R (Roman) v London Borough of Southwark [2022] EWHC 1232 (Admin)

High Court, 24 May 2022

The High Court has allowed a judicial review claim by a housing applicant against a local housing authority on the grounds that he had not deliberately moved his family into statutorily overcrowded accommodation in order to achieve higher priority on the housing register.

The claimant (“Mr Roman”) sought a judicial review of London Borough of Southwark’s refusal to place him and his family in the highest priority band of its housing allocation scheme. Mr Roman, his wife and two children were living in a one-room studio flat after being evicted from their previous accommodation. London Borough of Southwark decided that Mr Roman had deliberately caused the overcrowding in his existing accommodation when he voluntarily decided to move the family into the studio flat. The family was therefore placed in priority Band 3, instead on Band 1, which greatly reduced their chances of being allocated social housing under the housing allocation scheme. Mr Roman sought judicial review of the decision.

The High Court, in allowing the claim for judicial review, held that it was irrational for London Borough of Southwark to find that the overcrowding was deliberately caused by Mr Roman’s actions and that he had had the option of moving his family into larger, more suitable accommodation. The correct interpretation of “deliberate act” in London Borough of Southwark’s housing allocation scheme is that “an act is only deliberate if the applicant intended to do it, in the sense that they had a real choice between two or more viable options and voluntarily elected to do the act.” As Mr Roman could not afford more suitable accommodation, his decision to move into statutorily overcrowded accommodation could not be deemed a “deliberate act” within the meaning of the scheme.

The ruling means that local authorities that have similar “deliberate act” provisions in their housing allocation schemes should consider whether an applicant’s lack of financial resources has resulted in the applicant having to move into statutorily overcrowded accommodation. If that is the case, the act of doing so should not be considered to be “deliberate”, and the applicant should not lose their priority to housing on that basis.

A copy of the judgment is here.

R. (on the application of Kalonga) v Croydon LBC [2022] EWCA Civ 670

Court of Appeal, 17 May 2022

The Court of Appeal has dismissed an appeal against an unsuccessful judicial review application by a tenant challenging a local housing authority’s refusal to review its decision not to grant another tenancy on the expiry of the tenant’s fixed term tenancy.

On the expiry of the fixed term of Ms Kalonga’s tenancy, and due to rent arrears and anti-social behaviour, London Borough of Croydon sought to recover possession. London Borough of Croydon served the requisite section 107D(3) Housing Act 1985 notice, stating its intention not to grant a further term. The notice was posted to Miss Kalonga, but she claimed that the notice did not come to her attention until after the 21-day deadline had expired because she had been away from the property for several weeks. She requested an extension of time, but London Borough of Croydon rejected the request, stating that it was made after the deadline had expired and it had no power to extend time for her to request a review under section 107E of the Housing Act 1985. Miss Kalonga sought a judicial review of the decision.

The High Court, in dismissing the application, held that a local housing authority has no power (or discretion) to accept a request for a review of its decision not to grant another tenancy term when the fixed term of the tenant's existing flexible tenancy expired, if that request is made more than 21 days after the service of a section 107D(3) notice. The language of section 107E of the Housing Act 1985 contains no express power to extend time. Ms Kalonga appealed.

The Court of appeal, in dismissing the appeal, held that the correct “starting point” should be sections 107A to 107E of the Housing Act 1985, not section 21, as these specifically dealt with the flexible tenancy regime. The Court said that these sections “are an exhaustive statement of a tenant's rights, and of a local housing authority's procedural functions, as respects flexible tenancies” but they did not include a specific power for local housing authorities to consider a review request made out of time. Under the ultra vires rule, anything not expressly or impliedly authorised by Parliament under the relevant statute should be considered prohibited.

This is an important decision concerning the scope of local housing authorities’ powers and confirms that they are bound by the express power prescribed in section 107D of the Housing Act 1985. They have no power to accept out of time requests and there is no discretion to extend a review deadline under section 107E(1) of the Housing Act 1985.

A copy of the judgment is here.

NB: a related Supreme Court case involving the same parties was summarised in our May 2022 Housing Case Law Alert.

Obi-Ezekpazu v Avon Ground Rents Ltd [2022] UKUT 121 (LC)

Upper Tribunal (Lands Chamber), 10 May 2022

The Upper Tribunal (Lands Chamber) has held that a landlord's ground rent demands were not validly served on the tenant. While the previous landlord had known the address for service, this information was not imputed to the new landlord.

Miss Obi-Ezekpazu had a long residential lease of a property. She did not live at the property and her address in the lease and at the Land Registry was a different, second location. When she moved from the second location to a third location, she told her then landlord and management company of the new address, via their agents. At a later date, the landlord and management company fell out with their managing agent and appointed different agents. Avon Ground Rents Ltd subsequently acquired the reversion to the lease and appointed new agents.

Demands for payment of the ground rent were sent to the second location, as this was the only address it had for Miss Obi-Ezekpazu and the one which was given in the lease and held by the Land Registry. Miss Obi-Ezekpazu said that she was not liable for payment of the services charges and the administration charges to Avon Ground Rents Ltd.

The First-Tier Tribunal held that the demands were good service and that the charges were therefore payable. Miss Obi-Ezekpazu appealed.

The Upper Tribunal (Lands Chamber), in allowing the appeal in part, held that although Miss Obi-Ezekpazu had notified her previous landlord of her different address, when the freehold reversion changed hands, the new landlord, Avon Ground Rents Ltd, was not imputed with the previous landlord's knowledge. The change in ownership of the reversion meant that Miss Obi-Ezekpazu had not given Avon Ground Rents Ltd written notice of a different address for the purposes of section 166 of the Commonhold and Leasehold Reform Act 2002, which provides a right to nominate an address which will replace any other assumed addresses. The express inclusion of section 196 of the Law of Property Act 1925 in the lease, which permits service by leaving a notice at the “last-known place of abode of the lessee”, was insufficient to amount to notification by Miss Obi-Ezekpazu to either the previous landlord or Avon Ground Rents Ltd of an address other than the property at which she wished to be sent ground rent demands for the purposes of section 166 of the Commonhold and Leasehold Reform Act 2002. Thus, the notices sent to the second location were incorrectly served. The ground rent demands were not validly given, the administration charges were not payable and enforcement action could not be taken.

A copy of the judgment is here.

London Borough of Bromley (20 012 225)

Local Government and Social Care Ombudsman, 16 March 2022

The Local Government and Social Care Ombudsman has upheld a complaint against the London Borough of Bromley for its failure to provide suitable accommodation to a homeless family for 15 months.

In July 2019, Mr B was evicted by his landlord from the one-bedroom property he lived in with his partner and five children (although Covid-19 restrictions prevented the eviction). London Borough of Bromley accepted that Mr B was eligible for assistance under the Housing Act 1996, but considered that his property was not severely overcrowded. Although it made numerous attempts to find a more suitable privately-rented property for Mr B, it did not immediately move the family into interim accommodation or confirm that it owed him the full housing duty at the time Mr B’s landlord asked him to leave. This was only done when Mr B complained to it in October 2020 – more than a year after he first approached it for help.

The Local Government and Social Care Ombudsman found that the London Borough of Bromley had (1) failed to complete a proper assessment of Mr B’s homelessness application in July 2019; (2) delayed putting together a personalised housing plan for Mr B and then failed to review it; (3) delayed accepting that it owed Mr B the relief duty under section 189B(2) of the Housing Act 1996; (4) failed to provide interim accommodation on time; and (5) failed to consider the family's human rights under Article 8 of the European Convention on Human Rights.

London Borough of Bromley agreed to pay Mr B £6,000 in compensation.

The decision highlights the importance of local housing authorities ensuring that they are fully aware of their homelessness duties and responsibilities.

A copy of the decision is here.