Blake Lapthorn held its annual 'another boring year in Social Housing' on 22 February 2012 at its Southampton office.

1. Another boring year in social housing?
Robert Wassall
Partner, Social Housing
robert.wassall@bllaw.co.uk
023 8085 7012

2. What am I going to talk about?
Recent cases
– Human rights
– Mental capacity
– Care
– Consultation
New law
– Localism Act

3. 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

4. What is an ‘affordable rent’ tenancy?
A tenancy of residential premises
Granted by a RP
At a rent higher than social rent; and
At 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

5. What is a fixed term tenancy?
Minimum term of two years
– ‘exceptional circumstances’
Otherwise not less than five years
No maximum term
RPs: assured shorthold
LAs: secure
‘Norm’ five years?

6. 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…

7. Tenancies and rents (2)
Different housing ‘products’
1. Fixed term (assured shorthold) at social rent
2. Fixed term (assured shorthold) at affordable rent
3. Periodic (assured) at social rent
4. Periodic (assured) at affordable rent
5. Fixed term (flexible) at social rent
6. Fixed term (flexible) at affordable rent
7. Periodic (secure) at social rent
8. Periodic (secure) at affordable rent

8. Fixed-term tenancies and succession
Previously, no right of succession to AST
Localism Act, gives right of succession to AST
But only to spouses etc
L can grant additional succession rights (to anyone)

9. Ending fixed term tenancy (during term)
Only on a ground expressly referred to in tenancy
Certain 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

10. 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 notice
Act gives no right to review (but could be in policy)
If above not done, T becomes periodic tenant
T can end tenancy, at any time after expiry fixed term, by
service NTQ

11. Some key questions…
Can existing AST agreements be used?
Could other agreements be relevant?
What does all this mean for you?

12. 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)

13. Saxon Weald v Chadwick
C given Starter tenancy
ASB throughout
NOSP, 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

14. Westminster CC v Holmes
H had non-secure accommodation (homeless)
H assaulted two officers
W served NTQ, issued claim for possession
H 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”

15. Mexfield Housing v Berrisford
Tenancy “from month to month until determined as provided in
this agreement”
B could give notice any reason/anytime
M could only give notice if tenant default
M 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

16. Benesco Charity Ltd v Kanj
Possession claim against the trespassers
Defendant 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".

17. 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 tenancy
Mr B gave NTQ, to expire 4 Oct 2010
C claimed possession
Mrs B defended claim on basis that…

18. 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 Monday
C 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

19. 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 year
That 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.

20. 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

21. Wychaven DC v EM (1)
EM had profound physical and mental disabilities.
Her parents had a home specially constructed for her
Needed income to finance cost of mortgage
Income was to come from HB
Tenancy 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

22. Wychaven DC v EM (2)
Nobody with power to contract on behalf of EM
EM 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

23. Wychaven DC v EM (3)
All above 29 March 2011
6 January 2012, same judge ‘reviewed decision’
Confirmed no contractual obligation to pay rent
But, EM was obliged to pay for ‘necessary goods and services’
at common law
Therefore entitled to HB!

24. K v LBX (1)
L, aged 28, mild learning disability
Lived 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…

25. 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

26. 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

27. 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 in
disrepair

28. Complaint against Wrexham CBC (Ombudsman) (2)
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

29. Complaint against Wrexham CBC (Ombudsman) (3)
Ombudsman recommended
– a wide-ranging re-training of staff,
– review of the council's policies, systems and procedures,
– an apology and
– £1500 compensation

30. 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 property
Each tenant had their own bedroom and shared other facilities
Staff provided care, support and supervision 24 hours per day

31. Oxford City Council v John Basey (2)
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….

32. Oxford City Council v John Basey (3)
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

33. Oxford City Council v John Basey (4)
No legal distinction between supported and sheltered
accommodation
Any service charges not connected with the provision of
adequate accommodation were excluded from eligibility for
housing benefit…
…but communal rooms were necessary in sheltered
accommodation
B lived in sheltered accommodation
B entitled to HB to cover costs of communal room

34. Another boring year in social housing?
Robert Wassall
Partner, Social Housing
robert.wassall@bllaw.co.uk
023 8085 7012

35. Crossing the line
Amanda Morris
Partner and head of Property Litigation
amanda.morris@bllaw.co.uk
023 8085 7483

36. Neighbour Disputes: A guide to the law and practice
By Donald Agnew and Amanda Morris
Wildy, Simmonds & Hill Publishing
2nd edition published 2011

37. Boundaries
When
becomes

38. Boundaries
The general boundaries rule
The Deeds
The plan

39. Presumptions
“T” marks
Hedge and Ditch
presumption
– Steward v Gallop
– Town v country?

40. Other presumptions
Roads: ad medium filum
Fences
Hedges
Beaches
Rivers

41. Adverse possession
Unregistered Land:
– Pye v Graham
Registered Land:
– The Land Registration Act 2002

42. Rights of Way
By prescription
Section 62 of the Law of
Property Act
All change?
– The Law Commission
report June 2011:
"Making Land Work:
Easements, Covenants
and profits a prendre"

43. And finally …

44. Decision making and the Mental
Capacity Act 2005
Rachel Brooks
Partner
rachel.brooks@bllaw.co.uk
023 9228 2714

45. Outline
Decision making
Brief outline of the provisions in the Mental Capacity Act 2005
Court of Protection and Deputies
Powers of Attorney

46. 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.”

47. Decision making and the Act
Decisions are task specific
This 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 ones
Can they make the decision at this particular moment

48. Why is it important if someone lacks capacity?
The document will be invalid
Wychavon District Council v
EM [2012] UKUT 12 (AAC) (06 January 2012)

49. 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

50. Mental Capacity Act 2005 – five Principles
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.

51. Mental Capacity Act 2005 – five Principles
Principle 3
A person is not to be treated as unable to make a decision
merely because he makes an unwise decision.

52. Mental Capacity Act 2005 – five Principles
Principle 4
An act done or decision made under the act for or on behalf of a
person who lacks capacity must be done or made in his best
interests.

53. Mental Capacity Act 2005 – five Principles
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.

54. Duty to consult
Section 4 - MCA 2005
Consult with friends, relatives, carers, doctors, etc
Keep records of decision made

55. Who can make legally binding decisions for
others?
Appointee – DWP
Deputy – Court of Protection
Attorney:
– Enduring Power of Attorney
– Lasting Power of Attorney

56. Deputy – Court of Protection
Family or professionals
Panel Deputy
Type
– property and affairs
– welfare
Detailed application
– medical report
– full details of family and finances

57. Practical points
Get a copy of the order and check that the deputy has the
necessary authority
If joint deputies - are they appointed jointly or jointly and
severally?

58. Powers of Attorney
Appoints others to deal at a time when the donor is unable to do
so
To be signed when the donor knows what they are doing
Enduring Power of Attorney – 1985 to September 2007
Lasting Power of Attorney - 1 October 2007 to date

59. Practical points
EPA – If the person lacks capacity then check that the EPA has
been registered with the Court of Protection
LPA – Check it has been registered with the Court of Protection
regardless of loss of capacity
Check if joint or joint and several appointments of attorneys
You should see original document or appropriate certified copy

60. Practical points (cont’d)
Check that the document has been properly drawn up
Check that there are no restrictions which prevent the act you
are looking at
If the tenant does not have capacity and there is no power of
attorney then an application to the Court of Protection is needed

61. Contact information
www.publicguardian.gov.uk – for code of practice and other
helpful booklets
Office of the Public Guardian
PO Box 15118
Birmingham
B16 6GX

62. Housing headlines
and
headaches
Sarah Pearson
Senior solicitor
sarah.pearson@bllaw.co.uk
023 8085 7002

63. 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

64. 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)

65. Enfield LBC v Martin
Gang injunction - Defendant aged 19
Prohibited from inciting violence on the internet, wearing gang
colours or being in possession of an offensive weapon
July 2011 - committal application for breach
seven breaches proven - 14 month custodial sentence
suspended for two years
two further breaches - council applied to active the suspended
sentence
Immediate custodial sentence of 15 months

66. Westlea v Price
Assured tenancy
39 ASB allegations
Defendant admitted many and promised to improve
Defendant’s violent partner jailed – was there DV?
Little support or guidance from HA to Defendant
Held: possession order not reasonable

67. Toynbee HA v Choudhury
June 2008 postponed possession order made due to son’s
drug-related ASB. Son ordered to stay away
Order breached as son repeatedly returned
Application for date for possession
Defendant 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 appeal
D appealed - discretion point was reconsidered
Eviction did not go ahead

68. Hammersmith & Fulham LBC v Forbes
Secure tenant for 31 years – heroin addict
No nuisance prior to June 2010
Complaints of drug dealing. Police raid, heroin found, guilty
plea to charge of possession
Closure order obtained
Possession order sought using evidence from criminal
proceedings
Def addressed addiction issues but compounded by no fixed
abode during closure order
Postponed possession order made
NB: Forbes caught by new mandatory ground?

69. Barking & Dagenham LBC v Bakare
Secure tenant
PPO for rent arrears
C applied for possession due to breach of ASBO and nuisance
Would separate proceedings have been better?
Crucial - strong evidence of threat to community
Held: possession forthwith

70. New Law
Welfare Reform Bill
Health & Social Care Bill
Protection of Freedoms Bill
ASB update

71. 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 costs
Benefits to be capped at £26,000 per year
“Claimant Commitment” – work related requirements
The cap will cause conflict with the new affordable rent regime,
especially in London

72. 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 tenants
Likely to increase arrears
Landlords will lose financial security
Landlords borrowing costs will rise
93% of tenants want HB paid direct to landlords

73. Welfare Reform Bill – under-occupation
HB cuts for tenants who are under-occupying from April 2013
Tenants to make up rent shortfall or move to smaller
accommodation
Landlords support downsizing but insufficient housing
Increased demand for smaller properties puts pressure on
housing providers to build more, smaller houses
Will hit the disabled and foster families hardest
DWP suggests lodgers fill spare rooms!

74. Health and Social Care Bill
Makes a strong connection between health, care and housing
Housing sector already providing care and support services
An opportunity for housing providers to expand their business?
A key role for housing in new diverse health service

75. Health and Social Care Bill
Push towards personalisation giving service users control over
personal care budgets
Makes local authorities responsible for better integration of
medical and social care services
Funding cuts will change the way housing providers provide
health and social care support

76. Protection of Freedoms Bill
Wide ranging legislation focussing on civil liberties
May 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

77. 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 made
New 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

78. Anti-Social Behaviour – update (2)
Government consultation
– New mandatory ground for possession?
Aims to speed up process for obtaining possession order
Applicable if criminal behaviour already proven in other
proceedings
Landlord must still comply with ASB policy and be
mindful of “proportionality”
– Proposed amendment to discretionary ground 14 for
offences involving violence
No locality requirement
Impact on neighbours vital?
Consultation closed in Nov 2011

79. 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

80. Crystal ball gazing………

81. Squatting – criminal offence?
Consultation paper in July 2011
Create new criminal offence of squatting in residential property
Weakening so-called “squatters rights” in Criminal Law Act 1977
Legal test:
– Entering as a trespasser
– Knowledge of trespassing
– Intention to live in building for a period
Penalty – imprisonment or fine of up to £5000
Does 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?

82. 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

83. Disrepair – one to watch?
Frequent issue raised by tenants
76.7% of complaints to landlords between January and March
2011 were repairs related
Recurrent problems:
– Poor communication
– Poor co-ordination
– Consistent approach by staff – training need?
– Refer to insurer?
– What does the tenancy agreement say?
– New cashback scheme

84. Landlords to lose right of appeal?
TSA considering scrapping appeals against its most serious
decisions
A practical decision taking account of smaller HCA committee
Only route of challenge will be High Court
Increase in costs and time

85. 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
Secondments
Up2dates
Free helpline
– housinghelp@bllaw.co.uk
– 0844 620 5003
“Lessons Learned”