case law update and asb moving forward support/wm resources/case law update... · case law update...

Case Law Update and ASB –

moving forward

By Lindsay Felstead

and Paul Lloyd

‘These materials and slides are intended for guidance only and not

as a substitute for legal advice or using formal reference

documents such as current legislation and case law.’

Case Law Update




NTQ – Joint tenancy

Sims v Dacorum BC [2013] EWCA Civ 12

– 2002 - Joint tenancy granted to husband & wife

– 2010 – wife left property due to alleged DV

– NTQ served by wife

– Possession proceedings issued against husband

– Defended on basis of rule re: NTQ ending joint

tenancy is incompatible with Article 8 rights

• Leapfrog appeal to Court of Appeal

• Permission to appeal to Supreme Court?

• Appeal refused – no incompatibility

NTQ – Elderly tenant

Birmingham CC v Howell & Beech [2013]EWHC 513

Joint secure tenancy granted to (W) & husband

W succeeded to tenancy upon husbands death

Daughter (H) & her husband (B) moved in

Daughter sought to have name added to

tenancy

W went into hospital & then care home

HO attended care home & obtained NTQ

Possession proceedings issued

Proceedings defended on 4 grounds:

1. NTQ invalid – undue influence or unconscionable behaviour of HO

2. Decision not to allow joint tenancy or new tenancy following death of W unlawful

3. Art 8 – proportionality

4. Survivorship incompatible with Art 8

• Order = possession of the property

• NTQ valid

• Refusal to add as joint tenant lawful

• Decision not to grant a new tenancy lawful

• Proportionality test of “seriously arguable” not

satisfied

• Incompatibility argument not engaged

Public law – following of p&p

Leicester CC v Shearer [2013] EWCA Civ 1467

• Mr S secure tenant following succession

• Mr S resided at property with wife & children

• Mrs S & children vacated property – children still visited

• Mr S died - Mrs S moved back into property

• Council operated a Choice Based Letting Scheme = ability to

make direct offer of accommodation in exceptional

circumstances

• Mrs S advised that couldn’t remain at property

• Mrs not told about possibility of direct offer

• Possession proceedings issued

• County Court refused possession – appeal to CoA

CoA – dismissed Authority’s appeal:

– Authority provided misleading advice

– Although not bound to make a direct offer they

had acted unlawfully by failing to give proper

consideration to her exceptional circumstances

Squatters & Article 8

Malik v Fassenfelt, McGahon & Persons Unknown [2013] EWCA Civ 798

• Squatters (x) entered land without permission &

established a home

• M applied for possession

• Judge held that Court a public authority & so ECHA

capable of application

• X argued possession disproportionate (Art 8)

• Possession order made

• Appeal that no discretion to suspend a po in case of

trespassers should be relaxed so as to comply with Art 8

• CoA held:

• - entitled to protection of Art 8

• - difficult to imagine exceptional circumstances

Proportionality at all stages

R(JL) v Secret. of State for Defence [2013] EWCA Civ

449

• JL lived in accommodation owned by MoD

• JL disabled and in a wheelchair

• Lived with 2 adult daughters & grandchild

• 1 daughter had mental health problems

• Grandson suffered from Crohn’s disease

• Possession proceedings issued & Art 8 raised unsuccessfully

• Appeal to CoA dismissed – Judge right to consider that all

relevant factors taken account of.

• Court could in principle consider proportionality at possession

AND enforcement stage but:

– change in circumstances required

– Possible abuse of process if not raised at order stage

Use of hearsay

Boyd v Incommunities Ltd [2013] EWCA Civ 756

• Possession sought on Grounds 10, 12 & 14 of HA ‘88

• ASB alleged Jan 2010 – Nov 2010 & that property

used as a drug den in Dec 2010

• Judge found all grounds proven save for property used

as drug den

• SPO made

• Appeal to CoA relating to courts finding of ASB based

solely on 3 anonymous w/s exhibited to HO w/s. Art 6

– unable to test evidence as accusers not known

• At trial, objection raised to use of hearsay statements

& substantial xx as to circumstances & manner in

which statements had been taken

• CoA held that Judge had not erred in accepting

the anonymous evidence in preference to that of

the Defendant

• Practice of admitting hearsay evidence well

established

• Judge had referred to guidance given in previous

judgments

• Judge had acted properly in finding that

reasonable for the 3 residents to remain

anonymous

• Note – ensure that w/s are Civil Evidence Act

compliant!

Discretion as to cause of action

Birmingham CC v James [2013] EWCA Civ 552

• J appealed against the grant of an Injunction to

Restrain Gang Violence

• mens rea necessary & hadn’t deliberately

provoked violence

• Court wrong to find Injunction was necessary

when alternative remedy of a “closer fit” was

available i.e. ASBO

• Held: Judge entitled to consider test satisfied on

the evidence & there is no “closest fit” principle.

Refusal to make ASBI

Swan HA v Gill [2013] EWCA Civ 1566

• S applied for an ASBI as a result of G’s asb

• Judge found that G had engaged in asb but noted that

S had recently become aware that G had Asperger’s

syndrome.

• No medical evidence of conditon

• Held that S should have reviewed position upon

awareness of condition = contravened EA 2010 & s149

public sector equality duty

• Held that grant of Injunction would allow S to

contravene & subject G to considerable detriment

• Finding of Asperger’s syndrome not properly supported

by evidence

• S arguably was a public authority for s149, court was not

• S35 EA only applied to a person who was actually

disabled

• Asperger’s manifested itself across a wide spectrum from

slight to severe = medical evidence necessary to identify

extent & effect

• Injunction order made

Suitable Alternative Accommodation

Holt v Reading BC [2013] EWCA Civ 641

• Appellant resided with mother (secure tenant) succeeded

to tenancy

• Respondent served Notice relying on Ground 16

• Appellant refused offers of alternative accommodation

• Possession proceedings issued

• No liver offer of a particular property at the time of the

trial

• Possession order made conditional on offer of property

• Appealed on basis that should be no order until a specific

property identified

• CoA = appeal dismissed. Court has to be satisfied that

sac will be available at the time the order takes effect

Section 21 Notices

Spencer v Taylor

• AST granted to T in Feb 2006 – period was Sun to Sat

• Oct 2011 s21(4)(a) Notice served stating:

“possession of the dwelling house…(a) after 1/1/2012 or (b) at

the end of your period of tenancy which will end next after the

expiration of two months from service of this notice upon you”

• Defence – Notice invalid in that relied on 2 dates

• S accepted that date wrong but relied on save all clause

• CoA = Notice complied with S21(1) even though not purported

to. Therefore no need to specify a date.

• In any event notice valid as there could only be one lawful date

produced by the Notice.

Service Charges

MacGregor v B M Samuels Finance Group

• Respondent company freehold owner of 2 blocks of flats A & B

• Appellant leaseholder of 2 flats in Block B

• Company brought an application to LVT against a number of leaseholders for a determination of s/c

• LVT made reductions to a number of s/c items

• Upper Tribunal granted appellant permission to appeal

• Appellant – if successful in establishing that costs had not been reasonably incurred company obliged to reimburse s/c account with all money shown not to be reasonably incurred

• Held = jurisdiction limited to determining whether s/c are payable by those leaseholders who are parties to the application

Anti-Social Behaviour –

moving forward




Anti-Social Behaviour, Crime and Policing Bill

Aims and Objectives

• Reduce inflexibility of current tools

• Speedy and effective tools

• Focus on victims

• Streamline the tools

• Multi agency co-operation

Current tools replaced by:

• IPNA

• CBO

• CPN

• CPO (Public Space)

• CPO (Closure)

• Directions Powers

Additional Matters:

• Mandatory possession

• Community remedies

Registered Provider - focus

• IPNA

• CPN / CPO

• Mandatory Possession

• Community Remedies

IPNA – Injunction to prevent

nuisance and annoyance

• Civil order

• County court jurisdiction

• Youth court jurisdiction



• Test

i. Engaged or threaten to engage in

conduct capable of causing nuisance or

annoyance

ii. Just and convenient to prevent further

ASB



• Injunction terms:

– Prohibitions

– Positive Requirements

Housing Providers must show impact on

HM functions



• 10 years and above

• Show consultation

• Powers of arrest and exclusions

• Powers to remand

• Breach is contempt – (special rules for

minors)

Challenges to Bill

• Nuisance and annoyance – clarify by objective

test of reasonableness

• Civil Standard or Criminal Standard!

• Should Clause 13 be removed?

• Limit the power to exclude from a respondents

home to Adults!

Pressure from sources including:

• Reform Clause 1 – pressure group in Parliament

• Liberty

Criminal Behaviour Order (CBO)

• Replaces ASBO on Conviction

• Application by prosecution conditions

i. Conviction of offence

ii. Engaged in behaviour which caused or was

likely to cause harassment, alarm or distress

iii. Order will help prevent further behaviour

• Can include, prohibitions and for requirements

Community Protection

• Notice

• Issued by “Authorised Person”

– A constable

– Relevant Local Authority

– A designated person

Community Protection Notices

(CPN)

• The conduct of the individual or body is

having a detrimental effect of a

persistent or continuing nature, on the

quality of life of those in the locality,

and

• The conduct is unreasonable

Prior Action

• Must have given written warning

• CPN – imposes a requirement

– To stop doing something

– Requirement something to be done

– Reasonable steps to achieve specified

results

Failure to Comply

• LA notice to do works

• Breach CPN – summary conviction

• Guilty – body corporate – up to 20k

• Forfeiture of items

• Fixed penality notice

Absolute Possession

• Conditions –

– Serious offence

– Breach of IPNA

– Breach of CBO

– Dwelling subject to closure order

– Breach of abatement notice

Community Trigger

• Idea?

– Resolution of long running problems

– Ownership

• Trials

– Manchester

– Brighton and Hove

– West Lindsay

– Richmond LB

Lessons Learnt:

• Clearly agree threshold with agencies

• Consult victims and communities about the threshold

• Professionals working with the vulnerable must be aware of the trigger

• Publicity is essential

• Agencies must not rely on victims knowing about the trigger

• Clear guidance on management

• Victims need to know what may be achieved

• Agencies must understand the trigger

• It should be clear whether the trigger can be commenced anonymously

Summary Report – of trials May 2013

Prevention of Social Housing

Fraud Act 2013

• Commenced: 15th October 2013

Aims:

• “Ensure social housing is occupied by

those to whom it was allocated”

• It extends and applies to England and

Wales

Sections 1 and 2

• 2 Offences:

1. Sub-let or part with possession of

– Whole

– Part

Without landlords permission in breach of an

express or implied term of the tenancy knowing to

do so is a breach, the tenant ceases to occupy as

their only or principal home.

Sections 1 and 2…cont’d

2. Sub-let or part with possession of

– Whole

– Part

Without landlords permission in breach of

an express or implied term of the tenancy,

and does so dishonestly. The tenant

ceasing to occupy the property as their

only or principal home.

What is the result of a breach

• Offence 1 – summary conviction, a fine

not exceeding level 5 (£5,000)

• Offence 2 – 2 parts

i. Summary conviction 6 months and/or

£5,000

ii. Conviction on indictment 2 years and/or

£5,000

Defences

• If the offence occurred due to a threat of violence

towards tenant or member of family who resided

with them immediately before the offence.

• No offence if the person in occupation

– Entitled to apply to Court to have a right to

occupy or have the tenancy transferred

– If a person could apply to have the tenancy

transferred to the occupier or to someone to hold

it for the benefit of the occupier

Prosecution

• By local authority

• Within 6 months

• Not after 3 years

Unlawful Profit Orders – Section

4 and 5

• Application available in criminal and

civil proceedings

Assured Tenancy Status

• Section 15 Housing Act 1988 –

amended

– Will not regain security if offence

established

• Brings Assured Tenancies in line with

Secure Tenancies

Summary

• 2 offences

• Dishonesty – more serious

• Can be prosecuted

• Unlawful Profit Orders available

• Assured status can be lost

Dishonesty???

R v GHOSH [1982] QB 1053

“……There are, sad to say, infinite categories of

dishonesty…. Now it is your turn today having heard what

you have to consider contemporary standards of honesty

and dishonesty in the context of all that you have heard. I

cannot really expand on this too much, but probably it is

something rather like getting something for nothing, sharp

practice, manipulating systems and many other matters

which come to your mind.”

The Public Services (Social Value) Act 2012

• RA – 8th March 2012

• Commenced – 31st January 2013

Public Bodies – England & Wales

• Requirement – consider:

“How the services you commission and procure

might improve the economic, social and

environmental well being of the area.”

What is social value?

• Look beyond price – “Value”

• How can scarce resources be used to

generate a benefit which goes beyond

the payment of monies for the

performance of a contract.

Examples:

• Apprenticeships

• Work placements

• Engagement in social enterprise

• Other added value benefits

We are a leading housing law firm and work closely with our clients to fully understand their requirements across the whole spectrum of Housing Management. To find out how our legal services can help your organisation, please contact us:

Tel: 08448 731360 or

E-mail: [email protected]

Please ask for Paul Lloyd

What we offer: • Capped or Fixed fees • Free advice line and case management

surgeries • Work shadowing and Workshops • Out of hours’ service • Free monthly e-briefings • Housing law training Areas of expertise include: • Emergency ASBI • Possession proceedings • Disrepair case management • All aspects of tenancy management • Income maximisation • Unlawful subletting and squatting • Housing cases involving vulnerable

tenants • Access Injunctions

Are you Getting Value

for Money?

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