Housing Law Update Getting it Right in 2013

1. Housing Law UpdateGetting it Right in 2013 Daniel Skinner Andrew Lane

2. Welfare Reform The Legal Fallout Andy Lane

3. Welfare Reform - Fallout • Received royal assent on 8 March 2012 Universal Credit introduced in October 2013 (for unemployed) and April 2014 (for those in work). Process complete by 2017. • Replacing IS/JSA(income-based)/ESA (income-related)/Child Tax Credits/Working Tax Credits/HB • Claimed online • Paid monthly in arrears • Direct payments only for “vulnerable”

4. Council Tax and Bedroom Tax Council Tax – abolished in April 2013 and replaced by localised support (with 10% funding cut) Bedroom Tax – from April 2013 those with one spare bedroom will lose 14 per cent of their Housing Benefit; those with two or more spare bedrooms will lose 25 per cent. • children under 16 of the same gender are expected to share • children under 10 are expected to share regardless of gender • a disabled tenant or partner who needs a non-resident overnight carer will be allowed an extra room.

5. Lone Parents, Benefits Cap and Non-Dependants Lone parents – expected to be seeking work until youngest child is 5 Benefits Cap – this cap is expected to be introduced in April 2013, and will be set at a working household’s average net earnings – currently expected to be £26,000 a year (a maximum of £500 per week) for lone parents and couples with or without children; and around £18,000 a year (a maximum of £350 per week) for single people without children or whose children for whom they have responsibility do not live with them. The cap will apply to the combined income from Out of Work Benefits, Housing Benefit, Child Benefit and Child Tax Credit, Universal Credit from October 2013 and other benefits such as Carer’s Allowance and Maternity Allowance. Non-dependant deductions – continuing to increase.

6. The Impact • Amendment to Rent Arrears Protocol? • Higher rent arrears & increased transfer requests • Greater use of Ground 8 (mandatory) • Greater use of Ground 9 (discretionary) • Increase in possession claims • More disrepair set-offs/counterclaims • More Article 8/ Equality Act 2010 pleadings • Change to allocation and other policies

7. Getting it Right • Use of discretionary housing payments • Encouragement of Lodgers/flexible allocation • Referral, communication & good advice for tenants • Tenancy Audits • Good liaison with DWP/LHA/HPUs • Increased payment options (e.g. on-line, direct debit, credit unions) • Staff training • Possession claim “as a last resort”

8. The Last Resort… • Has the protocol been followed esp. paras 8 + 11? • S.84(2)(a) HA85/ 7(4) HA88 - reasonableness • Cumming v Danson[1942] 2 All ER 653 @ 655E-F • Taj v Ali [2000] 3 EGLR 35 • Lambeth LBC v Henry [2000] 32 HLR 874 @ 877-8

9. Stopping the Fraudsters Daniel Skinner

10. Prevention of Social Housing Fraud Act • Act Passed – not yet in Force • New offences of the unlawful subletting of social housing • Local Authority can prosecute – Sentence up to • a fine or 2 years’ imprisonment if the tenant’s actions were dishonest, or • a fine if they were not dishonest • Assured tenants lose security for ever if they sublet • Unlawful Profit Order available to landlords

11. How Many Bites at the Cherry?

12. This is Your Last Chance • Shoot Out at the Last Chance Saloon • Tenant fails to attend possession hearing • Later turns up and asks for second bite at the cherry • Forcelux –v- Binnie suggests relatively easy for them to do so • If “in the interests of justice” (CPR 3.1(2)(m)) • New case LB Hackney –v- Findlay applies to Social Landlords • CPR 39.3 applies • Application must be supported by evidence and show • Acted promptly • Had good reason for not attending • Has reasonable prospect of success at trial

13. Squatters – the New Law

14. Legal Aid, Sentencing and Punishment of Offenders Act 2012 • Section 144 - a person commits an offence if: • The person is in a residential building, as a trespasser, having entered it as a trespasser • The person knows or ought to have known that he or she is a trespasser and • The person is living in the building or intends to live there for any period • Does not replace existing remedies • Is not committed where the trespasser entered in good faith, believing they had permission • Squatters may be prosecuted in the Mags’Court and sentenced to 6 months in prison and/or a fine up to £5,000

15. ASB – The New Law?

16. Less Powers? • But More Power to You? • Or More Power to the People? • Or Just Rebranding

17. What’s In the Bill? • Injunction to Prevent Nuisance and Annoyance IPNA - Like an ASBI Youth Court can make Order against Under 18s • Criminal Behaviour Order – Replaces ASBO on Conviction Ordinary ASBOs disappear • Dispersal – Police power only • The Community Protection Notice– to deal with ASB impacting on community. Can be served by RP and local authority. Detrimental to community life, unreasonable, persistent or continuing Breach of requirement will be criminal offence

18. What’s In The Bill? (2) • Public Space Protection Order– Power for LA only e.g. controlling drinking in public • Closure of Premises Associated with ASB Simplifying the current Closure Order powers – police and LA • Absolute Grounds for Possession – Serious ASB Mandatory route to possession ASB for private and social landlords, to reduce the length of the possession process Serious ASB – Conviction or other court finding Query – will it really work? • Extra Ground for Possession – Rioting Anywhere • Community Remedy – Menu and powers for PCCs • Review of Response – complainant can trigger review

19. Ha Ha – I’m Skint DROs and Bankruptcy

20. Bankruptcy and Debt Relief Orders • Sharples –v- Places for People • Confirms you can still seek a possession order where tenant has gone bankrupt or is subject to Debt Relief Order (“DRO”)

21. Service Charges – HB Eligibility

22. Service Charge / Universal Credit • Universal Credit initially said the following eligible • Service to maintain fabric of accommodation • Cleaning of communal areas • Exterior of windows if renter or their benefit unit can not • More detail in draft Regs – expect list April 2013 • To maintain general standard of accommodation • General upkeep – areas of communal use • Basic Communal services • Accommodation specific charges

23. Leaseholder Consultation Time to Panic?

24. Leaseholder Consultation • Phillips & Goddard –v- Francis & Francis

25. Leaseholder Consultation • You must consult with leaseholders if carrying out qualifying works • If you don’t can’t recover more than £250 per flat • Always thought was per job • Now seems to be total cost per year • Effect of interpretation goes back to October 2003

26. Human Rights What to Expect This Year

27. Possession Proceedings & Human Rights 1) Kay v Lambeth LBC [2006] UKHL 10; [2006] 2 AC 465 (2) Manchester CC v Pinnock[2010] UKSC 45; 3 WLR 1441 (3) Hounslow LBC v Powell [2011] UKSC 8; [2011] 2 AC 186 (4) West Kent v Haycraft/Corby BC v Scott [2012] EWCA Civ 276; [2012] HLR 23 (5) Thurrock BC v West [2012] EWCA Civ 1435

28. Article 8 can succeed… • Southend-on-Sea BC v Armour [2012] EWHC 3361 (introductory tenancy) • Affinity Sutton Homes Ltd v Cooper (17/10/12 – Bromley County Court; contractual succession) and matters can change: • R(JL) v (1) Secretary of State for Defence (2) Leeds City Council [2012] EWHC 2216 (Admin) @ 61

29. Though it will be rare…. • Michael Sims v Dacorum Borough Council [2013] EWCA Civ 12 (joint tenants NTQ) 38. I would dismiss the appeal. The parties rightly regarded that as inevitable. I would also refuse permission for another appeal. It would be a waste of the publicly funded resources of the Supreme Court.[Mummery LJ]

30. Getting it right • Clear and identifiable decision-making. • Proper formulation & use of policies – see Barber v Croydon LBC [2010] EWCA Civ 51; [2010] HLR 26 • Constant Review – see JL case. • Robust use of strike out/summary judgment applications and good lawyers DO NOT…