NHAS symposium

Maintaining the Homelessness Safety Net

Housing Law Update

John Gallagher

Transfer of possession proceedings for

enforcement in the High Court

Where a county court makes a possession order against an

occupier, the landlord can apply to the court to transfer the

proceedings to the High Court under s.42 County Courts Act 1984

The landlord must then apply to the High Court for permission to

issue a writ of possession and give notice of the application to the

tenant

Permission not needed for writ of possession against:

mortgage borrowers

trespassers

Writ is then executed by HCEOs: no notice of eviction necessary.

Nicholas v Secretary of State for Defence

N was the wife of an officer in the RAF living on an airbase

Relationship broke down and he left

MoD obtained possession order against N

MoD applied for a writ of possession

executed by High Court enforcement officers without notice to N

N applied to set aside writ of possession

High Ct: landlord must give notice to occupier of intention to apply for

a writ of possession

Failure to give notice means that the occupier has no chance to

apply to the court for relief

This was a ground for setting aside the writ even after eviction.

Council had entrusted enforcement of possession orders

against tenants to enforcement agents

Agents had been obtaining writs of possession using the

`automatic’ court form available against trespassers

So that tenants had no notice either of the application for

a writ of possession or of the eviction itself

Birmingham County Court: this was `side-stepping’ the

Civil Procedure Rules

Court should carefully consider in each case whether

there were good reasons to “transfer up”.

Birmingham City Council v Mondhlani

The Deregulation Act 2015

and its effect on section 21 notices

S21 Notices: why should we be

interested?

The number of people and families living in private

rented sector accommodation has tripled since 2000.

A quarter of possession claims made in October to

December 2015 (25%) were accelerated claims. This

proportion has risen from 7% in 1999 to 25% in 2015.

37,663 accelerated possession claims were issued in

2015 and 31,105 orders made. (MoJ figures)

New restrictions on s21 Notices might make it harder for

private landlords to obtain possession orders on the

basis of s21.

Accelerated possession procedure

Is available to landlords if :

An assured shorthold tenant

The fixed term agreement has expired

The agreement is in writing or the tenancy follows on

from a fixed term which was in writing

The claim is solely for possession (not rent arrears)

A valid section 21 notice has been served (= section 21,

Housing Act 1988)

The notice has expired and the tenant has not moved

out.

s21 Restrictions prior to 1 October 2015

A section 21 notice would not be valid for tenancies before

this date if:

the tenant was not given two months clear notice (NB

special rules if tenant never had a fixed term)

Any tenancy deposit had not been properly protected in

one of the government authorised schemes (DPS)

The landlord had not given the tenant the prescribed

information about the DPS before serving the notice

The landlord should have had a licence to rent out the

property and did not have one (e.g. HMO or local council

requirement)

Deregulation Act 2015

The following changes to section 21 HA 1988 will only

apply to:

New tenancies beginning after 1 October 2015

Any replacement tenancy beginning after 1 October

2015

All tenancies in existence 3 years after 1 October 2018.

Deregulation Act 2015

Expiry date of section 21(4) notice for tenancies which

have always been periodic (i.e. no fixed term)

This will now be a simple `2 calendar months’: no longer

any need for the notice to state that possession is required

after the last day of a period of the tenancy.

new s.21(4ZA), HA 1988

s21 Restrictions post 1 October 2015

(1) Procedural changes

A section 21 Notice will not be valid if

It is not in the prescribed form (Form 6A)

new s.21(8), HA 1988

It is served within first four months of original tenancy

new s.21(4B), HA 1988

The claim for possession is issued after 6 months of date

of service of the s21. Notices only have a `life span’ of

6 months.

new s.21(4D), HA 1988

s21 Restrictions post 1 October 2015

(2) Tenancy Deposit Protection

A section 21 notice is invalid:

if the deposit was not protected within 30 days of

receipt; unless (in most cases) the deposit has been

returned to the tenant before the s.21 notice is served;

or

if the Prescribed Information about TDP has not been

given to the tenant before the s.21 notice is served.

s. 215 Housing Act 2004 (as amended by the Localism Act 2011 s.184)

Tenancy Deposit Protection

Deregulation Act changes: overturn the effect of the

Superstrike case

A s21 Notice will now be valid for post 6 April 2007

tenancies :

Where an initial fixed term tenancy and TDP

requirements are complied with, they will be treated as

complied with for any subsequent statutory periodic

tenancy (assuming deposit still protected) OR

Where there is a `renewal’ of the fixed term tenancy,

and TDP requirements were complied with during the

original tenancy, they will be treated as complied with

for the new tenancy as well OR

Tenancy Deposit Protection (TDP)

Deposit was protected outside 30 days of the original

fixed term and remains protected in any following

statutory periodic tenancy (SPT) or renewed tenancy OR

If there was a later replacement fixed term tenancy or

SPT and the deposit was protected within 30 days of

start date of that tenancy and remains protected

new s215B Housing Act 2004

AND PI given before service of s21 Notice

Tenancy Deposit Protection

A s21 Notice will be valid for pre 6 April 2007 tenancies if:

If the original tenancy started before 6 April 2007 but the

fixed term ended after that date and then became a

statutory periodic tenancy (SPT) and remained so and

the landlord protected the deposit before 23 May 2015

new s215A Housing Act 2004

if the deposit was received before 6 April 2007, there

has been no new tenancy since that date (not even an

SPT) and the landlord has protected it before service of

s.21 Notice new s215(1) Housing Act 2004

AND PI given before service of s21 Notice

s21 Restrictions post 1 October 2015

(3) Prescribed Information

Nor will a section 21 Notice will be valid if

If the landlord is in breach of a `prescribed requirement’

(= failure to supply gas safe certificate or energy

performance certificate) new s.21A, HA 1988

NB uncertainty as to whether these certificates must be

served prior to start of tenancy or prior to service of s21

notice.

If the landlord is in breach of a requirement to provide

prescribed information (= the DCLG booklet `How to

Rent’) new s.21B, HA 1988

Nor if:

it is served within 6 months of a `relevant notice’ OR

and in most cases if it is served after the tenant wrote to

the landlord about disrepair AND the landlord failed to

act AND the tenant then contacted the Council AND the

Council has served a `relevant notice’.

`Relevant notice’ = improvement notice or notice of

emergency remedial action

s21 Restrictions post 1 October 2015

(4) Retaliatory eviction

Retaliatory eviction

So, in the second scenario, a tenant may have a defence to

the actual possession claim if:

Tenant made a complaint in writing to the landlord about

condition of the property

Landlord did not provide an “adequate response” within

14 days or instead served a s.21 notice

Tenant then made a complaint to local authority (LA)

Landlord then served a s.21 notice (if not previously)

LA served a `relevant notice’ on landlord

Retaliatory eviction (3)

Protection does not apply where:

Condition of house is due to the tenant’s own breach of

tenancy obligations

Property is “genuinely on the market for sale”

Landlord’s lender is seeking possession following

mortgage default

Landlord is a housing association

Still interested in s21 Notices?

We hope so… because

if the landlord’s s21 Notice is invalid for any one of the

above reasons then a judge must dismiss the landlord’s

claim for possession AND

the tenant will be able to continue living in their home

until the landlord complies with the law AND

homelessness will have been prevented.

Priority need: Vulnerability

The old test:

is the applicant less able to fend for him/herself

so that (s)he would suffer injury or harm when street homeless

when someone else would cope without harmful effects

R v. LB Camden ex parte Pereira

Osmani v L.B. Camden

Johnson v Solihull MBC

Council: decided J was not vulnerable because he was no less able to fend for himself if street homeless than an ordinary homeless person who was affected by drug use

J argued that Council had applied the wrong test, by comparing him with other persons with drug and mental health problems

H suffered from learning disabilities, depression and PTSD and had self-harmed

He relied on his brother for daily personal support

Council decided that because H received assistance from his brother, he was less likely to come to harm and was therefore not vulnerable

Hotak v Southwark LBC

Kanu v Southwark LBC

K suffered from a number of health problems, including hepatitis B, high blood pressure and depression with psychotic symptoms

His symptoms were controlled by medication and he had his wife and son to help him with everyday living needs

Council decided that the support of his family would be sufficient to safeguard K if street homeless

K argued that the Public Sector Equality Duty (PSED) under s.149 Equality Act 2010 required the council to give more intense consideration to such decisions where disability is concerned.

Vulnerability: Supreme Court decision (1)

Does the assessment of vulnerability involve a comparison?

Yes: but the correct comparison is with the ordinary person if made homeless, not the `ordinary homeless person’

The authority must conduct a composite assessment of the characteristics and problems of the particular applicant

The authority’s resources are not relevant to vulnerability

But the applicant must be be significantly more vulnerable than the ordinary person as a result of being homeless and must be likely to suffer more than many others would in the same position.

Vulnerability: Supreme Court decision (2)

Can the authority take into account care provided by a relative

or other person?

Yes: care or support, whether given by health services, etc, or by individuals, can be taken into account

but only if it is provided on a consistent and predictable basis

Great care must be taken in deciding whether the care will really be effective when the person is homeless

and even if care is available, it will not necessarily remove the vulnerability.

Vulnerability: Supreme Court decision (3)

Does the Equality Act add anything to the decision-making

process?

Yes, but it is a duty of substance, not of form

It requires the decision-maker to focus sharply on whether the applicant is disabled; the extent of the disability; the effect of the disability; and whether these factors make him/her vulnerable

The Equality Act requires rigorous consideration where disability or another protected characteristic is involved.

Haile v LB Waltham Forest

Ms H had an AST of a single room

Oct 2011: when pregnant, she left the room because of unpleasant

cooking smells

Feb 2012: daughter born

Council decided that the test of intentional homelessness was to be

applied at the date the applicant left the accommodation in question,

not the date of decision (Din v Wandsworth LBC (1983))

and that H became homeless intentionally

H appealed to Supreme Court

Haile v LB Waltham Forest (2)

Supreme Court:

The rule that the test of intentionality had to be applied at the date

when the applicant left her last settled accommodation was still good

law

But there had to be a continuing causal connection between the

deliberate act and the current homelessness

A later event which would have been an involuntary cause of

homelessness could supersede the earlier deliberate conduct

The birth of H’s baby would have caused her to become homeless in

any event

She had not `jumped the queue’ and should not be regarded as

intentionally homeless.

Nzolameso v City of Westminster

N and her five children had lived in Westminster for several years

Until they were evicted as a result of the benefit cap

Council accepted full housing duty under s.193 HA 1996

And offered her temporary accommodation in Bletchley

S.208 HA 1996: Authorities must “so far as practicable secure that

accommodation is available for the applicant in their own district”

N refused offer and Council discharged duty

N appealed to the Supreme Court

Nzolameso v City of Westminster (2)

Supreme Court:

Westminster had failed to justify why they considered the Bletchley

accommodation to be suitable for the particular family

If it was not possible to accommodate an applicant in the LA’s own

area, the authority must try to find accommodation that is as close

as possible to her/his previous home.

Authority required to give reasons for any decision on where to

accommodate a homeless applicant

Nzolameso v City of Westminster (3)

Section 11 Children Act 2004 requires public authorities to make

arrangements for ensuring that:

"(a) their functions are discharged having regard to the need

to safeguard and promote the welfare of children; and

(b) any services provided by another person pursuant to

arrangements made by the person or body in the discharge of

their functions are provided having regard to that need.”

Authorities must assess the needs of the applicant’s children and

take account of them when making an offer of accommodation.

Nzolameso v City of Westminster (4)

Supreme Court accepted that authorities are entitled to take account

of the resources available to them

Westminster had no evidence of what accommodation was available

in or near its area.

Each authority should have a policy for procuring sufficient units of

accommodation to meet the demand and explaining the factors

involved in deciding how the available properties are allocated to

homeless families.

Mohamoud v Kensington and Chelsea RLBC

Saleem v LB Wandsworth

Both families found intentionally homeless

Councils began possession proceedings to evict them from their

interim accommodation

M and S appealed, on the ground that the Council ought first to have

assessed and considered the best interests of the children

Court of Appeal: Council were not under a positive duty in every case

to conduct an assessment of the children’s needs

Any such duty would be “extraordinarily burdensome in terms of cost

and resources and – in the overwhelming number of cases – simply

futile”

S has applied for permission to appeal to the Supreme Court.

Samuels v Birmingham CC

Ms S and her four children were evicted from private rented

accommodation because of rent arrears

S was in receipt of income support, CTC, CB and HB

There was a shortfall of £151.49 in her monthly rent

Council decided she was intentionally homeless:

“I consider that it is a matter of normal household budgeting that you

would manage your household finances in such a way as to ensure

that you were able to meet your rental obligation. I cannot accept that

there was not sufficient flexibility in your overall household income of

in excess of £311 per week to meet a weekly shortfall in rent of £34.”

Samuels v Birmingham CC (2)

Code of Guidance –

“In considering an applicant’s residual income after meeting the costs

of the accommodation, the Secretary of State recommends that

housing authorities regard accommodation as not being affordable if

the applicant would be left with a residual income which would be less

than the level of income support or income-based jobseeker’s

allowance that is applicable in respect of the applicant…” (§17.40)

Samuels v Birmingham CC (3)

Court of Appeal –

Appeal dismissed

There was no starting point that any rent shortfall which required to

be paid out of subsistence level benefits would be unaffordable

A judgment had to be made on all forms of income and relevant

expenses

Benefits income had no special status

Although HB was specifically related to the costs of housing, it did

not follow that other benefits were not intended to assist with housing

costs.

Poshteh v Kensington and Chelsea RLBC

Ms P had suffered imprisonment and torture in Iran

She was granted indefinite leave to remain in UK

Council made her a final offer of accommodation

She suffered a panic attack because of a round window in the living room,

which reminded her of the prison windows

Reviewing officer: not “objectively reasonable” that the conditions in the

flat recreated the conditions of confinement or that this was likely to

have a significant impact on P’s mental health.

Court of Appeal (2:1): review officer entitled to find that the property would

not have the feared adverse effects on P’s mental health

He was aware of his duty under the Equality Act to focus on whether, in the

light of P’s disability, it was reasonable for her to accept the offer of

accommodation.