Thursday, 31 July 2008

The new Lord Chief Justice

The gloriouslly named Sir Igor Judge is the new Lord Chief Justice as of the 1st October.

Sir Igor Judge (I do so love that name!) will replace Lord Phillips, who in turn id to replace Lord Bingham as Senior Law Lord.

In a statement, Sir Igor said: “For my own part, I have already decided to continue as head of criminal justice. Although, like Lord Phillips, I intend to sit across all the jurisdictions, I shall preside regularly in the Court of Appeal Criminal Division.

“This reflects my personal interest in the criminal justice system and the importance attached to it by the community at large. Reflecting my concern for the interests of the country as a whole, regular visits to courts outside central London will also be an essential part of my timetable.

“Like Lord Phillips, I am utterly committed to the principle of judicial independence. The principle is deeply imbedded in our history and our culture and, in the public interest, it must not be undermined or damaged inadvertently or by neglect.”

The Housing & Regeneration Act 2008

Our glorious overloads (the Government to you and me) have blessed us with the a new piece of legislation:

The Housing & Regeneration Act 2008 having received royal assent last week.

Go here for the full text OPSI version.

So what does this odd 300 page monster say?

Well, Part One focuses on on the new Homes & Communities Agency which has been created to take on the role of the soon to be abolished English Partnerships and the Housing Corporation's investment functions.

Part Two sets up the Tenant Service Authority, yes that is what it is called now after Caroline Flint - the Housing Minister - didn't like the originally legislated title of Oftenant. Effectively the TSA will be the new Regulator of social housing taking over from the Housing Corporation. Hopefully they will give some better responses to requests for information than the HC ever did.

The remainder of the Act (Parts 3 and 4 with Schedules) reflects the new "other" changes the Government want to make.

This includes:-

The introduction of sustainability certificates with a rating scheme for new builds in England and Wales. When the owner goes to sell a new build sustainability information must be supplied to the purchaser.

Local authorities now have a duty to hold ballots prior to any transfer of their housing stock to a private sector landlord. They also need to seek the Secretary of State's permission following the successful ballot.

The Act introduces the Family Intervention Tenancy for local authorities and registered providers of housing. This type of tenancy is granted to those tenants whom have a possession order against them on the grounds of ASB, and provides an option for supporting the tenant and their family.

The Act also abolishes the status of the tolerated trespasser. For all future possession orders the tenancy will continue until the warrant for possession is executed.

There are also changes to the right to buy process, and greater depth to service charges.

Overall the thread of tenant empowerment runs throughout the Act, and explains how the newly named TSA will be operated.

A friend is writing some training seminars on the H&RA 2008 so I shall wait and see what he makes of it before adding more, since more will surely follow as the Act is slowly brought into force.

Peabody Trust v. Reeve revisited..

Right, the process of getting up to date begins!

I never got round to writing a post at the time this decision was handed down, but I have had occasion to review the precise contents of the judgement, and oh deary me!

My major bone of contention is that "Mr G.Moss QC" sitting as DJ that day knew what he wanted as the final result but got there in a rather round about way and this has had some serious aftershocks on the rest of the social housing world.

Let me explain myself, although I haven't seen the full tenancy agreement etc, in paragraph 3 of the judgment it says as follows:-

"3. Clause 5 of the "General terms" of the Claimant's standard form of tenancy agreement reads as follows:-

"Altering the Agreement

5 (a) With the exception of any changes in Rent this Agreement may only be altered by the agreement in writing of both the Tenant and the Trust.

(b) The terms of this Agreement may be varied by the Trust by a notice of variation served on the Tenant and the provisions of section 103 of the Housing Act 1985 shall apply to this agreement as if this tenancy were a secure tenancy provided that in no case shall the variations be such as to be properly regarded as creating a new tenancy."


Now lets look at the clause in a sensical fashion, in 5(a) it states that the excluding Rent any changes can only be altered by agreement in writing between both parties. So how can 5(b) allow for a variation via the s103 procedure? Notice the inconsistency there? Or is it just me? (Its not by the way, other more experience solicitors have noted that point too)

OK, I don't know who drafted the T.A originally, so my apologies for this next bit, but that piece of shoddy drafting has landed the rest of us in a serious mess in regards unilateral or not variations of tenancy agreements.

That's my first real problem with the case, my second problem is paragraph 53 and Moss DJ. Paragraph 53 states the following:-

" Moreover, it seems to me that even if clause 5(b) stood by itself, it is such a sweeping and one sided provision, that even if it had been clearly and unambiguously set out and explained, I doubt whether it could be held to be fair in terms of the criteria set out in the Regulations."

But, surely, clause 5(b) directs the reader to s103 which is the law!? Is our learned DJ saying that the law, as it stands at present, is wrong? That it is unfair on the tenant?

So what does this mean in practice? Where an RSL wants to vary the service charge for whatever reason and the tenant is under an Assured Shorthold Tenancy it would probably be a case of terminating it and giving the tenant a revised AST? But what about situations where there are rent arrears? Effectively re-issuing the tenancy will make it difficult to recover the rent arrears under the present tenancy.

And, the problems associated with changing the tenancy agreements of the tenants under SPOs, outright possession orders and the like, shouldn't be overlooked - since the obvious effects of a new TA or variation are ever present.

Then what about secure tenancies? They rely on s.103 as an implied term via statute. Has Peabody v. Reeve actually managed to cast doubt on its operation?

Those are my initial thoughts, in a rather rushed fashion which I must apologise for. I am going to try to revisit this (again) in the future when things have quietened down, and when the Peabody Trust appeal...they better do!!


Monday, 28 July 2008

A slovenly attitude...

After a few days/weeks of inactivity due to work and not being in the country, I am back with a pile of hefty documents on my desk some of which may find their way onto here. So watch this space...

Saturday, 5 July 2008

From purple to grey...

After last week's purple patch of caselaw that sent to the Social Housing sector into collective apoplexy, this week has been ever so slightly dull...(I know I shouldn't complain).

I have been mulching around to see what has actually happened? My bottle of Asahi in hand, all I have come up with is:-

1. That a tolerated trespasser is liable for mesne profits when overstaying in his former dwelling only up to the point he decides to give up possession and move out his belongings...that's right Merton LBC v. Jones finally came out on the Times Law Reports.

2. That the Housing and Regeneration Bill has been amended to make allowances for homeless applicants with families. Check it out here.

...I suppose this spare time gives me a chance to check out the finer things in life. Doesn't it??

Tuesday, 1 July 2008

1 Barrister + 4 Boeing 747 engines = ??

All I can do is shake my head in sheer disbelief...A UK barrister (I hope "former" UK barrister...) has been convicted of trying to cheat the public revenue, and sentenced to 5 years in prison.

Now call me slightly simple but if you claim that you just sold 4 Boeing 747 engines to an Iraqi airport for £100 million, and then tried to reclaim £17.5 million for VAT back from the UK, do you not think someone might say "Hmmmmmmmmmm....maybe we should look into that".

Well anyway, Mr John Wilmot formally of Temple Chambers is now enjoying the fruits of his multimillion pound transaction....good stuff!

To view the whole BBC article go

[p.s. I know it's not housing law but it caught my eye this afternoon.]

The mandatory housing review officer's duty

The Court of Appeal have dismissed an appeal by Lambeth (in Johnston v Lambeth London Borough Council) for the decision to allow J to challenge a decision of a review officer under section 202 of the Housing Act 1996 to uphold Lambeth’s earlier decision that Mr Johnston did not have priority need for assistance as a homeless person.

The Times Law Report is here.

Effectively regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations (SI 1999 No 71) " was not a discretionary option that the review officer could apply or disapply according to whether or not he considered that the service of a “minded to find” notice would be of material benefit to the applicant".

The officer now had a dual mandatory obligation:-

1. to consider whether there was a deficiency or irregularity in the original decision.

2. if there was, and if the review officer was none the less minded to make a decision adverse to the applicant on one or more issues, to serve a “minded to find” notice on the applicant explaining his reasons for his provisional views.