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Sarah Schooling

Posted 8 April 2015
by Sarah Schooling

Tozers housing law newsletter – Spring 2015

Akerman-Livingstone v Aster Communities

We reported on this important case earlier in the year when it was before the Court of Appeal. As soon as the judgement was handed down it was appealed further to the Supreme Court. On 11 March that Court gave their judgment.

The question for the Supreme Court was whether the test for a Human Rights Defence – that of whether the case is seriously arguable as established under Manchester City Council v Pinnock also applied to a Defence under the Equality Act.

Law
It was not in dispute that Mr Akerman-Livingstone’s mental health condition amounted to a disability under the Equality Act 2010. The question was whether the treatment amounted to discrimination under s15 (indirect discrimination relating to disability) that is allowed provided that it is a proportionate means of achieving a legitimate aim. Under s35 unfavourable treatment includes evicting someone.

Judgment
The Supreme Court did not find that the same test applied to both the Equality Act and the Human Rights Act. The Court found that the two Acts provided for very different legal tests and that the same summary considerations could not be applied to them.

Despite this though the possession order was maintained as by this time the lease to Aster on the property being used to house Mr Akerman-Livingstone had expired and therefore Aster required vacant possession to be able to return it to the head landlord.

In respect of the Equality Act it was commented that it would be rare for such a case to be decided summarily without hearing evidence. It would need to fulfil the test in CPR 55 (the part that governs possession claims) of showing that the claim was not “genuinely disputed on grounds that appear to be substantial”.  However some guidance was given of where it may be appropriate for this to occur:

  1. Where it could be shown that the defendant had no real prospect of proving that he was disabled within the meaning of the Equality Act;In practice we feel that this will mean that the matter is not decided at the first hearing, but if this is the only basis that the defendant is relying on and a medical report concludes that he is not disabled then that would end the defendant’s case.
  2. that it was plain that possession was not being sought because of something arising in consequence of his disabilityOur example of this would be anti-social behaviour not connected with allegations being made. This is in our experience unusual where the defendant is alleging a mental health disability.
  3. that bringing and enforcing the claim were plainly a proportionate means of achieving a legitimate aim

This point in some way hinges on the second point as if the acts complained of, be they anti-social behaviour or a failure to pay rent then consideration of whether the action taken is proportionate will depend on the steps taken by the landlord to address the behaviour complained of and support the tenant. This will involve hearing evidence and the Court deciding whether what has been done means the step now being sought is proportionate. We feel it is unlikely that a question of this magnitude will be decided summarily.

It should also be remembered that a summary disposal may only deal with the issue of the Equality Act, therefore narrowing the issues in dispute at Trial; there may still be a question over whether the alleged behaviour occurred.

Possession – where the offences are committed by a child of the family

This is a case involving Mrs Tuitt. She appealed to the Court of Appeal following an outright order being made against her. The Order was made due to the conduct of her son. At the time of the Appeal the son, Anton, was 18 years old.

Mrs Truitt had been a secure tenant. Her son had engaged for many years in a course of anti-social behaviour. This had led to him engaging in an ABC which was signed in February 2010. It was breached and was discontinued in August 2010. Possession proceedings were begun in August 2012 following an incident in July 2012 where Anton and others threw planks of wood from a fourth floor window. These hit the Claimant’s caretaker. Anton pleaded guilty to ABH.

Following the proceedings being issued Anton broke his bail conditions on several occasions, once at the instigation of the Defendant who had told him to go somewhere he was prohibited from being, was arrested and charged with criminal damage after kicking another residents front door and was arrest and charged with possession of cannabis. These matters fit with the general complaints of loud noise, smoking cannabis and generally unpleasant behaviour.

At the Trial the Defendant did not accept that Anton had been involved in the ABH or that his behaviour was serious. Anton also failed to see the seriousness of his behaviour and became angry under cross examination.

An outright possession order was made. The Defendant appealed, partly on the basis that it was unreasonable to make a possession order against her for behaviour outside of her control.  Her appeal was supported by an earlier case of Portsmouth County Council v Bryant.

The Court of Appeal dismissed the appeal.  In refusing that part of the appeal concerning reasonableness, the Court considered the later case of Knowsley Housing Trust v McMullen and preferred the decision in that to the Bryant case.

Practice point
The position is that the tenant is responsible for the behaviour of the members of their household and invited visitors.  It does not assist the tenant to say that they cannot control that behaviour rather, the opposite, because they are effectively saying that the behaviour is highly likely to continue uncontrolled.  If the nuisance maker has vacated or is about to then it may assist the tenant but otherwise it would be a risky strategy to adopt by the Defendant.

How much is unlawful eviction worth?
This was the question before the Supreme Court in Loveridge v Lambeth LBC.

Mr Loveridge was a secure tenant and left the country in July 2009 for an extended trip to Ghana. He returned in December 2009 to find that Lambeth LBC, being concerned for his welfare had forced entry to the property. As Mr Loveridge was not to be found and they had not been informed by him where he had gone, they took possession of the property and cleared it.

Mr Loveridge brought a claim for unlawful eviction. Damages for loss of goods were agreed at £9,000 and common law damages were agreed at £7,400. Lambeth LBC argued that there was no statutory damages payable under s28 Housing Act 1988.

The Supreme Court however found for Mr Loveridge and assessed that statutory damages at £90,500. The Court found that damages had to be assessed as though the difference between the property price with Mr Loveridge as a secure tenant (rather than an assured tenant) and with it being vacant. The Court did state in its judgment that in these circumstances the damages were far in excess of Mr Loveridges’ loss, especially as Lambeth LBC had not sought to make or made any gain.

The Court did state that they wished Parliament to look at this again, so we will wait and see if there are any legislative changes that will prevent this situation arising.

What can CCTV on a private property record?
This is an interesting judgment from the European Court of Justice regarding the use of CCTV on a private property but overlooking a public footpath and the front door to the opposite property. It was given on 11 December 2014.

Mr Rynes installed a fixed CCTV camera under the eaves of his property. He did not display any notices. The camera was focused on his front door and also pictured the public pathway and the front door of the opposite property. The reason for this installation was because he, his family and the property had been targeted and subjected to violence over several years. This included the windows to the property being broken on several occasions.

After the installation, a catapult was used to break a further window. Mr Rynes provided the CCTV to the Police and two suspects were caught and charged. One of the suspects complained to the Czech Information Office that the installation of the camera was illegal.  The IO said no and this was upheld by the County Court.  On Appeal to the Supreme Court, they put a question to the European Court for a preliminary ruling on whether the installation was in breach of Directive 95/46 dealing with data protection.

The Court ruled that the camera did not fall within the exception for purely person or household activity and therefore the activity was not excluded from the data protection requirements.

This matter does now go back to the Czech Supreme Court as they will need to consider other aspects of Law No 101/2000 which implements the Data Protection Directive 95/46, particularly the exemption for processing of personal data when it is necessary to safeguard legally protected rights.

Practice point
In respect of tenants, this currently means that they should not be recording outside the confines of their property.  If they do, the recordings will be subject to the Data Protection Act in respect of storage, processing and the possibility that a data access request could be made against them.

It is reported that the Information Commissioners Office is reviewing its position in respect of the use of CCTV.

A little bit of Article 8
Lawal v Circle 33 Housing trust [2014] EWCA Civ 1514
This is a case brought by Mr Lawal and his daughter. Mr Lawal was a secure tenant. An outright possession order had been made against Mr Lawal following the service of a Notice to Quit. The basis of the Notice to Quit was because Mr Lawal was predominantly living in Nigeria and had been for approximately 20 years, therefore not living in this property as his only or principle home. His daughter was living in the property, paying the rent and bills. She had also tried to exercise the right to buy in 2003.

At the possession hearing, Mr Lawal and his daughter were representing themselves. In the closing submissions the daughter raised Article 8 in defence of the claim. The Judge dismissed this finding that it would not assist her and then went on to give a judgment without referring to Article 8. On the first Appeal Mr Lawal and his daughter were referred back to the County Court to raise Article 8 at the point of enforcement of the warrant. This was not an application they could make. However the Judge sitting in the County Court did assess their Article 8 defence and decided that it would not succeed.

A further appeal was brought by Mr Lawal and his daughter was dismissed.  In dismissing the appeal, the Court took the opportunity to re-state that the Article 8 issue should have been heard at the Trial which had not happened in this case and therefore the correct procedure would have been for the Appeal to have been granted rather than referring it back to the County Court.   It was said that

“To raise an Article 8 argument at the enforcement stage, when it could and should have been raised earlier, will almost always be an abuse of process”

Practice point
This is worth bearing in mind as many tenants see the stay hearing following the issue of a warrant as a second chance to re-iterate their case and raise new matters that should have been raised and considered at Trial.  In respect of Article 8, this clearly should not be the case unless the tenant can point to exceptional reasons as to why it was not raised before.

Recoverability of costs under a service charge
Waaler v Hounslow LBC is an interesting decision of the Upper Tribunal regarding the incursion of costs for improvements and then recharging them to the tenant. The Lease allowed for costs of improvements to be recovered through the service charge.

The Landlord was seeking to recover just over £55,000 following the replacement of a flat roof with a pitched roof and the replacement of all the windows (which necessitated the replacement of the building’s cladding and the removal of asbestos under the old cladding). The Lessee’s expert had agreed that repairing the flat roof by way of replacing it with a pitched roof was reasonable and therefore that fell away as a ground of Appeal.
There was no issue with the consultation that had taken place.

The issue with the windows was that there was a hinge failure of the tilting part of the windows. It was due to the double thickness glass being too heavy for the hinges. Replacement hinges were no longer available from Sweden. This problem had been managed for 30 years.

The estate was a mixture of secure tenants and long leaseholders in several blocks of flats. The estate was generally run down and the need for these works had been identified in the 1990s. Part of the works were funded by loans under the Decent Homes initiative.

The Upper Tribunal decided that the tenant succeeded in part on her application. The matter was referred back to the First Tier Tribunal for them to consider the reasonableness of the amount claimed in respect of this matter under the service charge.

In passing judgment the Court made the following comments:

1. Just because there is funding available it does not make the works justified when considering the costs to be incurred by other tenants. The Landlord needs to consider its duties to both Tenants and Lessees
2. In respect of improvement works (i.e. works that go beyond what is necessary to effect a repair) the following should be considered and evidenced:
2.2. The consideration of alternative and less expensive remedies has been explored
2.3. Weight should be given to the extent of the interests of the Lessees, their views and their financial means to pay for these works

Practice point
We would advise that the above should be considered before putting the matter out to consultation. In this instance the Council had not considered any alternatives (apart from replacement hinges from Sweden). The Tribunal considered that they could have thought about reducing the weight in the tilting windows with lighter double glazing (the windows themselves were otherwise in good repair).

Water
We often get queries regarding how much a Landlord can disclose to a Water Company. There is now a facility for Landlords to inform Water Companies of when a tenant moves into and leaves a property. Thus protecting the Landlord from being charged for the tenant’s water usage.   The information is reported by a portal link which can be found here: https://www.landlordtap.com/

Practice point
There is no statutory requirement for the Landlord or tenant to inform a water company that there is someone in occupation at the property in England.  Neither is the landlord under any legal obligation to inform the water company of the tenant (or former tenant’s) details.   The Information Commissioner says that you may pass on details only where you have the tenant’s (or former tenant’s) permission (e.g. in the tenancy agreement).   Water companies often ask landlords to provide them with former tenant’s details often saying that the landlord has a duty to but the landlord does not have to and may be in breach of data protection if they do pass on personal information without the tenant’s permission.  If the water company threatens court proceedings, the landlord can release the information as they can rely on an exemption under the Data Protection Act which says that personal information can be released where it necessary to do so to defend legal rights.

The Welsh government has recently made it mandatory for Landlords to provide tenants’ details to the water companies. A failure to make this notification within 21 days results in the Landlord and the tenant becoming jointly and severally liable for the water bills.  There is no such law in England.

Asbestos – do you have a duty to inform tenants when this might be present?
Under Control of Asbestos Regulations 2012, the duty to inform your tenants of the presence of asbestos only arises if (1) asbestos has been found in a communal area of the building (so more likely to be flats) and (2) the tenant is likely to disturb the asbestos.  In respect of the latter, your tenants should not be doing anything in the communal areas which is likely to disturb any asbestos (e.g. replacing floor/ceiling tiles or drilling holes in the wall.   If there is a risk that the tenants might disturb the asbestos, they will need to be warned.  The obligation is more wide ranging for employees and contractors.

The duty in so far as residential premises is a general duty to ensure that the home is safe for tenants, etc and free from hazards.  This involves an assessment of risk of all known and possible hazards.  Obviously, if the asbestos is in poor condition and therefore likely to cause harm, it will need to be removed as soon as possible.  If, however, it is in good condition, the issue is whether the tenant is likely to disturb asbestos thus damaging it so that it has the potential to cause harm.  Ultimately, the risk needs to be weighed up.

If the asbestos is somewhere where they are likely to be disturbing it by doing normal activities including DIY, etc, then you should inform the tenant of the asbestos.  Where there is very little chance of it being disturbed (e.g. water tanks, roofing, etc) then the risk is much lower and informing the tenant may not be necessary.

New forms
Following the implementation of the new grounds for possession as enacted on 20 October 2014 the content of a Notice Seeking Possession had been amended. The new forms come into existence on 6 April 2015 under The Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015. The new Notice Seeking Possession is attached as Form 3 in the Schedule to these regulations.

The Form for Proposing a New Rent has also been amended (Form 4).
We have produced these in word format and please contact us if you would like a copy. We recommend that it is best practice to use the new forms.

Further advice
Please contact our specialists, Sarah Schooling, Jenny Lloyd or Nicola Rumsey at
Broadwalk House, Southernhay West, Exeter, EX1 1UA
Call: 01392 207020 or email: has@tozers.co.uk

 

 

 

 

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About the author

Sarah Schooling

Sarah Schooling

Associate

Associate within the housing management team with over 10 years experience