Khayyat and Ibrahim v Westminster City Council [2023] EWHC 30 (Admin)

High Court, 20 January 2023

The High Court has held that a local housing authority's allocation policy/scheme was unlawful as it excluded from the housing register homeless persons to whom the local authority did not owe the “main housing duty”.

The two claimants had applied to Westminster City Council for accommodation. Westminster City Council accepted that each person was homeless within the meaning of the Housing Act 1996, but found that they were either intentionally homeless or not in priority need, and therefore concluded that it did not owe either of them the main housing duty imposed by section 193(2) of the Housing Act 1996.

The claimants challenged the council's policy to only admit to its housing register those applicants who were owed a main housing duty, arguing that it was unlawful because, in breach of the obligation imposed by section166A(3)(a) of the Housing Act 1996, it did not secure that reasonable preference be given to homeless applicants.

The High Court, in granting the claimants’ application for judicial review, held that Westminster City Council’s scheme was unlawful as it excluded from admission to the housing register all homeless persons to whom the main housing duty was not owed.

A local housing authority can legally adopt a policy that excludes individuals who would otherwise be entitled to receive a reasonable preference (and therefore be placed on the housing register), provided it does so by “factors of general application” (such as for rent arrears, a lack of local connection or anti-social behaviour) that apply to an individual in any of the section 166A(3) categories. Westminster City Council’s allocation scheme, however, excluded persons from receipt of a reasonable preference by reference to factors other than factors of general application and was therefore unlawful. The scheme also thwarted the aim of the legislation, in effect amounting to a redefinition of the statutory class of those owed reasonable preference.

Following this ruling, local housing authorities should review their allocation policies to ensure that persons entitled to reasonable preference under the Housing Act 1996 are not excluded from their housing register. 

A copy of the judgment is here.

Aviva Investors Ground Rent GP Ltd and another v Williams and others [2023] UKSC 6

Supreme Court, 8 February 2023

The Supreme Court has held that a clause in a lease requiring leaseholders to pay service charges at a fixed percentage or a proportion to be reasonably determined by the landlord was valid.

A group of leaseholders lived in a mixed-use block of flats and their leases provided for the apportionment of three different categories of service charges – insurance costs, building services costs, and estate services costs – using three fixed percentages. A clause in the leases gave the landlord the power to amend the percentages. The leaseholders issued proceedings in the First-tier Tribunal to challenge the service charges, claiming that incorrect percentages had been applied for several years and that the clause allowing the landlord to alter the percentages was void in accordance with section 27A(6) of the Landlord and Tenant Act 1985.

The First-tier Tribunal dismissed the leaseholders’ claim, approving the approach taken by the landlord. However, the leaseholders subsequently (and successfully) appealed to the Upper Tribunal, which held that the effect of section 27A(6) of the Landlord and Tenant Act 1985 was to void the lease clause, meaning that the landlord could only use a fixed percentage of costs, and that the First-tier Tribunal had no jurisdiction to amend the stated percentage.

The landlord appealed.

The Court of Appeal, in allowing the appeal, held that section 27A(6) did not render the whole lease clause void, but simply provided that, in the event of a dispute, the task of determining the apportionment transferred from the landlord to the First-tier Tribunal.

A further appeal was launched by the leaseholders.

The Supreme Court, in dismissing the appeal, disagreed with both the Court of Appeal and the Upper Tribunal and restored the decision of the First-tier Tribunal. It held that the purpose of section 27A(6) of the Landlord and Tenant Act 1985 was to prevent the parties agreeing a different mechanism to determine a question that could otherwise be decided by the First-tier Tribunal.

The decision is significant for landlords and tenants, with the Court clarifying the scope of section 27A(6) of the Landlord and Tenant Act 1985.

A copy of the judgment is here.

Anchor Hanover Group v Cox [2023] UKUT 14 (LC)

Upper Tribunal (Lands Chamber), 17 January 2023

The Upper Tribunal (Lands Chamber) has held that a landlord is entitled to include the costs of lift repairs and maintenance in the service charge.

The landlord (“Anchor Hanover”) owned a large retirement development. Many of the assured tenants were elderly or infirm and a functioning lift was essential to the building. Under the tenancy agreement, Anchor Hanover was responsible for repairing and maintaining the communal areas, including the lift.

In Mr Cox’s tenancy agreement, it stipulated that Anchor Hanover would repair the communal lift and that he would pay a service charge towards the cost of the repairs. However, Mr Cox issued legal proceedings in the First-tier Tribunal, contending that the requirement to pay a service charge in respect of the lift was void under section 11 of the Landlord and Tenant Act 1985, as the lift was a part of the building in which Anchor Hanover had an interest, meaning that that it was obliged to repair it at its own expense.

The First-tier Tribunal found in Mr Cox’s favour. Anchor Hanover appealed.

The Upper Tribunal (Lands Chamber), in allowing the appeal, held that the lift maintenance costs did not fall within section 11 of the Landlord and Tenant Act 1985 as this section did not contain an unrestricted obligation on the landlord to repair the common parts or all installations in the common parts. The implied covenant included an obligation to repair the common parts of the building that were part of the structure and exterior of the building in the ownership of the landlord. The common parts of the building did not include anything that could be described as an installation, such as a lift, as these were covered separately and had to be for the supply of water, gas or electricity, or for sanitation, space heating or heating water (so did not include a lift). Anchor Hanover was therefore entitled to include the lift maintenance costs within the service charge.

The ruling will be welcomed by registered providers of social housing. It also provides useful guidance on which maintenance costs can be included within the service charges demanded from assured tenants.

A copy of the judgment is here.

R. (on the application of Yabari) v City of Westminster [2023] EWHC 185 (Admin)

High Court, 31 January 2023

The High Court has held that a local housing authority did not breach its obligations under section 188(1) of the Housing Act 1996 by failing to offer a disabled applicant suitable interim accommodation.

The claimant (“Mr Yabari”) lived in a privately rented seventh-floor studio flat with a separate bathroom. He claimed that it was a fire risk and that, due to his medical conditions, he required 24-hour care and a two-bedroom flat. City of Westminster medically assessed him but refused his requests after finding that he was not wheelchair-bound.

Subsequently, Mr Yabari made an urgent homelessness application based on his previously asserted disabilities. He did not provide any medical evidence and when City of Westminster requested it, he provided four reports from occupational therapists rather than evidence from doctors. City of Westminster informed Mr Yabari that it had accepted his application for relief under section188(1) of the Housing Act 1996 and offered him interim temporary accommodation. However, he refused the offer, stating that he would prefer to await long-term accommodation. Thus, City of Westminster decided that Mr Yabari had chosen to be homeless for the short term, and that it had discharged its duty under section188(1) of the Housing Act 1996.

Mr Yabari brought a claim for judicial review of the decision, alleging that City of Westminster had breached its obligations under section188(1) the Housing Act 1996 by failing to offer suitable interim accommodation and by asserting that he should remain in his current accommodation pending their determination of his application for a long term change of accommodation.

The High Court, in refusing the application, held that Mr Yabari had suspended or ended City of Westminster’s duty in relation to his application by choosing to stay in his home instead of accepting the offer of suitable alternative interim accommodation. Conversely, the Court found City of Westminster’s decision to advise Mr Yabari to remain in his current accommodation was irrational, as it had failed to consider the fire safety risk of him doing so – however, that irrationality had no effect in law or in fact because Mr Yabari had suspended or ended City of Westminster’s duty.

This ruling confirms that in appropriate circumstances a local housing authority can perform its section 188 by advising an applicant to remain in their current accommodation – provided that the accommodation is suitable.

A copy of the judgment is here.