Article 8 of the Convention of Human Rights protects the individual’s right to respect for his private and family life, his home and his correspondence. A home will usually be the place, the physically defined area, where private and family life develops. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area within reasonable limits.

The applicants have resided in a house in Malta owned by them since 1994. The house is one of three houses in a remote area of grassland. Every year, on the occasion of certain village feasts, firework displays are set up in the fields close to the applicants’ residence (a distance of 150 metres or more).

The applicants alleged that every time fireworks were let off from this area they are exposed to grave risk and peril to their life, physical health and personal security. Moreover, the heavy debris produced caused considerable damage to the residence.

In consequence, over the years the applicants complained to the Commissioner of Police (“CoP”), but no remedial action was taken.

Fireworks in Malta have a long-standing tradition which is still very much alive in the crowded calendar of village feasts that take place all over Malta and Gozo, especially in the summer months. The facts of this case deal with a specific area where fireworks are let off during two separate weeks annually and only during particular days, therefore not on a daily basis during those weeks.

The Court noted that the applicants acquired the property while aware of the situation of which they were now complaining. Notwithstanding that the previous owners had informed them of their experience, the applicants proceeded to purchase the property and made it their home. The Court considered, that this was a weighty factor in the relevant balancing exercise, irrespective of the fact that they were lawfully entitled to live there.

The Court found that the authorities had not overstepped their margin of appreciation by failing to strike a fair balance between the rights of the individuals affected to respect for their private life and home and the conflicting interests of others and of the community as a whole, nor did it find that there had been fundamental procedural flaws which impinged on the applicants’ Article 8 rights.

Although this is a European case, it is worthy of a reminder[amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest'] of the case Miller v Jackson[1977] EWCA Civ 6. The opening statement of Denning LJ is probably all that is needed to figure out the outcome of the case but the judgment is worthy of a read for anyone who may have the time and inclination. (Note: The idea of quoting the Miller case within this article was stolen from the Nearlylegal bog!)

In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last seventy years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club-house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practice while the light lasts. Yet now after these 70 years a Judge of the High Court has ordered that they must not play there anymore, lie has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that, when a batsman hits a six, the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at weekends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the Judge to stop the cricket being played. And the Judge, I am sorry to say, feels that the cricket must be stopped: with the consequences, I suppose, that the Lintz cricket-club will disappear. The cricket ground will be turned to some other use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.

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Regulation 2 of the amendment regulations amends regulation 96 HB regs 2006 which regulates when a local authority may pay a landlord direct.

The new addition states that a local authority may pay a landlord where:

the relevant authority considers that it will assist the claimant in securing or retaining a tenancy

So, what does a landlord need to do to ensure payment is made under this new power?

[amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']The first thing to do is put this in context. Under the regulations before local housing allowance (which still exist for those tenants before LHA), the regulation allowing payment “where the tenant consents” was only a power under regulation 96 and not a duty. Therefore, even though a tenant consented to payment being made, the local authority did not have to do so. Yet, they always did make payment in this case with little or no argument needed. Of course, the problem with this regulation was that the following day, the tenant could go back into the local authority and simply revoke their consent and payment had to by law go to the tenant unless 8 weeks arrears arose. Of course this didn’t happen much thankfully but it did happen and was a problem at the time.

This new regulation it is submitted is even better for landlords because there is no consent element. If local authorities didn’t bother arguing about the discretionary payment under the previous regulations (which they could have done) then I submit they won’t put up much of an argument over the new wording.

The only contrary view to this is that the LHA guidance seems to be suggesting that these provisions are only available to local authority introductions where they have deemed a person homeless for example.

There are two parts to the new amended regulation. The local authority may pay a landlord if:

• It will assist the tenant in securing a tenancy or,
• It will assist the tenant in retaining a tenancy.

Assist in securing a tenancy

The first one is going to be difficult to figure out in the early stages from 1 April 2011 because although it makes it easy for local authorities to now promise direct payment for their homeless persons, it is going to be more difficult for other prospective tenants because they can’t get a decision on this until the tenancy has been granted because only then can they apply formally for housing benefit.

Landlords wishing to have payment direct for new tenants, should therefore do two things. First, they should hand to all prospective tenants an appropriately worded document before any tenancy is granted which sets out the conditions of granting any tenancy. This document should make clear that no tenancy will be granted unless direct payment to the landlord is made and that the prospective tenant should first obtain this confirmation in writing from the local authority before the landlord will grant a tenancy.

In addition, the tenancy agreement should have a condition that if housing benefit is being received and if the local authority do not pay direct, then the landlord will bring the tenancy to an end (I am pondering exact wording and of course the Guild tenancy agreements will be amended before 1 April 2011).

Assist in retaining a tenancy

When this regulation takes effect on 1 April 2011, landlords in the early stages are going to have to hold their nerve and be a little ruthless in my view. Basically, once the regulation comes in and the tenant is receiving payment but the landlord wishes to receive direct payment from the 1 April onwards, the landlord will have to serve a section 21 notice (if possible e.g. depending on fixed term etc.) and then make a request to the local authority seeking direct payment. The landlord should state that if direct payment is not made, possession will be sought. However, in my view, I think in the early stages landlords will have to follow through with their threats in order to achieve a similar result to the previous regulations where local authorities never queried the consent power.

We will work on a suitably worded notice for landlords to serve on local authorities which will be available before 1 April.
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Before entering any premises in exercise of the power conferred by subsection (3), the authorised person or proper officer must have given at least 24 hours’ notice of his intention to do so—

(a) to the owner of the premises (if known), and
(b) to the occupier (if any).”

24 Hours notice is not required where:

“the local housing authority consider that any premises need to be entered for the purpose of ascertaining whether an offence has been committed under section 72, 95 or 234(3)”.

These offences are:

• operating an unlicensed HMO which is required to be licensed under Part 2 of the Act (section 72(1));
• exceeding the specified occupancy limit in a licensed HMO (section 72(2));
• failing to comply with a licence condition in a licensed HMO (section 72(3));
• operating an unlicensed property which is required to be licensed under a selective licensing scheme (section 95(1));
• failing to comply with a licence condition in a property licensed under a selective licensing scheme (section 95(2)); or
• failing to comply with the HMO Management Regulations (section 234(3)).

However, it is important to note that local authorities must still give at least 24 hours notice when investigating possible offences of failing to comply with Improvement Notices and/or (Emergency) Prohibition Orders under Part 1 of the Act. Where there is a problem with gaining access, or where giving notice may defeat the purpose of entry, the authorised officer may need to consider obtaining a warrant.

In Evans v LB Campden, the improvement notice was quashed because the local authority had failed to give the notice.

“the purpose of section 239(5) is to give a mandatory warning to the occupiers and owners of the inspection and some opportunity to deal with it before the inspection and the service of a notice. Lack of warning in this instance deprived Mr. and Mrs. Evans of such an opportunity and in the Tribunal’s view has invalidated the subsequent steps taken by the respondent in serving the Notice and it cannot now be relied upon.”

In Martin Thomas v Bristol CC it was confirmed:

“when Parliament gave local housing authorities the power to enter properties in order to exercise what may be draconian powers, it intended that both the owner and the occupier of the property should have notice so they could prepare for the inspection.”

In St John the Baptist College, University of Oxford v Vale of White House DC which was an appeal against an improvement notice, the local authority had been invited in to the property and so gave no notice.

“The inspection by the respondent’s officer was not illegal or unlawful as he was invited into the premises but the inspection could not form the basis of an enforcement action under Housing Act 2004.”

See also Williams v Monmouthshire County Council May 2009 RPT/HA04/S11

However, going against the grain of the above decisions, in Cheltenham Construction Ltd. v Gloucester CC, Mrs Thomas, the council officer had been invited to inspect the property, by the tenant. As she was concerned about fire safety, Mrs Thomas visited again on 22nd August with a Fire Prevention Officer. The officers agreed there was a category 1 fire hazard, which justified Emergency Remedial Action. Works were carried out and a notice was subsequently served on the owner.

The Tribunal accepted that the 24 hour notice had been given to the owner in respect of the second visit, however they did not consider this notice was necessary. The tribunal said (paragraphs 47-48 of the decision)

“No question arises as to whether or not the Respondent gave the appropriate notice of that visit because Mrs Thomas went to Flat 3 at the invitation of the tenant………There is no need for the respondent to exercise that power if it is invited into the property……..It follows that there was no requirement to give notice under Section 239(5) to either the owner or the occupier.”

It would seem that if a notice of inspection has been served on a couple of occasions previously but the landlord didn’t attend and the local authority are subsequently invited in (in this case 3 days after the notice) then enforcement action may be taken as a result of the inspection. [Craig v Milton Keynes Council (2011)].

LACORS (now Local Government Regulation) provide some useful guidance (where this article is sourced) and they state in this guidance:

LACORS does not believe it is necessary to give 24 hours notice to the owner and occupier if the LHA has been contacted by the occupier and invited into the property to carry out an inspection. In these circumstances, the authorised officer is not formally exercising their power of entry – they are simply responding to a request from the occupant. However the likely need for enforcement action needs to be considered before the visit and a decision made on whether to give notice of entry.

And continues …

One reason for reaching this decision is the nonsensical position that would otherwise be reached if the opposite position applied. For example, assume an authorised officer had been invited into a property by the occupier to investigate an urgent complaint of dangerous electrics. If, on visiting the property, the authorised officer discovered live electrical cables at floor level in a young child’s bedroom and considered that the situation presented a category one hazard with an imminent risk of serious harm, should the officer be able to proceed with Emergency Remedial Action (ERA)? If 24 hours notice of inspection must be given to the owner and occupier, the answer would be no – the officer would need to walk away and leave the occupants at imminent risk of harm, only to return and re-inspect the property once at least 24 hours notice had been given. The decision to include ERA powers in the Act implies the LHA must be able to respond promptly when they encounter such a situation. If this advice is later overturned by a court or lands tribunal decision that sets precedence, LACORS believes that the Government would need to consider changes to the primary legislation.

It is respectfully submitted that although LACORS are providing a very extreme example above, they are missing the point. The law provides that a landlord does not have to carry out works of repair under section 11 Landlord and Tenant Act 1985 until he is either aware or could reasonably be aware works are required or is put on notice of the defect. From that point, the work must be done “expeditiously” [O'Brien v Robinson [1973] A.C. 912]. Rather than walking away as suggested above, it is submitted they shouldn’t have gone round in the first place without giving prior notice (which s.239(5) makes clear).

The clear intention in our view behind the requirement to give notice is not just to keep an element of control over local authorities but also as was stated in Martin Thomas v Bristol CC and Evans v LB Campden above that the purpose is to allow both owner and occupier to prepare and have an opportunity to get works done before the inspection.

If notice is not required where the LA has been invited as suggested by LACORS, the landlord has no opportunity whatsoever to comply with his section 11 duty and promptly get the works done before the inspection takes place. Afterall, using the example provided by LACORS above, it is unlikely that situation literally arose in a split second. It will no doubt have been in that situation for some time and a further 24 hours is unlikely to make any difference in reality.

The purpose of notice is surely to allow the landlord to promptly act before any inspection takes place and quite rightly avoid any emergency action that may be taken by the local authority? If the landlord has not had time to go prior to inspection but attends at the time of the inspection it must surely be better that the landlord could say “come back in a couple of hours and the electrics will be fixed“.

It is entirely accepted in the example given above, if after 24 hours notice the landlord fails to take action prior to inspection or fails to attend the inspection, then, the local authority is quite within their moral and legal rights to carry out the works (if that is the appropriate course of action).

Most significant cases are listed including appeals relating to prohibition orders and improvement notices. The hazards include excess cold, falling on stairs and procedural issues.

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Upper Tribunal

Bolton Metropolitan Borough Council v Patel [2010] UKUT 334 (LC)

This appeal was in relation to the interpretation of “imminent risk” which is a requirement of emergency remedial action or an emergency prohibition order. However, interesting comments were also made about assessments (highlights added):

It is to be noted that what the inspector was required to do was to produce an assessment of the likelihood of any one case occurring in a 12 month period and the percentage possibilities of each class of harm, not in relation to the actual occupiers but in relation to an occupier of 65 or over [excess cold]. [para 29]

The factual basis of the score for Excess Cold here was that the house was without central heating, with space heating being provided by halogen heaters.  The actual occupants of the house were not relevant to the scoring system, since the score had to be based on the likelihood of a “relevant occupier” suffering harm as the result of the hazard, and the relevant occupier for Excess Cold is a person aged 65 or more… [para 38]

The local authority had calculated excess cold hazard due to the central heating not working as a 1 in 10 chance of a 31.6 percent possibility of death or other serious harm “imminently” despite the fact that the occupiers had halogen heaters. This resulted in a score of 31600, a “remarkably high score”.

The RPT said that it was not convinced that the likelihood of serious harm from excess cold was as high as the as the council claimed.  Its reasons for saying this were that, in contrast to the council’s suggestion, the weather forecast showed that it was not unusually cold for the time of year; that in any event the occupiers were not wholly without heating; and that they had already been without heating for several months.  Those were matters that led the RPT, essentially as a matter of common sense, to question the very high hazard rating that the council’s assessment showed… [para 40]

Onto the question of “imminent risk” and “serious harm”:

Serious harm means anything contained (but not limited to) in the hierarchy of harm contained in the HHSRSR2005 excluding class 4 (moderate harm).

… As far as “serious harm” is concerned, it said that the Act did not offer any guidance as to what sort of harm constitutes “serious harm”. That is correct, but the Regulations do identify a hierarchy of harm– extreme harm (Class I), severe harm (Class II), serious harm (Class III) and moderate harm (Class IV). Thus, for the purposes of the Regulations serious harm excludes moderate harm, and, although there is no express provision requiring the Regulations to identify what harm is serious harm for the purposes of section 40, it is, I think, implicit in section 2 that the Regulations will, or at least may, include this identification. Certainly, it seems to me, an authority could not be criticised if they treated as serious harm any harm falling within Classes I, II and III (excluding, therefore, Class IV), and in my view it would be right for them to do so. [para 41]

And, “imminent risk” is essentially established from the likelihood element of the hazard calculation (highlights added):

“… The adjective “imminent” is obviously not there for the purpose of suggesting that the risk must be one that does not at present exist but is likely to arise soon. It is perhaps in the nature of a transferred epithet qualifying “serious harm” – the risk must be one of serious harm being suffered soon. The degree of risk (or the likelihood, or the chance) that a state of affairs may give rise to an incidence of harm is necessarily time-related. That is why the Regulations require an inspector to assess the likelihood of harm being suffered within a specified period. The use of “imminent” implies, in my judgment, a good chance that the harm will be suffered in the near future. …” [para 43]

Hanlet v Tameside Metropolitan Borough Council [2010] UKUT 351 (LC)

If something complies with building regs (or could easily be made to comply) this is a “material consideration” for a tribunal:

Firstly, in paragraph 23 of the decision the RPT says that where a hazard has been identified under the provisions of the Housing Act 2004, compliance with the Building Regulations is not a material consideration.  I have no doubt that, stated thus bluntly, that is an error of law.  It must be a “material consideration” whether something that is said to be a hazard either complies with the building regulations or might, without too much trouble, be made to comply with the building regulations. It is evident from the HHSRS Operating Guidance that in many instances (hazards on stairs for example; see paragraph 21.29) the building regulations are directly relevant.  Of course, the fact that a situation that is described as a hazard nonetheless complies with the building regulations does not mean that it cannot be a hazard. It is possible for a hazard under the Housing Act and HHSRS Regulations to comply with the building regulations, yet still be a hazard … in my view, is plainly a material consideration that the Tribunal must bear in mind. [para 25]

Secondly it does not seem to me to be accurate to say that compliance with the Building Regulations in remedial work will only be material to the extent that it removes the identified hazard. (my underlining) In the case of stairs there will always be some residual hazard. Compliance with the building regulations might reduce the hazard.  In the context of this legislation the distinction is important. The reduction in hazard might mean that if the matter was recalculated it would be a hazard of a different order. It might mean that the RPT or relevant authority might take a different view of the action that is required. [para 26]

Luton Borough Council v Universal Group HA/6/2007

The landlord had disconnected the water and electricity supply to the property (it would seem on purpose for eviction purposes) and LBC carried out emergency remedial action reinstating the services. The RPT stated that an emergency prohibition order was more appropriate as submitted by the landlord (who had a vested interest in obtaining such an order because the tenants would have to vacate) and Luton appealed.

Luton produced much more evidence than they did at the RPT hearing and submitted:

… that the draconian step of an emergency prohibition order could only be justified where no other measure can reasonably be expected to enable the tenant to occupy his home in safety. Any interference with the right to occupy must be necessary, not just desirable. It is a matter of proportionality. If, as in this case, the tenant could remain in his home if works costing £215.00 were carried out it would not have been proportionate to evict him from his home, probably putting him on the street. Article 8 of the Convention on Human Rights was applicable: see Cosic v Croatia: ECHR Application 28261/06 at para.22 [para 25]

The Lands Chamber agreed:

In the present case on the evidence before me (as opposed to the different evidence which was put before the RPT) there is no basis for assertion that Luton failed to carry out the necessary procedural steps in acting as it did. There were (as was common ground) category 1 hazards on the premises. Those could be dealt with, and were dealt with, at a cost of £215. No reasonable person would have considered it justifiable to deprive Mr Skepelhorn of his home in order to avoid executing work costing £215. Luton’s decision to carry out its obligation to take appropriate enforcement action by taking emergency remedial action was the correct decision. If it had decided (as Universal suggested) that an emergency prohibition order would have been the proper course, that would have been an impeachable decision because the enforcement action would not have been the appropriate enforcement action. [para 29]

Residential Property Tribunal

Procedure

Aggarwal v Leicester City Council Midland Rent Assessment Panel 4 Feb 2010

Paragraph 10(1) Housing Act 2004 provides that “the person on whom an improvement notice is served may appeal to a residential property tribunal against the notice”. The applicant in this case was one of two persons and the tribunal considered if both persons needed to make the application.

… It would be perverse if one of two persons acting alone could not appeal, if, for instance the other owner was unwilling to make an appeal, was out of the jurisdiction or lacked capacity.

Paxman v Hastings Borough Council CHI/21UD/HIN/2009/0013 9 October 2009

The landlord had basically carried out all works required by the improvement notice by the time of the hearing. Although perhaps academic, the tribunal quashed the notice because they directed themselves that they had to consider the notice at the time of the hearing and therefore had no choice to quash the notice even though it was probably correct at the time the notice was served by the local authority.

Paragraph 15(2) of the [Housing Act 2004] Schedule provides that the appeal “is to be by way of a re-hearing” and that it “may be determined having regard to matters of which the local authority was unaware.” Under paragraph 15(3) the Tribunal has the power to “confirm, quash or vary” the improvement notice. The Tribunal is directed by paragraph 15(2) … to conduct a “re-hearing” of the issue of the improvement notice. [para 19]

and continues …

The tribunal considers that paragraph 15(2) of Schedule 1 to the Act plainly directs that the appeal is to be considered in the light of the circumstances which exist at the date of the hearing. We are therefore permitted to consider the condition of the property at the date of the hearing  … Furthermore, the process of rehearing means that the conduct of the local authority is not generally relevant to this appeal, save insofar as to whether it is appropriate for the tribunal to “confirm” the improvement notice. [para 21]

Authors note: There is a concession at paragraph 26 which states “Even if we are wrong about the above …” I suspect they are. It is submitted that the term “re-hearing” means a “re-hearing” as at the time the local authority made the original decision to serve notice. The hearing is not a “fresh-hearing” for example. This is confirmed by the tribunal being allowed to consider “matters of which the local authority was unaware” The term “was unaware” being in the past tense.

Ms Rani Patel (Appellant) vs London Borough of Brent (Respondent) CI/LON/00AE/HPO/2009/0004 23 November 2009

A local authority may not “withdraw” an improvement notice (or prohibition order). It must be varied or revoked (see Section 16 & 25 of Part 1, Housing Act 2004 which sets out the revocation and variation process for improvement and prohibition notices.)

Evans v LB Camden

This appeal against an improvement notice was heard on 29 August 2007 and was subsequently upheld; because no prior notice of entry had been given to the owner or occupier.

The improvement notice required works to an individual flat in a building containing ten flats. Camden had not received a complaint about this flat, although it had received a complaint about the common parts of the property. When the council officer visited to inspect the common parts following this complaint, he asked to see the flat occupied by the tenant who was showing him around. This inspection led to the service of the improvement notice on the flat, without any prior notice of entry to the flat having been given.

In the Camden RPT decision, the panel said:

“the purpose of section 239(5) is to give a mandatory warning to the occupiers and owners of the inspection and some opportunity to deal with it before the inspection and the service of a notice. Lack of warning in this instance deprived Mr. and Mrs. Evans of such an opportunity and in the Tribunal’s view has invalidated the subsequent steps taken by the respondent in serving the Notice and it cannot now be relied upon.”

However, the judgement makes no direct reference to circumstances where an authorised officer is invited into a property following a complaint from the tenant.

LB Camden was refused leave to appeal to the Lands Tribunal in respect of this decision. As a result, this judgement will set no precedence but could still be taken into account in any future RPT hearing.

Julie Moser (Appellant), Cornwall Council (Respondent) CHI/15UB/HIN/2009/009 21 October 2009

The property lacked any form of heating, the only electric lighting was from table lamps, there was no hot water, the kitchen facilities were basic, electric sockets were present which could have been used for heaters but were not, there was a broken and unstable shower. The local authority issued an improvement notice.

Section 239 Housing Act 2004 requires 24 hours notice to be given by a local authority to the occupiers and owners of the property before entry for the purpose of an inspection.

The Tribunal determined that as no proper notice had been given before the premises were entered by the Council, this entry was unlawful and the Improvement Notice was invalid and therefore quashed. [Also see Evans v LB Campden above and  Reading Borough Council (Respondent) vs Mr J Humble (Appellant) CAM/00MC/HIN/2008/0012 1 April 2009]

Similar to above, a copy of an improvement notice must be served on anybody with a charge on the property (e.g. mortgage company).

In, Weingreen Ltd. (Appellant) and Lichfield District Council (Respondent) the Tribunal  declared that the Council had made a significant omission by failing to serve a copy of the improvement notice, within 7 days, on Nationwide Building Society who have a relevant interest as mortgagee.  They therefore determined that the improvement notice was invalid and quashed it.

Miss Rosemary Lazarus vs. Babergh District Council CAM/42UB/HPO/2009/0001 30 July 2009

An emergency prohibition order was incorrectly issued against the property. The EPO was revoked from the time it was issued and so had the effect that it never existed.

[Authors note: This is particularly important wording within the Housing Act and in our view is a useful remedy because if costs were incurred during the prohibition order (e.g. re-housing) which were then found not to be needed, compensation from the local authority via normal complaints procedure may be possible.]

Burton v Cheltenham Borough Council CH1/23UB/HIN/2007/0009 27 November 2007

Although this case may be best placed under the excess cold category below, the case deals with the usual, namely, the local authority failed to consider existing heating in the property (albeit not perfect electric heating). However, in particular the tribunal pointed out:

Paragraph 4.01c of the operating guidance requires the inspector to make an assessment “for each hazard which is obviously worse than average for that age and type of property”.  The Tribunal has to ask whether the state of the Flat on 17 July was obviously worse than the average, particularly in respect of the provision of heating in the Flat.  The Tribunal has had the benefit of inspecting the Flat.  Given the Tribunal’s finding as to the work which was outstanding at the time of the inspection on 17 July and that only 3 heaters were required to bring it up to standard, the Tribunal is not persuaded that the state of the Flat was “obviously worse” than the average.  This view is reinforced by Mr. Dhalech’s evidence that most properties in the private sector would now have a heating hazard… [para 61]

Excess Cold

Mermelstein v London Borough of Camden LON/00AG/HIN/2010/0015 12 August 2010

An improvement notice was served requiring full heating system, double glazing and wall insulation “as a package” to rid the property of a category 1 excess cold hazard. Before the hearing it was agreed by the landlord that heating and secondary double glazing would be installed but wished to appeal against the wall insulation.

The tribunal found that once you take into account the new heating and secondary double glazing, there would be no category 1 hazard left and so wall insulation not required.

Aldford Two LLP v The City Council of Bristol CHI/00HB/HIN/2009/0020 14 January 2010

The property contained standard electric heaters and the local authority said they were insufficient in number and inadequate because they were expensive to run.

The tribunal found a category 1 hazard exists. However, the improvement notice requiring central heating or night storage heaters was quashed:

However and notwithstanding the above the Tribunal had noted from their inspection firstly that the tenants themselves had no complaint about the heating and were happy to control it for the time and the hours that they wanted in the respective rooms. Secondly that notwithstanding that it was a cold day outside the premises appeared to be warm and adequately heated. Thirdly and based on the Tribunal members’ own knowledge and inspection of many similar premises, that the heating system that was provided at these premises should be perfectly adequate and is not abnormal for these types of premises. [para 6.2]

Permission to appeal was refused.

[Authors note: It is submitted that despite the comment "a category 1 hazard exists" this is not likely to be correct. If the place felt warm inside when it was cold outside, how can there be a category 1 (severe likelihood and risk of serious harm) within the property due to being cold?]

Lamvale Properties Ltd v Westminster City Council LON/00BK/HIN/2008/06 18 December 2008

The local authority were “insisting” on gas central heating in a large 5 storey house. The landlord offered a Kalierel Electric System but this was refused by the local authority.

The local authority based the requirement of gas heating on internal guidance but that guidance was not “statutory guidance” and so could not be followed [see para 20 for that very important point. It is submitted that also applies to LACORS fire safety guidance for the "Fire" Hazard].

The statutory guidance requires “Heating should be controllable by the occupants, and safely and properly installed and maintained. It should be appropriate to the design, layout and construction, such that the whole of the dwelling can be adequately and efficiently heated.”

On the basis of the evidence before us the Kalirel Electric System satisfied those requirements and we considered that the Respondent’s insistence on a gas fired system was unreasonable.

Thompson (for the Irene Thompson Trust) v Newcastle under Lyme Borough Council BIR/41UE/HIN/2008/0006 15 October 2008

The local authority calculated the hazard of excess cold based on “average”, yet the property had roof insulation, double glazing and central heating. As the tribunal points out, the averages contained in the guidance are based on 65+ years where there is no heating etc.

The boiler was very old and noisy so the local authority required a new one.

… the Respondent, advised that in her judgment the property was worse than average, although she had scored it as average. She based her judgment  on the fact that the property is a Schindler construction which is known to be defective with poor thermal insulation of the structure. Mrs Fraser acknowledged in response to questions from the panel, that the property is located in an estate of similarly constructed houses, where most would not have functioning central heating with individual controls on the radiators and an additional gas fire in the living room, partial double glazing, roof space insulation of some 250 mm in depth including the roof hatch, nor cavity wall insulation, but maintained her view that the fact of the Schindler construction was sufficient to treat the property as average.

The Tribunal rejected that opinion. The Tribunal started from the position that an average house, constructed between 1946 and 1979, did not have the benefit of 250mm roof space insulation, cavity wall insulation, part double glazing and full central heating with an additional radiant gas fire. The tribunal decided that these additional features meant that this particular house was better than average. [paras 29.1.2 & 29.1.3]

Fogden v Bath & North East Somerset Council CHI/00HA/HIN/2008/0007 9 October 2008

The local authority required by the improvement notice “Install electric night storage heaters with off peak electricity in each bedsit and in the common areas. In addition, provide modern panel type heaters with timers and thermostatic controls to each bedsit.”

It is unclear if the term “in addition” was a mistake but the tribunal varied the notice to be an alternative rather than both required.

The Tribunal has underlined the words “In addition” and wonders whether this is rather excessive as a mandatory requirement of work. It quite accepts the proviso at the end of the Schedule under the section “Important Notes and Permissions” where it says “Alternative works may be acceptable through consultation with the case officer.” Much will depend on how easy it will be to achieve the heating temperature standard required. However the Tribunal takes the view that as a statutory requirement, the provision of both electric night storage heaters and panel type heaters in the bedsits is excessive and considers that they should be alternatives, rather than additional. [para 18]

[Authors note: This adds further clarity that the provision of panel heaters will normally be sufficient as long as 21 degrees is achieved inside when the temperature is 5 degrees outside (although many authorities quote -1 degrees outside as being the requirement).]

Electrical Hazards

Mr M Hanley (Appellant) vs High Peak Borough Council (Respondent) BIR/17UH/HIN/2009/0007 26 August 2009

The tribunal noted during inspection that the electrics although maybe old, seemed to be in reasonable repair, however, professional reports had indicated an earthing problem. It was clear that the electrics did not meet current regulations (because the consumer unit was wired fuses). The local authority had categorised the hazard as category 1 (the worst type).

The Tribunal particularly noted that they were not provided with any information from the council relating to the hazard score of the electrical installation which led them to determine a category 1 hazard existed. In undertaking its own calculation the tribunal determined a band E risk score which equates to a category 2 hazard. An improvement notice relating to a category 2 hazard must be served under section 12 of the Act.

The Tribunal quashed the Improvement Notice and having regard to the facts made no order for costs.

Falling on Stairs

Application by Milton Gordon Wright against a Prohibition Order served by Cannock Chase District Council 1 December 2008

The conversion had made the original staircase – which previously led into the rest of the house – an exit leading directly to the external half glass door and steps.  The Prohibition Order required remedial action including a staircase with reduced pitch and works complying with building regulations as well as proper loft insulation and heating in all rooms.

There was agreement between the appellant and respondent on the remedial action needed, but disagreement on the amount of work needed to remedy the steep staircase.  The appellant argued that other properties in the terrace had similar staircases and should therefore also be subject to a Prohibition Order.  In reaching its decision, the Tribunal considered the enforcement guidance and operating guidance for Housing Act 2004 and took account of the situation at the time of the hearing as well as before (as this was a rehearing).  They believed the scoring and the hazards had been correctly identified by the council, but thought the making of a Prohibition Order was disproportionate to the risk presented by the hazards.  They therefore ordered that the Prohibition Notice be revoked and replaced with an Improvement Notice effective 21 days after the date of the decision.

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I thought it might be worthwhile writing an article about this for the benefit of subscribers because the appeals procedure is particularly complicated.

What works can the local authority require?

Section 4 Prevention of Damage by Pests Act 1949 allows a local authority to serve notice on an owner or occupier requiring them to take steps that should be taken for the destruction of rats or mice on the land or otherwise for keeping the land free from rats and mice.

The works normally required will be the removal of waste but any such notice may in particular require—

How long must the local authority give to comply with the works?

A “reasonable period” must be specified in the notice allowing time to comply with the necessary works.

Can I appeal the notice?

There is a statutory right of appeal and an appeal must be lodged within 21 days [s.300(2) Public Health Act 1936].

In our recent case, the local authority gave 10 days to comply with the notice and it is submitted this was not a “reasonable period” because it was less than the statutory right of appeal (this is untested to my knowledge but a good argument if nothing else).

What is the appeal procedure?

Subsections (3) to (5) of section 290 and sections 300 to 302 Public Health Act 1936 provides for an appeal to be at a summary court (Magistrates’ Court) and applies to an appeal for a notice served under section 4 Prevention of Damage by Pests Act 1949 [s.4(5) PDPA 1949].

Section 300(1) Public Health Act 1936 provides that the procedure shall be by way of complaint for an order, and the Summary Jurisdiction Acts shall apply to the proceedings.

An appeal must therefore be made as a complaint to the Magistrates’ Court under sections 51 and 52 Magistrates’ Court Act 1980 and the making of the complaint shall be deemed to be the bringing of the appeal [s.300(2) Public Health Act 1936].

Note: Because of the complexity and rare use of this appeal, you are well advised to lodge the appeal (complaint) well before the 21 days. In our case, the Magistrates’ Court had absolutely no idea as to the procedure and despite us explaining, they wished to do their own research. This took over four days to resolve due to the legal advisor being at another court and other interruptions. You don’t want to have the same problem on the maximum allowed 21 days otherwise the appeal could be invalid.

What is a complaint?

When the police allege a crime that requires a summons to be issued for the attendance of the accused, they will “lay an information”. This is a document which sets out certain information including details of any alleged offence. A complaint is very similar in nature and it is “laid” in the same way. However, instead of alleging a criminal offence, it is a complaint. It can be used for example in certain highway cases where a local authority is failing to carry out necessary works. It is also used in certain appeal cases like the one discussed here.

The person making the complaint is known as the “complainant” and the appeal will be against the “defendant” (the local authority).

How do I lay a complaint?

There is no statutory form that is required. A sample form is available at the bottom of this page for subscribers. It needs to be taken into the local Magistrates’ Court and it must be signed by the clerk or a Justice of the Peace (Magistrate). You will be required to swear on oath or affirm that the contents of the complaint are true.

The local authority will then be summonsed to appear and the appeal will take place in the Magistrates’ Court. You should attend any trial held and you will be notified of all trial dates.

It would seem that once the complaint has been laid (by the complainant), the complainant becomes the “appellant” (see s.290(5) Public Health Act 1936 for example).

What are the grounds of appeal?

There are specific grounds of appeal that must be used. Simply disagreeing with the notice is not enough.

The grounds are as laid out in section 290(3) Public Health Act 1936 and are discussed individually below

(a) that the notice or requirement is not justified by the terms of the section under which it purports to have been given or made

For the purposes of this case (prevention of rats and mice), this ground would be used if the works required in the notice would have no effect on the intention of section 4 (rats and mice). For example if the notice required the exterior of the property to be painted an appeal under this ground would be suitable.

(b) that there has been some informality, defect or error in, or in connection with, the notice;

This ground is as it sounds although it should be noted there is no prescribed form so the use of this ground may be fairly limited. However, in our recent case as discussed above, the local authority sought for the works to be done within 10 days from service of the notice.  The notice also stated that if I failed to take the steps required by the notice “within the time specified”, the local authority may themselves take those steps and recover from the landlord any expenses reasonably incurred.

It is submitted this was a material defect because the notice threatened the recovery of expenses at a time before the statutory right of appeal had expired.

However, the court shall dismiss the appeal, if it is satisfied that the informality, defect or error was not a material one [s.290(4) Public Health Act 1936].

(c) that the authority have refused unreasonably to approve the execution of alternative works, or that the works required by the notice to be executed are otherwise unreasonable in character or extent, or are unnecessary;

This ground would be used if you proposed some other works that would have the same effect of removing the harbouring of rats and mice but the local authority refuse those proposed works.

(d) that the time within which the works are to be executed is not reasonably sufficient for the purpose;

It is submitted any time given less than 21 days (the statutory right of appeal) will not be reasonably sufficient for the purpose for the reasons given above. Anything extra will depend on the circumstances and urgency of the problem.

(e) that the notice might lawfully have been served on the occupier of the premises in question instead of on the owner, or on the owner instead of on the occupier, and that it would have been equitable for it to have been so served;

This will be one of the most common grounds for a landlord to use. Essentially, any waste will normally be the tenants waste and so [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']it is submitted the occupier should be the one to carry out necessary works assuming it is the occupier that has caused the problem.

In addition, section 290(5) states:

…

In exercising its powers under this subsection, the court shall have regard—

(a) as between an owner and an occupier, to the terms and conditions, whether contractual or statutory, of the tenancy and to the nature of the works required; and

(b) in any case, to the degree of benefit to be derived by the different persons concerned.

…

(f) where the work is work for the common benefit of the premises in question and other premises, that some other person, being the owner or occupier of premises to be benefited, ought to contribute towards the expenses of executing any works required.

This ground is similar to (e) above and essentially the landlords argument will be that the occupier will benefit more because they didn’t have to incur in expenses in disposing of the waste because presumably the occupiers simply dumped the waste at the property. It should be mentioned that if the works are reasonable, the occupiers should contribute towards the expenses, the proportion being 100% of the costs.

Copies of the complaint (appeal)

Where the grounds (e) or (f) above are relied upon (where either somebody else should have been served the notice or somebody else should contribute towards the expenses) the appellant must serve a copy of the notice of appeal (complaint) on each other person referred to, and in the case of any appeal you may serve a copy of the notice of appeal on any other person having an estate or interest in the premises in question [s.290(5) Public Health Act 1936].

What action can be taken if I don’t appeal?

If you fail to lodge an appeal, the local authority may themselves take the steps and recover from you any expenses reasonably incurred by them in doing so [s.5(1) Prevention of Damage by Pests Act 1949]. In addition, a person who fails to take any steps as aforesaid shall be guilty of an offence and liable on summary conviction to a fine not exceeding in the case of a first offence level 3 on the standard scale, and in the case of a second or any subsequent offence level 3 on the standard scale [s.5(2)].

Any expenses are recoverable as a simple contract debt [s.7(1)].

In proceedings for the recovery of any expenses incurred by the local authority, it shall not be open to you to raise by way of a defence, any question which you could have raised on an appeal [s.7(3)].

Where a local authority have incurred expenses for the repayment of which the owner of the premises is liable, those expenses, together with interest from the date of service of a demand for the expenses, may be recovered from the person who is the owner of the premises at the date when the works are completed, or, if he has ceased to be the owner of the premises before the date when a demand for the expenses is served, either from him or from the person who is the owner at the date when the demand is served, and, as from the date of the completion of the works, the expenses and interest accrued shall, until recovered, be a charge on the premises and on all estates and interests therein [s.291(1) Public Health Act 1936].

The tenant may in certain circumstances be ordered to pay any amounts due to the local authority by way of deducting from the rent and thereby ordered to pay the local authority the rent instead of paying the landlord [s.291(2)].

The local authority may also recover any expenses incurred from a managing agent although in this case, it is limited to the amount of rent in hand the agent holds (so the agent can never be personally liable to pay the debt) [s.294 Public Health Act 1936].

Sample notice

A sample notice (with the names removed) is available for subscribers. It contains the defence that we used in our case so will need amending for your particular case but it should provide a good starting point. If you are interested, after serving a copy of the appeal / complaint on the local authority, they withdrew their notice (although it seems the tenant had also made attempts to clear most of the waste).

Sample notice available here.

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Under Section 48 Landlord and Tenant Act 1987, it is a requirement that a landlord shall by notice furnish the tenant with an address in England and Wales at which notices (including notices in proceedings) may be served on him by the tenant.

However, this does not have to be a personal home address, it maybe any address (for example an agent address) as long as it is in England or Wales and the landlord will accept notices served at that address.

An application for a licence for an HMO is made under section 63 Housing Act 2004. Regulations have been made which specifies the type of information that may be required by a local authority namely, Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006 and Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (Wales) Regulations 2006. (As amended.)

Paragraph 2 of Schedule 2 (link to England) contains the information that may be required by the local authority in an application and this information includes:

The name, address, telephone number and e-mail address of–

(i) the applicant;

(ii) the proposed licence holder;

(iii) the person managing the HMO or house;

(iv) the person having control of the HMO or house; and

(v) any person who has agreed to be bound by a condition contained in the licence;

Note how the requirement [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']is to provide name and address … There is nothing mentioned about a “home” address (which it is submitted would need to be mentioned)

This requirement to supply name and address etc. can be compared to the Housing (Tenancy Deposits)(Prescribed Information) Order 2007 made under the same Housing Act 2004. In these regulations, it is a requirement for the landlord to supply “the name, address, telephone number, and any e-mail address or fax number of the landlord” to the tenant.

In Paula O’Brien v Jacqueline Jones & Andrew Alexander (T/A Belvoir Huntingdon). Northampton County Court, Claim No 9KG00335 12/02/2010, the tenant claimed that the landlord (and agent) had failed to comply with the prescribed information order because they had failed to supply the landlords home address and instead had provided the agents address.

The court (county court so not binding) held that there was no requirement under the prescribed information order to provide a “home” address and therefore the providing of the same address as used for the purposes of s.48 (in this case the agent address) was sufficient.

It is submitted that this principle would follow for licence applications. The only key difference is that under the prescribed information order, the information is supplied to the tenant whereas the licence application is supplied to the local authority and therefore s.48 doesn’t apply the same.

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I thought it worth while to compile everything together and have a quick summary of the latest announcements.

No further red tape

Of the three million private tenants in this country, the vast majority report they are satisfied with the service they receive from their landlords.

Speaking in Parliament, Mr Shapps confirmed that with the private rented sector already governed by a well established legal framework, the Government has no plans to introduce any further regulations.

Instead, he urged councils to use the wide range of powers they already have at their disposal to tackle the minority of rogue landlords that blight some communities, provide a poor service to tenants and damage the reputation of the private rented sector.

Council powers include:

• Powers to require landlords to take action to rectify hazards in their property;
• Where landlords resist, the ability to make and charge for improvements and to prohibit use of the affected parts of the property; and
• Discretionary licensing powers to tackle areas blighted by poorly managed privately rented stock.

National Register of Landlords, regulation of letting agents and written agreements

New regulations were proposed by the previous administration in response to the Rugg Review of the Private Rented Sector, but have been judged by the new coalition to introduce too much additional red tape. These included a National Register of Landlords, regulation of letting and managing agents, and compulsory written tenancy agreements.

Grant Shapps said:

“With the vast majority of England’s three million private tenants happy with the service they receive, I am satisfied that the current system strikes the right balance between the rights and responsibilities of tenants and landlords.

“So today I make a promise to good landlords across the country: the Government has no plans to create any burdensome red tape and bureaucracy, so you are able to continue providing a service to your tenants.

“But for the bad landlords, I am putting councils on alert to use the range of powers already at their disposal to make sure tenants are properly protected.”

HMO Planning requirements

Currently planning permission is required in England when changing use from a family home (class C3) to an HMO (class C4). See this article for full information

However, Housing Minister Grant Shapps has announced that councils will have greater flexibility to manage concentrations of shared housing in their area, without tying landlords in red tape.

A high concentration of shared homes can sometimes cause problems, especially if too many properties in one area are let to short term tenants with little stake in the local community.

So changes to legislation will give councils the freedom to choose areas where landlords must submit a planning application to rent their properties to unrelated tenants – known as Houses in Multiple Occupation (HMOs).

It is estimated that as many as 8,500 planning applications could be submitted each year if every landlord looking to turn their property into a HMO is first required to seek permission – instead, councils will be able to focus their efforts in particular neighbourhoods where HMOs present a problem, while landlords of HMOs in other areas will not be tied up in red tape.

Housing Minister Grant Shapps said:

“Councils know about local issues with shared homes, and don’t need top-down rules from Whitehall to deal with problems that don’t exist. Where too many shared homes are causing problems for other residents or changing the character of a neighbourhood, councils should be able to control their spread. But I’m not going to create unnecessary costs for landlords, which puts the supply of rented homes at risk.

“That’s why I’m giving councils the power to decide whether to use the planning system to control the spread of shared housing where it is a problem.  This will give them the flexibility to make decisions that are right for their communities, rather than stifling the rental market with unnecessary costs and red tape.

“Shared homes ensure people who want to live and work in towns and cities can do so, and are vital to the economy. These changes will safeguard the supply of shared housing where it is needed without burdening landlords with cumbersome red tape – but will also hand councils the flexibility they need to tackle problems where they occur.”

Liz Peace, chief executive of the British Property Federation, said:

“Grant Shapps has taken quick and decisive action after this law was rushed through in April without sufficient clarification. At a time when council resource is scarce and housing is needed it makes no sense to be forcing thousands of local landlords and planning officers to be engaged in unnecessary bureaucracy. The Minister said last week that deregulation would characterise his approach to the private rented sector and as with other moves to cut red tape, these are further welcome steps.”

Removing this one blanket requirement follows the Government’s commitment to scrap one size fits-all solutions in the planning system that create unnecessary bureaucracy and costs for councils and businesses.

Note: At the time this article is written, planning permission is still required, so a landlord must still obtain planning permission currently. Above are only proposals at the moment.

When will HMO planning change?

It has been reported that the changes discussed above will take place on 1 October 2010, however, it is unclear where this date comes from. The Communities website says “Consultation with interested partners on this issue will ensure that the new rules work effectively for local people without placing an unnecessary burden on landlords and local planning authorities.” It seems 1 October is rather optimistic (but perfectly possible) if there is to be a consultation process before the changes.

AST Threshold change

There are no plans to change the threshold from £25,000 to £100,000 for when a tenancy is an assured [shorthold] tenancy so this will still take effect from 1 October 2010. See this article for details on this change.

What are ‘third party deductions?

Benefit customers should normally meet their household expenses from their income, like everyone else. But in some cases, the Department for Work and Pensions (DWP) can deduct money straight from a customer’s benefit to clear debts. These are called ‘third party deductions’.

The third party deduction scheme is for a vulnerable minority of benefit customers who have got arrears of essential household costs and haven’t budgeted for their debts. Third party deductions are only used if there’s no other way to clear the debts without putting the welfare of the customer or their family at risk.

Third party deductions can’t be made on request simply for the creditor or customer’s convenience. They must show that all other attempts to budget properly have failed (such as payment plans, and changing the frequency or amounts of payments).

Why are third party deductions used?

The main use of third party deductions is as a last-resort protection for vulnerable customers in debt. By helping people with debt management, it helps them become more responsible with their finances. Third party deductions are only made where it is in the interest of the individual or family – to avoid the severe hardship caused by eviction or disconnection of utilities, and preventing imprisonment for the non-payment of council tax or fines.

Creditors (including landlords) must always first [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']take reasonable action to help their customer with arrears.

How the scheme works

Under the scheme, DWP deducts a set amount from the customer’s benefit and pays it direct to the creditor until the debt’s cleared. Deductions are usually to clear arrears of housing, fuel and/or water costs.

The amount DWP can deduct is regulated. At September 2009, the rate is £3.25 per item. If there’s more than one deduction, the maximum amount DWP can deduct is £9.75 (three deductions).

Once a debt is paid off, a third party deduction will usually end. In some cases where the customer obviously can’t manage their money, a deduction may continue to cover ongoing costs. This only happens if there’s no alternative. For ongoing fuel or water costs, DWP can change the amount deducted based on the current amount used by the customer and billed by the supplier.

Who can apply and how to apply

Two groups can apply to the scheme:

• customers (or their appointees), and
• creditors, suppliers or landlords.

There’s a standard application form for creditors to request third party deductions (see below). Send the completed form to the centre for the area where the customer lives – the pension centre for Pension Credit and the benefit delivery centre for all other benefits.

How DWP decides about third party deductions

To decide whether or not third party deductions are appropriate, DWP will consider:
Is the customer getting one of the specified benefits?

• Is there a threat of court action, eviction or disconnection?
• Are there outstanding arrears?
• Is the customer or their partner liable for the debt? A customer or their partner will normally be liable for the debt if named on the bill, whilst they remain a couple. There may be occasions where we can’t make third party deductions, for instance deductions may not be made if the debt is the responsibility of a partner who has left the customer (unless the partner is eligible for third party deductions in their own right),
• Is it in the interests of the family?
• Will the customer be left with sufficient amount of benefit (10p benefit) in order to qualify for passported benefits?
• Does the debt take priority over other debts?
• Are three third party deductions already being made?

Further Guidance

Further guidance (where this article was taken from) is available via a useful DWP publication here. This guidance also contains a standard suggested application letter.[/amember_protect]

This has several issues

• There is undue burdens on the county court making possession orders that are not defendable
• The £175.00 court fee will be awarded against the tenant which the landlord is entitled to recover from the tenant
• There is undue delay on the landlord getting back his property when he has done all he must

In fact, this policy of not determining a tenant as homelessness when a valid section 21 notice has expired would appear to be contrary to the Housing Act 1996 and statutory guidance made under the Act.

The Law

Definition of homelessness and threatened with homelessness

Section 175 Housing Act 1996 defines homelessness and threatened with homelessness[amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']:

(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he–
(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court,
(b) has an express or implied licence to occupy, or
(c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.
(2) A person is also homeless if he has accommodation but–
(a) he cannot secure entry to it, or
(b) it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to reside in it.
(3) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.
(4) A person is threatened with homelessness if it is likely that he will become homeless within 28 days.

The important parts are (3) and (4) highlighted above.

According to sub(3) a tenant only has accommodation if it is “reasonable for him to continue to occupy”. And importantly a person is “threatened” with homelessness if it is likely they will become homeless within 28 days i.e. after a section 21 notice has expired.

What we propose to show in this article is that (a) a tenant is threatened with homelessness 28 days before the valid section 21 notice has expired (so the authority must ensure accommodation does not cease to be available) and (b) that the moment the valid section 21 notice expires, that it is no longer reasonable for the tenant to occupy (and therefore the tenant is regarded as homeless).

Housing Advice Centres

Section 179 Housing Act 1996 requires that “Every local housing authority shall secure that advice and information about homelessness, and the prevention of homelessness, is available free of charge to any person in their district.”

It is because of section 179 above that there are many housing advice centres and the like.

Duty of authority to make enquiries

Section 184 Housing Act 1996 requires the local authority upon an application by a tenant to make enquiries as to whether they are homeless or threatened with homelessness.

s. 184 Inquiry into cases of homelessness or threatened homelessness.
(1) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves–
(a) whether he is eligible for assistance, and
(b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.
(2) They may also make inquiries whether he has a local connection with the district of another local housing authority in England, Wales or Scotland.
(3) On completing their inquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision.
(4) If the authority have notified or intend to notify another local housing authority under section 198 (referral of cases), they shall at the same time notify the applicant of that decision and inform him of the reasons for it.
(5) A notice under subsection (3) or (4) shall also inform the applicant of his right to request a review of the decision and of the time within which such a request must be made (see section 202).
(6) Notice required to be given to a person under this section shall be given in writing and, if not received by him, shall be treated as having been given to him if it is made available at the authority’s office for a reasonable period for collection by him or on his behalf.

It is this section that most authorities fail to adhere to. A tenant will approach the authority and sometimes make an application. However, they are immediately told that in order to be eligible for assistance, the landlord must first obtain a court order. This is usually done without making any enquiries whatsoever. Essentially this is a “policy”, which, as will be shown later is unlawful.

Priority Need

In order for an authority to house a person, most of the legislation we refer to here requires the tenant to be in “priority need”. Priority need is defined by section 189 Housing Act 1996.

s 189 Priority need for accommodation.
(1) The following have a priority need for accommodation–
(a) a pregnant woman or a person with whom she resides or might reasonably be expected to reside;
(b) a person with whom dependent children reside or might reasonably be expected to reside;
(c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;
(d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster.
…

Further descriptions may be made by order and currently, orders made under s189 are:

• Homeless Persons (Priority Need) (Wales) Order 2001/607; and
• Homelessness (Priority Need for Accommodation) (England) Order 2002/2051

Duty of authority if they find a tenant is “threatened with homelessness”

The reason why local authorities do not wish to accept a tenant as being threatened with homelessness is because of section 195 Housing Act 1996. This provides that they must ensure accommodation does not cease to be available.

s. 195 Duties in case of threatened homelessness.
(1) This section applies where the local housing authority are satisfied that an applicant is threatened with homelessness and is eligible for assistance.
(2) If the authority–
(a) are satisfied that he has a priority need, and
(b) are not satisfied that he became threatened with homelessness intentionally,
they shall take reasonable steps to secure that accommodation does not cease to be available for his occupation.

Duty of authority if they find tenant is homeless (because it is not reasonable for them to continue to occupy)

s 193 Duty to persons with priority need who are not homeless intentionally.
(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.

(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.

(3) …

(3A) The authority shall, on becoming subject to the duty under this section, give the applicant a copy of the statement included in their allocation scheme by virtue of section 167(1A) (policy on offering choice to people allocated housing accommodation under Part 6).
(5) The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section.
…

Statutory Guidance

Section 182 Housing Act 1996 provides that the Secretary of State may produce statutory guidance and that local authorities “shall” have regard to that guidance.

s 182 Guidance by the Secretary of State.
(1) In the exercise of their functions relating to homelessness and the prevention of homelessness, a local housing authority or social services authority shall have regard to such guidance as may from time to time be given by the Secretary of State.
(2) The Secretary of State may give guidance either generally or to specified descriptions of authorities.

The guidance referred to above is called Homelessness Code of Guidance for Local Authorities: July 2006. Page 73 is the key page of interest to us and reads as follows:

Tenant given notice of intention to recover possession
8.30. In cases where the applicant has been occupying accommodation as a tenant and has received a valid notice to quit, or a notice that the landlord intends to recover possession, housing authorities should consider the scope for preventing homelessness through consulting the landlord at an early stage to explore the possibility of the tenancy being allowed to continue or the tenant being allowed to remain for a reasonable period to provide an opportunity for alternative accommodation to be found. If the landlord is not persuaded to agree, the authority will need to consider whether it would be reasonable for the applicant to continue to occupy the accommodation once the valid notice has expired.
8.31. In determining whether it would be reasonable for an applicant to continue to occupy
accommodation, the housing authority will need to consider all the factors relevant to the case and decide the weight that individual factors should attract. As well as the factors set out elsewhere in this chapter, other factors which may be relevant include the general cost to the housing authority, the position of the tenant, the position of the landlord, the likelihood that the landlord will actually proceed with possession proceedings, and the burden on the courts of unnecessary proceedings where there is no defence to a possession claim (see paragraphs 8.14 and 8.15 above for guidance on the right to occupy where notice of possession proceedings has been given).
8.32. Each case must be decided on its facts, so housing authorities should not adopt a
general policy of accepting – or refusing to accept – applicants as homeless or threatened with homelessness when they are threatened with eviction but a court has not yet made an order for possession or issued a warrant of execution. In any case where a housing authority decides that it would be reasonable for an applicant to continue to occupy their accommodation after a valid notice has expired – and therefore decides that he or she is not yet homeless or threatened with homelessness – that decision will need to be based on sound reasons which should be made clear to
the applicant in writing (see Chapter 6 for guidance on housing authorities’ duties to inform applicants of their decisions). The Secretary of State considers that where a person applies for accommodation or assistance in obtaining accommodation, and:
(a) the person is an assured shorthold tenant who has received proper notice in accordance with s.21 of the Housing Act 1988;
(b) the housing authority is satisfied that the landlord intends to seek possession; and
(c) there would be no defence to an application for a possession order;
then it is unlikely to be reasonable for the applicant to continue to occupy the accommodation beyond the date given in the s.21 notice, unless the housing authority is taking steps to persuade the landlord to withdraw the notice or allow the tenant to continue to occupy the accommodation for a reasonable period to provide an opportunity for alternative accommodation to be found.

Assuming you have read page 73 above, I probably need say no more. It is absolutely clear that the Secretary of State considers that “where a valid section 21 notice has been served, and there is no defence to the notice, then “it is unlikely to be reasonable for the applicant to occupy the accommodation beyond the date given in the s.21 notice.”

Therefore, according to s.175(3) Housing Act 1996, the applicant is regarded in law as homeless according to the statutory guidance.

Position of tenant between the date of a possession order being granted but before bailiffs attend.

Where a landlord has obtained a possession order from the court and the date which the court stated that the tenant should leave by has passed but bailiffs have not actually evicted, the position is clear. A tenant is treated as threatened with homelessness. R. v Newham LBC Ex p. Khan (2001) 33 H.L.R. 29.

Abstract: A possession order was granted in favour of the landlord in respect of the house K occupied. K applied for housing assistance for herself and her extended family based on the threat of homelessness. NLBC deferred taking action to accommodate the family, informing them to stay in the house until the bailiffs evicted them. When K was evicted the council offered unsuitable temporary accommodation in Great Yarmouth. K’s request that the family should be housed together was refused. K applied for judicial review of NLBC’s decision to provide accommodation which was unsuitable and only when eviction had occurred, thereby failing to fulfil their statutory duty under the Housing Act 1996 s. 195.

Summary: Held, allowing the application, that (1) in the period between the order for possession and K’s actual eviction, she was not classed as homeless under s. 175(1)(c) of the Act, R. v Newham LBC Ex p. Sacupima Times, January 12, 2000 disapproved, but rather as threatened with homelessness. Accordingly NLBC had erred in failing to take steps immediately under s. 184 of the Act to determine whether K was eligible for assistance and, in priority need and whether a duty was owed to her under s. 195 of the Act, and (2) NLBC had acted unreasonably in not seeking to house K with her family.

A problem with time before a possession order has been granted

There is a major problem with what the local authority should do before a landlord does obtain a possession order from the court. In a case in 1994, R v London Borough of Croyden ex parte Jarvis [1994] 26 H.L.R. 194, It was decided by way of a Judicial Review that despite what the legislation and guidance stated, it could in certain circumstances be reasonable for a local authority to require a court order before regarding the tenant as homeless.

There are differences in this case though.

Firstly, this case was based on the Housing Act 1985 (the appropriate sections have been replaced by Housing Act 1996). However, after comparing the sections, the wording in the new Housing Act 1996 is almost identical to the old wording in the 1985 Act.

Secondly, the guidance was old guidance with different wording. However, the wording used did still state that local authorities should not require tenants to fight possession action where the landlord has a certain prospect of success. Though these words were used in the old guidance, in our view the new July 2006 guidance is much more strongly worded (in particular by announcing in bold type font what the Secretary of State believes).

Thirdly, in this case, the local authority had at least considered the tenants position and due to a lack of housing reached the decision they did, which the court agreed with. However, this article is not concerned with an authority genuinely arriving at a decision after careful thought. We are concerned with the blanket policy of most authorities that make no consideration whatsoever and simply state (not even in writing in most cases!) that the landlord must obtain a possession order before they will consider them as homeless. It is this blanket policy that we say is unlawful.

Indeed, the current statutory guidance specifically states “housing authorities should not adopt a general policy of accepting – or refusing to accept – applicants as homeless or threatened with homelessness when they are threatened with eviction but a court has not yet made an order for possession or issued a warrant of execution.”

To our knowledge, this strong wording was not in the old guidance used in the 1994 case detailed above.

A summary of the case is below:

194 R. v. London Borough of Croydon ex parte. Jarvis

Queen’s Bench Division

QBD

Mr. A. Collins, Q.C.

September 22-23, 1993

Introduction

By section 62 of the Housing Act 1985 (Encyclopedia, para. 1-0142), where a local housing authority have reason to believe that an applicant for accommodation may be homeless or threatened with homelessness, they must make inquiries to satisfy themselves whether the applicant is homeless or threatened with homelessness, whether he is priority need and whether he is intentionally homeless.

Section 58 of the Act (Encyclopedia, para. 1-0117) defines homelessness for the purposes of Part III. By section 58(2)(a), a person may be treated as having accommodation if he occupies premises as a residence “… by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.” However, by section 58(2A) and (2B):
“(2A) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy;
(2B) Regard may be had, in determining whether it would be reasonable for a person to continue to occupy accommodation, to the general circumstances prevailing in relation to housing in the district of the local housing authority to whom he has applied for accommodation …”

By section 58(4):
“A person is threatened with homelessness if it is likely that he will become homeless within 28 days.”

In paragraph 5.10 of the Code of Guidance issued under section 71 of the Act (Encyclopedia, para. 4-2457), the following guidance is given:
“Someone is defined as ‘threatened with homelessness’ if he or she is likely to become homeless within 28 days. Authorities should, however, be ready to advise and assist people where the possibility of their becoming homeless is known to the authority more than 28 days in advance … Authorities will wish to avoid adding to the stress of uncertainty to existing stresses and should therefore keep the applicant up to date with the arrangements that will be made to assist them.”

Paragraph 10.12 recommends that:
“Local authorities should not require tenants to fight a possession action where the landlord has a certain prospect of success, such as an action for recovery of property let on an assured shorthold tenant, on the ground that the fixed term of the tenancy has ended. Authorities need only be satisfied that proper notice had been served with the intention to proceed …”

Under section 60 of the 1985 Act (Encyclopedia, para. 1-0127), in deciding whether an applicant is intentionally homeless, an authority must also consider whether it would have been reasonable for the applicant to continue to occupy the premises which he has lost. In both R. v. Portsmouth City Council, ex p. Knight (1983) 10 H.L.R. 115, *195 and R. v. Surrey Heath Borough Council, ex p. Li (1984) 15 H.L.R. 79, it was held that where a license to occupy had been terminated it was not reasonable for the former licensee to continue to occupy the premises.

Where an occupier has been granted an assured shorthold tenancy pursuant to section 20 of the Housing Act 1988 (Encyclopedia, para. 1-1691), the landlord enjoys a mandatory ground for possession of the premises. Assured tenancies generally cannot be brought to an end by a landlord except by his obtaining an order from the court: section 5 ibid .

Facts

In August 1991, the applicant took an assured shorthold tenancy for one year, expiring at the end of August 1992. On July 15, 1991, her landlord served notice on her that he required possession of the premises on September 18, 1991.

Having received the notice, the applicant took legal advice and the solicitors acting on her behalf wrote to the respondents on July 22, asking them to deal with an application for accommodation under Part III of the Housing Act 1985, notwithstanding that she was not yet threatened with homelessness within 28 days. The respondents replied that they considered it reasonable for the applicant to remain in occupation of the premises until an order for possession was obtained against her, notwithstanding that she would then be liable for the costs of the hearing.

On August 23, 1991, the applicant made a formal application for housing to the respondents. On September 9, 1991, the respondents wrote to the applicant with their decision that she was considered to be neither homeless nor threatened with homelessness and that she could reasonably expected be to remain in the accommodation until the landlord obtained a possession order.

On November 19, 1991, the applicant lodged an application for judicial review of the decision. On November 20, 1991, her landlord obtained an order for possession against her and was awarded £175 costs. Subsequently, the respondents accepted the application, and rehoused the applicant in June 1992. The judicial review proceedings continued in respect of a claim for damages only.

Held (dismissing the application)
(1) The provisions of section 58 suggest that in seeking to balance the needs of those who become homeless through no fault of their own against the needs of those who have for some time perhaps been awaiting satisfactory accommodation on a long housing list, Parliament has said that those who are not able to be evicted except by a court order should be treated as not homeless so long as they retain that protection;
(2) Accordingly, it is not necessarily wrong for authorities to assert that it is reasonable for a person in the applicant’s position to continue in occupation until an order for possession is made; if they do so, they must recognise that the approach has been deprecated by the Code of Guidance, and that it means a landlord is being put to an expense, as is the tenant or ex-tenant;
(3) In this case, the respondents gave careful thought to what they were going to do, and gave the applicant’s legal advisers detailed reasons in advance and explained why they were doing what they were doing;
(4) The same result would not necessarily follow when considering intentionality under section 60 of the Housing Act 1985. *196

What to do about the situation

At the least, a complaint should be made first using the local authorities complaints procedure and ultimately the local government ombudsman. Or, in extreme urgent cases, Judicial Review, despite the case that failed detailed above. This is because we are under a new Housing Act and new guidance to that case.

Ideally what would be needed is a willing tenant because they would be entitled to legal aid.

If any member has a willing tenant, we can look at the case and possibly seek permission for a Judicial Review although the most appropriate course of action would be a formal complaint. [/amember_protect]

An example of when Judicial Review might be used is if a local authority refused to make a decision over payment to a landlord of Housing Benefit. In this example, the authority are under a duty to decide whether on to make payment. Once a decision has been made, that decision is available to appeal. However, if no decision is made then you can’t appeal a lack of a decision. That is where Judicial Review comes in. Assuming your argument was correct, in this example they would be able to force the council into making a decision.

Permission must be sought before any actual proceedings and a letter before action must always be sent.

Time limits for seeking permission are very stringent. [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']Any action must be taken promptly and not greater than three months.

If a case examiner from the alternative dispute resolution under the tenancy deposit schemes acts unlawfully in making a decision, Judicial Review might be the only option for a landlord (or tenant) because there is no appeal against any decision made under ADR. We are looking into the possibility of querying a deposit schemes adjudication under the Arbitration Act.

The rules that apply to Judicial Review are here

The pre-action protocol that must be followed is here

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