Housing case law - November 2018 update13/11/18
London Borough of Haringey v Simawi & Anor  EWHC 2733
19 October 2018
The High Court has held that the differential treatment in sections 87 and 88 of the Housing Act 1985 relating to second successions was not discriminatory under the European Convention on Human Rights.
Mr Simawi was the son of a couple who were joint secure tenants. When his father died in 2011, his mother became the sole tenant through survivorship succession. His mother died in 2013 and the London Borough of Haringey served a notice to quit after refusing Mr Simawi’s application to succeed the tenancy as a family member. Mr Simawi was not allowed to succeed his mother’s secure tenancy because she had been a successor (i.e. she had succeeded the tenancy as a sole tenant following her husband’s death). The Council subsequently issued possession proceedings.
Mr Simawi resisted the claim for possession, arguing that he was suffering unlawful discrimination. He argued that, as a child of a widowed tenant, he was being treated differently from a child of a divorced tenant.
The High Court rejected Mr Simawi’s argument, ruling that the issue of whether he could succeed his mother’s tenancy was not determined by his status as the child of a widow rather than the child of a divorcee; Instead, the issue was determined by the legal mechanism by which the person from whom he would succeed had acquired the tenancy. The Court also confirmed that any discrimination would be justified under the fair management of local authority housing stock.
The ruling will be welcome by local housing authorities, as it clarifies the issue and the continued applicability of the rule in relation to secure tenancies.
A copy of the judgment is here.
Kirby v Salvation Army Hostel Association
12 October 2018
The High Court has held that an injunction preventing a homelessness charity from evicting an individual who had not paid accommodation fees should not have been made.
The Claimant (Mr Kirby) occupied a room in a hostel but had not paid accommodation fees and had fallen into arrears of £13,000. The Defendant (Salvation Army Hostel Association) served a notice to quit, but Mr Kirby obtained a without notice injunction prohibiting the eviction until a return date or further order. Nevertheless, Mr Kirby was evicted and he subsequently obtained an injunction allowing him to return to the accommodation. Mr Kirby contended that the arrears were a result of the Salvation Army Hostel Association’s failure to complete a housing benefit application on his behalf and that the threat of eviction should be regarded as harassment.
The High Court held that as the Salvation Army Hostel Association is a charity, there was a limit to what they could permit, given its funding and obligations. It was therefore Mr Kirby’s responsibility to apply for housing benefit. Mr Kirby was required to pay a fee for his accommodation, and, if he did not pay, the Salvation Army Hostel Association was entitled to take legal steps to remedy the situation. There was no basis for granting the injunction and it was set aside.
This is an extempore (oral) decision and no transcript is currently available.
Nottingham City Council v Parr and another  UKSC 51
10 October 2018
The Supreme Court has held that the power to impose conditions to a licence for a house in multiple occupation (HMO) under the Housing Act 2004, in order to make the house suitable for the number of persons or households, can be used to limit its suitability to a class of occupant.
The landlords let two properties as student accommodation. The local authority (Nottingham City Council) imposed conditions on the properties' HMO licences, prohibiting the use of their attic bedrooms for sleeping due to their size. However, the First-tier Tribunal deleted Nottingham City Council's conditions, finding that each house contained sufficient shared space to compensate for the smaller size of the attic bedrooms and that students would share that shared space. It also held that the attic bedrooms could only be used for sleeping accommodation by a full-time student living in the property for a maximum period of 10 months per year. The Upper Tribunal upheld this decision. The Court of Appeal added further conditions that specified that communal space be kept available only as communal living space and that no bedrooms could be let to persons other than full-time students. Nottingham City Council appealed.
The Supreme Court unanimously dismissed the appeal, ruling that (1) the power to impose conditions could be used to limit the class of persons for whom the HMO was suitable; and that (2) the condition limiting the occupation of the properties to students in full-time education was rational and enforceable (although the condition requiring the rooms be occupied for a maximum of ten months per year was irrational).
The ruling creates an issue for housing authorities, in that they may have to consider whether a house is suitable for a proposed category of occupant.
A copy of the judgment is here.
Duval v 11-13 Randolph Crescent Ltd  EWCA Civ 2298
Court of Appeal
18 October 2018
The Court of Appeal has held that if a landlord licensed a tenant to carry out alterations despite an absolute prohibition, then the landlord would be in breach of its obligation to enforce the lease covenants at the request of another tenant in the building.
A building was converted into nine flats, each of which was held under a long lease. The landlord (11-13 Randolph Crescent Ltd), was a company owned by all the tenants. A tenant of one of the flats asked 11-13 Randolph Crescent Ltd for consent to carry out alterations to her flat that involved the removal of a portion of a wall. Consent was given, but another tenant (Dr Duval) objected, citing a clause in the leases that contained a covenant requiring each lessee not to cut any of the walls or ceilings. When 11-13 Randolph Crescent Ltd agreed to grant the tenant a licence to carry out the works to avoid her being in breach of the clause, Dr Duval brought legal proceedings, successfully arguing that granting a licence would breach the clause. This decision was subsequently reversed and Dr Duval appealed to the Court of Appeal.
The Court of Appeal allowed the appeal. As the leases in the building contained an absolute covenant requiring the tenants not to carry out certain actions, and a separate covenant required the landlord to enforce the absolute covenant at the request of any of the tenants, the landlord would be in breach if it granted a licence to carry out the prohibited action.
A copy of the judgment is here.
Investigation into a complaint against Cornwall Council (reference number: 17 005 652)
Local Government and Social Care Ombudsman
31 August 2018
The Local Government and Social Care Ombudsman (LG&SCO) has published a report criticising Cornwall Council for accommodating a vulnerable 17-year-old boy in a tent and caravan following a homelessness application.
The boy, who had been excluded from school and was involved in drug use and dealing, was unable to live with his parents. When the boy refused an offer of further supported accommodation, the Council purchased a tent for him, to avoid him becoming street homeless. Following issues with the safety and suitability of the tent, he was moved to a static caravan. While residing in the caravan, the boy reported that he had being sexually assaulted, but the Council did not investigate the matter. The boy was then subsequently moved to bed and breakfast accommodation and was later detained under the Mental Health Act 1983 for 11 months.
The LG&SCO recommended that the Council compensate the boy £2,500 and his mother £1,500 for the distress caused.
The ruling highlights the need for councils to ensure that they comply with statutory guidance when housing young people and to act on any potential safeguarding concerns.
A copy of the ruling and accompanying Ombudsman press release is here.