Housing Law update 2016 Chartered Institute of Housing November 2016 Julie Isaac Chartered Legal Executive T: 01733 888857 E: julie.isaac@buckles-law.co.uk www.buckles-law.co.uk

Aster v Akerman-Livingstone 2015 Mr A-L had chronic and severe mental health problems Aster provided temporary accommodation to allow the Local Authority to discharge it’s duty to him as a homeless person Mr A-L refused all offers of permanent accommodation – the homelessness duty to him having been discharged an NTQ was served Mr A-L defended possession proceedings, claiming that eviction would breach Art 8 ECHR or s15 Equality Act The County Court and Court of Appeal found that an Equality Act defence could be dealt with summarily

Aster v Akerman-Livingstone 2015 Supreme Court decision How should a Court handle a defence to summary possession proceedings (a possession claim against an introductory tenant, under s21 Housing Act 1988 or an occupier of temporary accommodation) when a defence under s15 of the Equality Act 2010 is raised? Is the correct approach identical to that a Court should adopt to and Art 8 ECHR defence?

Aster v Akerman-Livingstone 2015 S15 Equality Act: (1) a person (A) discriminates against a disabled person (B) if: (a) A treats B unfavourably because of something arising in consequence of B’s disability; and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim

Aster v Akerman-Livingstone 2015 The Supreme Court – establishing proportionality under s15 Equality Act may involve treating the disabled person differently and require the landlord to do all that could reasonably be expected to accommodate the individuals disability, it involved a four stage test: Is the objective sufficiently important to justify limiting a fundamental right? Are the means rationally connected to the objective? Are the means no more than necessary to achieve that objective? Do the ends justify the means?

Aster v Akerman-Livingstone 2015 Summary judgment is not usually appropriate Exceptions will be: The individual has no real prospect of establishing that he/she is disabled The possession claim did not arise by reason of the individual’s disability It is clearly a proportionate means of achieving a legitimate aim (difficult to establish on a summary application)

So what will be proportionate? Not defined in the Equality Act 2010 but in EU directives and clarified by CJEU decisions: An appropriate and necessary means of achieving a legitimate aim It will not necessarily be discrimination if the aim could be achieved by less discriminatory means

Undertaking an equality impact assessment In cases where the tenant or a member of their household is disabled it will be necessary to undertake an assessment and to keep it under review Who will carry out the assessment? When should the assessment take place? The assessment itself – what is needed? It will be necessary to keep the assessment under review – as matters progress or new information comes to light After the assessment – document it!

Cardiff City Council v Lee [2016] Court of Appeal decision – hot off the press!! CPR83.2 83.2(3) – a writ or warrant must not be issued without the permission of the Court where…the under the judgment or order any person is entitled to a remedy subject to the fulfilment of any condition

Cardiff City Council v Lee [2016] CPR83.2 83.2(4) An application for permission may be made in accordance with Part 23 and must: a) Identify the order or judgment to which the application relates b) If the judgment or order is for payment of money, state the amount originally due and, if different, the amount of money due at the date that the application notice is filed

Cardiff City Council v Lee [2016] What else? Under CPR 3.10 the Court may remedy a procedural error – a warrant issued without permission is not invalid unless the Court finds that it is. In this case the Court had remedied the breach by hearing the application to suspend, however… CPR 83.2 provided vital protection for tenants and landlords should apply for permission in the case of conditional orders Some advisors suggest the Court could incorporate a clause in the SPO allowing CPR83.2 to be dispensed with and substituted with a letter to the tenant- be prepared to fail!!

Rutherford & Ors, R (on the application of) v Secretary of State for Work & Pensions [2016] Judicial Review challenges failed – discretionary housing benefit payments were available and being paid this was seen to be a reasonable safeguard Court of Appeal – in both cases the Secretary of State had failed to show an objective and reasonable justification

Rutherford & Ors, R (on the application of) v Secretary of State for Work & Pensions [2016] 5 out of 7 cases dismissed – no unlawful discrimination Cases unrelated to transparent medical needs

Rutherford & Ors, R (on the application of) v Secretary of State for Work & Pensions [2016] No reasonable justification for treating adults and children differently Ironic and inexplicable inconsistency Where there are medical needs which give rise to the need for a separate bedroom no reasonable cause to apply the same cap on housing benefit

Rutherford & Ors, R (on the application of) v Secretary of State for Work & Pensions [2016] Clarification on the inconsistencies in Regulation B13 Transparent medical needs mean an exemption from a reduction in housing benefit Local Authorities do not need to take any immediate action

Homelessness Reduction Bill Second reading on 28 October 2016 New legal duties on Local Authorities Must assess every eligible applicant regardless of priority need Applicants considered threatened with homelessness in 56 days

Homelessness Reduction Bill Local Authorities must assess: The circumstances leading to homelessness The applicant’s housing needs Support to retain accommodation which is available to the applicant Local Authority’s duty under Part 7 of the Housing Act 1996

Homelessness Reduction Bill Must be a Section 184 decision letter including a housing plan Duty to help to secure that suitable accommodation does not cease to be available Does not mean providing accommodation It means taking reasonable steps having regard to resources

Homelessness Reduction Bill Local connection will exist if an applicant is normally resident somewhere or employed somewhere for a period of more than 6 months without a break

Welfare benefits Cap is now in force for claimants between 16 and 64 Out of Greater London a couple or single person with children will have benefits capped at £384.62 per week A single person with no children will have benefits capped at £257.69

Welfare benefits Claimants will not be affected if they or their partner work and are eligible for working tax credit or receiving universal credit

Welfare benefits Cap applies to the total amount received in the household from: Bereavement allowance Child benefit Employment and support allowance Housing benefit Incapacity benefit Income support Jobseeker’s allowance Maternity allowance Severe disablement allowance Widower Parent’s allowance – before April 2001 this was widowed mother’s allowance or widow’s pension Universal credit – unless a work capability assessment shows you are unfit for work

Welfare benefits Claimants will not be affected if anyone in the household qualifies for working tax credits or receives: Armed Forces Compensation Scheme Armed Forces Independence payment Attendance allowance Carers allowance Employment and support allowance if you receive the support component Guardian’s allowance Industrial injuries benefits Personal independent payment Universal credit payments towards carers costs or for limited capability for work and work related activity War pensions/war widow or widower’s pension

Welfare benefits Potentially and increase in applicants for discretionary housing benefit payments Landlords may have to provide budgeting advice

Housing and Planning Act – the headlines Rents for high income social tenants Mandatory pay to stay provisions will not be pursued Voluntary for Local Authorities and housing associations Fixed term tenancies are mandatory and reviews must take place at end of the fixed term Will these reviews see higher earners no longer being eligibile for social housing?

Questions? ?