Moge v Ealing LBC [2023] EWCA Civ 464

Court of Appeal, 27 April 2023

The Court of Appeal has held that a local authority had acted in accordance with s.208(1) of the Housing Act 1996 when it made a final offer of accommodation that was out-of-borough.

Ms Moge had become homeless and applied for assistance. The London Borough of Ealing accepted that it owed her the duty under s.189B(2) of the Housing Act 1996.

An acquisitions officer arranged for Ms Moge to view an in-borough property, which she rejected because it was too small and unsuitable for health reasons. Due to a lack of available property, Ms Moge was then shown a private sector property in the neighbouring borough of Hounslow, for which a 24-month assured shorthold tenancy was being offered. The London Borough of Ealing advised her that it was a final accommodation offer and that, in any event, it had fulfilled its duty to her under the Housing Act 1996.

Ms Moge viewed the property but was concerned about the distance of the property from her workplace. She was advised to move in and then request a suitability review.

However, Ms Moge did not sign the tenancy agreement and, therefore, the London Borough of Ealing determined that she had refused its final accommodation offer and that its duty under section 189B(2) of the Housing Act 1996 had ended. A subsequent review reached the same conclusion, finding that the distance between the out-of-borough accommodation and Ms Moge's workplace was reasonable.

Ms Moge appealed to the County Court, alleging that the London Borough of Ealing had breached section 208(1) of the Housing Act 1996 by failing to sufficiently search for in-borough accommodation. The County Court held that the London Borough of Ealing had acted in accordance with section 208(1), so Ms Moge appealed.

The Court of Appeal, in dismissing the appeal, held that the London Borough of Ealing had complied with its acquisitions policy and section.208(1) of the Housing Act 1996 and that the accommodation offered to Ms Moge was the closest available. The Court commented that if an applicant is offered accommodation in a neighbouring borough, some flexibility is appropriate; if the accommodation offered is reasonably close to where an applicant was previously living, it should not matter that some other accommodation is marginally closer.

A copy of the judgment is here.

R. (on the application of Jaberi) v City of Westminster [2023] EWHC 1045 (Admin)

High Court, 4 May 2023

The High Court has held that a council had breached its section 193(2) duty under the Housing Act 1996 after placing him in accommodation that it had deemed to be unsuitable for more than three years.

In February 2018, Mr Jaberi, a refugee who was married with two children, applied to the City of Westminster for assistance under Part 7 of the Housing Act 1996. Mr Jaberi suffered from epilepsy, seizures and chronic muscular pain which affected his mobility and required him to use a walking frame and stick.

The City of Westminster accepted that it owed Mr Jaberi the section 193(2) duty under the Housing Act 1996 and that, due to his various medical conditions, he would require a three-bedroom property without internal stairs. However, it was only able to initially provide him with a two-bedroom property with internal stairs, which it considered to be suitable whilst in carried out works to adapt another property. Mr Jaberi accepted the property, subject to a review of its suitability. Subsequently, Mr Jaberi sought judicial review due to the long delay in the City of Westminster providing the adapted three-bedroom property, contending that it had breached its section 193(2) duty.

The High Court, allowing the claim for judicial review in part, held that it had been irrational for the City of Westminster to consider that the two-bedroom property had been suitable for Mr Jaberi and therefore there had been a breach of section 193(2) of the Housing Act 1996. As City of Westminster had accepted that Mr Jaberi needed a three bedroom property with level access, it should have known that the two-bedroom property that he had occupied for three years was unsuitable.

A copy of the judgment is here.

R. (on the application of SO) v Thanet DC [2023] EWCA Civ 398

Court of Appeal, 14 April 2023

The Court of Appeal has held that a council’s notice seeking to evict travellers from a temporary site was unlawful as it had not withdrawn its temporary consent to their occupation.

The claimant (“SO”) was a member of a group of Irish Travellers living in vehicles stationed on land at a disused ferry terminal occupied by Thanet District Council. In May 2021, Thanet District Council granted the group temporary permission to reside on the land, so that the medical issues faced by some of SO’s family could be resolved, but made it clear that the land had temporarily become a negotiated stopping site and would continue to be so “until further notice”, being reviewed every three weeks. The group was not told when their permission to reside on the land would end.

In November 2021, Thanet District Council issued a direction under section 77(1) of the Criminal Justice and Public Order Act 1994 requiring the group to leave the land and remove their vehicles from it.

SO applied for judicial review, claiming that the direction was unlawful because Thanet District Council had not told the group of any decision to withdraw its temporary consent for the group to occupy the land, and, therefore, the group was not occupying the land without consent. The High Court refused the application and SO appealed.

The Court of Appeal, in allowing the application, held that the direction issued by Thanet District Council was unlawful and therefore quashed the notice issued under section 77(1) of the Criminal Justice and Public Order Act 1994 due to the Council’s failure to give prior notice of the withdrawal of consent to remain on the land.

This case highlights that local authorities need to be careful when issuing section 77 directions when they have invited Travellers onto land and given them consent to reside there.

A copy of the judgment is here.

Avon Grounds Rents Ltd v Ward [2023] UKUT 88

Upper Tribunal (Lands Chamber), 4 April 2023

The Upper Tribunal (Lands Chamber) has held that a landlord could not recover the costs of “misguided” proceedings brought against a leaseholder under the Commonhold and Leasehold Reform Act 2002.

A leaseholder (“Ms Ward”) leased a flat from the freeholder (“Avon Grounds Rents Ltd”). Under the lease, Ms Ward had to keep the flat in good repair, pay the repair costs for any damage that she caused and give prior notice to Avon Grounds Rents Ltd of any repair works that were to be undertaken.

In October 2021, Ms Ward hired a plumber to repair her shower. He fractured a pipe, causing a flood and £30,000 worth of damage to the building. Avon Grounds Rents Ltd told Ms Ward that it intended to commence proceedings for forfeiture of the lease because she had breached the covenant to keep the property in repair.

However, in February 2022, Avon Grounds Rents Ltd demanded service charges from Ms Ward for the next quarter of the year. That demand was an acceptance of the continuation of the lease and amounted to a waiver of the right to forfeit. Despite the waiver, Avon Grounds Rents Ltd brought proceedings under section 168 of the Commonhold and Leasehold Reform Act 2002.

The First-tier Tribunal found that Ms Ward had breached the covenants to keep the flat in good repair and to give notice of the works, but it also made an order under section 20C of the Landlord and Tenant Act 1985 that Avon Grounds Rents Ltd would be unable to recover the costs its incurred during the proceedings through service or administration charges. Avon Grounds Rents Ltd appealed the ruling.

The Upper Tribunal (Lands Chamber), in dismissing the appeal, held that the First-tier Tribunal had been correct. Avon Grounds Rents Ltd had waived the right to forfeit for the breaches of the covenants before the proceedings were brought to the First-tier Tribunal, meaning that the proceedings were therefore misguided as far as forfeiture was concerned. Also, Ms Ward had not been negligent – it had not been proved that if she had given notice of the works, any action taken could have prevented the flood and the damage. The fault lay with the plumber. Avon Grounds Rents Ltd had threatened forfeiture proceedings even after waiving the right to forfeit by the date of the application for determination.

A copy of the judgment is here.