May 2016 Housing Law update 2016 Chartered Institute of Housing Gail Sykes Partner T: 01733 888794 E: gail.sykes@buckles-law.co.uk www.buckles-law.co.uk
Disabled tenants and possession claims A defence will include: A defence under Art 8 ECHR – the right to a family life and a home An Aster Communities Ltd v Akerman-Livingstone [2015] defence A defence under s149 Equality Act 2010 – Public Sector Equality Duty 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 Art 8 ECHR Is possession a proportionate means of achieving a legitimate aim? 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 may involve treating the disabled person differently and require the landlord to do all that could reasonably be expected to accommodate the individuals disability, it 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 clearly a proportionate means of achieving a legitimate aim (difficult to establish on a summary application) Legally focused, relationship driven
So what will be proportionate? Not defined in the Equality Act 2010 but in EU directives and clarified by CJEU decisions: An appropriate and necessary means of achieving a legitimate aim It will not necessarily be discrimination if the aim could be achieved by less discriminatory means Legally focused, relationship driven
Important note Aster and Ackerman-Livingstone, s149 Equality Act and Art 8 ECHR challenges will apply to all summary proceedings involving a disabled individual: Temporary accommodation Non successors Joint tenants upon service of NTQ by one JT Mandatory possession grounds It may also be invoked where discretionary grounds are used Legally focused, relationship driven
Section 149 Public Sector Equality Duty Section 149(1) a public authority must in the exercise of its functions have due regard to the need to: Eliminate discrimination, harassment and victimisation Advance equality of opportunity between persons who share a relevant protected characteristic and those who do not share it Foster good relations between persons who share a relevant protected characteristic and those who don’t share it Legally focused, relationship driven
Section 149 Public Sector Equality Duty A positive requirement, but not a duty to achieve a result but a duty to have due regard to the need to achieve the goals set out in section 149(1) of the Equality Act – Dyson LJ, Hotak and anor v Southwark & Johnson v Solihull MBC [2015] What is required to carry out the duty will be fact specific An assessment under s149 must be exercised with rigour and with an open mind Legally focused, relationship driven
Undertaking an equality impact assessment In cases where the tenant or a member of their household is disabled it will be necessary to undertake an assessment and to keep it under review Who will carry out the assessment? When should the assessment take place? The assessment itself – what is needed? It will be necessary to keep the assessment under review – as matters progress or new information comes to light After the assessment – document it! Legally focused, relationship driven
Tips terminating occupation using summary proceedings Complete impact assessment (if in doubt assume the individual may be disabled) – keep under review Follow Possession Claim Protocol – especially Part 3 Follow internal policy and procedure Consider less draconian options Document it all Legally focused, relationship driven
Getting your notices right Which notice? Assured shorthold tenancies – including starter tenancies – s21 Notice (the latest version is October 2015)* Assured tenancies including assured shorthold where grounds for possession apply – s8 Notice (the latest version is 6 April 2016!) Secure tenancies including flexible fixed term – s83 Notice Introductory tenancies – notice of Proceedings for Possession Pt V Housing Act 1996 Tenancies where security of tenure is lost/licences/non- secure tenancies – notice to quit Legally focused, relationship driven
Pitfalls Service – allow adequate time and serve all tenants Service – does the agreement allow for valid service at the last known address? Two different notices required – each to be served without prejudice to the other Deceased tenants – what to serve and who to serve? Failure to use latest forms/all or correct grounds for possession Summary possession proceedings but probably all cases – consider ECHR, the Equality Act 2010 and comply with Pt 3 Possession Claims Protocol Legally focused, relationship driven
Section 21 Notices post Deregulation Act 2015 Cannot be served during the first four months of the tenancy No longer need to worry about expiring the notice on the last day of a period of a tenancy if the tenancy is periodic or statutory periodic Must give two clear calendar months’ notice Cannot expire within six months of commencement* The s21 has a shelf-life – proceedings must be brought within four months “beginning with the date on which the notice was given” Any deposit must be protected within 30 days of receipt in order to serve valid s21* Legally focused, relationship driven
Notices to Quit 28 days notice required unless the occupation is exempted Check your agreement – 28 days or one month notice required? The agreement will take precedence Regulations set out the information which must be provided when serving an NTQ – don’t be tempted to tamper with the standard form! The notice must terminate the occupation on a last day of a period of the occupation unless the agreement provides otherwise Legally focused, relationship driven
Mandatory ground for possession Mandatory ASB ground under the ASB Crime & Policing Act Introductory and starter tenancy termination and termination by NTQ Ground 8 of Sch2 Housing Act 1988 ECHR considerations Akerman – Livingstone proportionality assessment required Possession Claim Protocol compliance Grounds for possession set out in the notice must be set out in the Form N119 (section 4(c)) or the PCOL Form 4(a) in accordance with para 6.2SA of the PD to Pt 55 CPR Legally focused, relationship driven
ASB Crime & Policing Act grounds Does the tenancy allow for use of mandatory grounds? Mandatory grounds based on ASB – special requirements for NOSP Date and place that conviction*/breach of injunction/breach of noise abatement order etc. was proved and what the conviction was/what the breach of injunction etc. was Notice cannot expire earlier than an NTQ would Review of decision to serve essential Legally focused, relationship driven
Grounds for possession – s8 and s83 Notices Adequately particularise all allegations Set out all grounds for possession in full Relying on Ground 2 HA 1985 or Ground 14 HA 1988 with or without other grounds? If planning to issue proceedings “after service of this notice” check that your agreement does not require longer notice Breach of tenancy or ASB grounds? How will you prove each allegation set out in the notice? Legally focused, relationship driven
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