Housing Law: What’s New?
Second Edition – September 2022
Featured Case and Comment
R (on the Application of Fokou) v London Borough of Southwark (2022) EWHC 1452 (Admin)
Summary: Placing a family in temporary accommodation 50 minutes away from the children’s school did not amount to a prima facie breach of s.11(2) of the Children’s Act 2004 or s.188 of the Housing Act 1996.
Background:
Following a successful homelessness application to the London Borough of Southwark (“LB Southwark”), Mr. Fokou and his two children were provided with temporary accommodation in North London. The children were attending schools in Southwark and they quickly began to struggle with the 1 hour and 45-minute commute to and from school each day.
Mr. Fokou challenged the decision to place his family in North London on grounds of unsuitability. Mr. Fokou’s legal team further alleged that LB Southwark had breached its duty under s.11(2) of the Children Act 2004. As an authority to which this section applies, LB Southwark is required to discharge its duty in such a way as to safeguard and promote the welfare of children. Judicial review proceedings were commenced and an application for accommodation closer to the schools was made by way of interim relief.
Judgment:
The Court declined to order interim relief. The court found no prima facie case of a breach of LB Southwark’s duties under the s.11(2) CA 2004 or the Housing Act 1996 s.188.
Comment:
Southwark argued that the shortest journey to school would be under an hour and further argued that, due to the scarcity of temporary accommodation its policy prioritised children with special educational needs, protection issues, and children scheduled to sit public examinations within six months.
The immense impact of changing schools has been a topic of debate for many years, especially since the report Between the Cracks was published by the RSA in 2013, which highlighted the fact that overall, “in-year movers” tend to have lower prior attainment and lower rates of achievement as a result of moving.
Furthermore, the children of homeless applicants are already in a vulnerable position and experiencing significant disruption. With this in mind, it is arguable that s.11(2) of the Children Act 2004 should be read as requiring housing allocation policies to, insofar as is practicable, allocate temporary and emergency accommodation in an area within a reasonable commuting distance of a child’s current school.
Case Law Updates
Princess Bell (R OAO) v London Borough of Lambeth (2022) EWHC 2008 (Admin)
Summary: Applying Elkundi, the court made a mandatory order requiring the local authority to secure and offer suitable accommodation within 12 weeks to a family with two disabled children in unsuitable accommodation that was damaging the children’s health.
Background:
Following a successful homelessness application to the London Borough of Lambeth (“LB Lambeth”), the applicant and her three children were provided with interim accommodation. The property was a private sector dwelling with just one bedroom on the ground floor. The property also suffered from severe disrepair including damp, a mouse infestation, and a faulty heating system. Medical evidence demonstrated that the property was not just unsuitable for the applicant’s two disabled children, but that it was causing significant harm.
LB Lambeth accepted that the property was unsuitable in December 2020, but no offers of suitable alternative accommodation were made. The applicant was still in the property in June 2022, when the landlord issued a possession claim.
The applicant sought a mandatory order that suitable accommodation be provided within a set time.
Judgment:
This is the first case of its type since R (Elkundi) v Birmingham and R (Imam) v Croydon (2022) EWCA Civ 601. In Elkundi, the Court of Appeal held that once a local housing authority had accepted that a duty was owed under section 193(2) of the Housing Act 1996 and that the applicant’s current accommodation was unsuitable, it was under an immediate and unqualified duty to ensure that suitable accommodation was made available. The Court reiterated that it was an immediate duty, not a duty to find suitable accommodation within a reasonable time.
Applying Elkundi, the Court in Princess Bell held that:
The property was unsuitable.
The property was having a severely negative ongoing impact on the disabled children’s health.
The combined effect of the PSED and section 11 of the Children Act 1989 is that authorities need to be proactive in ensuring that they have available to them housing that will meet the needs of families with disabled children under Part VII.
The duty above supported the making of a mandatory order.
A mandatory order was made requiring LB Lambeth to secure and offer suitable accommodation to the family within 12 weeks.
R (on the application of ZK) v Havering London Borough Council [2022] EWHC 1854 (Admin)
Summary: An HNA is not the same as PHP and in any event, the duty imposed by section s.189A of the Housing Act 1996 requires the local authority to issue an HNA/PHP which sets out the applicant’s needs not wishes in such a way that a ‘reasonable and sensible housing officer’ reading the claimant’s file as a whole would be able to understand what is needed when considering the suitability of current or future accommodation.
Background: The applicant, ZK, had entered the mainstream housing system after being granted Refugee status. ZK had serious mental health problems and physical health problems as a result of the torture and trauma that he had suffered in his home country. Havering placed him in emergency temporary accommodation with his three young children. Three PHPs were issued, the first in June 2019, the second in October 2020, and the third in November 2021. During this period the family was moved to different temporary accommodation, but ZK maintained that the PHP and the HNA under HA 1996, s 189A, remained unlawful. ZK put forward medical evidence which supported his allegations of unlawfulness.
The grounds of the JR challenge were as follows:
The defendant, Havering, had failed to assess the housing needs of the family, and failed to issue them with a PHP in a manner that met the mandatory requirements of HA 1996, s 189A; and
The HNA/PHP were both irrational or flawed through a failure to take account of relevant considerations and/or reliance on irrelevant considerations.
Judgment: The High Court reiterated the difference between a Housing Needs Assessment (HNA) under s.189A(2) of the Housing Act 1996, and a Personal Housing Plan (PHP) under s 189A(4)). Although both HNAs and PHPs sit under the umbrella of prevention duties, their purpose and content are different and an HNA may be better characterised as concerning suitability, not prevention. The HNA must set out the applicant’s key housing needs and not their wishes. The HNA provides the “nuts and bolts” for any offer of accommodation (XY v London Borough of Haringey [2019] EWHC 2276 (Admin)). The test is whether a ‘reasonable and sensible housing officer’ reading the claimant’s file as a whole would be able to understand what is needed when considering the suitability of current or future accommodation.
ZK succeeded on the first ground of challenge. The Court held that ZK’s housing file as a whole did not lawfully meet the duty owed by Havering to assess the housing needs of the family and to issue a PHP that met the requirements of the HA 1996. The Court applied the test above and found that a “reasonable and sensible” housing officer reading the claimant’s file as a whole would not be able to understand the applicant’s housing needs.
The court declined to quash the most recent PHP as it was a ‘living document’ capable of amendment and update. Instead, the court made a declaration that the defendant had failed properly to carry out its duties under HA 1996, s 189A and made a mandatory order requiring them to make a lawful HNA/PHP in compliance with that duty.
Adil Catering Ltd v City of Westminster Council [2022] UKUT 238 (LC)
Summary: The duty imposed by regulations 4 and 7 of the Management of Houses in Multiple Occupation (England) Regulations 2006 (the Management Regulations), SI 2006/372 require the achievement of an outcome; the duty to ensure in the context of the management regulations is not merely a duty to take reasonable care to ensure; ignorance will not be a reasonable excuse; and the purpose of an appeal to the Upper Tribunal is not to fine-tune a penalty assessment that has been lawfully reached by the FTT.
Background: The case, which began in the First Tier Tribunal (Property Chamber) (the FTT), concerned the scope of the duty imposed on the manager of a house in multiple occupation (HMO) by regulations 4 and 7 of the Management of Houses in Multiple Occupation (England) Regulations 2006 (the Management Regulations), SI 2006/372.
In 2020 the Appellant company held the lease of an HMO. Following complaints from one of the HMO tenants, the local authority wrote the Appellant requiring them to remedy various serious defects at the property.
The Appellant undertook works but when the local authority sent an enforcement officer to the property, they found that some reported defects remained and they discovered additional defects. The local authority imposed a financial penalty of £16,000 on the appellant pursuant to s.249A of the Housing Act 2004 (HA 2004) for the multiple breaches of the Management Regulations identified during the inspection.
The appellant appealed to the FTT which confirmed the financial penalty but reduced it to £15,750. The appellant appealed to the Upper Tribunal (UT).
Judgment:
The first issue on appeal was whether the FTT had been entitled to find that, in the absence of a reasonable excuse, the existence of defects had been enough to prove breaches of the Management Regulations to the criminal standard.
The UT considered regulations 4 and 7 and held that the starting point when interpreting the Management Regulations is HA 2004 s 234(1). The purpose of regulations made under that power was ‘ensuring that … (a) there are in place satisfactory management arrangements; and (b) satisfactory standards of management are observed.’ The UT held that the natural meaning of regulations 4 and 7 required the achievement of an outcome. In other words, it is a positive duty. The applicant was required to take proactive steps to ensure that the property complied with the management regulations on an ongoing basis. Therefore, the UT upheld the FTT decision on this point.
The UT also helpfully clarified that the duty to ensure in the context of the management regulations was not a duty to take reasonable care to ensure.
The second issue on appeal was whether the FTT had been entitled to find that the appellant’s ignorance of the defects had not been a reasonable excuse because it had failed to take proper steps to inform itself regarding the condition of the property.
The UT upheld the FTT decision on this point as well and the Tribunal’s reasoning flowed naturally from its considerations of the first issue. The duty to ensure the safe condition of the HMO was not a duty to remedy defects that the manager had notice of, rather it was a duty to remain sufficiently informed regarding the condition of the premises so as to enable it to take timely remedial action.
The third and final issue on appeal was whether the FTT had failed to take account of relevant considerations when setting the penalty. Specifically, the appellant had asked the FTT to consider the modesty of the breaches and the early remedial work undertaken.
The UT was as unimpressed by this submission as the FTT and held that the penalty for the breach of regulation 7 had been modest and that the purpose of an appeal was not to fine-tune a penalty assessment that had been lawfully reached by the FTT.
The appeal was dismissed.
Quick Bits
In 36 Copenhagen Court, 32 New Street, Basingstoke, Hampshire, RG21 7DT: CHI/24UB/HMB/2022/0001, the First Tier Tribunal (Property Chamber) reminded landlords, tenants, and practitioners alike that RROs are available for a variety of offences, not just for scummy landlords and unlicensed HMOs.
The Tribunal also made it clear that:
- It would not entertain weak excuses for harassment and tenants have recourse in such cases.
- An AST does not end on the date stated on a s.21 Notice.
- Landlords and agents are not permitted to act as if a continuing tenancy is at an end.
The High Court has confirmed in Pile v Pile (2022) EWHC 2036 (Ch) that the effect of Procter v Procter (2022) EWHC 1202 (Ch) is to permit one joint tenant to give a notice to quit on a joint periodic tenancy without this constituting a breach of trust. The High Court restated HHJ Davies-White KC as follows “there is merely a “bare” trust for sale or trust of land”. As such, the trustee (joint tenant) is neither precluded from serving a notice to quit on the landlord nor precluded from doing so for the purpose of acquiring a new tenancy for themselves alone.
The Court of Appeal has also provided useful confirmation recently in Kowalek & Anor v Hassanein Ltd (2022) EWCA Civ 1041: When considering a rent repayment order, the court will only take into account the rent paid during the period that the offence was committed. Payments made after this period, even if they fell due within the period, will be disregarded. The Court also clarified that rent arrears are “relevant conduct” for the purpose of quantifying the RRO.
Written by: Ilana Hirschberg, Senior Paralegal at Central Law
