Housing Case Law – July and August 202322/08/23
Our monthly Housing Case Law brings you a roundup of the latest cases and court decisions in one practical update.
Jones v Birmingham City Council and another  UKSC 27
Supreme Court, 17 July 2023
The Supreme Court has held that the standard of proof for granting injunctions regarding cases of gang violence, drug dealing or serious anti-social behaviour is the civil standard.
Mr Jones was a member of a criminal gang operating in Birmingham. Birmingham City Council applied for injunctions against Mr Jones, pursuant to section 34 of the Policing and Crime Act 2009 and section 1 of the Anti-social Behaviour, Crime and Policing Act 2014, to prevent him and others in the gang from entering the centre of Birmingham.
Birmingham City Council successfully argued at the County Court that the threshold conditions to grant injunctions set out in these two Acts were met, as Mr Jones belonged to a criminal gang and had engaged in, encouraged or assisted gang-related violence and drug dealing. Interim injunctions were granted. Although these two Acts expressly provided that the threshold conditions had to be proved to the civil standard, Mr Jones applied for the injunction claim in his case to be transferred to the High Court, where he applied for a declaration that it was incompatible with Article 6 (“right to a fair trial”) of the European Convention on Human Rights. Mr Jones argued that Article 6 required that proof should be to the criminal standard (rather than the civil one), as he was being accused of criminal acts.
The High Court determined that the civil standard applied. On appeal, the Court of Appeal upheld the High Court’s decision, finding that the civil standard applied and was compatible with article 6 of the ECHR. Mr Jones appealed again.
The Supreme Court, in dismissing the appeal, held that the standard of proof for the range of civil injunctions available under the Policing and Crime Act 2009 and the Anti-social Behaviour, Crime and Policing Act 2014 was the civil standard of proof and not the criminal one. The legislation was intended to deal with the problems caused by gang violence and serious anti-social behaviour, and therefore the adoption of the civil standard of proof should be viewed as a “deliberate step which Parliament considered was justified by the mischief which had to be addressed.”
The decision provides clarity for local authorities applying for injunctions under the Policing and Crime Act 2009 and the Anti-social Behaviour, Crime and Policing Act 2014.
A copy of the judgment is here.
Waltham Forest LBC v Hussain  EWCA Civ 733
Court of Appeal, 26 June 2023
The Court of Appeal has determined the scope of the First-tier Tribunal's statutory jurisdiction under the Housing Act 2004 when hearing an appeal from a local housing authority's licensing decision.
The respondents were landlords and managers of various properties and had submitted a licence application to the London Borough of Waltham Forest under Part 3 of the Housing Act 2004 in respect of a property. A licence was granted and applications were subsequently made by the respondents for further Part 3 licences in respect of another property.
However, the London Borough of Waltham Forest refused the applications and revoked the existing licence on the basis that the respondents were not “fit and proper persons” under the Housing Act 2004. This was because other close family members had previously been convicted of various housing offences, including supplying false information in relation to licence applications and fraudulently backdating gas safety certificates for properties forming part of the family business. This had resulted in the Court of Appeal ruling that licensing authorities were entitled to take into account an applicant’s convictions before issuing a houses in multiple occupation (HMO) licence. London Borough of Waltham Forest considered that the respondents were part of the family’s criminal activity, even though they had not been convicted of any offences themselves.
The respondents appealed to the First-tier Tribunal (Property Chamber). However, crucially the appeal did not come to a hearing until approximately three years after the decisions under appeal. The First-tier Tribunal, in allowing the appeals, held that there was no wider criminal activity that could be attributed to the respondents and therefore at the date of the hearing they were “fit and proper persons”. The London Borough of Waltham Forest appealed to the Upper Tribunal (Lands Chamber), arguing that the Tribunal had misdirected itself by assessing whether the respondents were “fit and proper persons” at the date of the appeal hearing rather than at the date of the decisions under appeal. It argued that the Tribunal had given a lot of weight to matters that had occurred after the London Borough of Waltham Forest had made its decision (matters which the respondents had used as evidence that they had not been involved in the management of the convicted family members’ properties).
The Upper Tribunal, in allowing the appeal in part, held that the First-tier Tribunal (Property Chamber) had been entitled to hear any evidence that showed that the London Borough of Waltham Forest’s decision was wrong. Any evidence that showed that at the time of the First-tier Tribunal (Property Chamber) hearing the respondents were “fit and proper persons” was relevant and should be taken into account, regardless of whether the factual matters were known to the London Borough of Waltham Forest at the time of its refusal decision. London Borough of Waltham Forest appealed.
The Court of Appeal, in allowing the appeal, held that the First-tier Tribunal (Property Chamber) had erred. When a First-tier Tribunal hears an appeal against a decision under the Housing Act 2004, it must consider whether the local authority/council’s decision was wrong by reference to the facts that existed at the time of its decision, and must “afford sufficient deference to the Council's decision and the reasons for it.” The respondents had failed to show that the London Borough of Waltham Forest’s decision to revoke the licence was wrong at the time it had been made. If a material change (that shows an applicant is now a “fit and proper” person) has occurred since the decision to refuse the licence, the applicant should make a fresh application.
A copy of the judgment is here.
Yambasu v Southwark LBC  UKUT 152 (LC)
Upper Tribunal (Lands Chamber), 5 July 2023
The Upper Tribunal has held that a local authority had correctly conducted a residential service charge consultation and that the cost of repairs to the district heating system was reasonable.
Ms Yambasu was a leaseholder of a flat in a building of which London Borough of Southwark was the freeholder. Under the terms of her lease, London Borough of Southwark had to provide a number of services, including central heating and hot water and had to “ensure so far as practicable that they are maintained at a reasonable level.” Ms Yambasu was required to pay “a fair proportion” of the cost to London Borough of Southwark of providing the services and fulfilling other obligations, including insurance, maintenance and repair of the building.
The flat was connected to a district heating system, which was antiquated and repeatedly failed, resulting in long periods without hot water and heating. Ms Yambasu claimed that the system was too old to function economically or to be repaired or maintained, and complained that the leaseholders paid too much for heating because the system also served a number of commercial properties who did not pay for it. Ms Yambasu wanted to be able to disconnect from the system and install a combination boiler, which would cost her much less, rather than pay towards works to the heating system through a service charge.
Ms Yambasu launched a claim, arguing that the section 20 consultation notice on the cost of the works to the heating system had been served incorrectly, that the charges for the repairs were not reasonably incurred, and that the division of the costs between the leaseholders disregarded the size of the flats. The First-tier Tribunal, however, found in favour of the London Borough of Southwark, but did not sufficiently engage with Ms Yambasu’s arguments. Permission to appeal was therefore granted.
The Upper Tribunal (Lands Chamber) dismissed the appeal. It held that the London Borough of Southwark had complied with the consultation requirements, that the First-tier Tribunal had correctly calculated the apportionment between flats, and that there was no evidence that the estimate of costs was unreasonably expensive. It was also held that London Borough of Southwark had reasonably refused Ms Yambasu’s request to disconnect from the heating system as “the disconnection of one resident places a greater burden on the others, and that there would in fact be more work needed to make disconnection possible, which of course residents would have to pay for.”
A copy of the judgment is here.