Housing case law - monthly update (September)
Dacorum Borough Council v Bucknall  EWHC 2094
10 August 2017
The High Court has allowed an appeal against the making of a possession order made in favour of the claimant council (Dacorum).
The High Court held that Ms Bucknall had been occupying the property in which she lived “as a dwelling” at the time that she was served with a notice to quit by Dacorum. This meant that she was entitled to the protections under the Protection from Eviction Act 1977. Whilst Ms Bucknall had not occupied the property “as a dwelling” while Dacorum had carried out its interim housing duty under section 188 of the Housing Act 1996, the situation changed when Dacorum acknowledged its full housing duty under section 193(2) of the Housing Act 1996 by offering her the opportunity to stay in the property while it searched for alternative permanent accommodation.
Dacorum’s offer and Ms Bucknall’s continued occupation of the property meant that she was occupying the temporary accommodation “as a dwelling” within the meaning of section 5(1A) of the Protection from Eviction Act 1977 and, consequently, Dacorum’s possession claim failed. A copy of the judgment is here.
Poplar Housing and Regeneration Community Association Limited v Begum and another  EWHC 2040
4 August 2017
A social housing association (Poplar) was granted an order for outright possession of a flat which had been sub-let by its tenants.
Poplar had granted an assured tenancy to the respondents who had sub-let the property for profit, breaching the terms of the lease. However, Poplar was only granted a suspended possession order under section 9 of the Housing Act 1988 and so appealed. On appeal, the High Court granted Poplar an outright possession order and an unlawful profit order (UPO) under the Prevention of Social Housing Fraud Act 2013, as the money received from the subletting “was pure profit”.
This is the first case to consider, and give guidance, on calculating UPOs. A copy of the judgment is here (Capsticks represented Poplar in this case).
R (on the application of Letizia Esposito) v Camden London Borough Council (extempore decision)
31 July 2017
The High Court has held that Camden London Borough Council (Camden) does not have to continue housing a tenant of a high rise tower block in temporary accommodation in circumstances where the building has complied with fire safety advice from the fire brigade and the Department for Communities and Local Government.
The claimant (Letizia Esposito), who had been temporarily moved out of the tower block following the Grenfell Tower fire, refused to return until the results of further safety testing had been completed and asked Camden to let her continue living in temporary housing. Camden refused and Ms Esposito sought an interim injunction.
The High Court held that Ms Esposito had not shown that Camden had acted irrationally – the building had been evacuated due to advice from the fire brigade and not because of a failure of the cladding. Camden was therefore justified in asking the tenants to return. This is an extempore decision (oral) and the written judgment is not yet available.
Ealing London Borough Council v H and others  EWCA Civ 1127
28 July 2017
The Court of Appeal has allowed Ealing London Borough Council's (Ealing) appeal against a court order that had quashed two priority schemes in its housing allocation policy on the grounds that the schemes were unlawfully discriminatory.
Ealing’s housing policy operated several priority housing bands and set aside a small proportion of its lettings for “working households” and “model tenants”. The respondents - two families that Ealing had a duty to house – claimed that the “working households” and “model tenants” schemes were discriminatory. The High Court agreed and quashed the two priority schemes.
The Court of Appeal allowed Ealing’s appeal, ruling that the High Court had wrongly drawn comparisons with three other local authorities’ housing policies, which were radically different, and had not taken account of the details of Ealing’s schemes. A copy of the judgment is here.
Hemley v Croydon London Borough Council (extempore decision)
25 July 2017
Croydon London Borough Council (Croydon) appealed against a decision quashing its review officer's finding that the respondent (Ms Hemley), who suffered from chronic pain syndrome, was not in priority need for the purposes of Part VII of the Housing Act 1996. Both parties had acknowledged that the decision in Hotak v Southwark LBC  UKSC 30 had changed the test for vulnerability by establishing that a person could be vulnerable even if they were able to fend for themselves – Ms Hemley contended that the review officer had applied the wrong legal test, whilst Croydon submitted the review officer would have come to the same conclusion even if he had applied the test in Hotak.
The Court of Appeal, dismissing the appeal, held that it was not sufficiently confident that the review officer would have reached the same decision and the quashing of his decision was upheld. This is an extempore decision (oral) and the written judgment is not yet available.
Afonso da Trindade v London Borough of Hackney  EWCA Civ 942
6 July 2017
On an appeal against a finding of intentional homelessness within section 191(2) of the Housing Act 1996, the Court of Appeal has upheld the decision of a review officer at the London Borough of Hackney (Hackney).
The appellant (Ms da Trindade) lived in an apartment in Sao Tomé, before coming to the UK to seek medical treatment for her disabled daughter. She stayed with her sister until her sister’s tenancy was terminated. Ms da Trindade applied to the council for housing, but Hackney determined that she was “intentionally homeless” within the meaning of section 191(2) and therefore her application for social housing was rejected. Ms da Trindade appealed.
The Court of Appeal, dismissing the appeal, confirmed that a housing applicant who seeks to bring themselves within section 191(2), where “the future has not worked out as they intended”, has to show that at the time of their action, they had an “active belief” that a specific state of affairs would arise or continue in the future, based on a genuine investigation about those prospects, and not on “mere aspiration”. Ms da Trindade’s desire to obtain medical treatment for her daughter did not mean that she had acted in “good faith” if she left her home country with “reckless disregard” of what her housing prospects would be in the United Kingdom. A copy of the judgment is here.