R (Fokou) v Southwark LBC [2022] EWHC 1452 (Admin)

High Court, 26 April 2022

The High Court found that a local housing authority had acted lawfully by rejecting the applicant’s request to be relocated closer to his children’s school.

The claimant (“Mr Fokou”) and his two children had been provided with temporary accommodation in North London by the London Borough of Southwark. However, the children attended a school in South London and their journey to and from school was taking one hour and forty-five minutes each way. Mr Fokou asked the London Borough of Southwark to be moved closer to the schools.

The London Borough of Southwark rejected this, stating that (1) it had conducted a suitability assessment of the family's current accommodation, (2) its policy prioritised children with special educational needs or protection issues, and (3) the children’s journey was taking much longer as they were taking a longer route for financial reasons. The London Borough of Southwark concluded that Mr Fokou should transfer his children to a local school.

Mr Fokou sought a judicial review of the decision and applied for interim relief, which would compel the London Borough of Southwark to provide him with suitable accommodation, arguing that it had breached both section 11 of the Children Act 2004, which required it to safeguard and promote the welfare of children, and section 188 of the Housing Act 1996, which required it to accommodate those in priority need under.

The High Court, in dismissing the application for interim relief, understood Mr Fokou’s reluctance to change his children's school, given that the family may be forced to leave their temporary accommodation in the future. However, it found that the London Borough of Southwark had properly applied its policy on out-of-area accommodation to the family and had not breached the Children Act 2004, nor failed to comply with section 188 of the Housing Act 1996.

A copy of the judgment is currently not freely available.

Hussain v Waltham Forest LBC [2022] UKUT 241 (LC)

Upper Tribunal (Lands Chamber), 9 September 2022

The Upper Tribunal has held that, when considering an appeal against a local housing authority’s refusal or revocation of a licence application, the First-tier Tribunal can take into account matters or evidence that did not exist at the time of the local housing authority’s decision.

The respondents were landlords and managers of various properties and had submitted a licence application to the London Borough of Waltham under Part 3 of the Housing Act 2004 in respect of a property. A licence was granted and applications were subsequently made by the respondents for further Part 3 licences in respect of another property.

However, the London Borough of Waltham refused the applications and revoked the existing licence on the basis that the respondents were not “fit and proper persons” under the Housing Act 2004. This was because other close family members had previously been convicted of various housing offences, including supplying false information in relation to licence applications and fraudulently backdating gas safety certificates for properties forming part of the family business.

This resulted in the Court of Appeal ruling that licensing authorities were entitled to take into account an applicant’s convictions before issuing a houses in multiple occupation (HMO) licence. This ruling was covered in our December 2020 case law update. London Borough of Waltham considered that the respondents were part of the family’s criminal activity, even though they had not been convicted of any offences themselves.

The respondents appealed to the First-tier Tribunal (Property Chamber). However, crucially the appeal did not come to a hearing until approximately three years after the decisions under appeal. The First-tier Tribunal, in allowing the appeals, held that there was no wider criminal activity that could be attributed to the respondents and therefore at the date of the hearing they were “fit and proper persons”.

The London Borough of Waltham appealed to the Upper Tribunal (Lands Chamber), arguing that the Tribunal had misdirected itself by assessing whether the respondents were “fit and proper persons” at the date of the appeal hearing rather than at the date of the decisions under appeal. It argued that the Tribunal had given a lot of weight to matters that had occurred after the London Borough of Waltham had made its decision (matters which the respondents had used as evidence that they had not been involved in the management of the convicted family members’ properties).

The Upper Tribunal, in allowing the appeal in part, held that the First-tier Tribunal had been entitled to hear any evidence that showed that the London Borough of Waltham’s decision was wrong. Any evidence that showed that at the time of the First-tier Tribunal hearing the respondents were “fit and proper persons” was relevant and should be taken into account, regardless of whether the factual matters were known to the London Borough of Waltham at the time of its refusal decision.

A copy of the judgment is here.

Dudley Metropolitan Borough Council v Mailley [2022] EWHC 2328 (QB)

High Court, 14 September 2022

The High Court has held that section 87 of the Housing Act 1985, and the rules governing the succession to a secure tenancy, was not incompatible with Articles 8 and 14 of the European Convention on Human Rights.

A mother rented a property from Dudley Metropolitan Borough Council (“The Council”) and lived there with her daughter (“Ms Mailley”) for 57 years. The tenancy had become a secure tenancy, but after losing her mental capacity, the mother moved into a care home, which meant she had ceased to occupy the property as her “only or principal home” (as required by section 87 of the Housing Act 1985) and had therefore lost security of tenure.

The Council served Ms Mailley with a notice to quit and sought possession of the property, although it was willing to provide her with suitable alternative accommodation and a support package.

Ms Mailley challenged the Council’s decision, arguing that (1) the Council had failed to offer her a review of its decision to seek possession, (2) her eviction would breach Article 8(2) of the European Convention on Human Rights (the right to respect for private and family life), and (3) section 87 of the Housing Act 1985 should be “read down” under section 3 of the Human Rights Act 1998 to state that she was entitled to succeed to the tenancy – if her mother had died while living in the property, she would have been entitled to succeed to the tenancy.

The High Court, in allowing the application for a possession order, held that although Ms Mailley had not been offered a review of the decision prior to the possession claim being issued, she had been offered one subsequently, but had failed to make submissions or take part in it. Her eviction was proportionate and justified under Article 8 of the European Convention on Human Rights, as she would be under-occupying the property and there was a large shortage of similar-sized properties in the area. Also, a tenant who had lost capacity and was unable to assign their tenancy could not be considered to be in an analogous position to a tenant who had died at home or who was capable of assigning their tenancy.

This decision is useful to local housing authorities, as it clarifies the public law and human rights positions in relation to possession claims. Notably, the Court found that the Council’s offers of alternative properties to Ms Mailley helped to place its handling of Ms Mailley’s succession request beyond public law challenge.

A copy of the judgment is here.

Global Guardians Management Ltd v Hounslow LBC [2022] UKUT 259 (LC)

Upper Tribunal (Lands Chamber), 26 September 2022

The Upper Tribunal has confirmed that property guardianship companies should expect to have to licence premises as houses of multiple occupation.

Global Guardians Management Ltd is a property services company that provides “property guardians” to building owners to protect empty buildings from being targeted by intruders or squatters. NHS Property Services Ltd entered into an agreement with Global Guardians Management Ltd to provide property guardian services.

Global Guardians Management Ltd later entered into a contract with its sister company, Global 100, to source and manage the occupants who would act as the “property guardians”. The property guardians paid a licence fee to Global 100 and Global Guardians Management Ltd paid a monthly fee to NHS Property Services Ltd.

A vacant office block was converted into temporary residential accommodation and occupied by up to 30 people, who acted as the “property guardians”. The property consisted of 30 basic bedrooms with shared bathroom and kitchen facilities.

Hounslow London Borough Council held that the building was a house of multiple occupation (HMO) and that the companies did not have the necessary HMO licence, as stipulated by section 72(1) of the Housing Act 2004. As the companies had breached section 72(1) of the Housing Act 2004, it issued penalty notices against Global Guardians Management Ltd and Global 100, who appealed the decision.

The First-tier Tribunal (Property Chamber) dismissed the appeal against the penalty notices and also made Rent Repayment Orders in favour of some of the property guardians for operating unlicensed premises.

Global Guardians Management Ltd and Global 100 appealed.

The Upper Tribunal (Lands Chamber), in dismissing the appeal, held that providing security services to or for the protection of a building was not a use of the building within the meaning of section 254 of the Housing Act 2004 and the property was at the material time an unlicensed HMO. It found that property guardianship companies are persons ‘in control of’ the premises within the meaning of the Housing Act 2004 s.263 and therefore liable for the failure to obtain an HMO licence.

The decision will be of interest to local housing authorities as it shows that property guardianship companies will probably need to meet HMO requirements.

A copy of the judgment is here.