Capsticks' team of housing specialists is delighted to provide you with our monthly housing case law update which includes recent cases from courts in England and Wales that are relevant to the housing sector. We trust that you will find this update useful.  Please remember our specialist resource page for the housing sector is available here for regular updates and answers to your questions on issues arising out of COVID-19.

The Information Commissioner v (I) Poplar Housing Association (2) People’s Information Centre [2020] UKUT 182 (AAC)

Upper Tribunal (Administrative Appeals Chamber), 8 June 2020

The Upper Tribunal has held that a housing association cannot be defined as a public authority under the Environmental Information Regulations 2004.

The First-tier Tribunal had previously held that Poplar Housing Association and Regeneration Community Association (“Poplar”) was not a public authority under the Environmental Information Regulations 2004, as it did not carry out functions of public administration. The case was a result of Poplar receiving a request for information concerning its proposed housing redevelopments, which the Information Commissioner required it to comply with. The Information Commissioner appealed the First-tier Tribunal’s decision.

The Upper Tribunal, in dismissing the appeal, held that Poplar was not a public authority for the purposes of the Environmental Information Regulations 2004 and confirmed that it was therefore not subject to the information request requirements. It held that Poplar “had not been empowered to perform public administrative functions by virtue of a legal basis specifically defined in national legislation” and that the regulatory framework, including statutory regulation, and the powers granted specifically to registered providers of social housing, could not be described as “a legal basis specifically defined in national legislation”.

This ruling will be welcomed by housing associations as it clarifies their status under the Environmental Information Regulations 2004 and confirms that they are not subject to information request requirements. Capsticks represented Poplar in the legal proceedings.

A copy of the judgment is here.

R (on the application of Nnaji) v Spelthorne Borough Council

High Court, 10 July 2020

The High Court has held that a local authority had been within its rights to deny an asylum seeker interim accommodation under the Housing Act 1996, as he had been unable to prove that the local authority had breached its statutory duty.

The housing applicant (Mr Nnaji) was a former asylum seeker who had been granted limited leave to remain in the UK. He claimed that he was homeless after being evicted by his sister, and provided a medical letter from his GP stating that he was suffering from ongoing mental health issues. He applied to Spelthorne Borough Council for interim accommodation based on homelessness under the Housing Act 1996. However, Spelthorne Borough Council refused the application, concluding that his mental health diagnosis did not make him significantly more vulnerable than the average person and that he was not street homeless. Mr Nnaji sought a judicial review, arguing that Spelthorne Borough Council had breached its statutory duty, citing the Government’s announcement that all local authorities should accommodate all rough sleepers because of the coronavirus pandemic. Spelthorne Borough Council argued that Mr Nnaji had provided inconsistent accounts as to when he became homeless and that the housing officer had applied the correct test when considering his application.

The High Court, in dismissing the application, held that Mr Nnaji had provided inconsistent and unreliable accounts in relation to his living arrangements and that there was nothing in the GP's letter to say that he was more vulnerable than any other homeless person. Also, Mr Nnaji did not fall into the Government’s particularly vulnerable categories as regards Coronavirus.

This is an extempore (oral) decision so the transcript is not yet available.

RSK Environment Ltd v Hexagon Housing Association Ltd [2020] EWHC 2049 (TCC)

High Court, 30 July 2020

The Technology and Construction Court refused to grant a declaration that any duty of care owed to a housing association by an engineering and environmental consultancy, in regard to ground investigation works, was subject to the limitation of liability provisions in its terms and conditions.

RSK Environment Ltd carried out a geo-environmental assessment for Hexagon Housing Association’s contractor, Skillcrown, on a development site before the works commenced. The subsequent site investigation report named Hexagon Housing Association and Skillcrown as its clients. Hexagon Housing Association purchased the site and began development. However, during development, a ground collapse occurred at the site, damaging some of the houses. Hexagon Housing Association alleged that RSK Environment Ltd had been negligent in its investigation of the site and in preparing the report, causing it loss and damage. However, RSK Environment Ltd claimed that it did not have a direct contractual relationship with Hexagon Housing Association. RSK Environment Ltd raised a Part 8 claim for declaratory relief, seeking declarations that the scope of its works were as set out in the proposal issued to Skillcrown, and that any duty of care owed to Hexagon Housing Association was subject to the limitations of liability in the terms and conditions.

The High Court refused to grant the declaration because the contractual matrix between the parties was in dispute, and it could not determine the nature, scope and extent of any common law duty of care owed by RSK Environment Ltd without resolving that dispute. While this case judgment does not reach any conclusions about the scope of liability, it highlights the risks where investigation reports are addressed to multiple parties.

A copy of the judgment is here.

Houldsworth Village Management Company Ltd v Barton [2020] EWCA Civ 980

Court of Appeal, 29 July 2020

The Court of Appeal has held that a member's request to inspect the register of members in order to obtain members' contact information, so that he could propose resolutions to replace the leaseholder-owned property management company's existing directors and managing agent, was a “proper purpose” under section 116 of the Companies Act 2006.

Mr Barton, who was a leaseholder and a member of the leaseholder-owned management company, made a request under section 116 of the Companies Act 2006 to inspect the company's register of members, with a view to seeking a general meeting and proposing resolutions to remove the current directors and the managing agent. The management company objected to the request and sought a declaration that it did not have to comply, claiming that Mr Barton wanted to remove the current directors in order to further his own interests. However, the High Court refused to make the “no-access” order. The management company appealed, arguing that Mr Barton’s reasons were not a “proper purpose”, as they did not relate to his rights as a member of the company, but were concerned with how the company provided services under the long leases.

The Court of Appeal, in dismissing the appeal, looked at the distinction between the rights of a leaseholder and the rights of company member. It held that a shareholder who wanted to communicate with other shareholders in order to challenge the way the company was being run should normally be regarded as having a “proper purpose”. Whilst there was a clear distinction between the rights of a leaseholder and those of a company member, the rights were not necessarily mutually exclusive. Mr Barton’s attempt to exercise his rights as a member through a general meeting was not necessarily improper, even if the ultimate remedy which he sought could be achieved by another route.

A copy of the judgment is here.

Retirement Lease Housing Association Ltd and another v Schellerup and others [2020] UKUT 232 (LC)

Upper Tribunal (Lands Chamber), 23 July 2020

The Upper Tribunal (Lands Chamber) has held that the landlords of two supported housing developments were not entitled to recover, as part of the service charge, contributions toward the cost of providing accommodation for a resident manager/warden in an apartment belonging to the landlords and for which they pay no rent.

When a landlord houses a warden, caretaker or a manager on its site, an issue that sometimes arises is whether the landlord can recover, under the service charge provisions, the rent it could have charged if it had been able to rent out the warden/manager’s accommodation. In this case, the landlords of two supported housing developments each employed a person to give support to their elderly residents. In the first case, the lease stated that the service charge provision “shall comprise all expenditure of [the landlord] in connection with the repair management maintenance and provision of services”, which included “‘the cost of the salary of the resident manager…and the provision of accommodation for (him) at the Property and all other direct costs in connection with the provision of the resident manager’s service[…]”. In the second case, the lease stated that the tenants had to pay a proportion of “the cost of the warden’s salary and the cost of the accommodation for the warden at the Property and all other costs in connection with the provision of the warden’s service”. In both cases, the First-tier Tribunal held that the cost of providing accommodation for the warden was not recoverable as part of the service charge. The landlords in both cases appealed.

The Upper Tribunal (Lands Chamber), in dismissing the two appeals, held that the First-tier Tribunal had correctly decided that the costs of providing accommodation were not recoverable. In both of these appeals, the Tribunal held that the words used in the lease did not adequately capture the concept of a “cost”.

A copy of the judgment is here.