Another boring year in social housing?

1. Another boring year in social housing? Robert Wassall Head of Social Housing robert.wassall@bllaw.co.uk 02380 857012

2. About me… • Solicitor since 1981(gulp!) • In social housing since 1987 • Specialised in representing social landlords 1995 • Housing management • Head of social housing at Blake Lapthorn • Team of 14 • Based in Southampton • Cover South, London & Thames Valley • Clients include…

3. Our clients… • Hyde • Radian • Soha • Affinity Sutton • GreenSquare • Aster • Saxon weald • Home • Amongst others….

4. What am I going to talk about? • Cases • Human rights • Mental capacity • Care • Consultation • asb • New law • Localism Act • Welfare Reform Bill • Health & Social Care Bill • What will this year bring?

5. Localism Act • Royal Assent 15 November 2011 • VIP date 1 April 2012 • Includes Part on ‘Social Housing Reform’ • Gives RPs ability to grant ‘affordable rent’ tenancies • Which can be fixed term or periodic • “The government hopes that affordable rent will provide additional financial capacity to deliver more affordable housing”

6. What is an ‘affordable rent’ tenancy? • A tenancy of residential premises • Granted by a social landlord • At a rent higher than social rent; and • At up to 80% of the local market rent • for a property of the same size and type • in the private sector • including any service charge

7. What is a fixed term tenancy? • A tenancy which • Is not periodic • Has a minimum term of not less than 2 years • Has no maximum term • Is an assured shorthold

8. Fixed- term tenancies (FTT) & affordable rents • Until 1 April 2012, FTT can only be granted at an affordable rent as part of agreement with HCA to fund the development of new homes • After 1 April 2012, FTT can be granted at social rent • But will still only be able to grant AR tenancy as part of agreement with HCA to fund development of new homes • This means that, after 1 April 2012 there will be range of different housing ‘products’

9. FTT & succession • Previously, no right of succession to AST • Localism Act, gives right of succession to FTT/AST • But only to spouses etc • But, L has discretion to grant additional succession rights (to anyone)

10. Ending FTT during term • HA 1988 only permits possession of FTT on a ground expressly referred to in tenancy • Certain ground not available in FTT • All mandatory grounds (ground 8) • Discretionary grounds 9 and 16 • NB: FTT cannot be ended prior to end term, unless ‘break clause’ (min 2 years) • Surrender does not apply (unless permitted by tenancy) • Any breach can be actioned as usual

11. Ending FTT at expiry term • L Must give 6 month notice (‘minded to’ notice) informing T that • Tenancy will not be renewed/re-issued • How T can get help/advice • L must also serve s21 notice • Act gives no right to review (but could be in policy) • If above not done, T becomes periodic assured tenant • T can end tenancy, at any time after expiry fixed term, by service NTQ

12. Some key questions… • Can existing AST agreements be used? • What should length of fixed term be? • What about rent increases? • Could other agreements be relevant? • Does it matter if HA is charity? • What does all this mean for you?

13. Recent Cases • Chadwick v Saxon Weald • Westminster CC v Holmes • Mexfield Housing v Berrisford • Benesco Charity Ltd v Kanj • Chesterfield BC v Bailey • Sefton Care Association v Sefton Council • Wychaven DC v EM • Westlea HA v Price

14. Chadwick v Saxon Weald • 11/08/08: SW grant C starter tenancy • Asb throughout • 05/08/09: NOSP sent (dated 07/08/09) • 11/08/09: letter sent stating C was assured tenant • Had C acquired assured tenancy? • CA said; • No ambiguity in letter 11/08/09 • C had assured tenancy

15. Westminster CC v Holmes • H had non-secure accommodation (homeless) • W served NTQ; assault on officers • H defended on human rights (denied assault) • Possession order made on summary basis • No oral evidence given • Appeal dismissed • No reasonable grounds for defending claim in Defence

16. Mexfield Housing Co-op v Berrisford • Tenancy “from month to month until determined as provided in this agreement” • B could give notice any reason/anytime • M could only give notice if tenant default • M gave B notice • B not in default • SC said • this was tenancy for life, taking effect as 90 year lease • Could be ended only by • Death of M, or in accordance with terms

17. Benesco Charity Ltd v Kanj • Possession claim against the trespassers • Defence (supported by a witness statement) claimed they had a tenancy or a sub-tenancy.  • Possession order made but defendants appealed.  • Appeal allowed • a person is entitled to trial of their defence and the content of the witness statement should not be rejected at a summary stage "unless the evidence is incredible".

18. Chesterfield BC v Bailey (1) • 2002: Joint tenancy granted to Mr and Mrs B • 2005: Mr B moved out • 2010: C told Mr B he was liable for arrears of rent; advised that his only way of avoiding any future liability for rent was to have his name "taken off" the tenancy • Monday 6 September 2010, Mr. B gave notice to quit • C claimed possession • Mrs. Defended claim

19. Chesterfield BC v Bailey (2) • Tenancy agreement specified that a notice must give four full weeks notice in writing, "to expire on a Monday at midday if you wish to end your tenancy“ • C could not show that the notice, (expressed to expire on Monday 4 October 2010, 28 days later), had been received before 12 noon on 6 September 2010 and therefore failed to establish that four full weeks' notice had been given. • Claim dismissed

20. Sefton Care Association v Sefton Council (1) • February 2010 the LA told care home providers, (without any prior consultation), that it would not increase the fees it paid for placements for the 2010/11 financial year. • When it later faced cuts in its central government funding, it decided that savings could be made by freezing fees for a further year. (That proposal was not communicated to care home providers until November 2010). • The following month it became a firm resolution, despite C having told the local authority that it was underfunding its placements and that fees would need to rise if the private care sector was to remain viable.

21. Sefton Care Association v Sefton Council (2) • the local authority had failed adequately to investigate or address the actual costs of care and had thereby failed to have due regard to those costs, contrary to both the guidance issued by the secretary of state and that issued by the Department of Health • the local authority was clearly under a duty to consult with the care home proprietors. There had, however, been no consultation in any meaningful sense and the local authority had therefore failed in its duty. • it was decided that a local authority had acted unlawfully in freezing the fees it paid to private care home providers.

22. Westlea HA v Price • Claim for possession, (39 incidents asb) • T admitted some, 17 proved • T victim of domestic abuse • Judge: “little support or guidance given”, by W • Possession order “unreasonable” • “not right” to make Demotion order • T successfully defended claim

23. Mental Capacity & tenancy agreements (1) • Mental Capacity Act 2005 • Does person have impairment? • If so, does that mean person unable to make decision? • If lack of capacity, must be authorised person • Power of Attorney • Deputy appointed by Court of Protection (CoP) • CoP issued guidance...

24. Mental Capacity & tenancy agreements (2) • Authority of CoP must be obtained when entering into or ending tenancy on behalf of person who lacks capacity • Application to CoP • Evidence required • medical • re change of circumstances • Showing best interest assessment carried out • Consultation with family/those in close contact

25. Wychaven DC v EM • EM, was born with profoundly physically and mental disabilities.  • Her parents had a home specially constructed for her • The tenancy agreement described father as landlord and EM as tenant, but in the space for tenant’s signature it is stated that EM "is profoundly disabled and cannot communicate at all". • The court concluded that; • there was nobody with power to contract on behalf of EM • EM had no liability to pay rent by reason of a document to which she was not a party and of which she had no knowledge or means of knowledge • there was no tenancy agreement and no entitlement to housing benefit.

26. An unreported case • T believed L had conspiracy to harm him • Refused to engage e.g. gas inspections • L issued possession claim • Litigation Friend/Official Solicitor (OS) • OS suggested L apply to CoP (refused) • OS applied to CoP • CoP agreed plan • L to enter home of T (by forced entry if necessary) • T to move (temporarily) to care home

27. Welfare Reform Bill • Universal Credit - to replace all existing benefits • Benefits to be capped at £26,000 per year • cap will cause conflict with the new affordable rent regime, (especially in London) • Eligibility will depend on work related requirements • Benefits to be paid direct to tenants rather than landlords • Likely to increase arrears? • HB to be cut for tenants who are ‘under occupying’

28. Health and Social Care Bill • Makes connection between health, care and housing • An opportunity for social landlords to expand business? • An opportunity for housing to play key role in new diverse health service being proposed e.g. social housing providers on new health and well-being boards, deciding how money is spent • Will change the way housing providers provide health and social care support due to funding cuts

29. What to watch out for in 2012 • Increase in Disrepair claims • Problems with (affordable rent) tenancy agreements • (Unlawful) subletting will become criminal offence • Squatting will become criminal offence • Freedom of Information Act extended to HAs • Consultation, consultation, consultation • Social media issues • New complaints process

30. Another boring year in social housing? Robert Wassall Head of Social Housing robert.wassall@bllaw.co.uk 02380 857012