Fixed Recoverable Costs & the Intermediate Track

Kerryn Woollett, Senior Solicitor

by Kerryn Woollett, Senior Solicitor

Changes to costs are being introduce from 1 October 2023. Part of this reform, is the creation of a new fourth litigation track, the intermediate track, which will deal with claims worth between £25,000 and £100,000.

The changes are being introduced by the Civil Procedure (Amendment No.2) Rules 2023.

Implementation

Generally, the new regime will apply where proceedings are issued on or after 1 October 2023, regardless of when the cause of action occurred.

Allocation

CPR 26.9 will provide that cases will be allocated to the intermedial track where:

-the claim is suitable for neither the small claims track nor the fast track;

-the claim includes a claim for monetary relief, the value of which is not more than £100,000;

-the court considers that—

-if the case is managed proportionately, the trial will not last longer than three days;

-oral expert evidence at trial is likely to be limited to two experts per party;

-the claim may be justly and proportionately managed under the procedure set out in Section IV of Part 28; and

-there are no additional factors, which would make the claim inappropriate for the intermediate track; and

-the claim is brought by one claimant against either one or two defendants or is brought by two claimants against one defendant.

There is no definition of “additional factors” though, as an example, this might apply to test cases where the monetary value is low but the ramifications for others not directly involved in the litigation is high.

Claims for non-monetary relief, will not be allocated to the intermediate track unless the court considers it to be in the interests of justice to do so.

CPR 26.13 provides that when deciding the track for a claim, matters the court will have regard to will include:

-the financial value, if any, of the claim;

-the nature of the remedy sought;

-the likely complexity of the facts, law or evidence;

-the number of parties or likely parties;

How a claim is valued

The court determines the financial value of a claim, not the parties. In doing so, the court will disregard:

-any amount not in dispute;

-any claim for interest;

-costs;

-any contributory negligence; and

-where the claim is, or includes a claim for non-monetary relief, any amount prescribed by rule 45.45(1)(a)(ii) and rule 45.50(2)(b)(ii).

A tactic for a defendant could. Therefore, be to admit part of a claim, for example, if the claimant is claiming the claim is worth £120,000 so that it wouldn’t fall within the intermediate track or be subject to fixed costs, the defendant could admit to part of the claim worth £40,000 which would then bring the amount in dispute to only £80,000 which would then cause the claim to fall within the intermediate track and be subject to fixed costs.

Banding

The new regime sets out four bands of complexity for cases allocated to the intermediate track. The higher the banding, the higher the fixed recoverable costs.

Table 2 in CPR 26.16 sets out the complexity band to which a claim will normally be assigned in the intermediate track.

Complexity band 1 Complexity band 2 Complexity band 3 Complexity band 4
Any claim where—

(a) only one issue is in dispute; and

(b) the trial is not expected to last longer than one day, including—

(i) personal injury claims where liability or quantum is in dispute;

(ii) non-personal injury road traffic claims; and

(iii) defended debt claims

Any less complex claim where more than one issue is in dispute, including personal injury accident claims where liability and quantum are in dispute Any more complex claim where more than one issue is in dispute, but which is unsuitable for assignment to complexity band 2, including noise induced hearing loss and other employer’s liability disease claims Any claim which would normally be allocated to the intermediate track, but which is unsuitable for assignment to complexity bands 1 to 3, including any personal injury claim where there are serious issues of fact or law

 

The Ministry of Justice has refrained from giving further guidance on the bands and instead is leaving this for judges to decide.

The parties must state on the directions questionnaire the complexity band, and if the parties don’t agree as to the band, then they each have to set out which band they say is appropriate and why.

Directions

CPR 28.2 will provide that when the court allocates a case to the fast track or intermediate track, the court shall give directions for the management of the case and set a timetable for the steps to be taken between the giving of the directions and the trial.

CPR 28.14(2) sets out the provisions that apply in respect of directions in the intermediate track:

-oral expert evidence is limited to one witness per party, save where the oral evidence of a second expert for any party is reasonably required and is proportionate; and

-the trial time estimate must not exceed 3 days.

And CPR28.14(3) provides that the following provisions apply in respect of directions in the intermediate track, unless the court orders otherwise:

-rules 28.2(3) and (4) apply in respect of disclosure;

-the total length of all the permitted witness statements and witness summaries of a party shall not exceed 30 pages; and

-any expert report shall not exceed 20 pages, excluding any necessary photographs, plans and academic or technical articles attached to the report.

Fixed Costs

The amount of fixed costs will be set out in Table 14 in CPR 45.50.

The idea behind the fixed costs was to incentivise settlement.

Exceptions

Vulnerability – CPR 45.10 recognises the need for the court to have regard to vulnerability.

The court may consider a claim for an amount of costs (excluding disbursements) which is greater than the fixed recoverable costs where:

-a party or witness for the party is vulnerable;

-that vulnerability has required additional work to be undertaken; and

-by reason of that additional work alone, the claim is for an amount that is at least 20% greater than the amount of fixed recoverable costs.

Unreasonable Behaviour – the biggest potential financial adjustment is for unreasonable behaviour (CPR 45.13) – there will be a 50% adjustment in costs – if the unreasonable party is the paying party e.g. the defendant, they will have to pay the claimant an extra 50% of the recoverable costs amount. If the receiving party is the unreasonable party, then they will only be able to recover half their costs, so they lose 50% of their costs.

Definition unreasonableness is “conduct for which no reasonable explanation”.

London weighting – this is contained in CPR 45.3

Where fixed costs are payable and the receiving party:

-lives, works or carries on business in any area set out in Section II of Practice Direction 45; and

-instructs a legal representative with conduct of the litigation who practises in any of those areas, the fixed costs shall include, in addition to the costs allowable in the relevant Section, an amount equal to 12.5% of those fixed costs (‘London weighting’).

This does not apply to disbursements.

Part 36  – Currently, if a receiving party (e.g. the claimant) makes a good Part 36 offer that goes unaccepted, then they get a 10% uplift and indemnity costs calculated from end of the relevant period.

Under the new regime, the court will not award a 10% uplift or order detailed assessment. What it will do is add a 35% uplift that applies to fixed costs from the stage applicable when the relevant period expired and the stage applicable at the date of judgment (CPR 36.24).

Recovering costs from clients

It is possible to deduct a contribution towards costs from the damages recovered by clients. However, it’s important that clients know, from the outset, what fixed costs are recoverable. They should be informed of what funding is reasonably available even if you don’t provide that.

No client should ever be surprised by a bill they are being asked to pay.

Housing Claims

Housing claims are excluded from the new regime.

CPR 45.1(4) Section VI and Section VII of this Part do not apply to a claim or counterclaim which relates, in whole or in part, to a residential property or dwelling and which, in respect of that property, includes a claim or counterclaim for—

-possession;

-disrepair; or

-unlawful eviction,

save where the claim or counterclaim in respect of the residential property or dwelling arises from a boundary dispute.

The Ministry of Justice have announced that nothing will change in respect of costs for housing claims before October 2025.

Apprentice Solicitor blog!

by Charlotte Smith, Apprentice Solicitor

I’m coming up to the end of my third week with the NWL Legal Team, and what an amazing experience it has been so far! I feel like I have been taken under the wing of the team and have learned so much from them already in such a short space of time.

I was so thrilled when I was offered the position of Apprentice Solicitor within the in-house Legal department at NWLDC. Being a member of the local community myself and living in Coalville, it is a great feeling to have a job which positively effects the local community. As I only live 5 minutes down the road from the offices, I am able to walk to work which benefits my health as well as the environment.

As there is now a new route to qualifying as a solicitor via the ‘SQE’ (Solicitors Qualifying Examination), I feel very fortunate that I am able to gain invaluable experience working within a crucial department of the Council, whilst also being able to undertake my studies. The apprenticeship strikes the right balance between work and study, as one day per week will be dedicated to studying when the course starts in September, allowing me to have the best of both worlds.

I was shocked at the Council’s modern way of working, which is reflected in the flexible working policy which allows me to have the perfect work-life balance. I believe the policy really focuses on productivity and allows the Council to get the best out of its employees. There is also a hybrid working scheme in place, meaning I have a full desk set up at home whilst also being able to work in the office whenever I like. Being able to choose between both is a real privilege.

The Council Offices have been newly renovated and have a very modern feel to them. They incorporate ‘hot desking’, meaning employees can book a desk when they want to work in the office. This was a new concept to me at first, but I think it is an amazing idea as it allows you to network with other employees from different departments and talk to new people.

So far, I have received training on Housing Disrepair claims and the procedure to follow when a ‘Letter of Claim’ comes in from a tenant. I have also been able to sit in on weekly catch-up meetings with the housing department, where I have been able to see in practice how we deal with different types of claims and how we determine liability.

I have also received training on Gas Warrants from my supervisor, Kerryn Woollett. This week, I had the opportunity to attend Leicester Magistrates Court and observe how Kerryn advocates for these types of application and the criteria which must be met in order for the Court to grant a warrant. Court advocacy is something that I have always had an interest in, so being able to learn this skill in my role as an Apprentice Solicitor very much aligns with my own personal interests and career aspirations.

My journey has only just begun with NWL Legal, and I cannot wait to see where the rest of my journey will take me!

My Intern Experience at NWL Legal

by Manisha Khadka, Legal Intern

I joined NWL Legal on 31 July as part of the NTU Graduate Internship Scheme, I am with the team for a total of 7 weeks to learn about local government and gain experience of how the internal legal team here at NWLDC provides critical legal support and advice to the Council.

As a legal intern at North West Leicestershire District Council, so far I have had the invaluable opportunity to engage in a range of meaningful activities that not only broadened my legal understanding but also allowed me to contribute directly to the Council’s legal operations.

One of my primary responsibilities included efficiently managing files and communicating effectively with internal clients by sending tailored emails requesting disclosure, utilising standardised templates. This not only improved my written communication skill but also highlighted the importance of precision and clarity in legal writing.

I successfully scheduled meetings using Outlook and Teams, streamlining communication and encouraging teamwork. I actively participated in these meetings by taking comprehensive notes and minutes, reflecting my commitment to accuracy and attention to detail. Becoming well-acquainted with various digital tools like Outlook, Teams, and the legal team’s case management system was instrumental in enhancing my technological proficiency. Navigating these platforms seamlessly allowed me to stay on top of tasks and enabled efficient teamwork within the legal department.

Working remotely has not hindered my ability to collaborate with the Legal team. Regular Teams meeting have provided an excellent platform for information exchange, project updates, and clarifications, showing the Council’s commitment to maintain a cohesive and productive team dynamic even in remote settings.

Furthermore, I delved into legal research on websites such as EM Lawshare, Westlaw, and Cornerstone Barristers, honing my research skills and becoming familiar with the essential resources that facilitate informed decision-making. My involvement in researching policies such as ‘authorisation to issue fixed penalty notices for breach of public spaces protection Orders’, showcased my ability to understand complex legal topics and translate them into practical, effective policies.

A notable addition to my experience was the task of reviewing the North West Leicestershire District Council Constitution. This task not only deepened my understanding of local government frameworks but also highlighted the importance of having a well-structured constitution. It became clear to me that a constitution serves as a crucial reference point for both legal professionals and stakeholders, ensuring consistency, transparency, and effective governance.

Currently I am working on the ‘Right to Buy’ procedure, which is providing me with first-hand insight into property law. Also, I will be learning about Procurement law soon which I am excited to expand my knowledge.

Overall, my time as a legal intern at North West Leicestershire District Council is truly enriching. I am grateful for the exposure to diverse legal tasks, the chance to interact with other professionals in the Council, and the opportunity to contribute to the legal team.

 

We are looking for a Property Solicitor

Permanent Property Lawyer (Part time) 

£41,732 – £46,474 pro-rata (inclusive of a market supplement) + £2,856 per annum car allowance 

East Midlands 

Hybrid Working

About the Property Lawyer role:

We have teamed up with Sellick Partnership who are assisting us to find our newest member of the NWL Legal team.

We are looking for enthusiastic individuals with initiative, a proactive approach to problem solving and a real commitment to the job. This is a great opportunity to join a tight- nit, friendly team.

The successful Property Lawyer will be responsible for, but not limited to:

  • Holding an interesting and varied caseload
  • To carry out line management responsibilities in respect of the Property Legal Officer
  • Providing legal advice in relation to commercial and residential property areas such as: due diligence; property transactions; regeneration projects; and compulsory purchase orders.
  • Assist the Head of Department on issues of corporate governance including training, review of the constitution and providing advice on compliance and corporate governance.
  • To ensure legality in the Council’s decision-making process
  • Be part of the Practice Management team
  • To develop the team, ensuring a culture of excellent customer service is a key focus
  • To build pride, passion and reputation by creating a Council of excellence through strong motivational leadership.
  • To promote the Council’s Equality and Diversity Policy to ensure service provision and employment practices are non-discriminatory.

The role is predominantly remote working however the council host a number of team days and meetings where in-person attendance is encouraged which are on a monthly cycle.

Benefits of the Property Lawyer role include:

  • Competitive and advantageous salary
  • Generous annual leave with the opportunity to purchase extra
  • Local government pension
  • Hybrid working options
  • Flexible working patterns to suit other commitments
  • Vehicle allowances

Experience required for the Property Lawyer role:

Prospective candidates need to be a qualified solicitor, legal executive, or barrister and to have previous experience of Commercial and /or Residential Property law, Compulsory Purchase Orders, Regeneration Projects. Local Authority experience is desirable but not a deal breaker.

How to apply for the Property Lawyer role:

We encourage interested applicants seeking part time (21 hours per week) to apply immediately to be considered for short listing.

Alternatively, should you require further information or wish to discuss your suitability before applying, please contact Ellie Warde in our Manchester office on 0161 834 1642 for a confidential discussion.

https://www.sellickpartnership.co.uk/job/permanent-property-lawyer-part-time/

Are you interested in joining the team?

Permanent Senior Planning Lawyer 

£41,732 – £46,474 (inclusive of a market supplement) + £2,856 per annum car allowance 

East Midlands 

Hybrid Working

About the Planning Lawyer role:

We have teamed up with Sellick Partnership who are assisting us to find our newest member of the NWL Legal team.

We are looking for enthusiastic individuals with initiative, a proactive approach to problem solving and a real commitment to the job. This is a great opportunity to join a tight- nit, friendly team.

The successful Planning Lawyer will be responsible for, but not limited to:

  • General planning and regional matters such as s106s, Tree Preservation Orders, Footpaths, Highways, Planning Enforcement
  • Attending planning committees in person which are around every 6-8 weeks
  • This role will also be a managerial role for the trainee solicitor, general line managing responsibilities.
  • To be part of the legal practice team and help them with governance and how they are as an authority.
  • Briefing of the chairman/portfolio holder/members as required
  • Liaise with a number of internal and external professionals

The role is predominantly remote working however the council host a number of team days and meetings where in-person attendance is a must. The committee meetings are ran on a cycle with other employees and take place every 6-8 weeks.

Benefits of the Planning Lawyer role include:

  • Competitive and advantageous salary
  • Generous annual leave with the opportunity to purchase extra
  • Local government pension
  • Hybrid working options
  • Flexible working patterns to suit other commitments
  • Vehicle allowances

Experience required for the Planning Lawyer role:

Prospective candidates need to be a qualified solicitor, legal executive, or barrister and to have previous experience of Planning Law, Advising Committees and Local Authority Law

How to apply for the Planning Lawyer role:

We encourage interested applicants to apply immediately to be considered for short listing.

Alternatively, should you require further information or wish to discuss your suitability before applying, please contact Ellie Warde in our Manchester office on 0161 834 1642 for a confidential discussion.

https://www.sellickpartnership.co.uk/job/permanent-senior-planning-lawyer-/

 

Common Sense Advice for Defending Disrepair Claims

by Kerryn Woollett, Senior Solicitor

Disrepair claims can be brought when part of a property has fallen into disrepair and the landlord has been put on notice of that disrepair but the landlord has failed to carry out the repair in a reasonable period of time. What is reasonable will depends on a number of factors, for example, the extent of the disrepair, the landlord’s ability to carry out the repairs and whether the landlord was able to gain access to the property.

When a landlord gets a claim for disrepair it should first check the tenancy agreement to determine whether the disrepair claimed is something the landlord has agreed to carry out.

The landlord should then consider s.11 of the Landlord and Tenant Act 1985. S.11 provides that there is a covenant implied into the lease that the landlord will:

  • keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes);
  • keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity); and
  • keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.

Structure and exterior also includes plasterwork on internal walls and ceilings (Grand v Gill [2011] EWCA Civ 554)

However, a defective extractor fan is unlikely to be considered disrepair because it’s a fixture, fitting or appliance for making use of electricity (rather than an installation for the supply of electricity). However, if the extractor fan is assisting in reducing damp from condensation, this could affect the tenant’s health and therefore there could be a different avenue for bringing a claim against the landlord.

The landlord should also consider s.9A of the Landlord and Tenant Act 1985 which requires properties to be fit for human habitation. This only applies to tenancies granted on or after 20 March 2019, therefore, if this is included in the claim, check the start date of the tenancy.

As early as possible the landlord should keep records of the landlord’s view, not only on whether the disrepair exists, but on who is liable for that defect, for example, if there is a broken window, it’s easy to see that it’s broken, however, who broke the window? Was it the landlord when carrying out other repairs, was it the tenant by throwing something at it or was it someone else e.g. an attempted burglary.

The landlord should also record what work needs to be done to remedy the disrepair and the landlord should remember that this is not something the tenant’s expert can dictate. The landlord should provide its view on what needs to be done and how much it’s likely to cost, as the landlord may have ways of doing the repairs cheaper.

Something that is often overlooked is the impact the disrepair is having on the tenant. Again, the impact of a broken window is fairly obvious – e.g. wind and rain can blow in and the property cannot be secured.

However, the impact of dampness or crumbling brick work on the tenant is less apparent. The court will be assisted by comments about how this impacts the tenant’s way of life, e.g. the tenant may claim that they are ashamed to bring people to property. However, if the landlord has attended the property and noticed a large number of alcohol containers outside the property in the recycling, the landlord should record this, as this tends to show that the tenant has had people at the property, therefore, the disrepair is not affecting them as they are claiming.

In determining the standard of repair the landlord is required to reach, consideration must be given to the age, character and prospective life of the property and its location. Local authority houses can be as good as private sector houses, but there is no obligation to make a 50 year old house look like it was built yesterday.

When carrying out repairs, there is an obligation on the landlord to make good or redecorate after the works are complete. It is true that the tenant is obliged to do internal decorations, but when the landlord has carried out repairs, those repairs are not complete until the area repaired looks as good as it did before.

The landlord is not required to do repairs in the way the tenant demands. The landlord may perform repairs in whichever manner is the easiest and can choose the cheapest option if it wishes.

The obligation when replacing installations, is for a like for like replacement. There is no requirement to upgrade installations or bring these in line with current standards, unless the law requires this in order to comply with regulations.

S.11 does not mean:

  • that the landlord guarantees there will never be disrepair – s.11 is only breached if the landlord is given notice of disrepair and has failed to repair it within a reasonable time and the entitlement to damages only runs from the point in time the landlord is in breach;
  • the landlord will carry out improvements;
  • the landlord will carry out the tenant’s job to use the property in tenant like manner e.g. tenants are supposed to clean the chimney, change lightbulbs, bleed radiators – do the things an owner/occupier would do rather than get a repair person in.
  • the landlord will repair everything in the property e.g. window sills and skirting boards are not included.

Using the property in a tenant like manner means doing the little jobs around the property, not causing damage to the property, keeping the property ventilated and heated to avoid condensation dampness and to allow access.

How can a landlord prove the tenant is causing the disrepair? It must keep good records.

The landlord should make sure it has evidence:

  • of the disrepair;
  • of how the tenant lives in the property;
  • of all the things the tenant could do to avoid living in the property in the way they are;
  • to eliminate the possibility that the disrepair is being caused by other sources (e.g. if damp is alleged, get evidence to show it is not being caused by rising or penetrating damp); and
  • to show the disrepair could be avoided if certain steps where taken.

For example, if damp is alleged, take photos of the areas affected, however, also take photos of any closed ventilation strips in windows, of the tenant’s property up against walls, of washing being dried inside, of unvented tumble dryers being used etc.

The landlord should also keep records of:

  • the state of the property generally, not just the disrepair;
  • anything said by tenants in the course of inspections;
  • attempts to gain access that are not successful and what was done about them e.g. was a calling card or letter left, was contact made with the tenant to arrange another date. This will help show the court the landlord had done all it can to do its job.

Landlords will also need to keep records of any notice given about disrepair. These will often be computerised records and an explanation should be given of these records, for example, they will often contain abbreviations which require explanation, they may contain a number of dates which need to be explained – are these the date notice was given, the date of an inspection, the date works were carried out, the date works were completed or the date an invoice paid? The date of paying an invoice is of no use when trying to determine the date notice was given, but it could be useful to try to prove that works were carried out.

Landlords will also need evidence to show their records are accurate e.g. if a tenant says they reported some disrepair but it is not recorded on the landlord’s computer system, the landlord needs to be able to show that its records are complete and accurate. This would be supported if the landlord is able to provide evidence of how the system and its processes work i.e. there is a process in place whereby all telephone calls and emails received are logged on the computer system, therefore, it’s not possible or is highly unlikely that a report of disrepair could have been made and not be recorded on the computer system.

To protect its position a landlord should:

  • Comply with the Pre-Action Protocol for Housing Conditions Claims (England);
  • Carry out any repairs quickly and efficiently;
  • Flag any issues timeously e.g. has access been given, does the landlord need permission from another landlord or the owner or a neighbouring property to gain access to areas to carry out repairs;
  • Make appropriate offers of settlement but not excessive offers; and
  • Keep a record of what works are done.

Service Level Agreements

by Lauren Sturgess, Trainee Solicitor

Throughout my role working as a trainee solicitor, I have been able to undertake work within the Contract Law sector. As part of this work, I have had exposure to drafting and reviewing various types of agreements. One agreement I have had exposure to drafting is a Service Level Agreement (SLA).  An SLA can be very useful to multiple departments within North West Leicestershire District Council (NWLDC) where NWLDC are looking to provide a service to the public, but this service is being provided by another organisation in return for a specified payment.

What is a Service Level Agreement?

SLA’s are a commitment between a service provider and a customer. An SLA defines the level of service expected from a service provider and sets out clearly in one single document all of the agreed services and expectations between that service provider and the customer. SLA’s usually provide a framework for the provision, management and development of that specific service being provided.

What should a Service Level Agreement include?

An SLA should include details of two elements, the ‘Service Element’ and the ‘Management Element’.

Some examples of what should be included in an SLA are:

Service Element

  • Service specification

This should include the Service Aims and Objectives of the agreement, detailing the services that will be provided and the expectations of that service.

  • Duration

This should set out the duration that the agreement is set to last, specifying a clear start and end date of the agreement. It may be that the agreement includes  an option to extend the agreement if it is successful in the original agreement.

  • Financial arrangements

This should cover the financial arrangement that is in place between the service provider and the customer, i.e., the agreed amount of funding that the customer will provide the service provider for carrying out the services set out in the service specification.

This also may detail the terms of payment, i.e., whether payment will be made at the end of the duration of the agreement, or in specified intervals throughout the duration of the contract. For example agreeing that payment will be made on a set date each month, or after a set amount of days upon receipt of an invoice on a set date each month.

  • Data Protection

The agreement should also include a provision that the service provider will carry out its business in accordance with relevant legislation including but not limited to the Data Protection Act 2018. This ensures that in carrying out the service for NWLDC they are not to breach any data protection legislation.

Management Element

  • Penalties

This should state the consequences for the service provider if they are in breach of any of their obligations under the agreement. This would usually include the right for the customer to terminate the agreement upon service of a notice of termination in writing or to serve a notice on the service provider to remedy the breach on specified terms within a reasonable time stipulated in the notice.

  • Point of Contact

This should set out who the main points of contact are and their job title for both the service provider and the customer for the avoidance of doubt throughout the duration of the agreement.

  • Terms of Review

This should set out how the services will be reviewed to ensure that the service provided is complying with the terms of the agreement.  This should set out the frequency of the reviews (I.e. every month) and what the review will cover (i.e. all aspects of the operation). These reviews may then determine if the agreement is extended.

Right to Buy – after the purchase

Helen Lisney

by Helen Lisney, Legal Officer

When a property is on the open market the seller’s interest ceases upon completion of the sale.    However, when a property is sold under the right to buy scheme then the selling local authority will retain rights in relation to the property for a period of 10 years from the date of completion.

When a property is purchased under the right to buy scheme pursuant to Part V of the Housing Act 1985, the purchasing tenant is entitled to a percentage discount, dependant on the length of time spent as a public sector tenant.    If they have been in a public sector tenancy for 3-5 years they are entitled to a 35% discount, which increases by 1 % for every additional year after the first 5 up to a maximum discount of 70 %.        The maximum discount available is currently capped at £87,200 (£116,200 in London) and this increases on an annual basis.

Repayment of Discount

Section 155 of the Housing Act 1985 deals with the repayment of discount on early disposal of the property.

If the property is sold within 5 years of purchase there is a requirement that a proportion of the discount is repaid to the Council.   If the property is sold within a year of purchase then the full discount is repayable, and this reduces by one fifth for each complete year.

The amount of discount repayable is calculated as a percentage of the price the property is being sold for rather than the original purchase price.    The amount of discount repayable can be reduced to take into account any of the purchase price which is attributable to home improvements carried out by the owner since the date of purchase.  This amount can be agreed between the parties or determined by the district valuer.

The discount is only repayable on a relevant transfer and certain transfers are exempted.  For example,   a transfer from joint to sole ownership of one of the original purchasers; the vesting under a will or on intestacy, it is required under an order of the court in family proceedings.    If there is any such exempted disposal the requirement to repay the discount will remain until the end of the five year period.

When the property is purchased a charge is registered at the Land Registry to protect the Council’s interest.

Right of First Refusal

Section 156A of the Act deals with the right of first refusal.

Whilst the repayment of the discount only subsists for a period of 5 years, if the purchaser wishes to sell within 10 years of the original purchase they must first offer the Council the right to repurchase the property.

The owner must serve a notice on the Council advising them of the proposed sale and offering the right of first refusal.     The Council can then choose either to buy back the property, nominate another social housing provider to buy the property or allow the property to be sold on the open market.

The Council must acknowledge the receipt of such notice as soon as reasonable practical and must within 8 weeks notify the seller if it wishes to accept the offer for itself, or nominate another housing provider to accept the offer.  If it wants to reject the offer it must do so as soon as the decision has been made.

The property should be purchased at market value.  If the parties cannot agree the value then the district valuer can be appointed to determine the value of the property.

If the Council wishes to repurchase the property it must enter into a binding contract within 12 weeks of the acceptance notice being served, or within 4 weeks of the date of receipt of a notice from the owner that he is ready to complete, whichever is later.  (Any period waiting for the district valuer’s report is excluded from this calculation).

The Council’s right to first refusal is protected by a caution registered against the title to the property.

If the Council does not wish to purchase the property and the owner is permitted to sell on the open market then the Council will need to provide a certificate confirming that the provisions have been complied with to enable the transfer to be registered.

Anti-social Behaviour and the Equality Act 2010 – What can be learnt from Rosebery Housing Association Ltd v Williams & Anr [2021] 12 WLUK 464

by Kerryn Woollett, Senior Solicitor

What was the case about?

The Housing Association sought an injunction under s.1 of the Anti-social Behaviour, Crime and Policing Act 2014 relying on 123 allegations of anti-social behaviour (ASB), though this was reduced to 6 allegations. These were representative of three types of ASB complained of namely verbal abuse, taking photos and filming neighbours and noise nuisance.

The tenant brought a counter claim primarily under s.15 of the Equality Act 2010 (EA) that the Housing Association, in bringing and continuing the claim for an injunction, had unlawfully subjected the tenant to a detriment because of something arising in consequence of her disability.

Five out of the six allegations were not proven either because of a lack of evidence, because there was only hearsay evidence or because the evidence was unreliable.

The sixth allegation of noise nuisance was proven, though the court found that it was not just and convenient to grant an injunction as the noise nuisance was brief, historic and there were no ongoing issues.

The tenant suffered from severe obsessive compulsive disorder, which caused her obsessively to film her surroundings and drive up and down her own street. Therefore, the court found that the tenant had good reason for filming and photographing her neighbours.

The Housing Association accepted that the tenant had a disability.

Pursuing proceedings for an injunction were found to amount to detriment and this was due to something arising from the tenant’s disability i.e. filming neighbours was more than a trivial part of the reason the Housing Association was seeking the injunction. Whilst it was accepted the Housing Association’s aims were legitimate, bringing proceedings were not proportionate for the following reasons:

  • the allegations of ASB were not put to the tenant in a timely fashion;
  • the Housing Association did not seek medical advice in order to understand the tenant’s disability;
  • the Housing Association did not seek to foster understanding between the tenant and neighbours;
  • the tenant had offered to move and the Housing Association did not explore this offer; and
  • the Housing Association received compelling evidence from the tenant yet still continued to pursue the claim all the way to trial.

The tenant was awarded £27,500 in damages for injury to feelings as the Housing Association had  wrongly treated her as the perpetrator rather than the victim of anti-social behaviour and abuse from her neighbours.

What can be learnt?

The most common protected characteristic engaged in relation to ASB is disability.

Either the landlord or a local authority (if the local authority is not also the landlord) could take action in relation to ASB.

S.15 of the Equality Act 2010 states:

  • A person (A) discriminates against a disabled person (B) if—
    1. A treats B unfavourably because of something arising in consequence of B’s disability, and
    2. A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
  • Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

Unfavourable treatment

Almost any significant intervention by the landlord or a local authority is likely to be considered unfavourable treatment. This includes formal warnings, issuing a notice of seeking possession, issuing a community protection notice or brining proceedings.

Therefore, before taking any action, a landlord or a local authority, should ask three questions:

  1. Does the landlord or local authority know or can they reasonably be expected to know that alleged perpetrator has a disability?
  2. Is the ASB “something arising in consequence of” the disability?
  3. Are the landlord’s or local authority’s actions a proportionate means of achieving a legitimate aim?

Assessing disability

Disability is defined in s.6 of the Equality Act 2010 (EA):

A person (P) has a disability if:

  1. P has a physical or mental impairment, and
  2. the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities

“Substantial” is defined in s.212(1) as more than minor or trivial and “long-term” is defined in paragraph 2 of schedule 1 as having lasted or likely to last at least 12 months.

The Equality Act (Disability) Regulations 2010 prescribes disabilities and special cases.

Special cases include corrective measures and progressive conditions. That is, if someone would have a disability but it is being treated (i.e. a corrective measure is being used) then it is a disability nonetheless. Also, if a person has a condition which is not currently having a substantial and long term adverse effect on day to day activities, though it will do as the condition progresses, then this is also considered a disability.

The Equality Act (Disability) Regulations 2010 also sets out impairments that are not disabilities, these include:

  • Addiction to alcohol/nicotine/any other substance
  • Setting fires
  • Stealing
  • Physical and sexual abuse
  • Exhibitionism
  • Voyeurism
  • Seasonal allergic rhinitis
  • Severe disfigurements by way of non-medical tattoos or piercings

In assessing disability, the landlord or local authority, should consider four questions:

  1. Is the alleged perpetrator suffering an impairment?
  2. Does the impairment have a substantial and long term adverse effect on the alleged perpetrator’s ability to carry out everyday life?
  3. Is the ASB something arising as a consequence of the disability?
  4. Whether and how the ASB can be addressed?

When is the Landlord/Local Authority reasonably expected to know of the disability?

This will depend on the circumstances. The Public Sector Equality Duty imposes a duty to make reasonable enquiries.

However, “The public sector landlord is not required in every case to take active steps to inquire into whether the person subject to its decision is disabled and, if so, is disabled in a way relevant to the decision. Where, however, some feature or features of the information available to the decision maker raises a real possibility that this might be the case then a duty to make further enquiry arises” London and Quadrant Housing Trust v Patrick [2019] EWHC 1263 (QB)

Therefore, if there is nothing in the facts of the case to suggest that the alleged perpetrator could have a disability, then the landlord or local authority does not, as matter of routine, have to make further enquiries. But, if there is something that leads you to think that there could be a disability then you have to make some enquiries. This could be writing to the alleged perpetrator seeking further information, contacting other agencies (e.g. social services or the police) or contacting GPs.

Something arising in consequence of

The disability need only be an effective not the sole cause of the unfavourable treatment – “…a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor.” (Nagarajan v London Regional Transport [2000] 1 A.C. 501)

It can be complicated though if the alleged perpetrator has a disability though also has an addiction which is not a disability. Which of these is then causing the ASB? To determine this you will need to look at each separately and how they feed into the ASB. If the disability is forming an effective reason for the ASB then that is sufficient to bring it within s.15 of the EA, even if the addiction is also a significant factor in the ASB as well.

Does a lack of information or an uncooperative alleged perpetrator preclude assessing disability?

There must be some evidence of disability provided to the landlord or the local authority for the EA to be engaged. If the alleged perpetrator says they have a mental health condition but doesn’t provide any further evidence and won’t cooperate then, in those circumstances, the landlord or local authority would be entitled to operate on the basis that there isn’t a disability until something further leads them to conclude otherwise.

If the landlord or local authority has some existing knowledge but this is unsatisfactory to make an assessment, then landlord or local authority has to make further enquiries before making an assessment. For example, an officer has seen some evidence of a diagnosis of a mental health condition but does not have any information on how it manifests or what treatment can help. In this situation the officer should make further enquiries.

Lastly, remember to keep the assessment under review e.g. the alleged perpetrator is initially uncooperative, though as the matter progresses, more information about a disability is disclosed. If this occurs, further enquiries should be made and the assessment reviewed.

Proportionality

The landlord or the local authority’s aim will usually be legitimate, therefore, the important consideration is then proportionality.

“The structured approach to proportionality asks whether there is any lesser measure which might achieve the landlord’s aims. It also requires a balance to be struck between the seriousness of the impact on the tenant and the importance of the landlord’s aims.” Lewisham London Borough Council v Malcolm [2008] AC 1399.

Whilst this decision was in relation to tenancies, it applies equally to ASB cases e.g. injunctions or community protection notices.

Proportionality needs to be considered as early as possible. Therefore, if you are considering an injunction, proportionality needs to be considered before sending the first warning letter.

It is also essential to have good record keeping.

Mummery LJ set out three questions in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213:

  1. Is the objective sufficiently important to justify limiting a fundamental right?
  2. Is the measure rationally connected to the objective?
  3. Are the means chosen no more than is necessary to accomplish the objective?

In practice this means are there other things you could try first, e.g. if considering seeking possession of a tenant’s property, could you instead try an ABC, a CPN or even an injunction first.

The investigation needs to be carried out swiftly and the onus should not be put on residents to gather evidence. To avoid putting the onus on residents, consideration should be given to whether other agencies can provide support or if other measures can be used (e.g. CCTV).

Attempts should be made to understand the disability e.g. seeking medical advice or contacting charitable organisations e.g. Mind. These organisations might be able to help you understand a disability, its impact on behaviour and how persons with that disability may react in certain situations.

Attempts should also be made to foster understanding between neighbours. This could be difficult because some people don’t want their private information disseminated. But you should try to explain that if others know about their disability, the impacts it has on them and how it manifests, this will help neighbours understand what they are going through and to be more tolerant. This can be achieved through multi agency meetings or round tables.

Explore other avenues and anything the alleged perpetrator has suggested – e.g. in Rosebery the tenant said she could try to move.

Lesser measures could include support referrals, ABCs, CPNs, abatement notices, injunctions or a move for either the alleged perpetrator or the victim(s) depending on the case.

It is also important to adhere to policies. Policies will usually set out the approach to be taken (for example using a graduated approach), how complaints will be handled, how investigations will be carried, what options will be considered and when. Following policies will help to ensure the correct process if followed.

Carrying out an Equality Impact Assessment will also ensure any action taken is proportionate.

Recent application to enter premises under s.22 of the Prevention of Damage by Pests Act 1949

by Lauren Sturgess, Trainee Solicitor

At the beginning of August 2022, I attended Leicester Magistrates’ Court to apply for a warrant to enter premises on behalf of North West Leicestershire District Council (NWLDC). The application was made under s.22 of the Prevention of Damage by Pests Act 1949 by virtue of s.25 of the Leicestershire Act 1985.

Legal basis

Under the Prevention of Damage by Pests Act (the Act) it is the duty of every local authority to take such steps as may be necessary to secure so far as practicable that their district is kept free from rats and mice. Section 22 of the Act allows any person duly authorised in writing by a local authority to enter upon land for any of the following purposes:

(a)for the purpose of carrying out any inspection required by the Act

(b)for the purpose of ascertaining whether there is or has been, on or in connection with the land, any failure to comply with any requirement of the Act or of any notice served thereunder;

(c)for the purpose of taking any steps authorised by section five or section six of this Act to be taken by the local authority on or in relation to the land.

In this particular case, the application to enter onto premises under the Act was being made for the purposes of taking steps authorised by section 5 or 6 of the Act, specifically section 5. Section 5 applies where any person, on whom a notice is served by the local authority, is required by the notice to take certain steps within the period prescribed in the notice, and the person has failed to do so. In these circumstances, the local authority may themselves take those steps and recover from the person on whom the notice was served any expenses reasonably incurred in doing so.

In September 2021 a notice under the Act was served on the owner of premises by NWLDC’s environmental protection team. This followed a complaint that was received in regards to an accumulation of waste in the front and rear gardens of the premises and attempts to get in contact with the owner to discuss with issue had been unsuccessful.

The notice required the owner to remove, and properly dispose of all waste, including but not limited to wood, from the land, as this was providing harbourage for vermin. The notice further required the owner to check for the presence of vermin, and treat if found, the land including the premises.

Following several letters, phone calls, and visits, no contact had been made with the owner of the premises in regards to the issue at the property, nor had any of the required steps been carried out as set out in the notice.

A final letter was sent to the owner notifying them of the intention to apply for a warrant. This letter gave the owner the opportunity to contact the Council to allow access without the need for a warrant, however no contact was made.

As no contact was successfully made with the owner, this was considered refusal of entry onto the land, and so it was at this stage that legal were instructed to make the application to the Court to issue a warrant, to allow entry onto the premises, to carry out the steps in the notice as the waste was providing harbourage for vermin.

Outcome

The application was successful and the Court issued the Council with a warrant to enter premises for the purposes of carrying out the steps identified in the notice.

Although the course of action has the potential to interfere with the human rights of the owner of the premises, the Court deemed it necessary and a proportionate interference with these rights, as entry was required in the interests of public health.

Section 25 of the Leicestershire Act 1985 allows for other persons to be taken when the warrant is executed. This allowed for a locksmith to attend when the warrant was executed for the purpose of facilitating access to the property and to replace any locks when leaving the premises.

The warrant continues in force until the purpose for which the entry was required is satisfied. The Council have now been able to enter onto the premises and remove, and properly dispose of all waste, including but not limited to wood, from the land and check for the presence of vermin, and carry out any treatment. The Act also allows the Council to recover the costs of carrying out these steps.