FOR PUBLIC & THIRD SECTOR

Transcription

1 FOR PUBLIC & THIRD SECTOR TAI 2017 Legal Update Bethan Gladwyn, Senior Associate

2 Introduction Today we will be looking at: Renting Homes the supported housing consultation Fly tipping proposals for fixed penalty notices and what they might mean for you Turley v Wandsworth succession rights and non-married partners Islington LBC v Dyer a reminder not to play with your notices! Dove v Havering non occupation and security of tenure Contact Bethan Gladwyn Senior Associate t: Bethan.Gladwyn@hughjames.com

3 Renting Homes (Wales) Act 2016 Guidance relating to Supported Accommodation Part 6 Supported Standard Contracts Supported Accommodation Provided by a community landlord or a registered charity The landlord or charity (or a person acting on their behalf) provides support services to a person entitled to occupy the accommodation, and There is a connections between provision of the accommodation and provision of support services. Not care institutions

4 Supported services include- Support in controlling or overcoming addiction, Support in finding employment or alternative accommodation, and Supporting someone who finds it difficult to live independently because of age, illness, disability or any other reason Support includes the provision of advice, training, guidance and counselling

5 Supported occupation contract A tenancy or licence will not be an occupation contract unless L intends it to be one (schedule 2 para 13). This lasts for a period of six months from the start of the contract. The six months can be extended on more than one occasion by periods of up to three months at a time by: L serving notice on T at least four weeks before the period expires; Having first consulted with the tenant or licensee; The housing authority must consent; The notice must set out reasons; and specify a new period. T has a right to apply to the court for a review of the decision to extend the period. L can take into account the conduct of the tenant or licensee and any other person in the dwelling when considering whether to extend.

6 S145 gives L the right to exclude the contract holder from the dwelling: For a specified period of up to 48 hours; Where the contract holder has used violence, done something to create a risk of significant harm or behaved in a way which seriously impedes the ability of another resident to benefit from the support; Provided a written notice with reasons are given either at the time of requiring him to leave or as soon as reasonably practicable afterwards; This power can be used no more than three times in a period of six months; and The power can be used by someone designated by L to exercise the power (e.g. an agent or support provider running the scheme).

7 Statutory Guidance deals with power to exclude and LA consent to extend the relevant period Use of temporary exclusions:- Policy Last resort Notice there will be a prescribed notice Must have regard to housing and support needs of contractholder

8 The decision maker Manager or someone with operational management responsibility of the Supported Accommodation Must be named in the policy Must be available out of hours Decision must be recorded in Support Plan and Incident Log filed

9 Preventing Homelessness Consider re-locating to another room in the Accommodation Consider accommodating by another landlord in the area Good referral system with local housing authority Establish relationships with local hostels

10 The lessons learned review A review must be carried out within 14 days of the exclusion Face to face meeting with excluded contract holder Can present written or oral evidence to the panel Has the right to be represented and/or accompanied Policy need to provide for a review and who will sit on the panel Someone more senior to original decision maker Another independent person from within organisation A representative from local housing authority Prescribed form to be completed (Annex 1 of the Guidance)

11 The lessons learned review matters to be considered Evidence of unacceptable behaviour serious enough to justify an exclusion Was it reasonable; were all the circumstances considered Was relocation considered What threat was posed to others Were police called What happened during the exclusion period e.g. accommodated by another landlord, LHA etc. Whether and when notice was provided (detailing reasons) Was policy followed, can it be improved upon

12 Obtaining local authority consent to extend relevant period before tenancy/licence becomes an occupation contract Non-statutory guidance Can apply for consent where L believes the conduct of T living or appearing to live in the dwelling, continuously or not, is anti-social in nature Issue a notice of extension (not prescribed) at least 4 weeks before the end of the relevant period Notice must advise tenant/licensee of his right of appeal to the county court L should apply to LHA for consent at least 6 weeks before the end of the relevant period (allows LHA 2 weeks to consider the application) Can be shorter in exceptional circumstances NB: omissions or poor time management unlikely to be exceptional circumstances

13 The application should contain Name, address and contact derails of L and tenant/licensee; Date tenancy/licence commenced and is due to end Reason/s for seeking extension Evidence of consultation with tenant/licensee Evidence of any action already taken to address the conduct The length of time of extension (maximum 3 months)the date by which approval is sought Decision of local authority is subject to appeal by the tenant/licensee Response by 28 April 2017!

14 Nice to get some meat on the bones but what do we need to be thinking about:- Have relevant agreement(s) ready (NB we are still awaiting the model contracts) Be ready with new agreements and information for existing occupiers Policy/procedures need to cover: Extension of the non occupation contract (if used) Use of the temporary exclusion Staff training Familiarity with the whole Renting Homes regime necessary and an understanding of what the different types of tenure are Deadlines to trip up the unwary Ensure understanding/confidence in terms of extending a licence or a common law tenancy Ensure that you are using the additional rights (to move, and to exclude) where relevant Procedures for seeking possession

15 Fly tipping will fixed penalty notices help? Fly-tipping is a crime under the Environmental Protection Act. LA and Police have powers to deal with it but are they effective enough? 36,000 incident s of fly-tipping recorded in Wales in 2015/16 Cost to the Welsh tax payer over 2.1 million to clear Of the 36,000 incidents, 21,494 were investigated which resulted in 53 successful prosecutions i.e. 0.2% of all incidents investigated Under the criminal court rules fines are paid to the courts and LAs struggle to recover their costs. One example reports costs being incurred of 8,000 but the court only awarded 4,256

16 Fly tipping will fixed penalty notices help? Other remedies: Civil injunctions CPNs England have been using FPNs since 9 May 2016 and Scotland since circa 2004 In Wales FPNs already available for littering, graffiti, dog fouling and fly posting

17 Fly tipping will fixed penalty notices help? Proposal is to amend section 33(1)(a) Environmental Protection Act 1990 to allow FPN to be issued where:- A person has deposited controlled waste or extractive waste in or on any land unless in accordance with an environmental permit. The FPN can only be issues by an officer of a Welsh Local Authority FPN can be set between 150 and 400. default will be 200 Reduction of not more than 120 for paying FPN within 10 days of the date of the notice LAs will retain all receipts from FPNs Also an offence to fail to give a name or address or to provide false or inaccurate details Consultation closed on 6 April 2017 watch this space

18 Succession rights and non-married partners Turley v Wandsworth A spouse or civil partner will be entitled to succeed to a tenancy provided they were living at the property at the time of death Other partners living as if husband or wife will need to have been living with the deceased for 12 months prior to death The above rules apply to statutory successions to secure tenancies but most social housing assured tenancies are drafted so that the same principles apply (although the succession is statutory) This case challenged that distinction D was the sole secure tenant of a property; in 1995, his partner Ms T and their four children moved in with him. Relationship broke down in 2010 and D left. He returned in 2012 but died two months later. Wandsworth sought possession on the basis T was not entitled to succeed.

19 Succession rights and non-married partners Turley v Wandsworth T sought judicial review of the decision to evict She also sought a declaration that the relevant legislation governing rights to succeed was incompatible with her convention rights The case was dismissed at first instance and she appealed The Court of Appeal dismissed the appeal The 12 month condition for a non-married partner is clearly discriminatory But the discrimination can be justified It is a legitimate aim to limit the succession rights to relationships with a degree of permanence. Marriage or civil partnerships have that degree of permanence, and it is reasonable to impose a 12 month time limit on other relationships In fact, Wandsworth had offered T a smaller property but she had rejected it. The Court were not critical of them for applying the law where housing is in short supply

20 Don t play with prescribed notices Islington v Dyer There are certain notices which you use in a housing context which are prescribed e.g. Notice Seeking Possession, Rent Increase Notice. It is always dangerous to try and amend a notice which is prescribed even if you are doing it with the best of intentions trying to make it shorter/more accessible. Don t be tempted. Sometimes a notice is not prescribed but there are either statutory or regulatory requirements to be complied with. In this case the landlord won in the end but only after a costly outing to the Court of Appeal, and significant delay caused to the eviction process. D was an introductory tenant. Like a starter tenancy, where possession is sought against an introductory tenant during the first year of the tenancy, notice must be served. In this case, though, the notice is a statutory notice (s128 Housing Act 1996).

21 Don t play with prescribed notices Islington v Dyer The form of notice is not prescribed but the notice must comply with the requirements of s128. There are a list of issues which must be covered similar to the requirements of a s21 notice which must be served on a starter tenant. S128 D received (1) a letter, (2) a notice and (3) an information leaflet D claimed the notice was invalid because certain information (that he could obtain help from a CAB, law centre or solicitor) was in the leaflet and not the notice D lost at first instance but won an appeal and the case reached the Court of Appeal The Court of Appeal confirmed that a notice under s128 may be comprised of more than one document, as such the notice is valid The decision is very helpful, many landlords do similar in an attempt to make the information digestible. Don t take unnecessary risks though.

22 Non-occupation Dove v Havering Twin sisters had been granted a joint tenancy of a flat. Following an anonymous report, the LA launched an investigation into their occupancy of the flat. They concluded that neither was satisfying the tenant condition. Housing and council tax benefit were withdrawn. The tribunal accepted that the evidence showed that neither tenant was in occupation as their principle home. The LA served a notice to quit and sought possession. There had been lengthy delays and the tenants sought further adjournments on the grounds of ill health (with evidence in support). The judge refused to adjourn the trial for a number of reasons lengthy delays to date, failures to comply with directions, mounting arrears, and the application was late.

23 Non-occupation Dove v Havering The judge proceeding with the trial, at which the LA relied on DVD evidence recording an inspection of the flat. One of the sisters was too ill to attend. Possession was granted, both appealed on the basis that the judge had failed to consider the intentions they had as regards the flat. The CA endorsed the principle that the circumstances of the tenant s absence may raise an inference that T no longer occupies the property as his or her only or principal home which then casts the burden on T to prove, by reference to objective facts, that his enduring intention and belief was that the property remained his principal home. So, a tenant must be able to point to something objective to satisfy a judge of his intention with regard to the Property.

24 Non-occupation Dove v Havering Points of interest: The usefulness of the previous tribunal decision Use of DVD evidence to show the inspection findings. More useful than photographs?? It took an incredibly long time to resolve, during which time the flat was unavailable for anyone else to use and the arrears were increasing could it have been dealt with more swiftly? The fact that the information only arose following an anonymous tip off demonstrates the difficulty in dealing with tenancy fraud. What can you do public information campaigns/get tenants on board with solving the problem. How the court dealt with the tenant s evidence on intention.

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