blake lapthorn social housing seminar - 22 february 2012

Another boring year in social housing?

Robert WassallPartner, Social Housing

[email protected]

023 8085 7012

mailto:[email protected]

What am I going to talk about?

Recent cases– Human rights– Mental capacity– Care– Consultation

New law – Localism Act

Localism Act & tenure; intro

Gives RPs ability to grant ‘affordable’ tenancies– Fixed term (assured shorthold), or– Periodic ‘lifetime’ (assured)

Gives LAs ability to grant ‘flexible’ tenancies– Which will be fixed term (secure)

VIP date 1 April 2012

What is an ‘affordable rent’ tenancy?

A tenancy of residential premisesGranted by a RPAt a rent higher than social rent; andAt up to 80% of the local market rent – for a property of the same size and type – in the private sector – including any service charge

What is a fixed term tenancy?

Minimum term of two years– ‘exceptional circumstances’

Otherwise not less than five yearsNo maximum termRPs: assured shortholdLAs: secure‘Norm’ five years?

Tenancies and rents (1)

Until 1 April 2012, fixed-term tenancies– can only be granted at an affordable rent – as part of agreement with HCA – to fund the development of new homes

After 1 April 2012– can be granted at social rent

Which means…

Tenancies and rents (2)

Different housing ‘products’1. Fixed term (assured shorthold) at social rent2. Fixed term (assured shorthold) at affordable rent3. Periodic (assured) at social rent4. Periodic (assured) at affordable rent5. Fixed term (flexible) at social rent6. Fixed term (flexible) at affordable rent7. Periodic (secure) at social rent 8. Periodic (secure) at affordable rent

Fixed-term tenancies and succession

Previously, no right of succession to ASTLocalism Act, gives right of succession to ASTBut only to spouses etcL can grant additional succession rights (to anyone)

Ending fixed term tenancy (during term)

Only on a ground expressly referred to in tenancyCertain grounds not available – All mandatory grounds (except ground 8)– Discretionary grounds 9 and 16– Cannot move to suitable alternative accommodation

But can have ‘break clause’ (min two years)Surrender does not apply (unless permitted by tenancy)Any breach can be actioned as usual

Ending fixed term tenancy (at expiry term)

L Must give six month notice informing T that– Tenancy will not be renewed/re-issued– How T can get help/advice

L must also serve s21 noticeAct gives no right to review (but could be in policy)If above not done, T becomes periodic tenantT can end tenancy, at any time after expiry fixed term, by service NTQ

Some key questions…

Can existing AST agreements be used?Could other agreements be relevant?What does all this mean for you?

Recent Cases

Saxon Weald V Chadwick (service of notices)Westminster CC v Holmes (post Pinnock)Mexfield Housing v Berrisford (tenancy agreement)Benesco Charity Ltd v Kanj (trespassers)Chesterfield BC v Bailey (notices)Sefton Care Association v Sefton Council (consultation)Wychaven DC v EM (mental capacity)K v LBX (mental capacity)Complaint against Wrexham CBC (Ombudsman)

Saxon Weald v Chadwick

C given Starter tenancyASB throughoutNOSP, five days before expiry Starter tenancy SW sent letter telling C he was Assured tenant!Court said – letter form SW “unambiguous”– C had become Assured tenant

Westminster CC v Holmes

H had non-secure accommodation (homeless)H assaulted two officersW served NTQ, issued claim for possessionH defended on human rights (denied assault)W applied for the defence to be struck out – Possession order made on summary basis– No oral evidence given

“the burden lay on [H] to show that he had substantial grounds to establish the need for a hearing to find the facts”

Mexfield Housing v Berrisford

Tenancy “from month to month until determined as provided in this agreement”B could give notice any reason/anytimeM could only give notice if tenant defaultM gave B notice– B not in default

SC said– this was tenancy for life, taking effect as 90 year lease– Could only be ended only by death of M, or in accordance

with terms of tenancy

Benesco Charity Ltd v Kanj

Possession claim against the trespassersDefendant made witness statement claiming they had a tenancy or a sub-tenancy.Possession order made but defendants appealed.Appeal allowed – “a person is entitled to a trial of their Defence and the

content of the witness statement should not be rejected at a summary stage "unless the evidence is incredible".

Chesterfield BC v Bailey (1)

2002: Joint tenancy granted to Mr and Mrs B 2005: Mr B moved out 2010: C told Mr B – he was liable for arrears of rent– that his only way of avoiding any future liability for rent was

to have his name "taken off" the tenancyMr B gave NTQ, to expire 4 Oct 2010C claimed possessionMrs B defended claim on basis that…

Chesterfield BC v Bailey (2)

Tenancy agreement specified that – NTQ must give four full weeks notice in writing– "to expire on a Monday at midday if you wish to end your

tenancy“4 October 2010 was MondayC could not show that the notice had been received before 12 noon on 6 September 2010 and therefore failed to establish that four full weeks' notice had been given.Claim dismissed

Sefton Care Association v Sefton Council (1)

February 2010: LA told care home providers it would not increase fees paid for placements for the 2010/11 financial year. Later in 2010: LA decided that further savings could be made by freezing fees for another yearThat was not communicated to care home providers until November 2010. Despite C having told the local authority that it was underfunding its placements and that fees would need to rise if the private care sector was to remain viable.

Sefton Care Association v Sefton Council (2)

LA had failed to – adequately investigate the actual costs of care and – failed to have due regard to those costs, (contrary to both

the guidance issued by the secretary of state and that issued by the Department of Health)

LA was under duty to consult with the care home proprietors, but there had been no consultation in any meaningful sense LA had acted unlawfully

Wychaven DC v EM (1)

EM had profound physical and mental disabilities.Her parents had a home specially constructed for herNeeded income to finance cost of mortgage Income was to come from HBTenancy agreement described father as landlord and EM as tenant, – but in the space for tenant’s signature it is stated that EM "is

profoundly disabled and cannot communicate at all". LA refused to pay HB


Nobody with power to contract on behalf of EMEM had no liability to pay rent “by reason of a document to which she was not a party and of which she had no knowledge or means of knowledge”There was no tenancy agreement and No entitlement to housing benefit


All above 29 March 20116 January 2012, same judge ‘reviewed decision’Confirmed no contractual obligation to pay rentBut, EM was obliged to pay for ‘necessary goods and services’at common law Therefore entitled to HB!

K v LBX (1)

L, aged 28, mild learning disabilityLived with father who– agreed L needed to move into local authority arranged care

but – disagreed with the local authority about when that should

happen

LA and father could not agree, so went to court…

K v LBX (2)

The issue for the Court was – whether the right to family life required the court to afford

priority to the placement of an incapacitated adult in their family, or

– whether family life was simply one of "all the relevant circumstances" that the court had to consider

– under s.4 of the Mental Capacity Act when determining a person's best interests

K v LBX (3)

the safe approach was to ascertain the best interests of the incapacitated adult by – applying the checklist in the Mental Capacity Act, then – asking whether the resulting conclusion amounted to a

violation of their human rights and – whether that violation was nonetheless necessary and

proportionate

Complaint against Wrexham CBC (Ombudsman) (1)

Complainant was middle-aged, single, disabled man living with his mother (who was a tenant of the council)He made repeated applications for rehousing, complaining that his accommodation was unsuitable for his disabilities and was indisrepair


The Ombudsman found extensive maladministration including: – systemic failures in approach to the rehousing applications;– failure to follow relevant legislation, statutory guidance and

its own policies and procedures; and – poor record keeping


Ombudsman recommended– a wide-ranging re-training of staff, – review of the council's policies, systems and procedures, – an apology and – £1500 compensation

Oxford City Council v John Basey (1)

B, 64 had severe learning disabilities. One of four tenants, all of whom had similar difficulties, of a housing association propertyEach tenant had their own bedroom and shared other facilities Staff provided care, support and supervision 24 hours per day


LA decided B lived in ‘supported’, not 'sheltered’accommodation Not entitled to have included as ‘eligible rent’ (for the purpose of calculating the amount of his housing benefit)– his share of the costs of fuel for, and cleaning of, the rooms

of common use in his accommodation LA said that sheltered accommodation is….


small, easily managed, and self-contained with its own bathroom and kitchen; grouped together on a site; designed specifically for the elderly, disabled or other vulnerable persons; served by a warden, who dealt with estate management issues and emergencies only; served by an emergency alarm system; with a communal common room, for social activities, and gardens


No legal distinction between supported and sheltered accommodationAny service charges not connected with the provision of adequate accommodation were excluded from eligibility for housing benefit……but communal rooms were necessary in sheltered accommodationB lived in sheltered accommodationB entitled to HB to cover costs of communal room

Another boring year in social housing?

Robert WassallPartner, Social Housing

[email protected]

023 8085 7012


Crossing the lineAmanda Morris

Partner and head of Property Litigation

[email protected]

023 8085 7483


Neighbour Disputes: A guide to the law and practiceBy Donald Agnew and Amanda MorrisWildy, Simmonds & Hill Publishing2nd edition published 2011

Boundaries

When

becomes

Boundaries

The general boundaries ruleThe DeedsThe plan

Presumptions

“T” marksHedge and Ditch presumption– Steward v Gallop– Town v country?

Other presumptions

Roads: ad medium filumFencesHedgesBeachesRivers

Adverse possession

Unregistered Land: – Pye v Graham

Registered Land: – The Land Registration Act 2002

Rights of Way

By prescriptionSection 62 of the Law of Property ActAll change?– The Law Commission

report June 2011: "Making Land Work: Easements, Covenants and profits a prendre"

And finally …

Decision making and the Mental Capacity Act 2005

Rachel BrooksPartner

[email protected] 9228 2714


Outline

Decision makingBrief outline of the provisions in the Mental Capacity Act 2005Court of Protection and DeputiesPowers of Attorney

A person is determined to lack capacity

The Act provide that….

“a person lacks capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken.”

Decision making and the Act

Decisions are task specificThis contrasts with the position prior to the MCA 2005– either you had capacity or you didn’t

A person may be able to make simple day to day decisions but not more complex onesCan they make the decision at this particular moment

Why is it important if someone lacks capacity?

The document will be invalidWychavon District Council v

EM [2012] UKUT 12 (AAC) (06 January 2012)

Mental Capacity Act 2005 – five Principles

Principle 1

A person must be assumed to have capacity unless it is established that they lack capacity.

…therefore there is a presumption of capacity


Principle 2

A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.


Principle 3

A person is not to be treated as unable to make a decision merely because he makes an unwise decision.


Principle 4

An act done or decision made under the act for or on behalf of aperson who lacks capacity must be done or made in his best interests.


Principle 5

Before the act is done or the decision is made regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.

Duty to consult

Section 4 - MCA 2005Consult with friends, relatives, carers, doctors, etcKeep records of decision made

Who can make legally binding decisions for others?

Appointee – DWPDeputy – Court of ProtectionAttorney:– Enduring Power of Attorney– Lasting Power of Attorney

Deputy – Court of Protection

Family or professionalsPanel DeputyType– property and affairs– welfare

Detailed application– medical report– full details of family and finances

Practical points

Get a copy of the order and check that the deputy has the necessary authorityIf joint deputies - are they appointed jointly or jointly and severally?

Powers of Attorney

Appoints others to deal at a time when the donor is unable to dosoTo be signed when the donor knows what they are doingEnduring Power of Attorney – 1985 to September 2007Lasting Power of Attorney - 1 October 2007 to date

Practical points

EPA – If the person lacks capacity then check that the EPA has been registered with the Court of ProtectionLPA – Check it has been registered with the Court of Protection regardless of loss of capacityCheck if joint or joint and several appointments of attorneysYou should see original document or appropriate certified copy

Practical points (cont’d)

Check that the document has been properly drawn upCheck that there are no restrictions which prevent the act you are looking atIf the tenant does not have capacity and there is no power of attorney then an application to the Court of Protection is needed

Contact information

www.publicguardian.gov.uk – for code of practice and other helpful booklets

Office of the Public GuardianPO Box 15118BirminghamB16 6GX

http://www.publicguardian.gov.uk/

Housing headlines and

headachesSarah PearsonSenior solicitor

[email protected]

023 8085 7002

Housing headlines and headaches….

Cases– Gangbos– Anti-social Behaviour

New law – Welfare Reform Bill– Health & Social Care Bill– Protection of Freedoms Bill– ASB update

The year ahead….– Squatting – a criminal offence?– Gas safety– Disrepair– Landlord’s right of appeal

Recent Cases

Enfield LBC v Martin (gangbo)Westlea HA v Price (ASB and ground 14)Toynbee HA v Choudhury (ASB and court’s discretion)Hammersmith & Fulham LBC v Forbes (drug conviction and dealing)Barking & Dagenham LBC v Bakare (community impact evidence)

Enfield LBC v Martin

Gang injunction - Defendant aged 19Prohibited from inciting violence on the internet, wearing gang colours or being in possession of an offensive weaponJuly 2011 - committal application for breach seven breaches proven - 14 month custodial sentence suspended for two yearstwo further breaches - council applied to active the suspended sentenceImmediate custodial sentence of 15 months

Westlea v Price

Assured tenancy39 ASB allegationsDefendant admitted many and promised to improveDefendant’s violent partner jailed – was there DV?Little support or guidance from HA to DefendantHeld: possession order not reasonable

Toynbee HA v Choudhury

June 2008 postponed possession order made due to son’s drug-related ASB. Son ordered to stay awayOrder breached as son repeatedly returnedApplication for date for possessionDefendant applied to suspend warrant– Def had not prevented son’s visits and unlikely to in future– DJ used her discretion and dismissed the application but

allowed permission to appealD appealed - discretion point was reconsideredEviction did not go ahead

Hammersmith & Fulham LBC v Forbes

Secure tenant for 31 years – heroin addictNo nuisance prior to June 2010Complaints of drug dealing. Police raid, heroin found, guilty plea to charge of possessionClosure order obtainedPossession order sought using evidence from criminal proceedingsDef addressed addiction issues but compounded by no fixed abode during closure orderPostponed possession order madeNB: Forbes caught by new mandatory ground?

Barking & Dagenham LBC v Bakare

Secure tenantPPO for rent arrearsC applied for possession due to breach of ASBO and nuisanceWould separate proceedings have been better?Crucial - strong evidence of threat to communityHeld: possession forthwith

New Law

Welfare Reform BillHealth & Social Care BillProtection of Freedoms BillASB update

Welfare Reform Bill – benefit cap

Universal Credit - a new benefit to replace existing in and out of work benefits Will cover basic living costs, including housing costsBenefits to be capped at £26,000 per year“Claimant Commitment” – work related requirementsThe cap will cause conflict with the new affordable rent regime,especially in London

Welfare Reform Bill – direct payments

Administration of benefits to change (from Oct 2013)Benefits to be paid direct to tenants rather than landlords Exceptions - pensioners and vulnerable tenantsLikely to increase arrearsLandlords will lose financial securityLandlords borrowing costs will rise93% of tenants want HB paid direct to landlords

Welfare Reform Bill – under-occupation

HB cuts for tenants who are under-occupying from April 2013Tenants to make up rent shortfall or move to smaller accommodationLandlords support downsizing but insufficient housingIncreased demand for smaller properties puts pressure on housing providers to build more, smaller houses Will hit the disabled and foster families hardestDWP suggests lodgers fill spare rooms!

Health and Social Care Bill

Makes a strong connection between health, care and housingHousing sector already providing care and support servicesAn opportunity for housing providers to expand their business?

A key role for housing in new diverse health service

Health and Social Care Bill

Push towards personalisation giving service users control over personal care budgetsMakes local authorities responsible for better integration of medical and social care servicesFunding cuts will change the way housing providers provide health and social care support

Protection of Freedoms Bill

Wide ranging legislation focussing on civil libertiesMay widen scope of Freedom of Information Act– “publicly owned companies”

Impact on housing associations– Drive efficiency– Provide better service

BUT– Administrative burden– What is public and what is private?

Social Services and EHO unable to enter homes without a warrant– Impact on vulnerable tenants

Anti-Social Behaviour – Update (1)

Government plans to toughen up powers to deal with problem families– “Community trigger”– Authorities will be forced to investigate if more than five

complaints madeNew Crime Prevention Injunction– designed to stop asb before it escalates– civil burden of proof – consequences of breach different for adults and minors– death of the anti-social behaviour injunction– untested– still out to consultation

Anti-Social Behaviour – update (2)

Government consultation– New mandatory ground for possession?

Aims to speed up process for obtaining possession orderApplicable if criminal behaviour already proven in other proceedingsLandlord must still comply with ASB policy and be mindful of “proportionality”

– Proposed amendment to discretionary ground 14 for offences involving violence

No locality requirementImpact on neighbours vital? Consultation closed in Nov 2011

Anti-Social Behaviour – update (3)

Gangbos– Policing and Crime Act 2009– Aims to prevent gang related violence– Civil court - reduced burden of proof– Can use hearsay– From 9 January 2012 can be used against those aged 14 or

over– Southwark Council obtained first one in February 2011

Crystal ball gazing………

Squatting – criminal offence?

Consultation paper in July 2011Create new criminal offence of squatting in residential propertyWeakening so-called “squatters rights” in Criminal Law Act 1977Legal test:– Entering as a trespasser– Knowledge of trespassing– Intention to live in building for a period

Penalty – imprisonment or fine of up to £5000Does this mean the police will “pick up the tab”?But are the police able to deal with complex property rights when quick decisions are needed?

Gas Safety Update

The Gas Safety Trust report Oct 2011– Dramatic rise in fatalities caused by carbon monoxide– Threefold rise in incidents over the last year– Landlords failing to provide adequate safety certificates– Recorded incidents only – true figures much higher?– Risk comes from malfunctioning appliances as well as

blocked chimneys and flues– The Trust recommends the duty on landlords to inspect gas

appliances be stepped up to a duty to service them

Disrepair – one to watch?

Frequent issue raised by tenants76.7% of complaints to landlords between January and March 2011 were repairs relatedRecurrent problems:– Poor communication– Poor co-ordination– Consistent approach by staff – training need?– Refer to insurer?– What does the tenancy agreement say?– New cashback scheme

Landlords to lose right of appeal?

TSA considering scrapping appeals against its most serious decisionsA practical decision taking account of smaller HCA committeeOnly route of challenge will be High CourtIncrease in costs and time

Blake Lapthorn Housing Management

Launch of Housing Manager Forum in Spring– To be held at Blake Lapthorn– Topics of your choice– Exchange good practice– Network amongst fellow professionals– Speakers

SecondmentsUp2datesFree helpline – [email protected]– 0844 620 5003

“Lessons Learned”


blake lapthorn social housing seminar - 22 february 2012

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