Categories
Law

Homelessness – Challenging Decisions

Despite the fact that some Local Authority decisions can be challenging to comprehend at the best of times, following the commencement of the Homelessness Reduction Act 2017 bringing a challenge against a homeless decision is mostly unchanged. There are some new duties as we have discussed previously but breach of these new duties can still be challenged under section 202 of the Housing Act 1996, in the same way as before.

One new preliminary consideration to bear in mind when dealing with every new homeless case is that since a new Act has come in to force which imposes different duties that will apply to new applicants. There is a fork in the road from the date of its commencement on 3rd April 2018. All applications submitted prior to that date are subject to the old law and new applications are subject to the new law. Therefore, if you find that a Local Authority decision in relation to an application submitted prior to 3rd April 2018 has had the new law applied, or vice versa, that decision can be challenged on the basis of the Authority having applied the wrong law. This might seem unlikely but we have already had a client come through our doors with this very issue, the decision in question was withdrawn and the client was provided interim accommodation.

Breach of Duty

Under the old scheme of legislation, certain decisions from a Local Authority that could be a breach of duty (or duties) owed to homeless applicants by a Local Authority would be challenged under section 202 of the Housing Act 1996. Such a challenge could arise from a negative decision against an applicant or a failure to act in accordance with a duty. Examples of this include:

  1. a discharge of duty decision, or
  2. failure to accept an application from an eligible applicant.

Section 202 of the Housing Act 1996 still applies following the commencement of the Homelessness Reduction Act 2017 so the situation here is much the same as before. However, the introduction of new duties owed to homeless applicants mean that there are new ways that a Local Authority can be in breach of duties they are under. Examples of these new grounds for a section 202 review include, but are not limited to:

  1. Failure to provide an applicant with a written Personalised Housing Plan (PHP);
  2. Failure to comply with an action under the PHP that the council agreed they would carry out;
  3. Failure to apply the new prevention or relief duties; and
  4. Offers of unsuitable accommodation (which are subject to provisions other than just section 202 Housing Act 1996).

This blog has been prepared on 13th June 2018 by Sayim Rezvi, a Paralegal at MTG Solicitors.

Categories
Law

Dreamvar Case – The Case of an Innocent Buyer and the Fraudulent Seller

In a society where fraud is becoming more prevalent, we are warned that vigilance needs to be tighter than ever. As conveyancers, we adhere to strict compliance, regulatory and due diligence rules including ID, residence and bankruptcy checks and meeting our clients face to face to verify their identity but even this is not a safeguard to fraud.

On 15th May 2018, the Court of Appeal handed down its long awaited judgment on the case of Dreamvar (UK) Ltd v Mishcon De Reya (now commonly known as the “Dreamvar case”). This controversial and highly debated case which sought to clamp down on fraudulent sellers has gone further to clarify that both the solicitors representing the seller and the buyer bear liability as to risk in a fraudulent transaction.

The Facts

The buyer, Dreamvar, a small property company purchased a residential property from the purported seller who turned out to be a fraudster. The fraudulent seller presented the driving licence and TV licence of the true owner of the property having obtained it and represented this to his solicitor after having these certified by another firm. The obligations of law firms are to check the identity of their client by seeing the originals of identification documentation or certified copy documentation by another solicitor having seen the originals, the latter of which occurred in this case. The solicitors certifying the ID documents did not pick up on the discrepancies and thus the fraudulent seller was able to present this to the solicitors instructed to carry out the conveyance. The transaction proceeded to a swift completion and the completion funds transferred to the fraudster.

The Judgment

The judgment handed down in this case held that solicitors representing fraudulent property sellers share liability with the solicitors acting for the innocent buyers. This means that responsibility to verify parties extends to both solicitors. Although, the firms were acting honestly in this case, however the case turned on breach of trust by both the firms acting in the normal course of business.

This blog has been prepared on 11th June 2018 by Dhrina Solanki, a Solicitor at MTG Solicitors.

Categories
Law

Homelessness – Suitability of Accommodation

Local Authorities are under an obligation, pursuant to s.206 of the Housing Act 1996 to ensure that accommodation offered under homelessness duty is suitable.

There is no definition of suitability. However, under s.210(1) Housing Act 1996, the consideration of suitability must focus on whether or not the accommodation is suitable for the particular person whom the local authority are looking to assist and the family members expected to live with that person. In R v Newham LBC, ex parte Sacupima (2001) 33 HLR 2, the Court of Appeal stated that there was no doubt that the question of whether or not the accommodation is suitable requires an assessment of all the qualities of the accommodation in the light of the needs and requirements of the homeless person and his or her family. It therefore follows that in order to discharge this duty, an authority must first carry out an assessment of the applicant’s requirements. The authority must then secure accommodation to comply with that assessment.

The Homelessness (Suitability of Accommodation) Order 1996 and Homelessness (Suitability of Accommodation) (England) Order 2012 provide that the local authority must also consider the affordability of the accommodation and the financial resources of the appellant, as well as the significance of any disruption which would be caused by the location of the accommodation to the employment, caring responsibilities or education of the person or members of the person’s household.

Although the accommodation can be located anywhere in the country, as long as it is suitable, by virtue of s.208(1) of the Housing Act 1996“so far as is reasonably practicable” the authority must secure accommodation in its own area.

In Barakate v LB Brent. County Court at Central London on 16 October 2016, the Court found that *“the concept of suitability can be seen to be not an absolute one, but a relative one, depending on the availability of something closer. This relative suitability must, as I see, have a further important consequence. As soon as one allows the test of suitability to include this relative element, it seems to me inescapable that in cases of far away placements, the test should also include some consideration of the timescale within which more suitable accommodation might be found”.

The case of Nzolameso v City of Westminster [2015] UKSC 22 provided guidance on how local authorities should secure accommodation for applicants. The Court suggested that “It may also be acceptable to retain a few units, if it can be predicted that applicants with a particularly pressing need to remain in the borough will come forward in the relatively near future…..Ideally, each local authority should have, and keep up to date, a policy for procuring sufficient units of temporary accommodation to meet the anticipated demand during the coming year.”

Clients should be aware that s.193(5) Housing Act 1996 (as amended) states that, “The local housing authority shall cease to be subject to the duty under this section if – (a) the applicant, having been informed by the authority of the possible consequence of refusal or acceptance and of the right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for the applicant, (b) that offer of accommodation is not an offer of accommodation under Part 6 or a private rented sector offer, and (c) the authority notify the applicant that they regard themselves as ceasing to be subject to the duty under this section.”

It is therefore very important that clients offered accommodation accept the offer so as to avoid the local authority discharging duty. There is an opportunity to seek a review of the suitability the offer, within 21 days of acceptance. This maintains accommodation for the client but allows them to the opportunity to be rehoused should the review be successful.

This blog has been prepared on 17th May 2018 by Ahmar Awan, a Solicitor at MTG Solicitors.