Board Member s Conference 2013 Legal Update Where are we now? Jonathan Hulley, Head of Housing and Asset Management Clarke Willmott LLP T: 0845 209 1594 E: jonathan.hulley@clarkewillmott.com W: www.clarkewillmott.com
May you live in interesting times Ancient Chinese Proverb
Welfare Benefit Reform What do we know?
Welfare Reform Act 2012 Received Royal Assent on 8 March 2012 Biggest change to the welfare system for over 60 years Changes given effect to by Regulations including Universal Credit Regulations relating to service charges
Aims to: The Act The Key Changes create work incentives deliver fairness Universal Credit Benefits Cap Bedroom Tax
Universal Credit What is it? No longer payments of separate benefits Single monthly payment, replacing: - Housing Benefit - Job Seeker s Allowance - Employment and Support Allowance - Income Support - Child Tax Credits - Working Tax Credits
Universal Credit How will it work? Phased in over a four year period Paid directly to the tenant (including housing related element) Online, self-service benefit Paid into a bank account using the BACS system
Benefits Cap What is it? From April 2013 although initially only in four London Boroughs 350 for a single person 500 for couples and those with dependant children
Bedroom Tax The reductions If a tenant has one or more spare bedrooms then their Housing Benefit entitlement (housing element of Universal Credit) will be reduced 14% for one bedroom 25% for two or more bedrooms DWP has estimated that households will lose an average of 83 per week ( 4,316 per annum)
Bedroom Tax Entitlement Each adult or couple entitled to their own bedroom Children under 10 will need to share regardless of gender Children under 16 of same gender will be expected to share Disabled tenant or partner who needs nonresident overnight carer will be allowed an extra bedroom
Bedroom Tax Who will be affected? Separated parents who share the care of their children Foster carers Parents whose children visit but are not part of the household Families with disabled children Disabled people including people living in adapted or specially designed properties
Bedroom Tax Example 1 Mrs and Mrs Smith live in two-bedroom flat Rent is 107 per week Currently HB covers total rent payment Under Welfare Reform Act 2012: Housing element reduced by 14% 107.00-14.98 = 92.02 Shortfall of 14.98 will have to be paid out of other income/benefit entitlement
The Challenges Ahead Weekly tenancies, monthly Universal Credit Budget for higher arrears? Difficulties in obtaining properties suitable for needs of tenants Possession proceedings - reasons for the arrears will clearly be very important Increased requests for lodgers?
The Challenges Ahead Direct Payments 1 Tenant Direct study by L&Q Pilot study between May 2002 and October 2004 700 households into two strands Strand 1 new tenants received HB directly Strand 2 existing tenants received HB directly
The Challenges Ahead Direct Payments 2 Strand 1 arrears rose by 6% Strand 2 arrears rocketed to 9% in just 12 weeks and then settled at 7% Tenant Direct does not work for the resident either. Between a fifth and a quarter have debt when they join us and appear to use Tenant Direct to manage their general debts. This only leads to further debt.
Preparing for the Challenges Ahead Ring-fence smaller properties to tackle underoccupation? Give priority to tenants under-occupying in allocations policy? Target those who are under-occupying by more than one bedroom? Promote mutual exchanges? Enough assistance for tenants dealing with rent arrears?
Welfare Reform Change for the better? We are reforming the system to help people to move in to and progress in work, while supporting the most vulnerable Claimants could be left "trapped in poverty" by failing to fulfil the Coalition's pledge to "make work pay". Joseph Rowntree Foundation
Proportionality Introductory & Starter Tenancies Summary of facts (Corby v Scott) Corby Borough Council v Nicholle Scott: West Kent Housing Association LTD v Jack Haycraft (2012) EWCA Civ 276 LA granted introductory tenancy; Tenant fell into arrears and complaints were made in relation to noise nuisance; Tenant s family paid off the arrears the day before the possession hearing; Tenant had been a victim of a serious assault; Judge agreed that the Claimant was entitled to Possession but that there was exceptional circumstances which meant that it was not proportionate to award possession.
Corby Borough Council v Nicholle Scott: West Kent Housing Association LTD v Jack Haycraft (2012) EWCA Civ 276 contd. Summary of facts (Kent Housing v Haycraft) Tenant had been granted an assured shorthold tenancy in the form of a starter tenancy; Vulnerable neighbour of tenant made an allegation of indecent exposure investigated by HA and police; Further allegations were made against him; Possession proceedings were instigated; Tenant applied for a review which at appeal was upheld; Judge made an outright possession Order; Tenant appealed raising an Art 8 argument Judge dismissed his case without it being heard.
Corby Borough Council v Nicholle Scott: West Kent Housing Association LTD v Jack Haycraft (2012) EWCA Civ 276 contd. Judgment (Corby v Scott) Court of Appeal considered the LA appeal and held That the claimant s action in Scott was not disproportionate regardless of the attack. It could not be shown that the attack resulted in mental or physical injury; Attack simply had nothing to do with the claim for possession or the home from which she was being evicted; Exceptionality was not the test rather, it was a measure of the outcome; Appeal allowed
Corby Borough Council v Nicholle Scott: West Kent Housing Association LTD v Jack Haycraft (2012) EWCA Civ 276 contd. Judgment (Kent Housing v Haycraft) Court of Appeal considered the tenant s appeal and held that: The tenant had not raised a sufficiently strong Art 8 Defence; Review panel had investigated the alleged exposure fully; Conclusion of the hearing was well reasoned; Appeal dismissed.
Birmingham CC v Lloyd [2012] EWCA Civ 969 Summary of Facts Mr Lloyd s brother had a secure tenancy from Birmingham CC; Mr Lloyd s brother died and Mr Lloyd moved into his flat without the knowledge or consent of his brother's estate or the Local Authority; Possession proceedings commenced; County Court proceedings were dismissed eviction would be a disproportionate interference with these rights under Article 8 of the European Convention on Human Rights; The Judge considered the following factors: Mr Lloyd's diagnosis of depression; Model tenant; Got on well with neighbours.
Birmingham CC v Lloyd [2012] EWCA Civ 969 On Appeal Court of Appeal allowed the appeal. For a trespasser to have a successful proportionality defence, they would require the most exceptional circumstances. Mr Lloyd s circumstances were not exceptional. Sympathy with personal circumstances could not translate into the eviction amounting to a disproportionate interference with his rights under Article 8 of the European Convention on Human Rights. Even if Mr Lloyd had been an ex-tenant rather than a trespasser, the circumstances were not exceptional enough to justify refusing a possession order.
Southend-on-Sea Borough Council v Armour Summary of Facts Mr A introductory tenant; Reports of anti-social behaviour shortly after he moved in; Notice of Possession Proceedings served and possession claim made; 2 adjournments (because of Mr A); County Court possession claim dismissed no criticism of actions of the Claimant BUT as of the date of the hearing it was no longer proportionate for a possession order to be made as the Defendant had behaved and complied with terms of tenancy for almost a year.
Southend-on-Sea Borough On Appeal Council v Armour Appeal to High Court; Claimant argued that compliance with the terms of the tenancy agreement is not a relevant consideration when considering proportionality and that good behaviour alone was insufficient to give rights to proportionality defence; Appeal dismissed: Recorder had considered relevant factors; Good behaviour is a relevant consideration when considering proportionality; The amount of weight to be given to each factor is a matter for the County Court. Second Appeal to the Court of Appeal: Decision Pending
New Tools to tackle Anti-Social Behaviour: All you need to know
Background of new proposals Government issued two consultation papers in 2011 proposing the changes More effective responses to anti-social behaviour (Feb 2011) A new mandatory power of possession for anti social behaviour (August 2011) White paper in May 2011 Putting victims first more effective responses to Anti-social Behaviour Intention to replace existing tools in the field from 19 to 6 Draft Anti-Social Behaviour Bill published in December 2012
Draft Anti-Social Behaviour Bill The Key Proposals The draft bill is in seven parts. Part one makes provision for a new civil injunction to prevent nuisance and annoyance. Part two makes provision for an order on conviction to prevent anti-social behaviour to be called Criminal Behaviour Order (CBO) and is designed to replace the Anti-Social Behaviour Order (ASBO).
Draft Anti-Social Behaviour Bill The Key Proposals Part three contains power for the Police to disperse people who they deem to be causing harassment. Part four covers new powers given to the Police, Local Authority and some Housing Associations to deal with community protection and for these bodies to serve on individuals a Community Protection Notice (CPN). Part four of the bill also contains provisions to close properties associated with nuisance.
Draft Anti-Social Behaviour Bill The Key Proposals Part five makes provision for the possession of houses on anti-social behaviour grounds, including a new absolute ground for possession. Part six of the bill contains provisions on establishing a new community remedy document which will allow victims of anti-social behaviour to choose from a list of punishment options. Such punishment could include mediation, paying compensation to the victim or reparation to the victim or community. Part seven of the draft legislation contains general provisions.
The Community Protection Notice The proposed new Community Protection Notice (CPN) is intended to deal with nuisances which negatively affect the community s quality of life by targeting the person responsible. The notice will direct the individual responsible to stop causing the problem and it could also require the person responsible to take reasonable step to ensure that it does not occur again. This notice is intended to replace current measures such as litter clearing notices, defacement removal notices and street litter control notices. It is not meant to replace the statutory nuisance regime and where the behaviour is such as to amount to a statutory nuisance under section 79 of the Environmental Protection Act 1990. Statutory nuisances in respect of the Environmental Protection Act will continue to be dealt with by the service of nuisance abatement notices served by officers employed by Local Authority Nuisance Abatement Teams.
The Community Protection Notice The power to issue a notice will be available to the police, The Local Authorities and importantly, staff of registered providers of social housing (if designated by the relevant Local Authority). Therefore, Housing Associations would, provided they have been given the authority to do so by a relevant local authority, be able to serve on one of their tenants, a CPN requiring that individual to stop behaving in a way affecting the community's quality of life. This could include where that tenant is seen writing graffiti in a communal part of an Estate or dropping litter such as cigarette buds in the stairwells of an Estate. The test will be that the individual handing out the notice reasonably believes that the person s behaviour is detrimental to the community s quality of life and is unreasonable, and that the behaviour as having a persistent or continuing affect.
The Community Protection Notice The notice must clearly state that the behaviour is having a detrimental affect on the quality of life of the local community and set out what action is required. The notice must also clearly set out the consequences of not complying. A breach of any requirement in the notice, without a reasonable excuse, would be a criminal offence subject to a fixed penalty notice or prosecution. It is therefore a powerful new tool proposed in the draft legislation. It is also encouraging that this notice could be served by Housing Association Officers provided they have been given the authority to do so by a relevant Local Authority. It is likely that as the draft legislation works its way through the parliamentary scrutiny process further details and clarification in respect of the service of these notices will be made known
A New Absolute Ground for Possession The draft bill proposes to insert into the Housing Act 1985 (in respect of secure tenancy agreements) and the Housing Act 1988 (in respect of assured tenancy agreements) an absolute ground for possession for anti-social behaviour. In these circumstances, a Housing Association could choose to use, instead of existing discretionary grounds for possession, the new mandatory ground. This would provide the landlord with an unqualified right to possession, subject only to the Courts considering the proportionality of the decision to seek possession. The draft legislation states that a Court must make an order for possession if one of five conditions are met. These conditions are:
A New Absolute Ground for Possession The tenant, or a person residing in or visiting the property has been convicted of a serious offence and that serious offence was committed in or in the locality of the property or the offence was committed elsewhere against a person with a right to live in housing accommodation in the locality of the property occupied by the offender or the serious offence was committed elsewhere against the landlord of the property, or a person employed in connection with the landlord's housing management functions.
A New Absolute Ground for Possession Condition two is that a Court has found that a recipient (including a tenant or family member) of an injunction to prevent nuisance and annoyance has been found to have acted in breach of a provision of that Injunction Order; Condition three is that the tenant or a person residing in or visiting the property has been convicted of a breach of a provision of a Criminal Behaviour Order (CBO); Condition four is that the property has been made the subject of a Closure Order;
A New Absolute Ground for Possession Condition five is that the tenant or a person residing in or visiting the property has been convicted of an offence under the Environmental Protection Act 1990 i.e. had been served with a Statutory Nuisance Abatement Order and had been successfully prosecuted for breach of a term or condition of that notice. Interestingly, a landlord would not be able to rely on a breach of a term or a condition of a community protection notice (CPN) in support of a possession claim relying on the new absolute ground for possession. It is however likely that this omission will be debated further and the draft bill amended as part of the parliamentary scrutiny process
An Amended Discretionary Ground for Possession The draft bill provides for the Housing Act 1985 and the Housing Act 1988 to be amended to provide for a new ground on which a court may order possession if it considers it reasonable to do so. The draft legislation proposes that where a tenant or a person residing in the property has been convicted of an offence which took place during, and at the scene of, a riot in the United Kingdom such conduct can be taken into account by a court in deciding to make an order for possession.
Community Remedy The draft bill proposes a new power called the "community remedy", which will allow victims of antisocial behaviour to choose from a list of punishment options. What is on the community remedy menu in a particular area will depend on the views of victims and the public, but it could include, for example: The offender signing an Acceptable Behaviour Contract; Mediation for example, to resolve a neighbour dispute; Paying compensation to the victim; and Reparation to the community for example, by doing local unpaid work for up to 10 hours.
May you live in interesting times Ancient Chinese Proverb