Housing Law Update Key issues in 2016 Dean Underwood Barrister

Public law: a bar to repossession?

Out with the old toys, in with the new Article 8 ECHR: yesterday’s legal plaything Manchester CC v Pinnock [2011] 2 AC 104 SC R (JL) v SoS for Defence [2012] ACD 21 QB Public and administrative law: the defendants’ new toy What is public and administrative law? Why is it relevant? Wandsworth LBC v Winder [1985] AC 461 HL R (Weaver) v LQHT [2010] 1 WLR 363 CA Potentially fatal to possession claims on discretionary, mandatory and absolute grounds

Equality Act defences: a real favourite Equality Act defences still a favourite discrimination reasonable adjustments public sector equality duty Aster Communities Ltd v Akerman-Livingstone [2015] AC 1399 right to equal treatment different from- and extra to rights protected by Article 8 ECHR proportionality requires structured approach summary dismissals will be rare test? whether claim is genuinely disputed on grounds that appear to be substantial

Not keen on playing? Spoil the game … The importance of good policy and decision making policy reviews policy compliance educating staff legal obligations, e.g. Equality Act 2010 decision-making record-keeping Take legal advice when necessary The consequences of failure? delay, expense, frustration of housing policy etc see e.g. Barber v Croydon CC [2010] HLR 26 CA

A word about housing fraud …

Commonly-encountered housing fraud How do you assess your organization’s exposure to housing fraud? First step: understand the commonly-encountered risks Obtaining a tenancy by fraudulent misrepresentation applications under Parts VI and VII of the Housing Act 1996 succession applications Subletting the whole of a let property Right to buy fraud Mutual exchange and assignment fraud obtaining consent by material misrepresentation Housing Benefit fraud

Protecting the English Public Purse 2015 RTB a significant risk for local authorities detected RTB fraud more than doubled to 411, while their value increased by nearly 145% to more than £30m at least 3% of London RTB applications are fraudulent; 1.5% elsewhere extension of the RTB likely to result in similar levels of RTB fraud to that encountered by local authorities with few notable exceptions, housing associations do not have the capacity or capability to tackle such fraud

The time to act is … now! Six key questions for the Board or Committee … Do you have a zero tolerance policy in respect of fraud? Do you have a corporate fraud team? Does anyone have responsibility for fighting fraud across the organisation? Are you confident you have sufficient counter-fraud capacity and capability to detect and prevent fraud? Have you measured your organisations’ performance against the TEICCAF fraud detection benchmark analysis? (If so, what trends and risks did the exercise expose?) Do you have appropriate and proportionate defences against emerging fraud risks, such as right to buy fraud?

The ‘right to rent’

The ‘right to rent’ in overview Immigration Act 2014 Generally, applies in England to tenancies starting on or after 1 February 2016 Applies to PRPs except (a) when allocating in accordance with LA statutory obligations or (b) where premises are excluded, e.g. student accommodation, hostels, care homes Prohibits landlords from letting to certain people, according to immigration status Will require landlords to check status of prospective tenants, licensees, subtenants; and make follow-up checks Penalty of up to £3000 for non-compliance

The ‘bedroom tax’: Supremely important

Court decision awaited Three conjoined appeals: R (MA) v SoS for Work & Pensions R (Rutherford) v SoS for Work & Pensions R (A) v SoS for Work & Pensions Issues: whether changes to the HB Regulations discriminate against disabled people in breach of their human rights. whether, in Rutherford and A, there was discrimination; and if so …

Court decision awaited Three conjoined appeals: R (MA) v SoS for Work & Pensions R (Rutherford) v SoS for Work & Pensions R (A) v SoS for Work & Pensions Issues (continued) … whether, in Rutherford and A, the CA was right to find that the SoS had failed to justify the treatment; and In Rutherford, whether the CA was wrong to find that the SoS failed to have regard to the child’s best interests when devising the HB (Amendment) Regulations 2012

Housing Law Update Key issues in 2016 Dean Underwood Barrister

Contact details: Dean Underwood Cornerstone Barristers 2-3 Grays Inn Square London WC1R 5JH Tel: 020 7421 1835 Fax: 020 3292 1966 Email: deanu@cornerstonebarristers.com Twitter: @deanunderwood01