HOUSING LAW NEWS & POLICY ISSUES

Rough sleeping
On 24 May 2020 the Housing Secretary Robert Jenrick announced plans to provide thousands of long-term, safe homes for vulnerable rough sleepers taken off the streets during the pandemic. By accelerating plans for the £381 million announced for rough sleeping services in the Budget – now increased to £433 million – the funding is intended to ensure that 6,000 new housing units will be put into the system, with 3,300 of these becoming available in the next 12 months.  The government is also increasing the revenue support of the total programme by 37 per cent. For the announcement, click here. For the response of the Local Government Association, click here, and for that of Crisis, click here.

Rough sleepers: Dame Louise Casey's statement on coronavirus (COVID-19)
On 31 May 2020 Dame Louise Casey, the Prime Minister’s advisor on rough sleeping, issued a statement on the efforts to support rough sleepers during the coronavirus pandemic. She said that almost 15,000 people across England have now been helped. She noted that “[w]hat has been done here, is a small but incredible silver lining – in the dark cloud, that is COVID-19”. Introducing Dame Louise, the Housing Secretary noted that “[w]orking hand-in-hand with charities and local councils, we have offered accommodation to over 90 per cent of rough sleepers known to us at the start in order to help them stay to safe during the pandemic”. For Dame Louise’s statement, click here.

Rough sleepers: calls for community partners to help with COVID-19 rough sleeping crisis
On 26 May 2020 Dame Louise Casey called on all parts of society, including communities, businesses, charities and faith groups, to join forces and help the new Rough Sleeping Taskforce. She said that the efforts during the COVID-19 pandemic to help house rough sleepers had presented an ‘extraordinary opportunity’ to get them to engage with services and rebuild their lives so that they would not have to return to the streets. For her statement, click here. For the response of Crisis to Dame Louise’s call, click here.

Rough sleepers and renters: Commons Select Committee’s interim report
On 24 May 2020 the Commons Housing, Communities and Local Government Select Committee published an interim report on protecting rough sleepers and renters. The report calls for the Government to dedicate at least £100m per year in long term housing support or risk thousands of people currently in temporary accommodation returning to the streets. The Committee further warns of a looming homelessness crisis as private sector renters currently unable to pay rent face building up debt or losing their homes when the current ban on evictions expires (see below for further news items in this regard and, in particular, proposals made by the Chartered Institute of Housing). For the full Select Committee report, click here. For a summary, click here. For the report’s conclusions and recommendations, click here. For the response of the Local Government Association, click here. For an article by Giles Peaker on the Nearly Legal website, click here.

Homelessness and rough sleeping – Wales
On 28 May 2020 the Welsh Government announced new funding of up to £20 million to help ensure that no-one in emergency shelter during the coronavirus crisis has to return to the streets or unsuitable accommodation. For the announcement, click here. For a statement by Julie James, Welsh Minister for Housing and Local Government, concerning the extra funding and the next phase of the Welsh Government’s response to homelessness, click here.

Coronavirus (COVID-19) and private renters: Research Foundation report
On 30 May 2020 the Resolution Foundation published research showing that one-in-eight private renters (13 per cent) have fallen behind with their housing costs since the coronavirus crisis started, compared to just one-in-twelve mortgaged home owners (8 per cent), “highlighting how the pandemic has exacerbated Britain’s housing divide”. The report (based on a YouGov survey of 6,005 UK adults aged 18-65 and supported by the Health Foundation) notes that one-in-five private renters (20 per cent) have been furloughed or lost their job since the crisis began, compared to around one-in-seven mortgaged home owners (14 per cent). However, home owners are more likely to have had their hours and pay reduced (15 per cent, compared to 12 per cent). For the report, click here. For a press release concerning the report, click here.

Coronavirus ban on possession proceedings extends to appeals against possession orders
On 27 May 2020 the Court of Appeal held in London Borough of Hackney v Okoro [2020] EWCA Civ 681 that the suspension of possession proceedings effected by PD51Z due to the COVID-19 outbreak applies to appeals against existing possession orders as well as to new proceedings. For the judgment, click here. For a summary of the judgment by Tom Tyson of Trinity Chambers, see New Housing Cases (below).

Coronavirus ban on evictions and help for rough sleepers: Research briefing
On 29 May 2020 the House of Commons Library published a research briefing explaining measures the Government has put in place during the coronavirus outbreak to assist households to retain their homes and to enable local authorities to tackle the specific challenges faced by rough sleepers. The paper is being updated regularly to take account of new developments. For the briefing, click here.

Coronavirus ban on evictions: CIH proposals
On 31 May 2020 the Chartered Institute of Housing published proposals aimed at “avoiding a potentially disastrous spike in evictions once the current protections end”. Working with barrister Liz Davies of Garden Court Chambers, CIH has developed a detailed set of proposals which, it says, would avoid a crisis that could leave thousands homeless and cost landlords and local authorities millions. The proposals recommend:

• Extending protection for tenants until evictions can take place safely.
• Preventing evictions solely arising from COVID-related arrears.
• Ending section 21 evictions.
• Making sure that payment plans for COVID-related arrears do not result in eviction provided the tenant agrees with and complies with the plan over a timescale of up to two years.
• Reforming universal credit by: ending the five-week wait; temporarily suspending the benefit cap and the two-child limit; increasing LHA to 50th percentile of rents for a limited period; and ending ‘shared accommodation rate’ for under 35s.
• Increasing the emergency fund for discretionary housing payments and ensuring they are more widely available to help with rent arrears outside scope of universal credit.
• Introducing an interest-free loan scheme to cover landlords’ loss of rental income and give landlords mortgage holidays on rented properties to pass relief on to tenants.
• Considering one-off payments to stabilise local authority and housing association finances where these have been hit by COVID-related arrears.

For the proposals in full, click here. For the press release announcing the proposals, click here.

Coronavirus ban on evictions – London
On 28 May 2020 the London Mayor, Sadiq Khan, warned that many of London’s private renters are facing imminent homelessness unless the Government acts now to properly protect them from eviction. For his statement, click here.

Domestic Abuse Bill
The committee stage of the Domestic Abuse Bill, at which it will be scrutinised line-by-line, will commence on 4 June 2020. The committee is scheduled to report to the House by 25 June 2020.For the bill, as introduced, click here. To follow progress of the bill, click here.

Domestic abuse: increase in demand for Refuge’s services
On 27 May 2020 Refuge, the country's largest single provider of specialist domestic abuse services and sole provider of the National Domestic Abuse Helpline, reported that calls and contacts to the Helpline have risen to a weekly average increase of 66 per cent and visits to its website (where women can request a safe time to be contacted) have seen a 950 per cent rise compared to pre-Covid-19. For the report, click here.

Legal aid housing lawyers
On 26 May 2020 the Legal Aid Agency updated its directory of legal aid providers by category of law. The directory lists alphabetically all providers and the areas of law, including housing law, in which they specialise. To access the directory, click here.

Grenfell Tower site: Coronavirus (COVID-19) update
On 21 May 2020 the MHCLG published an update on the Grenfell Tower site for the Grenfell community following the latest guidance from government in response to the coronavirus (COVID-19). The update stated that work had been restarted to replace the wrapping around the Tower, while ensuring social distancing remains in place for contractors at the site; and that new ways will be introduced to engage with the community such as virtual (online) community events and telephone ’drop-in’ sessions, while social distancing continues. For the update, click here.

Statutory homelessness in England: October to December 2019
On 21 May 2020 the MHCLG published statistics on statutory homelessness in England. The statistics show that between October and December 2019:

• 34,010 households were assessed as being threatened with homelessness within 56 days, and therefore owed a prevention duty.
• 33,270 households were initially assessed as homeless and therefore owed a relief duty.
• 9,890 households were assessed as being unintentionally homeless and in priority need following the relief duty, and owed a main duty.
• 20,560 households secured accommodation for six months or more during their prevention duty, and therefore had their homelessness prevented.
• In total 36,460 households who were threatened with homelessness or were homeless were able to secure accommodation for six months or more, and 5,710 households owed a main duty accepted a tenancy offer.
• On 31 December 2019 the number of households in temporary accommodation was 88,330, up 5.7 per cent from 83,540 on 31 December 2018.
• The number of households with children in B&B was 1,900, down 14.4 per cent from 2,220 on 31 December 2018, and households with children in B&B for more than six weeks were down 37.6 per cent to 530 households.

For the full statistics, click here. For detailed local authority-level tables, click here.

Dwelling stock estimates in England: 2019
On 21 May 2020 the MHCLG published estimates of the number of dwellings in England and in each local authority district area as at 31 March 2019. According to the release:

• There were 24.4 million dwellings in England at 31 March 2019, an increase of 241,000 dwellings (1.00 per cent) on the same point the previous year.
• 15.6 million dwellings were owner-occupied dwellings, 4.7 million private rented dwellings and 4.0 million social and affordable rented dwellings (private registered providers plus local authority).
• Between March 2018 and March 2019, the owner-occupied dwelling stock increased by 270,000 and the private rented stock decreased by 49,000. The social and affordable rented stock increased by 21,000 dwellings and the other public sector stock decreased by 2,000 dwellings.
• There were 648,114 vacant dwellings in England on 7 October 2019, an increase of 13,661 (2.2 per cent) from 634,453 on 1 October 2018. Vacant dwellings are 2.6 per cent of the dwelling stock.
• There were 225,845 long-term vacant dwellings in England on 7 October 2019, an increase of 9,659 (4.5 per cent) from 216,186 on 2 October 2018. Long-term vacant dwellings are 0.9 per cent of the dwelling stock.

For the full statistics, click here. For the latest data tables on dwelling stock (including vacants), organised by various criteria (for example, tenure and district), click here.

Growth in short-term lettings – England
On 26 May 2020 the House of Commons Library published a research briefing examining the growth in short-term lettings through online peer-to-peer platforms (for example, Airbnb). It outlines the positive impacts of the accommodation sharing economy, and growing concerns about the adverse effects of high levels of short-term lettings in some areas. The paper discusses calls from some sectors for greater regulation of short-term lettings in England, and provides a brief overview of the regulatory approaches in other countries. For the briefing, click here.

Forces Help to Buy Scheme
On 28 May 2020 the Ministry of Defence published a quarterly statistical release providing summary statistics on applications, payments and purchases made under the Forces Help to Buy (FHTB) scheme. It showed that since the Scheme began:

• 46,405 First Stage FHTB applications have been received.
• 24,518 of these applications have proceeded to the Second Stage.
• Payment has been made to around 21,000 applicants, totalling around £317 million, an average of approximately £15,100 per claim.
• At least 95 per cent of payments, as at 31 March 2020, have already resulted in a purchased property or extension.

For the release, click here.

Impact of COVID-19 on social housing
On 28 May 2020 HouseMark published the results from month two of its sector-wide COVID-19 impact analysis. It shows that 18 per cent of the sector workforce were not at work during April. Lettings were down “77 per cent since March creating an estimated backlog of around 45,000 additional vacant homes and a projected end of year void loss position of 2.17 per cent”. Rent arrears were up a further 10 per cent since March. There was a 30 per cent increase in reported anti-social behaviour and domestic abuse. A backlog of 800,000 non-emergency repairs built up in April. With almost a fifth of sector staff not working, social distancing pressure and backlogs in other operational areas compounding the repairs challenge, this is expected to remain a key issue as landlords plan recovery through the autumn. For the analysis, click here.

COVID-19: Anti-social behaviour in temporary accommodation – Wales
On 21 May 2020 the Welsh Government published guidance on how local authorities and providers should manage safety and risk in temporary accommodation where an individual displays challenging and anti-social behaviour during the COVID-19 restrictions. For the guidance, click here.

Private sector rents: 2019 – Wales
On 21 May 2020 the Welsh Government published a report representing the average, lower, median and upper quartiles of rent paid in Wales by number of bedrooms. Information is presented for Wales nationally and also at local authority level. The data used in the report were collected in the 12 months up to the end of December 2019. Over that period the lowest median private rental price recorded for properties across Wales was £348 per month for a non-self-contained single room or bedsit. The highest median private rental price was £795 per month for larger four-bedroom properties including houses, bungalows and flats. During 2019, the majority of rents recorded were for two- and three-bedroom properties where the median rents were £525 and £575 respectively. For the report, click here.

Building safety fund launched to remove dangerous cladding from high rise buildings
On 26 May 2020 the Government launched a new fund, announced in the Budget on 11 March 2020, which will meet the cost for unsafe non-ACM cladding on residential buildings that are at least 18 metres and do not comply with building regulations. The fund is predominately targeted at supporting leaseholders in the private sector facing significant bills. For the announcement, click here. For the prospectus for the fund, click here.

Manchester tower block residents ineligible for recladding fund
On 31 May 2020 The Guardian reported: “Residents of a Manchester tower block facing bills of thousands of pounds to fix dangerous cladding have been dealt ‘a massive blow’ after finding out they are ineligible to apply for the Government’s new £1bn building safety fund [see above news item]. The fund, which was officially launched on [26 May 2020], excludes remediation work that started before 11 March, the day the fund was announced as part of the spring budget.” For the report, click here.

Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020
These regulations came into force on 1 June 2020. They impose duties on private landlords of residential premises in England in respect of electrical safety standards. The duties do not apply to landlords of social housing. The Regulations require local housing authorities to enforce the duties, and include a power to arrange remedial action. For the regulations, click here. For individual guides setting out how the regulations affect, respectively, landlords, tenants and local authorities, click here.

Protection of mortgagors during the coronavirus emergency
On 22 May 2020 the Financial Conduct Authority announced proposals which will continue support for customers who are struggling to pay their mortgage due to coronavirus (COVID-19). For those who are still experiencing temporary payment difficulties due to coronavirus, mortgagees should continue to offer support, which could include extending a payment holiday until 31 October 2020. Mortgagees must not start or continue possession proceedings before 1 November 2020. For the FCA announcement, click here.

COVID-19 and renting: guidance for landlords, tenants and local authorities
On 1 June 2020 the MHCLG published updated non-statutory guidance for landlords, tenants and local authorities in the private and social rented sectors in the context of Coronavirus (COVID-19). The latest version of the guidance reflects amended regulations and changes to wider government and public health advice. For the updated guidance, click here.

HOUSING LAWS IN THE PIPELINE

Fire Safety Bill
This Government bill would make provision about the application of the Regulatory Reform (Fire Safety) Order 2005 where a building contains two or more sets of domestic premises; and would confer power to amend that order in future for the purposes of changing the premises to which it applies. The bill received its first reading in the House of Commons on 19 March 2020 and its second reading on 29 April 2020. For the second reading debate, click here.  It is now being considered by a Public Bill Committee which will scrutinise the bill line by line and is expected to report to the House by 25 June 2020. For the bill, as introduced, click here. To follow progress of the bill, click here.

Domestic Premises (Energy Performance) Bill
This private member’s bill, sponsored by Lord Foster of Bath, would require the Secretary of State to ensure that domestic properties have a minimum energy performance rating of C on an Energy Performance Certificate; to make provision regarding performance and insulation of new heating systems in existing properties. The first reading was on 8 January 2020 and the second reading on 7 February 2020. The committee stage will commence on a date to be appointed. For the bill, as introduced, click here. To follow progress of the bill, click here.

Rented Homes Bill
This private member’s bill, sponsored by Baroness Grender, would amend the Housing Act 1988 to abolish assured shorthold tenancies; and to extend the grounds upon which landlords of residential housing may recover possession. First reading took place on 22 January 2020. The second reading will be on a date to be announced. For the bill, as introduced, click here. To follow progress of the bill, click here.

Telecommunications Infrastructure (Leasehold Property) Bill
This Government bill would amend the electronic communications code set out in Schedule 3A to the Communications Act 2003; by doing so, it would address one stated policy barrier: making it easier for telecoms companies to access multi-dwelling buildings (such as blocks of flats) where a tenant has requested a new connection, but the landlord has not responded to requests for access rights. The bill received its first reading in the House of Commons on 8 January 2020 and its second reading on 22 January 2020. For the second reading debate, click here. The committee stage was completed on 11 February 2020. For the committee debate, click here. The third reading in the House of Commons was on 10 March 2020; for the debate, click here. First reading in the House of Lords was on 11 March 2020. The second reading was on 22 April 2020. The committee stage commenced on 19 May 2020. For the bill, as introduced in the House of Lords, click here. To follow progress of the bill, click here. For a briefing, prepared by the House of Commons Library, click here.

Renting Homes (Amendment) (Wales) Bill
This Welsh Government bill seeks to amend the Renting Homes (Wales) Act 2016 to provide greater security for people who rent their homes in Wales. This will particularly affect those who live in the private rented sector and occupy their homes under a ‘standard occupation contract’, the equivalent to the current assured shorthold tenancy, after the 2016 Act comes into force. This additional security will primarily be achieved by extending the minimum notice period for issuing a section 173 notice under the 2016 Act (the equivalent of the current section 21 notice under the Housing Act 1988) from two months to six months. Landlords will also be prevented from issuing such a notice until at least six months from the date of occupancy. Further provisions will also ensure that landlords are unable to issue rolling ‘speculative’ notices on a ‘just in case’ basis. The bill was introduced in the Senedd on 10 February 2020. The Equality, Local Government and Communities Committee considered the bill on various dates up to 12 March 2020. The Legislation, Justice and Constitution Committee and the Finance Committee are due to consider the Bill on dates to be appointed. On 1 April 2020 the First Minister issued a statement on the Welsh Government’s approach to legislation in light of COVID-19 in which he confirmed that this bill was not one of the Welsh Government’s current priorities and that the legislative programme remains under continual review. For the bill, as introduced, all other documents relating to it, and to follow progress on the  bill, click here.

Caravan Sites Bill
This private members’ bill, sponsored by Sir Christopher Chope, would amend the Caravan Sites and Control of Development Act 1960 to remove planning permission requirements for caravan site licence applicants. The bill is being prepared for publication. It received its first reading in the House of Commons on 10 February 2020. The second reading has been further postponed to 5 February 2021. To follow progress of the bill, click here.

Evictions (Universal Credit Claimants) Bill
This private members’ bill, sponsored by Chris Stephens, seeks to place a duty on the Secretary of State to prevent the evictions of Universal Credit claimants in rent arrears. The bill is being prepared for publication. It received its first reading in the House of Commons on 10 February 2020. The second reading has been further postponed to 29 January 2021. To follow progress of the bill, click here.

Homeless People (Current Accounts) Bill
This private members’ bill, sponsored by Peter Bone, would require banks to provide current accounts for homeless people seeking work. The bill is being prepared for publication. It received its first reading in the House of Commons on 10 February 2020. The second reading has been postponed to 5 March 2021. To follow progress of the bill, click here.

Mobile Homes Act 1983 (Amendment) Bill
This private members’ bill, sponsored by Sir Christopher Chope, seeks to amend the Mobile Homes Act 1983. The bill is being prepared for publication. It received its first reading in the House of Commons on 10 February 2020. The second reading has been further postponed to 11 September 2020. To follow progress of the bill, click here.

Mobile Homes and Park Homes Bill
This private members’ bill, sponsored by Sir Christopher Chope, would require the use of published criteria to determine whether mobile homes and park homes are liable for council tax or non-domestic rates; make provision in relation to the residential status of such homes; and amend the Mobile Home Acts. The bill is being prepared for publication. It received its first reading in the House of Commons on 10 February 2020. The second reading has been further postponed to 15 January 2021. To follow progress of the bill, click here.

Housing Act 2004 (Amendment) Bill
This private members’ bill, sponsored by Sir Christopher Chope, seeks to amend Part 3 of the Housing Act 2004 to provide that any selective licensing scheme for residential accommodation extends to social housing. The bill is being prepared for publication. It received its first reading on 10 February 2020. The second reading has been further postponed to 15 January 2021. To follow progress of the bill, click here.

Sublet Property (Offences) Bill
This private members’ bill, sponsored by Sir Christopher Chope, would make the breach of certain rules relating to sub-letting rented accommodation a criminal offence and would make provision for criminal sanctions in respect of unauthorised sub-letting. The bill is being prepared for publication. It received its first reading on 10 February 2020. The second reading has been further postponed to 30 October 2020. To follow progress of the bill, click here.

Vagrancy (Repeal) Bill
This private members’ bill, sponsored by Layla Moran, would repeal the Vagrancy Act 1824. It received its first reading in the House of Commons on 18 March 2020. The second reading has been postponed to 11 September 2020. For the bill as introduced, click here. To follow progress of the bill, click here.

NEW HOUSING CASES

LB Hackney v Okoro [2020] EWCA Civ 681
The question in this appeal was whether an appeal against an order for possession of residential premises was within the scope of Practice Direction 51Z and consequently subject to an automatic stay.

The Court of Appeal previously determined in Arkin v Marshall [2020] EWCA Civ 620 that (a) Practice Direction 51Z was properly made and (b) whilst the automatic stay could theoretically be lifted, it would require something very exceptional to do so.

Practice Direction 51Z
PD51Z provides that (with exceptions for interim possession orders, trespass claims against ‘persons unknown’ and applications for case management directions which are agreed by all parties) “all proceedings for possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by warrant or writ of possession are stayed for a period of 90 days from [27 March 2020].”

The Facts
The material facts of the case are that a possession order was made on 24 January 2020 in proceedings brought under CPR Part 55. The Appellant was granted permission to appeal the order for possession on 25 February 2020 and the appeal listed for 21 May 2020. Between the order granting permission and the appeal hearing, PD 51Z came into force. The appeal hearing was vacated but no order staying the appeal was made.

The Issue
The Appellant’s argument was that the appeal should have been stayed by operation of PD 51Z as proceedings were not concluded until the final appeal determined whether or not there should be a possession order. The Respondent contended that proceedings for possession under Part 55 ceased when a possession order was made and appeals are governed by CPR Part 52, hence not within the scope of PD 51Z.

The Judgment
Sir Geoffrey Vos V-C (giving the judgment of the court) referred to the volume of possession claims, noting that appeals and applications to set aside possession orders in the 138,000 or so possession claims were not uncommon. He reiterated the purpose of PD51Z by reference to Arkin v Marshall, being to relieve the burden on judges and staff during the pandemic and the risk to public health of proceedings with evictions during that period [22-23].

Whilst it was correct that CPR 52 covers appeals and PD 51Z makes no reference to appeals, the wording of paragraph 2 of PD 51Z was broad, staying all proceedings “brought” under Part 55. The focus is on how the proceedings were initiated. So, even if under appeal, the proceedings were ‘brought’ under Part 55 and consequently subject to the stay [25].

The wording of PD 51Z, “all proceedings for possession brought under CPR Part 55”, include every stage of such proceedings including all appeals up to the Court of Appeal. It would not apply to pending appeals to the Supreme Court because Supreme Court appeals are beyond the jurisdiction of the Master of the Rolls in making Practice Directions [27].

The appeal was allowed and the appeal against the possession order was stayed.
Summary by Tom Tyson, barrister, Trinity Chambers. For the judgment, click here.

R (Fisher) v Durham County Council [2020] EWHC 1277 (Admin)
In this case Mr Justice Julian Knowles dismissed a claim for judicial review of the defendant authority’s decision to serve a noise abatement notice on a disabled person with an involuntary tic disorder.

Background
Ms Fisher (the Claimant) was a retired primary school teacher. Since around 2014 she had suffered with a disorder which causes her to make involuntary sounds and noises, including words/phrases. She was under the care of a consultant neuropsychiatrist and had been referred for treatment.

Since 2016 the Anti-Social Behaviour Interventions Team of Durham County Council (the Council) had been involved with the Claimant following alleged complaints from neighbours that the Claimant’s vocalisations were causing a noise nuisance.

Having sought information from doctors and investigated the noise nuisance on 30 November 2018, the Council served the Claimant with a noise abatement notice pursuant to s.80 Environmental Protection Act 1990. The notice required the Claimant to “cease excessive vocalisation/shouting at a level likely to cause a statutory noise nuisance to the residents of Gladstone Terrace…” within one hour of service of the notice. Failure to comply with the notice without reasonable excuse was an offence which, on summary conviction was liable to an unlimited fine together with a further fine for each day on which the offence continued after any conviction.

The Claimant sought to quash the notice. Her case was that the service of the notice arose in consequence of her disability; she could not control the vocalisations and the decision to serve the notice was unlawfully discriminatory, a breach of the Public Sector Equality Duty (s.149, Equality Act 2010) and/or irrational in the traditional public law sense.

The Council accepted that the Claimant is disabled but contended that their actions were justified owing to their desire to protect the interests of the neighbours. The Council also contended that the Claimant should not be permitted to raise the discrimination issue by way of judicial review, but should pursue the same arguments by way a statutory appeal to the magistrates’ court against the notice.

Decision
Alternative Remedy

On the question of alternative remedy there was a dispute between the parties as to whether the magistrates’ court had jurisdiction to consider the Claimant’s disability discrimination argument in a statutory appeal under the Environmental Protection Act 1990.

The Claimant had issued a statutory appeal in the magistrates’ court which had been stayed pending the outcome of these proceedings. The Council argued that the magistrates’ court did have jurisdiction and therefore the Claimant had an alternative remedy and the claim should be dismissed on that basis.

By ss.113 and 114, the general position under the EA 2010 is that alleged contraventions of Part 3 should be dealt with in the county court. By s.119 the county court can grant any remedy which the High Court could grant. There is, however, an exception for claims for judicial review (s.113(3)(a)). The option of applying for judicial review for a breach of the EA 2010 is therefore not shut out. There was no exception conferring similar power or jurisdiction on the magistrates’ court. The Council argued that a statutory appeal to the magistrates’ court was not caught by ss.113-114 because they were not “proceedings relating to a contravention” of the relevant provisions, and – if they were – did not involve the determination of a “claim” for breach of Part 3 of the 2010 Act. However, as the judge noted, there were various decisions of the Court of Appeal which tended against such a conclusion (e.g. Hamnett v Essex County Council [2017] 1 WLR 1155).

The judge determined that the extent to which the grounds pursued could be raised in the magistrates’ court was uncertain. He had a discretion as to whether to proceed even if there was an alternative remedy available and chose to exercise his discretion to do so.

Disability Discrimination

It was common ground that (a) the Claimant was disabled within the meaning of s.6 the Equality Act 2010 and that her vocalisations arose in consequence of that disability; (b) service of the notice was unfavourable treatment of the Claimant because of something arising in consequence of her disability; and (c) it would be unlawfully discriminatory treatment by virtue of s.15 unless the Council could show that the treatment was a proportionate means of achieving a legitimate aim.

The judge accepted that service of the notice served a legitimate purpose, namely the abatement of a statutory nuisance. There was substantial evidence that the Claimant’s conduct was causing harm and distress to her neighbours.

The test for proportionality under s.15 was authoritatively set out by the Supreme Court in Akerman-Livingstone v Aster Communities Ltd [2015] AC 1399. There were four questions: (a) Was the legitimate aim sufficiently important to justify limiting a fundamental right? (b) Was the decision to serve the notice rationally connected to the legitimate aim? (c) Were the means chosen no more than is necessary to accomplish the legitimate aim? (d) Is the adverse impact of the infringement of the Claimant’s rights disproportionate to the likely benefit of serving the notice?

On the first question, the legitimate aim of protecting the health and amenity of the Claimant’s neighbours, and the interests of the relevant property owners, all of whom were being seriously harmed in different ways by her behaviour, justified the modest limitation of the Claimant’s fundamental right as to how she lived in her home.

On the second question, the judge acknowledged that all agreed that the Claimant was not able, through no fault of her own, to comply with the notice. The Council had ‘more or less accepted that it would not contemplate prosecuting her for breaching it’. But the judge accepted the Council’s submissions that service of the notice was a necessary precondition before High Court injunctive relief could be sought under the EPA 1990 and that such an injunction would be capable of abating the nuisance.

As to the third question, the judge concluded that no less drastic measures could be used given that service of an abatement notice was a necessary first step in “the only process of ending the nuisance that is likely to be successful”.

Lastly, was the adverse impact of the infringement of the Claimant’s rights disproportionate to the likely benefit of serving the notice? The judge held that the notice itself would not have any – or scarcely any – impact on the Claimant who could take reassurance from the Council’s stance in these proceedings that criminal proceedings are most unlikely.

The Claimant has not been the victim of unlawful disability discrimination contrary to s.15.

The Public Sector Equality Duty

For overlapping reasons, the judge held that the Council did not fail to comply with s.149, the PSED. Whilst the authority had not carried out a PSED assessment the judge considered the relevant principles, as discussed in Luton Community Housing Limited v Durdana [2020] EWCA 445 etc, and concluded that the Council had, in substance, complied with the PSED.

Article 14

This ground failed for similar reasons to those given in relation to Ground 1.

Irrationality

Service of the notice was not absurd or irrational. Although the Council knew that the Claimant would not be able to comply with the notice, there were other valid reasons for serving it, not least of which the Council concluded that it was a necessary statutory precondition to taking High Court action which it had concluded was the only likely solution to a hitherto intractable problem.
The claim for judicial review failed. The Claimant’s application for permission to appeal was refused and any further application must be made to the Court of Appeal.

Summary by Alice Richardson, barrister, Trinity Chambers, who appeared as junior counsel for the Claimant. For the full judgment, click here.

HOUSING LAW ARTICLES & PUBLICATIONS

The clock is ticking: government must act now to protect renters Steph Kleynhans Shelter Blog 22 May 2020 – to read the article, click here

What to do, what to do, what to do? Giles Peaker Nearly Legal 24 May 2020 – to read the article, click here

The interface between statutory nuisance and disability discrimination Charles Holland Local Government Lawyer 26 May 2020 – to read the article, click here

Covid-19 got rough sleepers off England's streets. The question is what happens next Alan Fraser The Guardian 27 May 2020 – to read the article, click here

When 52 is also 51 because 55 Giles Peaker Nearly Legal 27 May 2020 – to read the article, click here

Housing in lockdown: avoid the pause button Tom Lawal Local Government Lawyer 28 May 2020 – to read the article, click here

Flexible tenancies and possession Jon Holbrook Local Government Lawyer 28 May 2020 – to read the article, click here

Housing case law update – May 2020 May 28, 2020 Michael Owen, Helen Gascoigne and Tom Bradbury Local Government Lawyer 28 May 2020 – to read the article, click here

Environmental, Social and Governance – A sector wide opportunity Deborah Rowntree Local Government Lawyer 28 May 2020 – to read the article, click here

Committal applications during COVID-19 Clare Jones and Sian Evans Local Government Lawyer 28 May 2020 – to read the article, click here

Social landlords and relaxation of the lockdown John Murray Local Government Lawyer 28 May 2020 – to read the article, click here

Homelessness and domestic violence Andy lane and Rowan Clapp Local Government Lawyer 28 May 2020 – to read the article, click here

Recent developments in additional and selective licensing Tara O’Leary Local Government Lawyer 28 May 2020 – to read the article, click here

Preventing youth homelessness after COVID-19: lessons and opportunities from the crisis [policy briefing] Homeless Link 29 May 2020 – to read the briefing, click here

Renters were struggling before coronavirus — more needs to be done to support them now Rosie Derricourt Citizens Advice 29 May 2020 – to read the article, click here

Potential lack of advice for tenants facing possession hearings attracts condemnation Legal Action Group Legal Action May 2020 – to read the article, click here

Residents should not be left to pay for remedies to unsafe tower block cladding Ritu Saha Legal Action May 2020 – to read the article, click here

Housing Disputes Service: a controversial proposal Andrea Coomber and Sue James Legal Action May 2020 – to read the article, click here

Housing: recent developments Jan Luba QC and Sam Madge-Wyld Legal Action June 2020 ‒ to read the article (subscription required), click here

HOUSING LAW DIARY

4 June 2020                             
Committee stage of the Domestic Abuse Bill commences (see Housing Law News and Policy Issues)

25 June 2020                           
Committee scheduled to report to House of Commons on Domestic Abuse Bill (see Housing Law News and Policy Issues)

29 & 30 June 2020                    
Supreme Court hearing in R (Z and another) v Hackney London Borough Council and another as to whether a housing association can lawfully restrict the provision of its social housing to members of the Orthodox Jewish community.

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