Housing case law - June 2019 update13/06/19
Poole Borough Council v GN (by his litigation friend) and another  UKSC 25
Supreme Court,6 June 2019
The Supreme Court has held that local authorities do not owe children a common law duty of care to protect and remove them from harm that is not attributable to parental care.
Poole Borough Council had housed a mother and her two children next door to a family known for anti-social behaviour. The mother and children subsequently suffered abuse and harassment for several years, and one of the children became suicidal and ran away from home. They were eventually rehoused, but took legal action, claiming that the abuse had caused them physical and psychological harm and that Poole Borough Council had owed the children a duty of care, under the Children Act 1989, to protect them from harm caused by third parties. They were successful in the High Court, but the Court of Appeal overturned the decision. They appealed to the Supreme Court.
The Supreme Court, in dismissing the appeal, held that public authorities “do not owe a duty of care at common law merely because they have statutory powers or duties, even if, by exercising their statutory functions, they could prevent a person from suffering harm” and that the mother and children had not “entrusted their safety to the council, or that the council had accepted that responsibility”. The Court also held that Poole Borough Council was not vicariously liable for the negligence of its employees (e.g. the social workers). The social workers were not providing a service and the children had not entrusted their safety to the social workers. Poole Borough Council had not created the danger to the children by housing them next door to the family whose anti-social behaviour had caused the damage.
The decision will be welcomed by local authorities and provides clarity regarding local authorities’ liability for failing to protect children from harm.
A copy of the judgment is here.
London And Quadrant Housing Trust v Patrick  EWHC 1263 (QB)
High Court, 23 May 2019
The High Court has dismissed an appeal by a tenant against a possession order which relied on a defence alleging a breach of the Equality Act 2010 and a failure to comply with the public sector equality duty (PSED).
The Tenant (Mr Patrick) had been aggressive and intimidating towards the Landlord's staff and a neighbour, resulting in the Landlord obtaining an injunction to prevent continued anti-social behaviour. When Mr Patrick breached the injunction, the Landlord commenced possession proceedings. However, several months later, Mr Patrick alleged for the first time that he suffered from a mental impairment (paranoid schizophrenia) and that the Landlord had unlawfully discriminated against him and had failed to comply with the PSED. Mr Patrick’s legal representatives only provided medical evidence of his condition two days before the hearing. An outright order for possession was made but enforcement was suspended for six weeks because of the disability. The Landlord undertook a PSED assessment, but concluded that possession was justified. Mr Patrick appealed.
The High Court, in dismissing the appeal, held that the PSED had not been breached, as the Landlord had only been able to act when it had been presented with the medical evidence. The Landlord had been entitled to conduct the PSED assessment after the possession order had been granted, as it would still have been able to decide against enforcing possession.
This decision provides a useful reminder that the PSED duty will not necessarily be breached if landlords conduct an assessment after a possession order has been granted but not enforced.
A copy of the judgment is here.
Kuznetsov, R (On the Application Of) v The London Borough of Camden  EWHC 1154 (Admin)
High Court, 16 May 2019
The High Court has held that a local authority had correctly applied its housing allocation policy when refusing to add a leaseholder, whose property had been compulsorily purchased, to its social housing register.
The Claimant (Mr Kuznetsov) was evicted after he lost his flat to a compulsory purchase order. He subsequently applied to join London Borough of Camden’s housing register, but was told that he did not qualify as his savings and assets exceeded the threshold laid out in its housing allocation policy. London Borough of Camden also said that, under the terms of its policy, he was not a council tenant who had been required to leave a property identified for regeneration, and was not entitled to a direct offer of accommodation. Mr Kuznetsov applied for judicial review of the decision.
The High Court, in refusing the application, held that London Borough of Camden was entitled to conclude that Mr Kuznetsov had a “high level of household savings or assets” and that he was a “tenant” but not a “council tenant” – he had previously been a council tenant, as he had exercised the right to buy and purchased a lease; however, the term “council tenant” did not include those tenants who had purchased a lease under the right to buy. Within the terms of the housing allocation policy, a leaseholder was not a council tenant. Also, as Mr Kuznetsov had already moved out of the property by the time he had made his application, he did not need to move “urgently”.
A copy of the judgment is here.
Wilcock v The Guinness Partnership Ltd  UKUT 146 (LC)
Upper Tribunal (Lands Chamber), 7 May 2019
The Upper Tribunal has held that a tenant was not obliged to contribute, through his service charge payments, to the cost of the Landlord's removal of bulk rubbish from the common parts of the property, as it was not specified in the schedule to the tenancy agreement.
The Tenant (Mr Wilcock) held an assured weekly tenancy of a flat in a block. The tenancy agreement included a service charge to cover services specified in the schedule to the agreement (i.e. garden maintenance and lighting) and also contained covenants stating that tenants could not leave belongings in the common parts. The Landlord removed some rubbish from a car park at the rear of the building, where a fly tipping problem had arisen, and included the cost of doing so in the service charge. Mr Wilcock brought proceedings, contending that the tenants should not be responsible for the cost of bulk rubbish removal. The First-tier Tribunal, however, held that the Landlord was entitled to charge for the removal of the rubbish, as the tenancy agreement provided for a “variable” service charge. Mr Wilcock appealed.
The Upper Tribunal, in allowing the appeal, held that the tenancy agreement limited the tenant's liability for service charge payments to those items listed in the schedule – but the schedule did not include the maintenance of the car park or common parts, and it was not suggested that the bulk rubbish removal was part of “garden maintenance”. It also held that although the service charge was “variable”, this related to the costs incurred and did not extend to varying the services for which a service charge could be claimed. The tenancy agreement did not permit the Landlord to add services to the scheduled services and it obliged the Landlord to keep the common parts (including the car park) in reasonable repair.
A copy of the judgment is here.
Evans v Fleri  EW Misc 13 (CC)
Cardiff County Court, 18 April 2019
The Cardiff County Court has held that a notice served under section 21 of the Housing Act 1988 by a landlord was invalid, as the landlord was not licensed.
The Tenant (Mr Evans) was an assured shorthold tenant. The Landlord (Mr Fleri) served Mr Evans with a section 21 notice and sought possession. However, on the date that the notice was served, Mr Fleri was a registered landlord but not licensed to let the property under the Housing (Wales) Act2014, and consequently his possession claim was struck out. Mr Fleri applied to set aside the order striking out his claim on the grounds that as long as a landlord is a registered landlord, then a section 21 notice may lawfully be given. The District Court agreed, ruling that a landlord could serve a section 21 notice if the landlord was either registered or licensed. The Court made an order for possession but also gave Mr Evans permission to appeal, as there was some confusion between sections 7 and 44 of the Housing (Wales) Act2014 and the use of the word “or” in section 44 (i.e. whether the word “or” should be given a conjunctive or disjunctive meaning).
The County Court, in allowing the appeal, held that that a landlord who is not licensed under the Housing (Wales) Act2014 could not serve a section 21 notice. It said that the use of the word “or”’ in section 44 of the Housing (Wales) Act2014 is “conjunctive”, as it was “far more likely” that the National Assembly for Wales intended that “to be able to give a section 21 notice a landlord must be both registered and licenced so as to give a higher degree of protection to the tenant than the low level of protection afforded by registration alone.” Consequently, the Court concluded that a landlord has to be both registered and licensed in order to serve a section 21 notice.
A copy of the judgment is here.
Investigation into complaints against London Borough of Haringey (reference numbers: 17 017 941 & 18 005 090)
The Local Government and Social Care Ombudsman, 29 March 2019
The Local Government and Social Care Ombudsman (LG&SCO) has upheld a complaint made against the London Borough of Haringey regarding the condition of their properties.
London Borough of Haringey had provided a homeless applicant (Ms B) and her family with temporary accommodation in two privately-leased properties. However, Ms B reported problems at the first property, including damp, mould, cockroaches and her boiler and gas supply, which had left her without heating, hot water and cooking facilities for periods of time. Ms B also complained about the general state of disrepair of the second property. Ms B also reported that she had suffered uncertainty, inconvenience and expense in pursuing her housing complaints.
The LG&SCO upheld the complaint. The London Borough of Haringey agreed to apologise; pay £1,600 in compensation to Ms B; inspect the second property with Ms B and agree upon a schedule of works to be carried out; and review its record-keeping of repairs made to temporary accommodation.
A copy of the decision is here.
Investigation into a complaint against Maidstone Borough Council (reference number: 18 000 166)
The Local Government and Social Care Ombudsman, 26 February 2019
The Local Government and Social Care Ombudsman (LG&SCO) has upheld a complaint made against Maidstone Borough Council regarding its policy of charging applicants for reviewing housing application decisions.
The applicant suffered a permanent disability, requiring him to use a wheelchair, and his property was no longer suitable. He applied to join the Council's housing register and sought a three-bedroom property on medical grounds; his application for such a new home was supported by statements from his occupational therapist. However, the Council’s independent medical advisor concluded that the applicant did not have medical priority, as he already had access to all normal facilities and an extra bedroom was not medically essential. The applicant sought to review the decision, but was told that the Council’s policy stated that those wishing to challenge it by way of a second medical assessment would be charged £75, unless there was a significant change in the medical condition. The applicant complained to the LG&SCO.
The LG&SCO investigation found fault with the way that the Council had considered the evidence, and that it had failed to follow its own policy by asking him to pay. It also said that the Council had failed to comply with statutory guidance about review procedures, in particular by shortening the number of days within which a request for a review should be submitted – by reducing the time period from 21 days to 14 days due to the increasing use of emails and texts, the Council was in effect penalising those applicants with restricted access to the Internet or those who wanted to use postal services.
The LG&SCO ordered the Council to pay the applicant £250 for distress caused, review his application and review the lawfulness of its policy of charging for a second medical assessment.
The decision should be noted by local authorities – and those with similar policies should immediately review them to ensure that they are lawful.
This decision was given in February, but has only just become available. A copy of the decision is here.