Legal Update: Housing Management. Jonathan Hulley and Amy Gibbs. clarkewillmott.com

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2 Legal Update: Housing Management Jonathan Hulley and Amy Gibbs

3 Our Team Jonathan Hulley, Partner Amy Gibbs, Associate

4 Legal Update Pre-action Protocol Welfare Reform and Work Bill Mandatory ASB ground for possession Prevention of Social Housing Fraud Act 2013

5 Pre-action Protocol Pre-action Protocol for Possession Claims by Social Landlords came into force on 6 April Part 1 contains the aims and scope of the protocol. Part 2 relates to claims based on rent arrears - now required to send the tenant a copy of the Protocol. Part 3 applies where landlords wish to rely on a mandatory ground for possession personal circumstances of occupant need to be considered.

6 Part 3 of the Protocol Ask occupants to notify you in writing of any personal circumstances or matters to be taken into account. This letter can accompany Notice so would not necessarily delay the issue of proceedings. You should consider any representations received and, if you decide to proceed with claim, give brief written reasons. Particulars of claim or supporting witness statement must include a summary confirming that the required steps have been taken and setting out details of any representations made.

7 Welfare Reform and Work Bill Intended to support the Government s commitment to slowing the growth of the welfare budget. Benefits Cap - 20,000 for couples and lone parents, and 13,400 for single claimants, except in Greater London ( 23,000 and 15,400). 1% reduction in social housing rents. Pay to Stay. Extended Right to Buy.

8 Rent reduction in the Bill Social housing rents are currently set according to a Rent Policy (CPI plus 1%). The Bill provides for social rents to be reduced by 1% per year for four years from April The rent base line - 8 July Anticipated that average rent for a household in the social housing sector will reduce by approximately 12% by 2020 in comparison to current forecasts. Sector commentators have suggested that the 1% rent reduction will have more impact on both local authorities and housing associations than any other single measure.

9 Mandatory ASB ground Anti-social Behaviour, Crime and Policing Act 2014 inserts Ground 7A into Part 1 of Schedule 2 to the Housing Act The court must grant possession under Ground 7A if any one of the five conditions is met. Condition 1, 2 or 3 will be met if the tenant/visitor/ household member has been: convicted of a serious offence and the offence is committed on or after 20 October 2014; found by a court to have breached an injunction (which relates to anti-social conduct); or convicted for breach of a criminal behaviour order.

10 Mandatory ASB ground The offence or anti-social conduct must have: been committed in, or in the locality of, the dwellinghouse; affected a person with a right to live in the locality of the dwelling-house; or affected the landlord or a person connected with the landlord's housing management functions. Condition 4 - closure order as a result of antisocial behaviour in or near the property. Condition 5 - tenant/visitor/household member convicted for breach of a notice or order to abate noise under Environmental Protection Act 1990.

11 Mandatory ASB ground Serious offence - see Schedule 2A to the Housing Act Examples: murder, manslaughter, rape, affray; wounding with intent to cause grievous bodily harm, malicious wounding, assault occasioning actual bodily harm; carrying a firearm in a public place; robbery or assault with intent to rob, burglary, aggravated burglary; causing serious injury/death by dangerous driving, causing death by careless driving when under influence of drink or drugs.

12 Yarlington v Burden Mr Burden of Chard, Somerset, engaged in a string of anti-social behaviour and criminal damage incidents. Post 20 October 2014, Burden used an offensive weapon in a public place and was convicted of a criminal offence ( serious offence ). Yarlington was able to rely upon criminal conviction (condition 1) and obtained a possession order on a mandatory basis at first hearing.

13 Our case We obtained a without notice Civil Injunction against Mr Dlamini who was hoarding bottles of butane gas in his flat. He ignored the Civil Injunction which prohibited him from bringing Butane gas home. Arrested by police and following committal proceedings where breaches were proved, the Judge sentenced the Defendant to 8 weeks in prison.

14 Our case In light of the proven breaches (condition 2) we applied for a possession order using ground 7A and sped up the process further by making an additional application to expedite the hearing. On 1 October 2015, the court granted an outright possession order forthwith.

15 Six Town Housing v Ramshaw Tenant was drug dealing and misusing drugs in and around her property. Also reports of prostitution, noise nuisance, fighting and criminal damage. Greater Manchester Police obtained a closure order in April Six Town Housing then relied on that closure order to claim possession under ground 7A (condition 4).

16 Case Study You ve received a telephone call from a resident, Emily, who wishes to complain about noise nuisance coming from next door which is let to Samantha Smith. Emily says it has been going on for months and the noise team has been loads. You check Samantha Smith s file and see that there have been a number of complaints of noise nuisance and arguments occurring at the property. Samantha is a sole tenant and lives with her boyfriend, Karl. You see that there is an in the file from the police about Karl being arrested a few months ago for an assault.

17 Case Study You seek disclosure from the police and the council. The police confirm that Karl has been convicted of wounding with intent to cause grievous bodily harm in June this year following a trial. The offence itself took place on 20 September 2014 and the victim lives three doors away from Samantha and Karl.

18 Case Study Further, the police confirm that Karl has two convictions for burglary, one being for aggravated burglary, and that he is awaiting sentencing. The police advise that he is likely to receive a custodial sentence. Karl has also recently pleaded guilty to shoplifting. The shoplifting offence took place this summer. The council confirm that its noise team has served a noise abatement notice on Samantha, What further information would you wish to find out and do you think you could seek possession of Samantha's home using mandatory ground 7A?

19 Prevention of Social Housing Fraud Act 2013 Legislation to tackle tenants who are sub-letting property for a profit. Policy rationale is to ensure that social housing is occupied by those in greatest housing need and to make best use of housing stock. Subletting of social housing is now a criminal offence (since 15 October 2013).

20 Knowingly sublet A tenant will commit an offence if he/she: Sublets or parts with possession of the whole of the property, or part of the property without written consent Ceases to occupy it as his/her only or principal home and He/she does so, knowing that it is in breach of an express or implied term of the tenancy. If found guilty, tenant will be liable for a fine of up to 5,000.

21 Dishonestly sublet A tenant will commit an offence if he/she: sublets or parts with possession of the whole of the property or part of the property without written consent Ceases to occupy it as his/her only or principal home and Dishonestly and in breach of the express or implied term of their tenancy. Summary conviction - imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; or In the Crown Court - imprisonment for a term not exceeding 2 years or a fine or both.

22 Prosecutions Cornwall Council prosecuted Wendy Snowdon for moving out of her council house and illegally subletting it. Snowdon was found guilty at Truro Magistrates Court. She was given a 12 month conditional discharge and was ordered to pay Cornwall Council s full investigation and legal costs.

23 Prosecutions David Mukanirwa sublet his Exeter flat on two occasions whilst he lived in Swindon after advertising it for rent on Gumtree. Plymouth City Council brought the prosecution as part of its work with the Devon Social Housing Fraud Forum on behalf of Exeter City Council. Mr Mukanirwa pleaded guilty and was fined.

24 Key amnesty Tenants who are illegally subletting their homes are being given the opportunity by some landlords to return their keys within a time frame and avoid prosecution. Popular policy particularly in the South East where subletting is very prevalent and profitable. Cornwall Council - key amnesty in January and February 2015 resulted in 3 properties being handed back. Coastline Housing over the summer until September 2015.

25 Questions?