Housing Law Update April 2014 Daniel Skinner Batchelors Solicitors dskinner@batchelors.co.uk 020 8768 7068 @DSkinnerLegal
The Prevention of Social Housing Fraud Act 2013
What was the Problem? 98,000 social lettings affected (Audit Commission 2012) Costs to LHAs 900 million per year Guidance issued to social landlords in 2011 (NFH/CIH) Assured tenancy not permanently lost by sub-letting Fraud Act 2006 little used Act in force from 15 Oct 2013
Criminal Offences Section 1 (secure) and Section 2 (assured) Prosecuted by Local Authorities (section 3) For Assured tenancies landlord must be a Registered Provider Covers sub-letting/parting with possession of whole and/or part
Two Different Offences Lesser offence Breach of express/implied term Sub-let/part with possession of whole (or part without written consent) No longer only or principal home T knows it is a breach of tenancy Defence of Violence or threats of violence by a resident
More Serious offence Tenant acts dishonestly No need to show T knows it is a breach Dishonesty? R v Ghosh Knowledge that a reasonable and honest person would consider his actions dishonest Exceptions / defences to lesser offence not available
What Could they Get? Fine not exceeding level 5 for lesser offence Currently up to 5,000 Prison up to two years in Crown Court /fine for more serious offence Proceedings to start within 6 months of knowledge No prosecution after 3 years from offence
Assured Tenants Security New Rules (Shared ownership leases not included) Introduces section 15A Housing Act 1988 If they give up security they lose it for ever Secure tenants covered already by s.93(2) Housing Act 1985
Unlawful Profit Orders Section 4 (criminal) and section 5 (civil) Must be considered by court upon conviction Will be made if they consider it appropriate Amount awarded is to represent profit Maximum = amount received by T less rent paid to L Court can order less than maximum Interest applies if not paid when required (8%)
Sharing of Information Draft Regulations just published Authorised Officer of local authority will be able to require information from:- Bank or money lender Utility companies Phone companies If they believe person about whom they enquire, or a member of their family, is committing or will commit a fraud under the new Act Can give a phone number or email and require a postal address or identity from it Criminal offence to delay or refuse to provide information
Changes to Benefits
Bedroom Tax Not a tax: limit on benefit entitlement reduction according to number of spare bedrooms Generally, one bedroom per person or couple but e.g. same gender children under 16 expected to share children under 10 expected to share, regardless of gender disabled tenant or partner needing overnight care allowed extra room Exceptions: severely disabled children*, foster carers, service personnel * Gorry v Wiltshire Council [2013] PTSR 117 CA and SI 2013/2828
What is a Bedroom? What constitutes a bedroom? No statutory definition Landlord s designation determinative? - FTT decisions in Fife apply statutory overcrowding criteria - Controversial FTT decisions elsewhere Landlords should beware of reclassifying May affect rent levels and value of stock Bolton decision related to LHA, and is of limited or no relevance Can t Use or Don t Use case?
Article 8 Defences
Article 8 Defences Can Succeed Southend-on-Sea BC v Armour [2014] EWCA Civ 231 (introductory tenancy) Affinity Sutton Homes Ltd v Cooper (contractual succession) and matters can change: R(JL) v (1) Secretary of State for Defence (2) Leeds City Council [2012] EWHC 2216 (Admin) @ 61
Success though will be rare. Michael Sims v Dacorum Borough Council (Joint tenant s NTQ) 38. I would dismiss the appeal. The parties rightly regarded that as inevitable. I would also refuse permission for another appeal. It would be a waste of the publicly funded resources of the Supreme Court.[Mummery LJ] West Kent v Haycraft Starter Tenant denied allegations of ASB and argued long period of good behaviour Court of appeal upheld Possession Order
Has the Landlord Got It Right? 1. Clear and identifiable decision-making. 2. Proper formulation & use of policies see Barber v Croydon LBC [2010] EWCA Civ 51; [2010] HLR 26 3. Ongoing Review see JL case. 4. Robust use of strike out/summary judgment applications
ASB - The New Tools
Injunction to Prevent Nuisance & Annoyance Will ape the ASBI in many respects, but bolts on features of the ASBO, such as: The police can apply as well as landlords and it is not confined to a housing-related context Orders can be made against children as young as 10 (cases will be in the Youth Courts and the Youth Offending Team will have to be consulted beforehand) Rules will apply to make it easier for vulnerable or intimidated witnesses to give evidence
IPNA what is needed? The Court is satisfied, on the balance of probabilities, that D has engaged or threatens to engage in conduct capable of causing nuisance or annoyance to any person, AND it just and convenient to grant the injunction for the purpose of preventing D from engaging in ASB
IPNA Other features Orders could include both prohibitions and requirements (like ASBIs, but unlike ASBOs) An order which includes a requirement, must specify a person or organisation responsible for supervision of compliance Exclusion orders remain available but only to local authorities and housing providers in a housing-related context Enforcement is by application, by the Claimant, back to the County Court for committal to prison, Except if a power of arrest is enforced by the police, or In the cases of minors
Criminal Behaviour Orders Will replace the ASBO on Conviction The ASBO on conviction is in addition to the sentence being imposed The existing principles will largely apply to the new criminal behaviour order and the test is the same conduct likely to cause harassment alarm or distress to someone not of the same household Similarly, breach of criminal behaviour order, without reasonable excuse, criminal offence up to 6 months/5 years imprisonment
Criminal Behaviour Orders - Changes The criminal behaviour order can include prohibitions and requirements, like the new injunction to prevent nuisance and annoyance As with the new injunctions, where requirements are included in the order, it must identify a person or organisation who will be responsible for supervising compliance Potential duration of the Order reduced for young offenders not the 2 year minimum period and potentially indefinite orders, which apply to adults, orders against under 18s are to be for a fixed period of 1 to 3 years
Mandatory Possession No new ground, but new procedure Modelled on process for bringing Introductory Tenancies to an end Would require notice + reasons + date after which claim can begin Court required to order possession if correct procedure followed Right to a statutory review by more senior officer Limited court discretion to postpone; s.89 HA1980
When? Would apply to serious, housing-related ASB already proved by another court Convictions for a serious, housing-related offences Breach of Anti-social Behaviour Injunction Closure of premises under closure order Will it work? L can issue immediately after normal NOSP but would have to review decision using mandatory procedure if asked to do so; tenant could still ask court to consider proportionality of eviction; public law defences still available. Further, tenants already prevented from re-opening decisions made by other courts
Other Changes
Community Protection Notices To deal with ongoing minor nuisance By someone over 16 E.g. noise, odour, animals, smoke If a nuisance or prejudicial to health By police, local authority and Registered Providers Consult with other agencies Written warning in advance Breach of requirement in notice is an offence Fixed penalty, or Prosecution Individual fine 2,500 Company fine 20,000
Other Bits Public Space Protection Order For local authority only E.g. preventing dogs in playground, drinking in parks Closure Orders Similar to current 2 stage process
Community Triggers A new power to enable victims to force a Case Review By local authority, police, health authority and Registered providers 5 trial areas Bodies will be able to set their own threshold E.g. 3 reports of ASB in 6 months Can NOT be set at more than 3 incidents
Community Remedy Police and Crime Commissioners must consult the public on sanctions to deal with low-level crime and ASB outside of the court system. The PCC and Chief Constable must ensure menu is proportionate. Police officers to use the menu of sanctions when using two types of out of court disposal informal community resolutions and conditional cautions. Victim to be consulted on the sanction to be offered to the offender and given the option to choose from the menu. The police (or CPS in some cases) must ensure the sanction offered to the offender is proportionate to the offence.
Dangerous Dogs Will amend the Dangerous Dogs Act Extend the Act to all private property So includes your own home Exception for householders Who are in the building and believe other person is a trespasser Allows dogs to be seized from private places Offence now where it appears dog will injure any Assistance Dog, even if it does not attack it
Also in the Bill Firearms new offences Forced Marriage Court can make a protection order Up to 5 years for a breach Creates a new criminal offence And various little bits about policing admin etc