is styled "The Sovereign Indigenous Peoples of Scotland" and the second, named, Respondent describes himself as "A Member of the Government of Scotland", you suspect that you know in advance how things will go. In The Petition of the Scottish Parliamentary Body against (First) The Sovereign Indigenous Peoples of Scotland, (Second) Arthur McManus Gemmell [2016] CSOH 65, that was by and large true, but with an interesting follow on to await.The issue was a petition for a possession order sought against a group of protestors who had set up a camp on a part of the grounds of the Scottish Parliament since last November. The protesters' arguments seemed to be a tad 'freeman on the land'-ish.On the one hand, the Treaty of Union meant that no valid law could be passed that "was not enacted for the evident utility of the Scottish people", so, (I think) given that these Scottish people wanted to stay where they were, the Scottish Parliament couldn't have property rights. Or something. This did not fly - "none of these averments offer a valid foundation for a claim of common ownership, or any other right to property legally owned by the petitioner".On the other hand, The United Nations Declaration on the Rights of Indigenous Peoples meant that the protestors had a right to maintain a spiritual relation with traditionally occupied land, or to occupy traditionally occupied land or have redress for confiscated land, or something. As the court tersely observed, not only where such UN conventions not justiciable, 'indigenous' could not mean what the Respondents argued, which was "a completely misguided understanding of what “indigenous” meant in the context of the Declaration. They saw it as an instrument which would benefit the entire population of Scotland, or at least that part of the population of Scotland which defined itself as Scottish". This was misguided because Scottish could not be a 'pre-invasion or colonisation people distinct from other sectors of society now prevailing on those territories'.



Oh and an attempt to argue that there was no law of trespass in Scotland came to grief on, amongst other things, the existence of the Trespass (Scotland) Act 1865.So that was that for the Respondents' arguments. But then almost off its own bat, the Court raises Article 10 and 11 issues (Freedom of Expression, Freedom of Assembly). Convention rights had been mentioned (as satisfied) by the Petitioner, and

In oral submissions the second respondent stated, somewhat confusingly, that: “There are no attempts to invoke any convention rights”. However, in his answers he stated that those involved in the Camp are exercising their fundamental human rights.

The court decided that on the face of it, the circumstances were different to both The Mayor Commonality and Citizens of London v Samedi [2012] EWCA Civ 160 (Parliament Square) and Mayor of London v Hall and others [2011] 1 WLR 504 (St Pauls/Occupy). On that basis, the Court adjourned for the parties to make proper submissions on Art 10 and 11 on proportionality, suggesting forcefully to the Respondents that

It would be to the respondents’ advantage to make whatever efforts they can to enable them to have their interests presented to the court in a competent and properly informed manner, through qualified legal assistance, prior to the next stage in this litigation.

Now, the question that this has raised, not least among Scots academic lawyers that I follow on twitter, is the extent to which the issue of convention compliance is something that the Court can raise as an issue of its own, where not argued (as appears to be the case here) by the Respondents.In the Article 8 defence English case law, the Supreme Court seemed pretty clear on the point, at least as a 'general rule', at para 61 of Manchester City Council v Pinnock [2011] 2 AC 104.

First, it is only where a person's "home" is under threat that article 8 comes into play, and there may be cases where it is open to argument whether the premises involved are the defendant's home (e g where very short-term accommodation has been provided). Secondly, as a general rule, article 8 need only be considered by the court if it is raised in the proceedings by or on behalf of the residential occupier. Thirdly, if an article 8 point is raised, the court should initially consider it summarily, and if, as will no doubt often be the case, the court is satisfied that, even if the facts relied on are made out, the point would not succeed, it should be dismissed. Only if the court is satisfied that it could affect the order that the court might make should the point be further entertained.

It will be interesting to see if the issue is raised in the Scottish proceedings, and if so, where it goes. The 'general rule' in Pinnock has been upheld by the Court of Appeal in English cases. But the question of 'horizontal effect' of the convention - the obligations on the Court as public body - will also be explored in the Supreme Court decision in McDonald v McDonald, (an English case on Art 8 and s.21 possession claims) which is awaited...Meanwhile, in other things that make you wonder 'why on earth would you do that?', the Sutton Council Lib Dems thought it would be a good idea to campaign against the Housing and Planning Bill (so far so good) by sending out 'eviction notices' to all and sundry (15,000 people. Words fail me).



On closer reading, the 'eviction notice' invited people to sign a petition against the Housing and Planning Bill, but it apparently did not occur to the Sutton Lib Dems that many renters are feeling quite precarious enough thank you without a dramatic 'Eviction Notice' arriving without warning in their email inboxes. Much upset and grovelling apologies ensued.Lastly, in the 'signs and portents' category, is Severn Vale Housing (though they are certainly not alone). I'm late in flagging this, because I was expecting developments, including others going public. But other HAs are definitely going the same way.In a reaction to the Govt applying LHA rates to housing benefit for social rents, Severn Vale have decided they will not rent any social rent properties to any single, childless person under 35.

From 1 April 2016 local housing allowance rules will apply to social housing rents which includes the shared room rate limit for any single person under 35 years old without children. This means we will not allocate a property to anyone affected by the shared room rate, where the amount of local housing allowance that you’re entitled to equals less than the rent and service charges regardless of your employment status. Check online with your local authority for current local housing allowance rates.

This is apparently regardless of whether the person is employed, and/or able to afford the rent (or top up rent). The ostensible basis that the LHA cap for single under 35s is the 'shared room rate' which is lower than Severn Housing's social rent on any property. However, Severn Housing are clearly not willing to take even a slight risk on any single person under 35, no matter what their employment or income history looks like.Rather confusingly - do Severn Housing know what they are doing? - their 'Policies' page states

Under 36 years old - no offers of accommodation will be made to anyone under 36 years old where the local housing authority shared room rate equals less than the rent and service charge regardless of employment status.

Which adds another year and makes no sense... I also wonder how the whole restriction works for nominations by the Council (whose housing stock it used to be).Age discrimination is, of course, permitted for housing management and allocation under the Equality Act 2010. Housing is expressly excluded from the age discrimination provisions. The rationale for that was to enable sheltered or



retirement accommodation to exclude on the basis of age. However, it now means that those under 35 can be excluded from having any access to social housing.If, as I gather is the case, such an approach becomes widespread, the effects will be dramatic. Not least on the homeless looking to move into permanent accommodation from interim, supported places.While age discrimination is allowed, I wonder if such a policy may amount to indirect discrimination against those with any other protected characteristics? Blanket policies are always foolish to adopt...

PCOL and Introductory TenanciesTue, 10 May 2016 22:06:08 +0000An interesting county court appeal of a possession order - can PCOL be used for a possession claim for an Introductory Tenancy?Crosby v Birmingham City Council, Birmingham Civil Justice Centre, 8 March 2016Ms C was an Introductory tenant of Birmingham. She built up rent arrears. Birmingham served notice under s.128 Housing Act 1996. Ms C did not request a review. Birmingham then brought possession proceedings, using PCOL. A Possession Order was granted, then after Ms C failed to keep to an agreement on arrears, a warrant sought. Ms C then sought solicitors and as a result, the present appeal of the possession order was brought.The only issue was whether use of PCOL was a valid means of issuing a possession claim against an Introductory tenant under s.128 Housing Act 1996.The PCOL claim stated that possession was sought on the basis of rent arrears. It was shown that in order to file a claim via PCOL, the claimant had to tick a box giving the ground for possession, that the claim was either on the basis of 'rental arrears' or 'mortgage arrears'. It was presumed that Birmingham had ticked 'rental arrears'.Ms C argued that the ground for possession was actually that Birmingham were entitled to possession under s.127 Housing Act 1996. The rent arrears might have been the motive, but they weren't the ground.This was not accepted by the court, 'ground' in the claim form did not necessarily have a statutory basis, and could refer to the motive for seeking possession.More successful was Ms C's argument in relation to Practice Direction 55B to the CPR. This provides:

Claims which may be started using Possession Claims Online 5.1 A claim may be started online if – (1) it is brought under Section I of Part 55; (2) it includes a possession claim for residential property by – (a) a landlord against a tenant, solely on the ground of arrears of rent (but not a claim for forfeiture of a lease); or ... (emphasis added)

The 'solely on the grounds of arrears of rent' was also repeated in the PCOL guidance.The Court decided that 'solely' was a clear indication that PCOL was not to be used for claims other than for rent arrears. The online forms were not designed for possession claims for Introductory tenancies. While the claim could be made to 'fit' the form, it was not a claim 'solely' on the grounds of rent arrears.That found, Ms C's further argument that the use of PCOL amounted to an abuse of process was not successful. Use of PCOL had not removed the scrutiny of the court, had not hidden any information, and had not changed the procedure to the detriment of the Defendant/Appellant.



As a result, the possession order was not set aside, but the council was not entitled to its issue fee as costs as it had used the wrong procedure to issue the claim.CommentWhile the use of PCOL was not sufficient to have the possession order set aside on appeal, it is worth noting for both Local Authority claimants and those acting for tenants (including duty advisors) that a possession claim issued under PCOL is not procedurally correct (or at least arguably so, given that this was a county court appeal). While it was not enough to overturn the possession order in this appeal after evidence and hearing, there is obviously the possibility that if caught (or noticed by the court) at an earlier stage, it may possibly be enough to have the possession claim dismissed.The flip side (for both council landlords and in some respects tenants) is that the fees for non-PCOL claims are higher.



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