May 2015 CIH Lunch & Learn Housing Law Headlines 2015 Gail Sykes Partner T: 01733 888794 E: gail.sykes@buckles-law.co.uk www.buckles-law.co.uk
Deprivation of liberty – should you be concerned? Legally focused, relationship driven
Deprivation of liberty and housing providers Do I need to know about the law and deprivation of liberty? Yes, if your stock includes: Properties occupied by those with dementia and providing an element of care and support Extra care schemes Properties for occupation by people of any age who lack capacity and who receive care and support Legally focused, relationship driven
Deprivation of liberty – the legal framework Art 5 of the European Convention of Human Rights Everyone has the right to liberty and security of person Exceptions to the rule include those of “unsound mind” Remedies for unlawful detention include an Order of the Court requiring a persons release and monetary compensation Legally focused, relationship driven
Deprivation of liberty – the legal framework “ Cheshire West ” 2014 Supreme Court ruling, the acid test A person lacks capacity to consent to the care provided to them; and They are under continuous and complete supervision; and They are not free to leave There is potential for a deprivation of liberty even if the care is in the individual’s best interests Legally focused, relationship driven
Deprivation of liberty – continuous and complete supervision Does the individual need permission to leave the care home – even temporarily? Are their movements controlled or restricted (locked doors, door entry systems which restrict movement, would they be prevented from leaving, would the police be called if they didn’t return?) Cheshire West – intensive support amounts to continuous and complete supervision Legally focused, relationship driven
Deprivation of liberty – imputable to the state The deprivation must be imputable to the state, but what does this mean? Care paid for by the state? Care provided by the state? Care provided on behalf of the state? Does the state need to have direct involvement with the detention? The position is uncertain Legally focused, relationship driven
Deprivation of liberty – case law Cases differentiate between a substantive breach: Essex County Council v RF and Others [2015] suggests Damages of £3,000 - £4,000 pcm and a procedural breach (the failure to undertake the right safeguarding measures even though the care was in the individuals best interests) Legally focused, relationship driven
Deprivation of liberty – where are we now? Deprivation of liberty safeguards in force since April 2009 Cheshire West 2014 significantly increases the numbers who may be unlawfully deprived of their liberty Grey areas remain – what does imputable to the state mean, what exactly is complete supervision and control Claims are coming to Court and claims farmers are now involved Legally focused, relationship driven
Deprivation of liberty – protecting your position Authority must be sought if there is any uncertainty Seek an order from the Court of Protection under the Mental Health Act 1983 (a welfare order) Legally focused, relationship driven
Case law and legal developments update Legally focused, relationship driven
Aster v Akerman Livingstone 2015 Supreme Court decision How should a Court handle a defence to summary possession proceedings (a possession claim against an introductory tenant, under s21 Housing Act 1988 or an occupier of temporary accommodation) when a defence under s15 of the Equality Act 2010 is raised? Is the correct approach identical to that a Court should adopt to and Art 8 ECHR defence? Legally focused, relationship driven
Aster v Akerman Livingstone 2015 S15 Equality Act: (1) a person (A) discriminates against a disabled person (B) if: (a) A treats B unfavourably because of something arising in consequence of B’s disability; and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim Legally focused, relationship driven
Aster v Akerman Livingstone 2015 Mr A-L had chronic and severe mental health problems Aster provided temporary accommodation to allow the local authority to discharge it’s duty to him as a homeless person Mr A-L refused all offers of permanent accommodation – the homelessness duty to him having been discharged an NTQ was served Mr A-L defended possession proceedings, claiming that eviction would breach Art 8 ECHR or s15 Equality Act The County Court and Court of Appeal found that an Equality Act defence could be dealt with summarily Legally focused, relationship driven
Aster v Akerman Livingstone 2015 The Supreme Court-establishing proportionality under s15 Equality Act involved a four stage test: i. Is the objective sufficiently important to justify limiting a fundamental right? ii. Are the means rationally connected to the objective? iii. Are the means no more than necessary to achieve that objective? iv. Do the ends justify the means? Legally focused, relationship driven
Aster v Akerman Livingstone 2015 Summary judgment is not usually appropriate Exceptions will be: The individual has no real prospect of establishing that he/she is disabled The possession claim did not arise by reason of the individual’s disability It is a proportionate means of achieving a legitimate aim (difficult to establish on a summary application) Legally focused, relationship driven
R (Turley) v LB Wandsworth [December 2014] Ms T the long term partner of Mr D She moved back in to the property after 2 years separation and 2 months before his death Ms T’s application to succeed to the tenancy was declined – she had not lived at the property for 12 months immediately prior to the death Ms T claimed the “12 month” requirement interfered with her Art 8 and 10 rights Mr T’s claim failed the tenancy pre -dated the Localism Act (which changed the law to treat partners like spouses for succession purposes) so the 12 month rule applied Legally focused, relationship driven
Camden LBC v Burley [May 2014] Mrs B signed an NTQ before a trial relating to the conduct of her tenancy Mrs B later claimed she signed as a result of pressure from the landlord Mrs B’s claim failed there was no bullying or, intimidating conduct. Mrs B’s housing officer had merely impaled some “home truths” about the forthcoming trial Legally focused, relationship driven
Leicester City Council v Shearer [Nov 2013] Application by Mrs S (who was estranged from Mr S) to succeed to the property in which he had lived Leicester City Council failed to advise Mrs S that she may be entitled to a direct offer of accommodation Mrs S had moved into the late Mr S’ property after his death – the authority sought possession The County Court refused to make an order. The Court of Appeal agreed – the Authority had not given proper consideration to direct allocation Legally focused, relationship driven
Loveridge v Lambeth [2014] Mr L’s tenancy agreement provided he should notify Lambeth if absent for over 8 weeks – he took a long trip to Ghana Lambeth forced entry – initially concerned he had died in the flat. Finding his possessions they sold them and re-let the flat Mr L returned and claimed damaged including statutory damages The Supreme Court ruled that these were calculated on the difference in sale price of the flat – with and without a secure tenant (£90,500) Legally focused, relationship driven
AA v London Borough of Southwark [2014] A long story of woe for Southwark Mr AA evicted for breach of an SPO on rent arrears An important point made in relation to executing bailiff warrants on possession order which are over 6 years old – always ask for permission first Equally important to remember to deal with the tenant’s goods left behind appropriately Legally focused, relationship driven
SSWP v David Nelson & Fife Council [December 2014] Upper Tribunal case – What is a bedroom?! The statutory point is the decryption by the original (and any later) landlords when letting it but further considerations are: Can it accommodate a single bed? Has it a window? Is it of normal height? Is it heated and ventilated in a similar way to other bedrooms? Does it have any physical features preventing it from being used as a bedroom for a child or adult? Legally focused, relationship driven
Changes to Housing Act 1988 notices and the Pre-Action Protocol for rent arrears New s8 notice template in use for all possession claims since 6 April 2015 New s13 template for increasing rents New Pre-action Protocol in place: Section on proceedings against those lacking capacity Section in relation to the use of mandatory ground 8 included Legally focused, relationship driven
ASB Crime & Policing Act Update Mandatory possession grounds in force since October 2014 - a slow start Section 1 injunctions in force since January 2015 – avoid positive requirements and consult as necessary otherwise no big changes on day to day applications – but watch this space Legally focused, relationship driven
Changes to section 21 Housing Act 1988 Legally focused, relationship driven
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