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Housing case law update: January 2020

Paul Lloyd and Sarah Christy round up recent cases from courts in England and Wales relevant to the housing sector.

R (on the application of Bukartyk ) v Welwyn Hatfield Borough Council [2019] EWHC 3480 (Admin)

High Court, 16 December 2019

The High Court has overturned a decision by a local authority to reject a second homelessness application, after it failed to take into account new medical evidence that had been omitted from the first application.

The Claimant (Ms Bukartyk) made an application to Welwyn Hatfield Borough Council for accommodation on the basis that she was homeless; she was subsequently provided with temporary accommodation. However, on the application form, Ms Bukartyk did not state that she had a history of mental health problems. Welwyn Hatfield Borough Council said that Ms Bukartyk was not in priority need and refused the application. Ms Bukartyk requested a review of the decision. The review upheld the original decision and Ms Bukartyk was given notice to leave her temporary accommodation. Ms Bukartyk made a second application, which included medical evidence of her mental health issues. This was also rejected, with Welwyn Hatfield Borough Council stating that there were “no relevant new facts that were not known about at the time we dealt with your previous application, or that any new facts presented are trivial”. Ms Bukartyk sought a judicial review of the decision.

The High Court quashed Welwyn Hatfield Borough Council’s decision, stating that it had been unlawful and that it should treat the second application as an “effective application”. It disagreed with Welwyn Hatfield Borough Council’s view that that the medical evidence did not present any new facts.

The decision highlights the need for local authorities to ensure that they have considered all evidence presented in a homelessness application before making a decision.

A copy of the judgment is here.

Emambux v Innisfree Housing Association Ltd [2019] EWCA Civ 2048

Court of Appeal, 22 November 2019

The Court of Appeal has refused permission for an extension of time for filing notices of appeal against the imposition of a suspended committal order following breaches of an anti-social behaviour injunction.

A tenant (Mr Emambux) lived in a flat with his wife and child. Innisfree Housing Association obtained an injunction prohibiting Mr Emambux from using, or threatening to use, violence towards any person residing in the same building. Subsequently, a suspended committal order was made by the County Court after Mr Emambux repeatedly breached the injunction, primarily by playing loud music. A further order was made, extending the original injunction. Eight months later, Mr Emambux appealed against (1) the committal order, and (2) the extension order. He claimed that he and his family had been the victim of a conspiracy, involving his neighbours, employees of Innisfree Housing Association, social workers and the police, which led to the family’s eviction from the flat and the child being put into care. Mr Emambux applied for an extension of time for filing his notices of appeal and for permission to rely on additional evidence that had not been initially available.

The Court, in dismissing the appeal, held that the additional evidence was not credible and had no prospect of influencing the outcome of the appeal. Also, Mr Emambux had not given any good reason for the delay in filing the appeal notices.

A copy of the judgment is here.

Emambee v Islington London Borough Council [2019] EWHC 2835 (QB)

High Court, 25 October 2019

The High Court has held that a claimant was out of time in bringing her appeal against a local housing authority’s homelessness review decision.

Ms Emambee, who had dyslexia, made a homelessness application to Islington London Borough Council and was immediately provided with temporary accommodation in Enfield. However, after visiting the property a couple of times several months later, Islington London Borough Council discharged its housing duty under the Housing Act 1996 towards Ms Emambee because it believed that she had ceased to occupy the Enfield property. After visiting the property, Islington London Borough Council left a note asking Ms Emambee to contact them, but they received no response. In fact, she had been abroad, visiting her ill father, but had failed to notify the Council. On her return, Ms Emambee applied to review the decision and provided evidence that she had been abroad for three weeks. She nominated her aunt's address as the address to which to send correspondence. However, Islington London Borough Council upheld its original decision to discharge its housing duty.

The decision letter was sent to the aunt's address on 21 December 2018, but she had gone away for Christmas on 20 December 2018 and returned on 8 January 2019. An appeal was drafted but, as any appeal had to be brought within 21 days of the letter, it was out of time. Consequently, an application for an extension of time was made, but this was dismissed by the County Court. A further appeal was made to the High Court.

The High Court, in dismissing the appeal, held that the County Court had been entitled to find that Ms Emambee had been correctly notified of the review decision on the day it was delivered to the aunt’s address, which must have been before 28 December 2018. This meant that the appeal was not in time. It also held that Ms Emambee’s dyslexia was irrelevant and had not contributed to the delay in submitting the appeal.

This decision highlights the importance for homelessness appeals to be brought within time.

A copy of the judgment is here.

Southwark London Borough Council v Royce and another [2019] UKUT 331 (LC)

Upper Tribunal (Lands Chamber), 4 November 2019

The Upper Tribunal has held that a local authority could not impose service charges on the tenants on an estate where the heating system was being replaced.

A landlord (Southwark London Borough Council) governed two adjacent residential housing estates: the Carlton Grove Estate and the Acorn Estate. Heating was provided to both estates through a district heating system. Southwark London Borough Council decided to replace the underground pipe work that had provided heating and hot water to the Acorn Estate. Two tenants from the Carlton Grove Estate refused to pay for the work, but Southwark London Borough Council maintained that they were liable to pay under the service charge provisions in their leases.

The First-tier Tribunal (Property Chamber) held that there had never been a complete integrated system for the two estates. It found that (1) it had been possible to isolate sections of the pipe work, meaning that the Acorn Estate and the Carlton Grove Estate had had two separate systems of pipe work; (2) the Carlton Grove Estate pipe work had previously been replaced as a separate project; and (3) the two tenants had not paid anything towards the costs of replacing the pipe work on the Acorn Estate. Southwark London Borough Council appealed.

The Upper Tribunal, in dismissing the appeal, held that the First-tier Tribunal had been entitled, on the evidence, to conclude that there had been two separate systems of pipe work (one for each estate). Consequently, having established that the two systems were separate, the cost of replacing the pipe work that only served the Acorn Estate could not be deemed a cost “incidental to” providing heating to the properties on the Carlton Grove Estate.

A copy of the judgment is here.

Teresa Ward v London Borough of Hillingdon

Central London County Court, 11 July 2019

The County Court has held that a local authority’s review of its original decision to uphold the offer of a private rented property was unlawful.

Ms Ward and her three children were homeless and the London Borough of Hillingdon accepted the full housing duty under Housing Act 1996. It subsequently offered Ms Ward a private sector property, stating that this offer discharged its housing duty. However, Ms Ward sought a review of this decision, which was unsuccessful, and then appealed the decision, claiming that (1) the property was unaffordable, and that (2) the offer did not meet the requirements of the Homelessness (Suitability of Accommodation) (England) Order 2012/2601.

The Court, in partially allowing the appeal, held that Ms Ward’s tenancy agreement was inadequate, as it did not name the landlord. Also, due to the anonymity of the landlord, the landlord’s suitability as a ‘fit and proper person’ could not be considered and a criminal record check could not be carried out. However, it did find that the rent was affordable.

This case is currently unreported and no judgment is publicly available.

Paul Lloyd is a partner and Sarah Christy is an associate at Capsticks. Paul can be reached on 01257 448 141 or This email address is being protected from spambots. You need JavaScript enabled to view it., while Sarah can be contacted on 019 6267 8363 or This email address is being protected from spambots. You need JavaScript enabled to view it.. This article first appeared on the firm’s website.

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