Allocations, Lettings & Homelessness An update on the ... pdfs/Presentations/Allocations Conf... · Allocations, Lettings & Homelessness An update on the latest ... •Allocations
Post on 28-Mar-2018
221 Views
Preview:
Transcript
Allocations, Lettings &
Homelessness
An update on the latest
Case Law
Jan Luba QC
Housing Team
Garden Court Chambers
Keeping ahead…
• Textbooks are more
than 2 years old
• Monthly updater: Recent Developments
in Housing Law (Legal Action Group)
• Weekly updater: Housing Law Week
(Lime Legal Ltd) – free
• Daily updater: @JanLubaQC on Twitter
• Allocations & Homelessness case law
database: Case Law Digest (Trown
Housing Consultancy)
Our very own “enforcers”
• Local Government Ombudsman for
complaints about council practice on
allocations and homelessness
• Allocations archive 2014-2015
(showing 119 decisions so far)
• Homelessness archive 2014-2015
(showing XXX decisions so far)
• Housing Ombudsman for complaints
about housing association lettings and
transfers.
• And for nominations?
The Localism Act changes –
more than two years on
• Localism Act 2011
• In force from 18 June 2012
• Changes in England only
• Re-casting Housing Act 1996 Part 6
• Two key changes to law on local
housing allocation schemes:
• Ability to exclude/include by class
• Ability to take out non-priority transfers
• June 2012 and December 2013 Codes
of Guidance
Varying the local schemes:
consultation and more
• The minimum obligation to consult: HA 1996 section 166A(13)
• The Supreme Court on consultation requirements (Moseley v Haringey LBC [2014] UKSC 56).
• Taking into account: • Local Tenancy Strategy
• Local Homelessness Strategy
• London Housing Strategy
• Public Sector Equality Duty
• Need an equality impact assessment?
What about those on the old
scheme?
• Does the new scheme:(1) address transition from the old scheme; or (2) represent a ‘clean sheet’?
• Guidance from Faraah v Southwark
• What about the legitimate expectations of those on the old arrangements?
• Guidance from Alansi v Newham
• Importance of information and transparency: see Angus Council (ombudsman decision on transfer incentives)
Who “qualifies”
• The power of HA 1996 section 160ZA(6)
and (7) to set qualifying classes
• The December 2013 Code
• Describe those classes who qualify?
• Or just those classes who do not?
• Clear and careful drafting needed
• Different rules for different types of stock?
• What categories to adopt?
• When to check for qualification: (1) on
application or (2) pre-let or (3) both?
Can we keep ‘reasonable
preference’ hordes out?
• The five classes
• Two need no definition
• The tricky three
• Must all the applicants from all those
5 groups “qualify”?
• What the Code suggests
• What you actually do?
• Lessons from Jakimaviciute v
Hammersmith & Fulham LBC
[2014] EWCA Civ 1438
Do we need residual discretion?
• Qualifying rules are for ‘classes’ so they
will be hard-edged, precisely to define
who is in the class or not.
• Do we need sub-classes, excepted from
the main class?
• What about the one-off case?
• What do the Codes say?
• What will the Courts say?
• Hillsden v Epping Forest DC
[2014] EWHC Admin
How do we protect the
scheme from legal challenge?
• Never mind “What will the judge
say?”
• Better question: “Does our scheme
show our customers and staff who
gets what, when, why and from
whom?”
• Get it checked by a lawyer
• Remember the parameters from
Ahmad v Newham on challenges
The tricky questions
about duties owed
(Housing Act 1996 Part 7)
• Homeless?
• Priority Need?
• Eligible?
• Became Homeless Intentionally?
• [Got a Local Connection?]
A person is “homeless”
Unless s/he has:
• “accommodation”;
• “available for occupation”;
• with a right or entitlement to occupy;
• able to secure entry; (see 175(2)) and
• reasonable to continue to occupy
Not all easy questions
Temur v Hackney LBC
[2014] EWCA Civ 877.
Priority Need: “Vulnerable”
• Section 189(1)(c) & PN (England)Order
• Nearly 40 years on, two key questions…
• Do you need a comparator? (If so, compared to
whom?)
• Johnson v Solihull MBC [2013] EWCA Civ 752
• Ajilore v Hackney LBC [2014] EWCA Civ 1273
• What if the applicant can manage with help?
• Hotak v Southwark LBC [2013] EWCA Civ 515
• Kanu v Southwark LBC [2014] EWCA Civ 1085
• Supreme Court:
• 15-17 December
Eligibility
Everyone eligible for Part 7 services
except…
• persons subject to immigration control
(subject to exceptions); or
• persons from abroad (within the
definition of those treated as ineligible)
• Hines v Lambeth LBC [2014] EWCA
Civ 660 (pre-change Zambrano case)
• Samin v Westminster CC [2012]
EWCA Civ 1468 (EU ‘worker’)
• Supreme Court: 9 and 10 March
2015
Intentional Homelessness
• Deliberate act?
• Huzrat v Hounslow LBC [2013] EWCA Civ
1865
• Farah v Hillingdon LBC [2014] EWCA Civ
359
• Cause and effect:
• Noel v Hillingdon LBC [2013] EWCA Civ
1602
• “Would it have been reasonable to have
continued to occupy?”
• Birmingham CC v Balog [2013] EWCA Civ
1582
• Viackiene v Tower Hamlets LBC [2013]
EWCA Civ 1764
Intentional Homelessness 2
• As at what date?
• Haile v Waltham Forest LBC [2014]
EWCA Civ 792
• Supreme Court: 29 January 2015
Local connection
The optional extra
• The usual rules:
• Got a connection with us?
• If no, got a connection elsewhere?
• If yes, can we refer?
• If we can, shall we refer?
• Did you freely chose your last
location? NJ v Wandsworth [2013]
EWCA Civ 1373
The tricky issues
about performance
(Housing Act 1996 Part 7)
• Main housing duty
• Charging for accommodation
• Reviews
Main housing duty
• Section 193
• Performing it with an offer: s193(5)
• Nzolameso v Westminster CC
[2014] EWCA Civ 1383
• Ending it with an offer: s193(7) et
seq
• But is it suitable?
• Slattery v Basildon BC [2014]
EWCA Civ 30
Reasonable charges
• How much can we charge for
accommodation?
• A ‘reasonable amount’?
• R(Yekini) v Southwark LBC [2014]
EWHC 2096 (Admin)
Reviews
• Reviewer is reviewing the whole
question of what duty (if any) is owed.
• So on a review of “homeless but no
priority need” can decide “not
homeless”: Temur v Hackney LBC
[2014] EWCA Civ 877
• That means taking account of new
material, post initial decision:
Mohamoud v Birmingham [2014]
EWCA Civ 227
top related