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Category Archives: Housing law

Grenfell Tower: was the cladding really banned material?

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So, was London’s Grenfell Tower, scene of a horrific fire that killed dozens of people, covered in “banned” flammable cladding?   The  answer – worryingly – is probably no. And if that is the case, it exposes the shocking flaws in Britain’s regulatory system for high-rise developments.

The Department of Communities in initially answering this question – before any tests were made on the actual material – said this: “Cladding using a composite aluminium panel with a polyethylene core would be non-compliant with current Building Regulations guidance. This material should not be used as cladding on buildings over 18m in height.”

But this is not the case. Such cladding – described officially as “material of low combustibility” (MOLC) is lawful and recommended above 18 metres, as is the more fire-resistant cladding described officially as “non-combustible”. Composite aluminium panel with a polyethylene core may well meet the standard as MOLC. So, as long as the suppliers didn’t do some sort of substitution with inferior stuff, such panels are lawful. Read the rest of this entry

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Bedroom tax case: don’t forget the ECHR

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Not enough has been said about the human rights legal dimension to the successful bedroom tax cases in the Supreme Court. It is important for two reasons:

  1. The cases succeeded thanks to Britain’s adherence to the European Convention on Human Rights where homegrown “British” law was unable to help (apart from the Human Rights Act, giving access to ECHR remedies). Neither English Common Law nor British parliamentary anti-discrimination legislation could assist either the Rutherfords or Jacqueline Carmichael gain exemption from having housing benefit docked  for their “extra” bedrooms.
  2. An earlier judgment of one of the cases, when it came before Lord Justice Laws, was intended to place a clear marker down discouraging such  cases based on ECHR rights on the grounds that “the courts are not the proper arbiters of public controversy”. The Supreme Court has therefore repudiated Laws’ attack on ECHR remedies.

The legal cases
The cases challenged the bedroom tax regulation on the grounds that it failed to give entitlement to an extra bedroom (without having housing benefit reduced) in cases where the bedrooms were needed for disabled people. The regulation restricts exemptions to “a relevant person … who requires overnight care; or a relevant person [who] is a qualifying parent or carer” (Regulation B13 (6). The relevant person (in paragraph 9) is the housing benefit claimant, his/her partner or another person liable to pay rent and his/her partner (see regulations below in full). But, as Lord Toulson noted in the latest case: “A person who requires overnight care is defined in Reg 2(1) in terms which have the effect of not including any child”.
Read the rest of this entry

Rutherford and Others bedroom tax case: hold the celebrations

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Anti-bedroom tax campaigners are very pleased about the Court of Appeal case that has found unlawful discrimination in an element of the Government’s policy to punish “under-occupiers” of social housing. Sadly their joy may be premature. The Court of Appeal’s ruling in Rutherford and Others v Secretary of State [2016] EWCA Civ 29 was very much a holding judgment. When the case is reviewed in the UK Supreme Court (Note: the Rutherfords have now won their case in the Supreme Court: see note at end) the issues of right and wrong about how we treat disabled people or rape victims will be largely overlooked. Instead issues of legal proceduralism, high policy (plus low politics) and constitutional wrangling are likely to hold sway.

The essence of the case for the Rutherfords, who care for a disabled grandson, and for “A”, a rape victim (who has a son by her rapist) and has a panic room in her house, is that their situations should have been covered by exceptions to the Bedroom Tax provisions (ie the cut in Housing Benefit when a family has “extra” rooms).

If the benefit claimant is disabled or has a disabled partner an exemption might apply (if overnitght care is required). But not if a benefit claimant is caring for a disabled child. And there is no mention of rape victims in fear of further attack. There is, though, a system of Discretionary Housing Payments (DHP) for those who might have needs “which could be met by DHP”. They are administered by the relevant local authority.

The claimants’ case is that their exclusion in the legislation (Regulation B13, set out here) from the categories whose position “has to be taken into account” (in the clumsy phraseology of the regulation) is unlawful discrimination under Article 14 of the European Convention on Human Rights (ECHR) (and under public sector equality duty under s.149 of the Equality Act 2010) – on grounds of sex for A and disability for the Rutherfords and their grandson.

The Secretary of State, Iain Duncan Smith, acknowledges the prima facie discrimination. The issue therefore became: is there an “objective and reasonable justification for that discrimination which was not manifestly without reasonable foundation”. Broadly the defence is that the DHP is there to cover categories of people who don’t have to be taken into account under Regulation B13 but may have good cases for an exemption. Although their housing benefit would be reduced, DHP might (if the local authority agrees) fill the gap.

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Eviction without court order: irrational answer to the wrong question

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First they came for the squatters. Then they came for the illegal immigrants. Soon they will come for everyone in rented accommodation. The Government’s apparent intention in the forthcoming Immigration Bill to allow landlords (in England) to throw illegal immigrants out without a court order matters less in practical legal terms (arguably it doesn’t make that much practical difference) than in terms of incursions into the principle that courts should oversee the relationships between landlord and tenant because of their inherent inequality. 

The legislation is intended to deal with landlords who find their tenants do not have the “right to rent” (under the Immigration Act 2014) or that their perfectly legal right to remain has come to an end. Eviction would thus become a summary matter. Except that, in realistic scenarios, it wouldn’t.

The proposed legislation means that the right to evict summarily will be triggered when the Home Office issues a notice that the tenant “no longer has the right to rent in the UK”. The usual two-month notice period for an assured shorthold tenancy does not apply.  Read the rest of this entry

Housing associations: right to buy versus right to property

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Fast forward five years. A new leftist government is elected in Britain (majority 12) with a flagship policy to extend home ownership to “Generation Rent”. Legislation is drawn up to force private landlords to sell their properties at a discount to their tenants under a radical right to buy scheme. Unfortunately there is a stumbling block. One of the few human rights still standing amid the ruins of the old human rights regime following the Human Rights (Abolition of Trivial Provisions) Amendment Act 2017 is the right to property. Forcing owners of rental properties to sell them offends against Part 1 Chapter 1 Article 1(1) of the new British Bill of Rights which says:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

Fortunately, though, there is a precedent. Backtrack five years and the Conservative Government of 2015 had just such a radical policy of redistribution of property. It similarly forced property owners to sell homes to their tenants at a discount of 35% or more – caring not whether those property owners were driven to bankruptcy as a result. The fact that the property owners are housing associations doesn’t mean they don’t have human rights: they are private bodies (hence “legal persons”) and the flats they let out are their private property. The wording quoted above is that of Article 1 Protocol 1 of the European Convention on Human Rights, which applies now and which the Tories have no known plans to repeal – because the human right to property is one of the “important” human rights they set great store by. Read the rest of this entry

Nzolameso and housing policy: Milton Keynes should not be the only option

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Once upon a time local councils could offer homeless people damp, mice-infested 28th-story flats on sink estates to discharge their responsibilities under the Housing Act 1996. Now they simply threaten to send them to Milton Keynes. But one cannot help thinking the UK Supreme Court has left the policy of “out-of-borough” placements (or “social cleansing” as even Boris Johnson acknowledged it to be) in disarray. The ruling in Nzolameso v City of Westminster means it will be very difficult for local authorities to justify sending people in housing need very far away for accommodation.

The legislation is pretty clear and explained in this 2006 Homelessness Code of Guidance: “Housing authorities must ensure that suitable accommodation is available for people who have priority need, if they are eligible for assistance and unintentionally homeless.” As a single mother of five children who was HIV positive and suffered other health issues, Titina Nzolameso was accepted by Westminster Council as being in priority need. The Council therefore had a duty to house her (known as the “main homelessness duty”). Whether shipping her out to a house in Bletchley, in Milton Keynes, was suitable is another matter. Nevertheless officials felt able to write to her:

“There is a severe shortage of accommodation in Westminster and it is not reasonably practicable for us to offer a Westminster home for everyone who applies for one. That is why we have had to offer you accommodation in Milton Keynes. Although it is outside Westminster, having considered your circumstances, we believe this accommodation is suitable for you.”

She turned the accommodation down as being too far from people helping her with her children and because she wanted to stay with her GP, also because it would mean changing her children’s schools and she had lived in Westminster for a long time. From December 2008 to November 2012, the family had lived in a privately rented four bedroom house in Westminster – until a cap on housing benefit kicked in and she was kicked out,  unable to afford the rent. Under the local housing allowance system rates of housing benefit for private tenants are calculated for each locality. The Westminster limit fell well below Nzolameso’s rent. Read the rest of this entry

Court of Appeal upholds Keith Best’s right to keep house he squatted

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Builder Keith Best has won a Court of Appeal case allowing his ownership of a £400,000 house after he refurbished it and started squatting it in 2001 – even though he was squatting illegally after 2012.

Best had noticed the empty house in Church Road, Newbury Park, Ilford, in 1997 and decided to make it habitable, moving in in 2001. Around 2013 he applied to the Land Registry to have it registered in his name. The law says an occupier “in adverse possession” (ie squatting without permission of the owner or having established possession by other means, such as putting a fence around the property) can apply to the land registrar to place it in his name after 10 years.

But Best staked his claim after the criminalisation of residential squatting in 2012. The registrar argued that since Best was in illegal occupation after that time, his claim could not be registered. Ownership would not be transferred to him.

The Court of Appeal has now said the registrar was wrong. The criminalisation of squatting in Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO S.144) did not prevent a perfectly legal claim to a property under the 2002 Land Registration Act. Lord Justice Sales said:

“I consider that the true inference is that in enacting section 144 Parliament did not intend to produce any collateral effect upon the settled law of adverse possession in respect of either registered or unregistered land.” (Para 75)

Adverse possession is covered by Schedule 6 to the Land Registration Act 2002 which says: “A person may apply to the registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years ending on the date of the application.

A further two years is allowed while the registrar contacts the previously registered owner (“the proprietor of the estate to which the application relates,“) plus others with a potential interest to see if they object to the transfer to a new owner. “Possession” need not be by squatting but by an action that counts as possession. Best did a lot of work on the house over the years but was not always actually living there during his 10 years of adverse possession. Nevertheless he accrued the Schedule 6 right to make his application. The new ruling from the Court of Appeal confirms that the “adverse possession” (without permission but without objection or resistance by the owner) may include a period of time when occupation is unlawful under LASPO S.144. Read the rest of this entry

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