The Government first announced plans for a shared ownership right to buy in October 2019. At the time the sector raised concerns about the impact the plans would have on housing associations ability to borrow. An election and a pandemic later the Government announced, during the CIH Housing Festival last week, the return of the right to shared ownership as part of its Affordable Homes Programme (AHP).
In the case of R (Esposito v Camden LBC), decided in the High Court on 31 July 2017, the tenant had been evacuated from one of Camden’s tower blocks after the Grenfell Tower fire, on the advice of the London Fire Brigade, who had declared that the block of flats was unsafe. The tenant and her sons moved into a hotel. After the measures suggested by the Fire Brigade to make the building safe were complete, residents were asked to return. This particular tenant refused to return until the results of further safety testing (recommended by the DCLG) were known, and asked the Council to continue her temporary housing, which it refused to do.
The tenant argued that the Council’s refusal to extend temporary accommodation for a further two weeks was unreasonable, as the Fire Brigade had not positively asserted that a phased re-occupation should continue and the fire risk remained unknown. She argued that the refusal breached her rights under Article 8 of the Human Rights Act as the unknown risk meant that the flats were prejudicial to her health.
The Council argued that judicial review was not the appropriate remedy. It also argued that their decision was not irrational, as no other local authorities had asked their tenants to evacuate a building where the cladding had failed the fire safety test and their decision was consistent with the advice from the Fire Brigade and DCLG. It submitted that the Article 8 Human Rights Act claim was misconceived because it had no duty in relation to the condition of the flats.
The judicial review and injunction application was refused, but the Court held that public sector landlords providing social housing, such as Camden, were not in the same position as a commercial landlord. The number of people affected and the fact that they provided social housing was sufficient to make their decision judicially reviewable. The Court must look at all the matters in the round.
However, the Court found that the tenant had not made out a sufficient case that the Council had acted irrationally. The evacuation of the building was not done because of a failure of the cladding, but in response to advice from the Fire Brigade, therefore, the Council was justified in asking the tenants to return. There was no basis for an Article 8 claim by virtue of the risk of fire or due to the cladding.
It is possible, of course, that the tenant might appeal further, but this High Court decision is presently binding.
It is interesting that the Court supported the Council’s decision to rely on the advice and recommendations of the Fire Brigade. Landlords should do the same.
We are aware that many Fire Services are extremely busy inspecting tower blocks and other low-rise blocks of flats, so it can be difficult to get urgent advice from them. If not available, taking other independent external fire safety advice is suggested, especially if injunctions might be needed to support significant decisions like evacuation or to decant or gain access in order to carry out works, repairs or improvements that new fire risk assessments recommend.
If you would like more information on this topic, please contact Helen Tucker or Baljit Basra. If you would like to find out more about the work that Anthony Collins Solicitors does in the Housing sector, please visit our website.
Book on to our Disrepair Masterclass in Birmingham here.
Two final pieces of the possession jigsaw have been published on 15 September 2020. Mr Justice Knowles’ working group on possession proceedings has issued its guidance on the “overall arrangements” for possession proceedings.
One change proposed by the Building Safety Bill is the introduction of a duty holder regime, which will see statutory responsibility for the safety of higher risk buildings placed on key individuals
Throughout this pandemic, the Competition and Markets Authority (CMA) has been publishing various “Statements on Coronavirus” (Statements) which provide guidance on consumer rights during this time.
A recent increase in COVID-19 cases in the UK means new measures are being put in place in an effort to reduce the risk of a second wave. Whilst the impact of COVID-19 continues to be felt, it is important to remain focused on the sector’s road to recovery.
Sometimes half an hour at a conference gives you the reality that has been staring you in the face all along. That was my experience watching “Change is on the Horizon”
Following our recent e-briefing on Possession Notices, Helen Tucker and Emilie Pownall from our housing litigation team discuss the impact of the changes on social landlords.
Not only has the possession stay been extended until 20 September, the notice periods to be given to tenants has been extended in certain circumstances with some important exceptions.
The Court has confirmed that a party cannot withhold its consent in order to re-write the original bargain.
Following the Grenfell Tower tragedy, building safety continues to be a key concern for social housing providers and their residents.
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