Share on LinkedIn Tweet This Share on Facebook Share Tweet Share Social Housing Newsletter April 2013 Foreword by Dean Underwood Dean Underwood Dear Reader, Welcome to the latest edition of Hardwicke’s Social Housing Newsletter. This edition is packed as ever with news of developments in housing law and details of the team’s recent activity. April promises to be an eventful and controversial month in housing. After months of preparation and no little amount of crystal ball gazing, welfare reform is finally upon us; the so-called "spare room subsidy" is no more, the benefit cap begins, and the Government has rolled out Universal Credit in one of its four planned pathfinder areas. We’ve summarised some of the key developments this month below. It is unlikely that their effect will manifest immediately, but social landlords can surely expect increasing levels of tenant debt, not least rent arrears, and the need for a reform-tailored response in the forthcoming months. Speaking at a "Chartered Institute of Housing Conference" in March, Paul Downie of the DCLG announced that the Coalition expects to bring the Prevention of Social Housing Fraud Act 2013 into force in late April. Significantly, the Act creates new criminal offences of unlawful subletting; a new species of order - the Unlawful Profit Order or "UPO" – requiring defendants to pay their landlords the profits of an unlawful subletting; and brings the tenure of secure and assured tenants into closer alignment by ensuring that assured tenants, who sublet the whole of their property, lose assured status permanently. Leon Glenister and I wrote an article "Acting on Housing Fraud" which featured in the Solicitors Journal. The article summarises the content of the Act and its likely impact and we hope you will find it of interest. And how can we omit to mention the radical changes to public funding made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, many of which came into force earlier this month? Franchised law firms, providing tenants with much-needed advice and representation, will doubtless find it more difficult to do so from here on in; many tenants will face the prospect of conducting complicated litigation without representation; and landlords an increase in potentially protracted claims defended by litigants in person. Against this backdrop, the team at Hardwicke has been particularly busy. It has maintained an established presence in the higher courts, with appeals and claims in the Court of Appeal and High Court respectively in the past three months and one potentially on its way to the Supreme Court. Its business strategy for 2013 has paid dividends already; the team’s annual programme of well-attended housing and public law seminars has attracted widespread praise; its expertise has attracted invitations to speak at a series of sector-oriented conferences organised by the Social Housing Law Association, Chartered Institute of Housing, Capita Conferences and others; arrangements for Hardwicke’s Annual Social Housing Conference – this year on 17 September – are well underway (more on this below); this first quarter of the year has seen a raft of housing-related publications in the Solicitors Journal, the Journal of Housing Law and Inside Housing; and a recent tender for work with one of the country’s biggest registered providers of housing has, we are delighted to say, met with unqualified success. In short, it is an exciting time to be the head of housing at Hardwicke. I am proud to be part of such an ambitious and client-focused team. The coming months are certain to bring some interesting and complex cases in the wake of welfare reform and other changes to the landscape of housing law. We look forward to sharing them with you! Articles Laura TweedyYou cannot be serious! Defence overcomes first hurdle in possession claim Alex CampbellDon't look down: The decision in El-Dinnaoui v Westminster City Council Arthur MooreProtect your deposits! Assured shorthold tenancies and rent deposits Anti-social behaviour - The future Andy Lane sets out the proposals in the draft Anti-Social Behaviour Bill expected to come into force some time in 2015.April is the cruellest month...? Welfare reform takes holdAndy discusses what April will bring as part of the Coalition Government's Welfare Reform Package. Appeals and policy Dean Underwood's run of good form in the appeal courts continues. In Golds v Henson  EWHC, in an appeal in the Queen's Bench Division, he persuaded Leggatt J to exercise the courts' rarely-used power under CPR 52.9 to set aside permission to appeal on grounds of misrepresentation. The appellant landlord had materially misstated the date of the order under appeal and her knowledge of and involvement in the unlawful eviction proceedings in which it had been made. As Harry Redknapp might say, good work fella! For more information, please refer to our case report in Golds v Henson. Dean has also been advising a local authority about a Court of Appeal challenge to the proper interpretation of its housing allocation policy. Led by Bryan McGuire QC, Dean achieved a welcome outcome to the litigation, preserving for the local authority the benefit of a very favourable High Court judgment. For more information, please refer to the judgment in R (George) v London Borough of Hammersmith & Fulham. Talking of policy work, Andy Lane was recently instructed to advise on a large housing association group’s dispute with a local authority as regards to the latter’s various breaches of a service level agreement (concerning the operation of housing benefit) and of a shared allocation policy. Monty Palfrey is acting in a case concerning the impact of an Islamic marriage on Rent Act succession where the couple were not living together at the time of the husband's death. Social Housing case law update We have summarised some of the most significant and interesting social housing cases over the last few months, including: Chishimba v Kensington & Chelsea Royal London Borough Council (2013) Court of Appeal 25/3/13 Islington London Borough Council v Unite Group Plc  EWHC 508 (Admin) Fadi El-Dinnaoui v Westminster City Council  EWCA Civ 231 Fareham Borough Council v Terry Miller  EWCA Civ 159 London Borough of Brent v Cheryl Tudor  EWCA Civ 157 Aliya Sharif v Camden London Borough Council  UKSC 10;  HLR 16 Birmingham City Council v Beech  EWHC 518 (QB) Nigel Moore v British Waterways Board  EWCA Civ 73 Chukwudumaebi Obiorah v Lewisham London Borough Council  EWCA Civ 325 Go to the social housing case law update... Upcoming events 26 April 2013 - Legal Essentials for Rent ArrearsDean Underwood will be speaking at Capita’s next "Legal Essentials for Rent Arrears" briefing. Dean will again be speaking on the subject of welfare reform. For further information and to book a place, please visit Capita's website. 14 May 2013 - The Equality Act 2010: Defences to possession claims and the role of the assessorArthur Moore, Laura Tweedy and Andy Lane will present a seminar on the Equality Act 2010 in the context of residential possession claim defences.15 May 2013 - Delivering housing allocations and flexible tenancies conference Dean will be speaking at Capita’s “Housing Allocations and Flexible Tenancies” Conference which will deal with the implications of the Localism Act and provisions for tenancy reform now in force. To view Capita's conferences for 2013, please view their brochure. Dean's moans Treasury tags - seriously? Chocolate teapot of the stationery world and not even tasty! Room 101 Frank! Speaking of things teapot - who keeps nicking my mug from the second floor cupboard? Glenister, Campbell, is that you? Mugs - mine is in photos of our Comedy Club team social. No one deserves that laughing boy Lane, and you missed my best side! Missed opportunities - why DID I choose changing Emily's nappy over making dinner? A real bum deal it transpires! I'll know for next time! Ahhhh! That feels so good! Editor's comment - Social Housing legacy of Margaret Thatcher I have never claimed originality as one of my qualities so will not surprise anyone by devoting this first editorial to a few words on the social housing legacy of Margaret Thatcher. She was in office for 11 years between 1979 and 1990 and as with so much else, left her mark on the social housing sector.The most obvious reform from her time as Prime Minister was the introduction, by way of the Housing Act 1980, of the right to buy scheme for local authority tenants to assist her stated dream of a “property-owning democracy”. Michael Heseltine, then Secretary of State for the Environment, said about the Bill:"This bill lays the foundations for one of the most important social revolutions of this century."Polly Toynbee had a different subsequent analysis writing for The Guardian on 11 October 2002, when she said about the right to buy policy:“The forgotten fact is that although it was life-changing for many of the 1.5 million who have bought their homes, in many places - the nations' property hot-spots - it has been a calamity now turning into a crisis because there was no policy to replace all the lost social housing.”For such a significant change it is perhaps surprising to note it merited little mention in the 1979 Conservative Party manifesto, though the Conservative-controlled GLC of the time had been selling their properties since 1977. Indeed, it was a policy highlighted in the Labour Party's 1959 Manifesto:"Every tenant, however, will have a chance first to buy from the Council the house he lives in; and all Council tenants in future will enjoy the same security of tenure as rent-restricted tenants."Allied to restrictions on local authority house building and purchase, the sale proceeds having to go to meet reducing the authorities’ housing debt, the Conservative Government of the 80s trumpeted the “third arm” of housing associations.Whether that completely “filled the gap” left by the restrictions on local authorities, particularly with the significant rises in homelessness presentations, rocketing house prices and “failure” of the newly-deregulated private rented sector to meet the consequent need, is a moot point and even Iain Duncan-Smith, Secretary of State for Work & Pensions, had cause criticise, in 2009, the failure to doing anything for those “left behind” and the lack of accompanying social reforms.It perhaps ought to be recorded that the Housing Act 1980 did at least, in the words of Lord Sumption in Solihull MBC v Hickin  UKSC 39 give:"...the residential tenants of local authorities and certain other social landlords a degree of protection broadly comparable to that enjoyed by private tenants under the Rent Act 1977."(not perhaps a lasting legacy however given the Coalition Government’s more recent moves to restrict successions and introduction of fixed term tenures). On a personal note, I was a local authority councillor in the years immediately following Thatcher's resignation and my experiences in my ward and as a member (and Chair) of the Housing Committee led me to conclude that the end analysis is not a positive one with high rents in the largely deregulated private rented sector, insufficient house building and significant levels of repossessions overriding any positive aspects that may otherwise be seen from the Housing Acts of 1980, 1985 and 1985 and the Landlord & Tenant Act 1985. Contact us This edition of the Social Housing Newsletter was edited by Andy Lane. If you would like to discuss any of the topics in this newsletter, please contact a member of our Practice Management Team: Daniel Kemp, Senior Practice ManagerFrancesca Gabbitas, Assistant Practice ManagerTo find out more about our Social Housing team and their work, visit the Social Housing page on our website.