Housing case law update: November 2024
Michael Owen, Sumi Begum and May Atkinson round up the latest cases and court decisions of interest to housing associations and local authorities.
Hajan v London Borough of Brent; Kerr v Poplar Housing and Regeneration Limited Community Association [2024] EWCA Civ 1260
Court of Appeal, 23 October 2024
The Court of Appeal has held that the amendment of a possession claim to add absolute ground is permissible.
In this hearing, two appeals were heard together as they both relied on mandatory grounds for possession due to anti-social behaviour under the Housing Act 1985 and the Housing Act 1988, and the two landlords’ had initiated possession proceedings based on discretionary grounds but wanted to vary the particulars of claim and existing possession orders.
In the first appeal, Mr Hajan, a secure tenant of the London Borough of Brent (“The Council”), was served a notice seeking possession of his flat by the Council after he caused damage to Brent Civic Centre. The notice seeking possession was based on discretionary grounds, under grounds 1 and 2 of Schedule 2 of the Housing Act 1985. Mr Hajan was subsequently convicted of criminal damage, which gave rise to an absolute ground for possession. Consequently, the Council served a notice seeking possession on Mr Hajan, under section 83ZA of the Housing Act 1985, which notified him of its intention to bring proceedings on an absolute ground and of his right to request a review of that decision. Mr Hajan did not request a review and, subsequently, the Council applied for, and obtained, permission from the court to amend the possession claim to add the absolute ground for possession. Mr Hajan appealed, arguing that, the notice requirements in relation to proceedings for possession on absolute ground for anti-social behaviour within sections 83ZA(9)(a) and 83A(2) of the Housing Act 1985 required a landlord to initiate proceedings after a specified date, amending the existing proceedings did not comply with the Act and fresh proceedings should be brought.
In the second appeal, Ms Kerr, as assured tenant of Poplar HARCA (“The Housing Association”), fell into rent arrears and an order for possession was made. However, the enforcement of the order was suspended to allow her to pay the arrears. When her son was involved in an altercation at her flat and pleaded guilty to a serious offence involving an imitation firearm within Schedule.2 Ground 7A of the Housing Act 1988, the Housing Association decided to seek possession from the court on the mandatory ground set out within that provision and thus applied to vary the suspended order to one of outright possession. An outright possession order was made and Ms Kerr appealed.
The Court of Appeal, in dismissing both appeals, held that (1) the Council was entitled to amend the possession claim against Mr Hajan to rely on the absolute ground for possession, even though notice was served after the claim had been issued. A “purposive” interpretation of sections 83ZA and 83A(2) of the Housing Act 1985 meant that the proceedings could encompass an amended claim; and (2) a court had the power to vary Ms Kay’s suspended possession order, as it could consider matters outside the scope of the original proceedings which had led to the making of the possession order, reconsider any of the terms of the stay, suspension or postponement of the possession, or vary a conditional order so as to turn it into an outright order.
This ruling provides clarity for landlords that they can amend an existing possession claim against a tenant in order to add a claim for possession on an absolute ground.
A copy of the judgment is here.
Begum, R (on the Application of) v London Borough of Tower Hamlets [2024] EWHC 2279 (Admin)
High Court, 4 September 2024
The High Court has held that a Council’s use of a database for homeless applicants seeking property transfers did not constitute indirect discrimination against women.
In May 2021, Ms Begum applied to London Borough of Tower Hamlets (“The Council”) as being homeless and was provided the same day with studio accommodation until longer-term accommodation could be found. Ms Begum had a child (and was pregnant with a second child) and subsequently, in June 2022, requested a transfer due to overcrowding at the accommodation. In October 2022, the Council accepted a main housing duty towards her under section 193 of the Housing Act 1996 and noted that she had requested a transfer due to overcrowding. In June 2023, after Ms Begum’s solicitors had requested a review of the suitability of the accommodation, the Council invited them to withdraw the request as it accepted that the accommodation had become unsuitable from that date. In August 2023, the Council offered Ms Begum new accommodation which she accepted, prior to the birth of her second child.
Between October 2022 and August 2023, Ms Begum had been on the Council’s database, awaiting an offer of suitable accommodation. She argued that the Council had a provision, criterion or practice (PCP) in its arrangements of its information database for suitable accommodation and that it was indirectly discriminatory, as it put women at a particular disadvantage compared with men. Consequently, Ms Begum applied for judicial review of the Council’s exercise of its homelessness functions under the Housing Act 1996.
The High Court, in dismissing the application, held that the accommodation had been unsuitable since October 2022, but rejected Ms Begum’s argument that the arrangements were indirectly discriminatory. It found that women were more likely to be placed in temporary accommodation than men because single-parent households were overrepresented in temporary accommodation and significantly more likely to be headed by women. It was not satisfied that the Council’s arrangements for suitable accommodation were a PCP and, even if they were, did not put women at a disadvantage.
A copy of the judgment is here.
Cabo v Dezotti [2024] EWCA Civ 1358
Court of Appeal, 6 November 2024
The Court of Appeal has held that the Upper Tribunal had been correct to find that an individual was an “undisclosed principal” under an occupation agreement and, therefore, the landlord of a property.
Ms Cabo was the freeholder of a house, and her husband, Mr Gratto, was the sole director of a company called Top Holdings Ltd. Ms Cabo entered into an agreement with Top Holdings Ltd whereby it would look after the house on her behalf, including letting out rooms through licence agreements. Top Holdings Ltd subsequently granted licences to various occupiers, stating that it was the licensor under those agreements. One of the occupiers was Ms Dezotti, who contended that the property was an unlicensed house in multiple occupations “(“HMO”). After she moved out, she applied for a rent repayment order against Ms Cabo.
The First-tier Tribunal, in allowing Ms Dezotti’s application, held that the property was a HMO and therefore an offence had been committed. The occupation agreement had created a tenancy, and the involvement of Top Holdings Ltd was “something of a sham”, as Ms Cabo was the landlord. A rent repayment order was therefore made against her for £9,600. Ms Cabo appealed, arguing that Top Holdings Ltd was Ms Dezotti‘s landlord and therefore no rent repayment order should have been made against her.
The Upper Tribunal, in dismissing the appeal, held that Top Holdings Ltd was acting as agent for Ms Cabo, meaning that she was an “undisclosed principal” and therefore, the true landlord under the lettings; therefore, the rent repayment order could be made against her. Ms Cabo appealed again.
The Court of Appeal, in dismissing the further appeal, confirmed that the Upper Tribunal had been correct in its findings.
The ruling highlights that property owners must ensure they comply with licensing requirements for HMOs, and the courts will look at the context of a specific situation before deciding who is the landlord for the purposes of liability under a rent repayment order.
A copy of the judgment is here.
Michael Owen is Head of Housing Management and a Partner, Sumi Begum is a Principal Associate and May Atkinson is an Associate at Capsticks.
