Succession and Assignment of Tenancies – Report From a Seminar

On 22 May Doughty Street Chambers held a seminar on succession and assignment of tenancies. The materials from the seminar are available on the Doughty Street web site. Jim Sheppard outlined the law on statutory succession. Ben Chataway considered the issues arising in relation to non statutory succession. One reason for this post is to publicise the fact that Doughty Street are publishing the materials from their seminars on line for free so that anyone can read them even if they did not go to the seminar. Unfortunately most people who hold these kinds of seminars do not like the idea of making their materials freely available in this way.  I appreciate that these organisations have bills to pay but it seems a great shame to me for the materials which are often extremely well produced are left to gather dust and go out of date without being read by a large potential readership . It is therefore very good news that Doughty Street have bucked the trend and made the materials available. I should add that there are lots of other materials from other Doughty Street seminars in the Knowledge Centre on their web site.

The issue of succession crops up fairly often in my case work. People regularly ask for help in defending possession proceedings which have been taken against them following the death of the member of their family who was the tenant of their home. Landlords are often highly suspicious of people claiming to be successors and tend to treat claims by family members to be entitled to succeed as try-ons which should be left to a judge to decide on.   I had not yet got my head round the important changes to the law on succession which were introduced in April 2012 by the Localism Act 2010 so the seminar was very useful for me. Here is my attempt to summarise the seminar in a few lines:

There are different sets of rules for secure tenancies (ie council tenancies) and assured tenancies (ie housing association and private tenancies) and both sets of rules changed in April 2012.

For secure (ie council tenancies) tenancies  created before 1 April 2012

A person can succeed to a secure tenancy is he is the tenant’s spouse or civil partner or he is another member of the tenant’s family and has resided with the tenant throughout the period of 12 months ending with the tenant’s death. They must have been living there as if it was their home and not just staying there temporarily.

For assured tenancies created before 1 April 2012

A person can only succeed to a periodic assured tenancy if they were the spouse or civil partner of the deceased or living with them as if they were a spouse and occupied the property as their only or principal home at the date of the tenant’s death. The person cannot succeed if the deceased was themselves a successor.

For secure tenancies  created after  1 April 2012

Family members nolonger have automatic succession rights. It is now only the spouse or person living as spouse with the deceased tenant who can automatically succeed provided they occupied the property as their only or principal home at the time of the tenant’s death. Other people such as family members can succeed if the tenancy agreement provides for this.

For assured tenancies created after 1 April 2012

Assured tenancies created after 1 April will now have the same succession rights as secure tenancies granted after 1 April 2012.

Assignment of Tenancies

A secure tenancy can only be assigned to someone who could have succeeded to the tenancy on the death of the tenant, or via a property transfer order or mutual exchange.

An assured tenancy can only be assigned with the consent of the landlord.

Grey Areas and Challenges

All of the above rules leave grey areas and scope for challenges especially now that we have legal issues such as human rights and equality requirements which mean that particular individuals may be able challenge the application of the rules to them so that they can continue to live in their homes. This is unfortunately too complex to summarise here.

Please correct me if you see any mistakes here.

 

R oao MN and KN v LB Hackney 2013 – Did The Council Decide What They Think They Decided And If So Was It Lawful?

This case is summarised on the Garden Court Bulletin Site as follows:-

R(MN and KN) v Hackney LBC [2013] EWHC Admin 1205
8 May 2013

The claimants were the children of overstayers unlawfully in the UK. They applied to the council for accommodation and support for themselves and their parents under Children Act 1989 section 17. Assistance was refused. A claim for judicial review was dismissed. Hackney was reasonably not satisfied that the family would be destitute unless they are provided with assistance. Its decision to refuse to provide accommodation and support to the claimants and their parents was therefore lawful. For the judgment, click here.

There is a very useful account of the case in Lets Be Frank – by Alexander Campbell of Hardwicke Chambers and posts by Ros Foster on the site of Browne Jacobson (Hackney’s solicitors in the case) at Hackney Welcomes High Court Ruling on Section 17 Assessments and An Issue Of Destitution.

I don’t think that too much significance should be attached to the case in terms of the wider law as much turns on the specific facts. The Judge found that Hackney had failed to reach a decision as to whether the children in this case were in need but if they had found that they were in need and limited the assistance to helping the family pay their air fares to Jamaica (which is what they had suggested doing) it would have been unlawful.

The Judge decided that the council had not made a positive finding that the children were not in need (which the social worker responsible thought he had done) but had reached a decision to the effect that he was not satisfied that they were in need. The Judge found this to be lawful and held the family responsible because they had failed to provide information about their circumstances. Reading between the lines the Judge seems to have thought it likely that following this judgement the family would provide sufficient information and the council would have to find the children to be in need. He therefore went on to consider whether the proposal which Hackney had set out in their report to limit assistance to helping the family travel to Jamaica was lawful. He concluded that it wasn’t. This means that he can be treated as finding that if the assessment process had been carried out as it should then the council would have been obliged to accommodate the family.

A number of interesting issues arise from this case including:-

The case is a reminder that no duty to assist arises unless a clear and indentifable finding has been made that the children are in need. Councils are acting lawfully if they conclude that on the facts they are simply not satisfied that the children are in need. It would of course be open to the applicants to submit further evidence clarifying the facts and then challenge a continued failure of the council to reach a decision as to whether or not a child is in need.

The case is an example of the very common problem of Children Act assessments failing to reach clearly stated conclusions. Anyone familiar with Children Act assessments in relation to housing will recognise the problem of long reports being prepared based on templates which cover large amounts of information about the child but do not focus the issue of homelessness which gave rise to the request for the assessment. The reports make a number of observations about the children and their families before setting out reasons for the council not assisting them. Council’s frequently confuse the two distinct issues of whether the children are or are not in need and what assistance should be provided if they are in need.

The lessons from this case for local authorities is that they need to reach a clearly stated conclusion in the assessment report as to whether a child is in need or not and that they should only set out their views on what assistance is appropriate if they have actually found the child to be in need. The finding that they are not in need means that there is no obligation to consider the question of assistance and they should not therefore set out any proposals for assisting the children.

Those assisting families will need to ensure that before Judicial Review proceedings are issued councils which have produced unclear reports such as the ones in this case are pressed to provide clarification of their conclusions. This will hopefully avoid the need for long arguments as to what has actually in Judicial Review proceedings later on. Where the council suggest as they did here that families are failing to provide information or otherwise co-operate with the assessment process the advisers should ask the council to let them know what further information they need and then assist the family to provide it. This should prevent Judges from concluding that the failure of the council to establish the facts is the fault of the family.

The case also highlights the common problem of assessment reports being unclear as to the facts of the case. The assessment process where families are facing homelessness is often conducted in an atmosphere of considerable hostility between the families and council staff. This arises because the families will usually have already been refused assistance by the Housing Department under Part 7 of the Housing Act 1996.  The experience of being refused this assistance despite facing street homelessness with their children will often leave families distressed and angry with council staff generally. At the same time social workers are not well trained to assist with housing and see it as a distraction from their  role of protecting children who are being mistreated. They will therefore  often tell the families when they first present that there is nothing that they can do to assist them. They will then often only be required to assist after a complaint has been made about them or Judicial Review proceedings have been threatened which only increases the bad feeling. Once the assessment process has been started it is therefore often conducted as part of an argument or confrontation rather than a process for assisting children.

The Judgement also contains very useful consideration of the operation Schedule 3 of the Nationality, Immigration and Asylum Act 2002 in excluding children from receiving assistance under the Act due to their immigration status which is worth a further post as is the   discussion of challenging the limiting of assistance to helping a family return to their country of origin. I will try and post about these another time.

 

 

Children Act 1989 and Housing Google Site

I have set up a Google Site covering the Children Act 1989 & Housing.

The idea is to put all the basic information about using the Act for helping homeless children and their families obtain accommodation in one place. This will hopefully enable people who are new to the subject to find out what issues are being referred to in blog posts on the subject.

If you have any comments to make about the site please post them here.

Termination of Temporary Accommodation for Homeless Families Before A Section 184 Notice Is Issued

I had a frustrating case to deal with yesterday which raised an interesting legal question. The Homeless Persons Unit manager and I exchanged emails after I threatened Judicial Review proceedings and then discussed it on the phone. At the end of all this we both agreed that neither of us were totally confident of our positions. If anyone out there is still reading this blog and has some time to spare I would welcome any suggestions as to what the answer is.

The scenario is that a homeless person with children is in self contained hostel type accommodation for which the booking can be terminated at short notice. She is waiting for the council to issue a Section 184 Notice. This is taking a long time due to the complexity of the circumstances in which she became homeless. Whilst in temporary accommodation she runs up rent arrears. The council write three or four letters to her about the arrears and warn her that they will evict her if they are not paid. They only amount to £171.00 but then just before 5:00pm on 5 June they call her and tell her that they are cancelling her accommodation with effect from 6 June. She has nowhere else to go. I should add that this is a non unitary authority so they do not (as far as I am aware) owe the children of the family any duties under the Children Act 1989.

On 6 June I sent a letter before action threatening Judicial Review proceedings on the basis that the council cannot summarily evict in this way. I maintain that pending the issue of the Section 184 Notice the council remain under a mandatory duty to provide accommodation under Section 188 of the Housing Act 1996. I add that even if this duty was being treated as discharged they would still have to allow her a reasonable notice period.

The council maintain that they are entitled to terminate the temporary accommodation due to the rent arrears regardless of Section 188 and that they can treat their warning letters written over some weeks as being reasonable notice. They maintain that they can reconsider the provision of temporary accommodation if they end up issuing a positive Section 184 Notice and accepting a duty to house her. I don’t agree with this and still think that they would have to give her some sort of notification that duties were being discharged before they could treat the mandatory duty to accommodate under Section 188 as discharged and terminate her accommodation.

We settled the stand off without having to issue proceedings. This was because the Homeless Persons Unit manager conceded that they should have referred the family to the County Council Children’s Services Department before making them street homeless rather than afterwards and that he would extend the booking to allow for this.

This is only a temporary solution and still leaves the question of whether and if so in what circumstances a council can cease to provide temporary accommodation before a Section 184 notice has been issued unresolved.

Why You Should Never Answer Police Questions Without A Lawer

A law school professor and then a police officer explain why.

Strictly speaking this is not social welfare law but it is maybe the best law related video I have ever seen. It should silence forever the argument that you must have something to hide if you won’t answer police questions or “help them with their inquiries”.

Homeless Child Lawfully Housed Under Part 7 of the Housing Act 1996 in 2011??!!??

The Garden Court Chambers bulletin for 25 October 2011 reports the strange Judicial Review decision in the case of R(B) v Nottingham CC [2011] EWHC (Admin) [2011] All ER (D) 180 (Oct) where it is reported that the claimant was a pregnant girl aged 16. Her mother was not prepared to accommodate her and the expected baby. The claimant sought assistance with accommodation and was provided with a place in a specialist unit for pregnant teenagers under the homelessness duty in Housing Act 1996 section 193. She sought judicial review of decisions by the council’s social services department not to treat her as a ‘child’ to whom it owed duties under Children Act 1989 sections 17-20. Her claim was dismissed. The council had been entitled to find that she was not a ‘child in need’ and that she had suitable accommodation in the unit.

This case seems to me to be wrongly decided and is crying out for appeal. This is because the previous House of Lords R (G) v Southwark [2009] UKHL 26 (See Nearly Legal Post for Summary) made it as clear as I thought it could be made that homeless teenagers should not be dealt with under the Housing Act 1996 but under the Children Act 1989. In this new case it seems that the coucncil housed a 16 year old under the Housing Act 1996 and got away with it. Maybe I am missing something. I don’t think a full report is avaiable yet.

If anyone can shed any light I would be very grateful for a comment here or an email to me at wflack63@gmail.com.

The Future of State Welfare Benefits Without John Humphrys Please BBC

This evening I watched The Future State of Welfare with John Humphrys on the BBC iPlayer. It is only available for a short time so I won’t put a link to the show here. Instead here is a link to the article which Mr Humphrys wrote for the Daily Mail in advance of the show.

I was expecting a load of rubbish and this was exactly what I got.  I won’t go into detail as to what was wrong with it here.  Others have done this much better than I can such as the Left Foot ForwardBroken of Britain and Diary of A Benefits Scrounger blogs.  Suffice it to say that Humphrys did not consider what the future might actually be. For instance there was no analysis of what the new Universal Credit Scheme due to be introduced in two years might look like.  Instead we just got the usual tired old stuff about people preferring to sit at home rather than take all the jobs which were waiting for them and all the people pretending to be sick in order to get Incapacity Benefit.  Humphrys met with a number of benefits claimants but did not really treat them as anything more than animals in the zoo like the picture of the characters from TV’s Shameless who occupy pride of place in the middle of his Daily Mail piece.

From scanning the different blog posts on the John Humphrys TV show and Daily Mail article I have come across some excellent blog posts such as those above and also the  The Files of Mason Dixon, Autistic blog which mentions the essay “On Bullshit” by the American Professor of Philosophy Harry Frankfurt which I had not heard of before.  I was able to find a video of Professor Frankfurt being interviewed on the subject of bullshit. It is very entertaining but also allows me at last to put my finger on what it is about John Humphrys that always used to leave me shouting at the radio before I gave up listening to the Today Programme. It is his lack of interest in what the truth of a story might be and his insatiable desire stir up bullshit and create news stories usually by tricking his guests into saying something they would later regret.  Maybe next time the BBC commission a programme on the future of welfare benefits they will ask the makers to concentrate more on the future of welfare benefits.

http://www.youtube.com/watch?v=0q_h5ZyjJWA&feature=youtube_gdata_player

Dumbed Down Debate On The Human Rights Act. How Low Can You Go?

Thanks to Patrick Torsney at ilegal for posting this discussion on YouTube. This makes for painful viewing in that none of the people in the studio seem to have much of a clue as to what the Human Rights Act is actually about….not even the presenter. She starts off with the words “criminals, terrorists and even rioters…” and its downhill from there.

Maybe I am being unfair about the woman described as a feminst law reform campaigner or something. I can not really tell what she thinks as she keeps getting talked over by John Bird and John Gaunt. It ends up sounding like feeding time at the pig pen.

The two lawyers who contribute via the screen link up are pretty good though.  One of these is Adam Wagner of the UK Human Rights Blog whose post in response to David Cameron’s recent unfortunate comments about the Act following the riots is well worth a read for anyone who is interested in what the Human rights Act is actually about.

This video clip really reminds me of the old Chris Morris Brass Eye programmes such as this old classic

What Future Is There For Civil Legal Aid Suppliers If Law For All Can’t Survive?

The decision by Law for All to close down as of 28 July shows the grave difficulties faced by suppliers trying to provide legal services funded through Civil Legal Aid. In the past it was always possible to assume that the organisations who were giving up Legal Aid work were the ones who were not efficiently run or who had failed to modernise in line with the requirements of the Legal Services Commission. As far as I am aware this could not be said of Law for All. Please correct me if you think that I am wrong but I understood that they were very well run and had skills input from Clifford Chance, one of the country’s leading law firms.  If we can rule out defective management then it seems to me that we are left with objective factors which apply to the rest of us too. I would suggest that they confronted the following hard facts and realised that there was no future for their business model:

1. It is only possible to fund specialist services on fixed fees of around £174.00 per case if you can take on very large numbers of cases. The smaller cases which only involve say £50.00 worth of work can then be used to balance out the larger cases on which the supplier loses money; BUT following the 2010 Legal Aid Civil Contract bid round suppliers such as Law for All bidding for social welfare contracts found that the number of matter starts they had been allocated after their bids were “successful” would not enable them to start enough small cases to subsidise the larger ones.

2. The decision by the new government which came to power in 2010 to end of  funding for much of social welfare law meant that even if they could have survived on the low payments per case and on the low number of matter starts available they could not possibly survive once the income from benefits, debt, employment and much of housing work was cut altogether and a 10% reduction in the rates  payable for what was left was imposed.

If I am right about this (as these comments from Law For All suggest)  it means that the question is not whether or when a number of other suppliers will go out of business. The question is how anyone else can possibly survive.

Hopefully a number of Nof For Profit suppliers will be able to fall back on their historical revenue streams built up before they had Legal Aid input. I am not sure about the private sector though. The only solution seems to be a complete re-think of the service delivery model. This should be reflected in new reduced expectations from the Ministry of Justice as to what the service to be provided is.  At the moment suppliers still have to jump through a large number of hoops set up by the government in 1994 when Legal Aid Board introducted the Legal Aid Franchise.  The demands placed on suppliers have only increased since then whilst the amount money provided to enable suppliers to meet them has been heavily reduced. It is pointless for suppliers to call for more money. There clearly isn’t going to be any. What I would call for though is a re-think by the Ministry of Justice as to what it can realistically expect suppliers to provide for the limited money it wishes to pay them.  This is not just about allowing suppliers to cut standards. It is about the Ministry of Justice thinking of new ways in which surviving legal aid suppliers can function and co-exist with other agencies such as the Court Service, Local Goverment and the Department of Work and Pensions to ensure that citizens still have access to justice. I will try and come up with some suggestions in future blog posts. I would welcome suggestions from anyone reading this as to how suppliers can still provide a service without finding like  Law for All  that it not generating enough money to fund it. It would also be good to hear from anyone with information about what went wrong at Law For All and whether I am right or wrong about that.

 

Eviction of Alleged Wandsworth Rioter’s Family – Council Clowns Perform in Media Circus

Ravi Govindia, the leader of Wandsworth engaged in a publicity campaign on Friday 12 August publicising how his council were taking steps to evict a council tenant whose son had been charged with being involved in the riots at Clapham Junction the previous Monday. He suggested that following eviction the family would receive no further assistance from the council because the mother would be “deliberately homeless” and the council’s obligations towards the family would be at an end. His comments were then given wide coverage in the media and he has been treated as taking an exemplary tough stand over the riots. However, if they are carefully considered Cllr Govindia’s comments were silly enough for us to be entitled to expect that he toured the news studios  wearing long flat red shoes and a flower concealing a water squirter driving a little yellow open top car with doors and a bonnet that flew off amidst clouds of smoke.

The legal basis of the council’s proposed possession action has been considered in detail on the Nearly Legal blog. I would add to that by saying that even if the council were to obtain a Possession Order against the rioter’s mother and just supposing they were to be able to get away with finding her to be intentionally homeless and turning her away if she then applied to the council’s homeless persons unit for assistance after being evicted that would not be the end of the council’s responsibilities. Wandsworth are a unitary authority and as such they owe the children of the family duties to assist them under the Children Act 1989 if they were to become homeless. This would include not just the alleged rioting youngster himself as he is 17 but also his sister who I understand is only 8. Readers may have noticed that in Britain in the 21st century we do not see 8 year olds sleeping in the street. There are reasons for this.

The Children’s Services Department would be obliged to assess the children’s needs for the purposes of Section 17 of the Children Act 1989. It would be difficult to establish that eviction and homelessness would not impair their wellbeing or development. They would therefore have to be treated as “in need” and assisted. Therefore unless the social workers were satisfied that the children had somewhere else suitable to go they would have to provide them with assistance in obtaining accommodation.

There are essentially three ways in which the social workers could assist the children in obtaining accommodation. The first would involve them being nominated back to the Housing Department with their mother. I think we can rule this option one out here as it would defeat the whole purpose of evicting them. The second would be to take the children into care. This would be extremely unlikely. It is hard to see how it could be found that the children should be separated from the mother just because she allowed her 17 year old to go out without foreseeing that he would become involved in a riot. It would also be very expensive. The council would therefore be most likely to go for the third option which would involve assisting the mother in obtaining private sector accommodation. This assistance would take the form of providing money to pay the rent in advance and deposit that a private sector landlord would most likely require and in locating a private landlord who would accept someone who had been evicted from council accommodation because of the criminal behaviour of a family member. The end result would be that the family would be likely to be rehoused by the council in private accommodation. It should be added that if she had to leave the private property in the future through no fault of her own while she still had children living with her the mother would be entitled to be housed again by the council as they would not be allowed to take the way in which she lost her council accommodation into account.

This is a long way from the impression given by Cllr Govindia and his council’s press release. Those involved in this media stunt must be aware of this. However, they appear to be prepared to gamble that most people in the media are not familiar with the details of the council’s actual responsibilities and won’t spot their slight of hand. They are also aware that it will be some months before the family would face eviction by which time everyone will have lost interest in this story. This seems to be another example of the recent trend identified by Bystander at the Magistrates Blog of people who should know better making comments which they know are misleading but which give the impression that they are taking a tough stance over the riots.