A blog from our newest member of the team!

by Emma Lant, Generalist Solicitor

I am delighted to have recently accepted my offer of employment with North West Leicestershire District Council (NWL Legal), and am already nearly a week into my new career! I am undertaking the newly created role of Generalist Solicitor, where I will be providing assistance to the Legal Team on a range of matters, working across the various legal sectors and services provided by NWL Legal. I will be involved with matters such as reviewing the Council’s Constitution to ensure compliance with its terms, researching legal topics as and when required, providing advice on a wide range of local government law and governance, as well as assisting with planning applications, reviewing contracts, property transactions, and more. My role will see me undertake work for both in-house services across the Council, and external clients (including other local authorities).

This will be a varied role which I am eager to settle into, and develop my skills and knowledge. I have previously worked in a legal department of the Civil Service, and in private practice, and I hope the experience of working in these quite different areas will set me up well for this very wide-ranging new chapter.

My first impressions are that this is an enthusiastic team with a wealth of knowledge of their chosen subject areas, and I will certainly benefit from learning from the vast experience of the team. I am looking forward to getting to know my colleagues in the coming weeks and months; I have already been fortunate to attend some team meetings, both in person and on MS Teams, which have been great to see how the team operates, and I have received a warm welcome from everyone.

If you would like to instruct a member of the Legal Team, please email legal@nwleicestershire.gov.uk, or would like to find out any more about the services which are offered, please use the link here.

Six months with NWL Legal

by Claire Reeves, Legal Assistant

As I come to the end of six months working within the NWL Legal Team as a Legal Assistant, I have taken time to reflect on my experiences so far.

My primary responsibility within the team is to handle all new and existing Housing Disrepair claims received by North West Leicestershire District Council.

During the past six months I have received training on Housing Disrepair and legal costs. In addition, I have had the chance to actively participate in the weekly 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. Attendance at these meetings has also provided me with the opportunity to begin to build crucial relationships with the Council’s housing and repairs teams.

Now that I am six months into my role, I have had the opportunity to deal with a variety of disrepair claims, all at various stages of the process and have had successes in settling several disrepair claims since starting in my role which has been very rewarding. I have found this not only to be rewarding because it settles the matter for the Council but because it also means that the homes and hopefully the lives of the tenant’s living within the properties will be improved as a result of repairs being carried out.

I feel that the training and support that I have received so far within the NWL Legal team and the wider Council has been excellent and has set me up perfectly to embark on my new role, giving me the confidence to manage a varied caseload and the chance to build on existing knowledge and skills. I have learned a great deal in this role, just within the past six months and look forward to building on this further as I continue to develop in the role.

As a working mum to a young daughter, I have found that the flexible working arrangements offered by NWL Legal and the Council have made it easy to strike a comfortable balance between my family and working life – something which is very important to me and is not always easy to find!

All in all, the experience that I have had so far working within the NWL Legal team has been overwhelmingly positive and I look forward to developing further within my role over the months and hopefully years to come.

Charging Orders and Orders for Sale

Kerrie Culverwell, Senior Property Solicitor

by Kerrie Culverwell, Senior Property Solicitor

A Charging Order can be sought to secure a charge in favour of a Creditor over the Debtor’s property. This method is most effective where there is substantial equity in the land or property and where the Debtor is the sole owner. This is because a charging order takes effect subject to other charges, such as mortgages on the property.

An Order for Sale is a method of enforcing a Charging Order. If the court grants an Order for Sale the property can be sold by the Creditor who is then able to recover their debt from the sale proceeds. When making the Order the court will determine what value the property should be sold for and the method by which the property should be sold.

The Steps involved are briefly summarised as follows:-

  1. Evidence Gathering – the Creditor must take all reasonable steps to obtain the evidence to be submitted with the claim form. Practice Direction 73.4.3 sets out the evidence required.
  2. Make the Application – Using a Part 8 claim form and usually at the court that made the Charging Order. The claim form should include the evidence gathered at point 1, or if not separate written evidence should also be submitted.
  3. Court gives Directions and Fixes a Date for a Hearing
  4. Service of Claim Form on the Debtor and any other interested parties. Follow any other directions given by the Court at stage 3.
  5. Hearing – the Court will exercise their discretion as to whether an order is made. If an order is made it will give the Debtor one last chance to pay, after which the order will specify the date by which the Creditor should get possession of the property in order to facilitate the sale.
  6. The Order will specify the value the property should be sold for, the method by which the property should be sold and how legal title will be transferred to the purchaser.
  7. Sale Proceeds – if the property is sold successfully the proceeds will be applied in the following order:-
  • Costs and charges of sale.
  • Charges with priority (i.e. any mortgage/s).
  • If the property is jointly owned, the co-owner receives their share.
  • Creditor with Charging Order.
  • Any balance goes to the Debtor.

If, for whatever reason, an Order for Sale is not successful nothing will happen to the Charging Order – the charge will remain on the property and interest will continue to accrue.

Should you need any advice on Charging Orders or Orders for Sale, please get in touch with the team at legal@nwleicestershire.gov.uk.

Granting Rights of Way over Council Land

Helen Lisney, Legal Officer

by Helen Lisney, Legal Officer

Often Council’s will be asked to grant rights of way over their land.   Below are the two main ways of granting such rights and the implications for each of them.

Easement

An easement is a right benefitting a defined area of land.    An easement of right of way is a permanent right over the servient land for the benefit of the dominant land.

Once an easement is granted it binds both parcels of land.

Any request for an easement over Council land should be considered carefully as it has the potential to sterilise any future use of the land.

A new easement must be granted by deed and must be registered at the land registry against both parcels of land.

An easement can affect the value of both parcels of land and will need to be assessed by a valuer to calculate the value of the easement.  This will need to be paid by the person obtaining the benefit.

The easement can also contain a requirement that the dominant owner, and any successor in title pays a fair proportion of the costs incurred by the servient owner for the maintenance of the accessway.

Licence

A licence can grant a temporary right of way over land. This should be used where you are happy for a temporary use but want to protect any future development potential of the land over which it is granted. It does not confer any interest in the land.

If it becomes apparent that any person is crossing council land to access other land it is a good idea to offer a licence.  This would protect the land from any prescriptive rights of easement being granted.

A licence will specify the purpose for which it is granted (e.g. to obtain rear access to a defined property) and can be determined by either party on notice.   This will be personal to the grantee and cannot be assigned.

Usually, an annual fee will be paid for a licence.

If you need advice on any aspects relating to rights of way over Council land, then feel free to get in touch with us at legal@nwleicestershire.gov.uk

When are a Local Authority’s resources relevant to carrying out a statutory duty?

by Kerryn Woollett, Senior Solicitor

Rex (Imam) v Croydon London Borough Council [2023] UKSC 45

The Appellant was a full-time wheelchair user. Since September 2014, Croydon London Borough Council provided her with temporary accommodation under Part 7 of the Housing Act 1996. The accommodation consisted of a two-storey property with a through floor lift. The Appellant’s bedroom was on the top floor while the bathroom was on the bottom floor. Should the need arise during the night, it would not have been easy for the Appellant to use the bathroom. The Council, therefore, accepted that the property was not suitable accommodation, having regard to her disability and that it was in breach of s.193(2) of the Housing Act 1996 by not offering her suitable alternative accommodation.

In 2020, the Appellant brought a claim for judicial review seeking, amongst other things, a mandatory order compelling the Council to secure her suitable accommodation under Part 7.

The judge in the Administrative Court dismissed the claim, refusing to make a mandatory order.

On appeal, the Court of Appeal set aside the judge’s order dismissing her claim for a mandatory order.

The Supreme Court considered the circumstances in which the Administrative Court could refuse to make a mandatory order compelling a public authority to act in compliance with a statutory duty and the extent to which the limits of a public authority’s resources are relevant to whether a mandatory order should be made.

The Supreme Court’s decision is of great importance, not only to housing law, but to public law generally.

Lord Sales gave the only judgment and started with the general proposition that resources were irrelevant to compliance with a statutory duty, however, Lord Sales then set out matters that might militate against the granting of a mandatory order.

The ordinary position, if one is successful in establishing their claim, is that relief should be granted. However, it is well established in public law proceedings that remedies are discretionary, that is, simply establishing a claim does not automatically lead to a conclusion that an order should be made, or relief granted. In fact, no order should be made if it isn’t reasonably possible to comply with it.

The court should not refuse relief routinely and should “proceed cautiously” when it was considering whether to do so. In particular, the court was required to bear in mind that Parliament imposed the duty on the authority and that the effect of the court making a mandatory order was to transpose this role onto the court rather than the authority, with the court then effectively supervising the authority’s compliance with what it termed a “super added duty”.

Another matter, which might militate against making an order, was the risk of detriment to good administration, for example, cases in which decisions were made or actions were taken on reliance of matters being finalised, only for the court to then upset the balance previously achieved, by granting relief. If is for this reason that judicial review claims must be brought within limited time frames, so that public authorities are not frozen through the passage of time by the risk of litigation.

Another matter that might militate against the grant of any order was the hardship or prejudice that might be caused to third parties, that is, the litigious should not be able to jump the queue above those whose claims might be more meritorious.

And finally, on resources, the court found that impossibilities does not mean literal impossibility but it does require the authority to show that it has taken all reasonable steps to comply with the duty. What all reasonable steps might be must be looked at in the context of the authority’s existing plans for the allocation of its resources which should not be disrupted.

Where a breach of duty is found or admitted, it is for the authority to explain why no order should be made by providing detailed evidence. It is not for the applicant to show why an order should be made.

When defending an Imam claim there are five comments authorities are expected to address:

  1. Does it have a contingency fund and if it does, has it considered employing it to assist the relevant applicant;
  2. Has there been a history of non-compliance with the duty;
  3. Are the applicant’s circumstance particularly dire;
  4. To what extend has the authority complied with the requirement to take all reasonable steps – the better its attempts the less likely an order will be made; and
  5. Caution should be paid to promoting the litigious above those whose claims are more meritorious.

If local authority can’t perform a statutory duty the Supreme Court was quite clear that it does not have to divert resources from other service areas or borrow more in order to comply with the duty. Generally, the courts won’t look behind budget decisions that have already been taken as the courts recognise that they lack the democratic authority and institutional competence to do so. That means a local authority isn’t required to reallocate funds from other service areas or from other budget heads once its annual budget has been set. However, the Supreme Court was quite clear that local authorities should have regard to using contingency funds. If a local authority has some form of contingency within its budget either within the service or for the full council, the court may expect it to dip into that contingency to provide a property (or in the wider context, comply with a statutory duty).

Where a local authority has failed to provide a suitable property (or comply with another statutory duty) for a considerable period, the court may enquire as to why the budget has not been updated to consider/include this case.

Procurement Guidance Documents

by Kate Hiller, Legal Team Manager

On 26 March 2024, the Cabinet Office published a number of guidance documents to accompany the Procurement Act 2023 and the Public Procurement Regulations 2024 that were laid before Parliament the day before.

At first glance, they do appear quite helpful.  It is appealing that they are all relatively short in length (most of them 5-7 pages but some a little longer).  The content also appears quite focussed on what you need to know rather than padding it out with unnecessary background information, which is helpful.

What is notable is that the majority of the guidance notes published are aimed at explaining the new terminology that the Act and the new Regulations have adopted.  It becomes almost a dictionary of definitions as we move from familiar terminology to the new expressions adopted in relation to similar to concepts.

So far, the guidance includes the following:

  • Contracting Authority definition
  • Covered Procurement definition
  • Valuation of Contracts
  • Mixed Procurement
  • Exempted Contracts
  • Thresholds.

The Cabinet Office note that there are more batches of guidance to follow, with the intention of all guidance documents published by the end of June (some light summer reading for procurement enthusiasts!)

The guidance documents are worth checking out – Procurement Act 2023 guidance documents – GOV.UK (www.gov.uk) – and sharing with your procurement officers in preparation for when the provisions start taking effect.

Applications for Adverse Possession

by Kerrie Culverwell, Senior Property Solicitor

Following from Helen’s article concerning encroachments onto Council Owned Land. I thought it would be helpful to discuss adverse possession – which Helen notes as being a potential consequence of encroachments that are left unchallenged.

Often referred to as “squatters rights” adverse possession is the act of occupying another’s land without permission of the lawful owner. Worryingly for a landowner, if that occupation is not challenged for a period of time (usually 10-12 years) the occupier can make an application for adverse possession of the land, which, if successful will result in possessory title to the land being granted.

This principle is governed by the Limitation Act 1980 and the Land Registration Act 2002. The Land Registry sets out the following criteria for an adverse possession application: –

  • factual possession of the land
  • intention to possess the land
  • possession is without the owner’s consent

if all of the above are satisfied, for a period of 12 years, then an application for adverse possession can be made.

Taking each of the three above points in turn:-

Factual Possession was discussed in the case of In Powell v McFarlane (1977) 38 P & CR 452 which provided that factual possession signifies a degree of physical control. Possession must be exclusive, as the owner and the intruder cannot both be in possession of the land at the same time.

Fencing, that is enclosing the area to the exclusion of other people (including the owner) is strong evidence of factual possession.

Intention to Possess

Usually, factual possession will demonstrate intention. The intention does not need to be to own the land but to possess it. It is worth noting that where the land is used for access, it is unlikely to amount to adverse possession but more likely a prescriptive easement.

Without Consent

The possession of the land must be without the owner’s consent. If the land is used with the owner’s permission by way of a licence (whether formally made or not) there cannot be adverse possession.

If the above criteria are satisfied and sufficient evidence provided (set out in a statement of truth) to the Land Registry, a successful application will result in possessory title being granted.

It is also worth noting that possession by a predecessor can be included in the application. The applicant is not required to have personally been in adverse possession for the entire duration if they are the successor in possession.

If an application is successful and possessory title is granted, it is possible that after a further period of 12 years title can be upgraded to title absolute. Which is the highest class of title and means that the title cannot be claimed against.

The above points really illustrate why an encroachment of land should not be ignored, as there is a potential to lose title to the property.

A blog from our Senior Property Solicitor

by Kerrie Culverwell, Senior Property Solicitor

As I start to wrap up for the eagerly anticipated Christmas and New Year break, it is also an opportunity to reflect on the last seven weeks of my starting with North West Leicestershire District Council (NWL Legal). My previous role was also in a Local Authority, but this being a District Council I have had a slightly different range of matters and clients, together with some similar work. One aspect I enjoy about being a Local Authority Solicitor is the range of instructions we get – it is not just transactional work but a range of queries relating to on-going Property Portfolio Management and Property Maintenance and in that respect, you can still get matters which feel unfamiliar and require some research before providing advice.

I have begun to get to know and support our in-house client departments with property queries, inherited some matters which have been underway prior to me joining and I have also had some instructions from external Parish and Town Council’s.

My instructions have been on a range of matters, some landlord and tenant queries, lease renewals, responsibilities for culverts and drainage, an exciting CPO project which I understand is likely to be the start of many – together with some in-house training for CPO’s.

Despite working from home, I have received a warm welcome from the team and our regular team meetings ensure that we all remain connected and new members are embraced as part of the team. The flexible working policy that NWL has enables me to achieve the perfect balance between being a busy Mum of two young boys and a Solicitor who enjoys growth and development in my role.

I look forward to the New Year with NWL and getting to know the wider team better.

Merry Christmas!

The new world of Legal Apprenticeships

Kate Hiller

by Kate Hiller, Legal Team Manager

This year we embarked on recruiting our new trainee and found that the world of legal qualifications had changed, and we were now looking for a legal apprentice.  With support from our colleagues in HR and our chosen training provider, we navigated our way through a new way of recruiting and we were pleased to see that the interest in the post was as strong as ever, which is a great sign for local government lawyers.

Our appointed apprentice, Charlotte, has been with us now since the end of August and what has been really interesting recently is starting to understand how the apprenticeship works and how it differs from the traditional training contract route.  I remember being a trainee and keeping a log of everything I did to show I met the relevant SRA skills, discussing that with my supervisor and then that being the final record of how I met the standard to qualify.  Now, we are in a new world of portfolios and exams, with overlap of what previous trainees like me would have covered on the professional skills course.

From my own point of view, I would definitely say it is a more focussed approach.  Whilst I can see some difficulties with the idea that the two competencies that the apprentices have to cover each term may not relate to what they have done during that period, I think it is also helpful for us as trainers to really think about what apprentices need to know.  We operate so differently in local government, as compared to the private sector, so we naturally have to follow a ‘what comes up’ approach (and let’s face it, anything could come up!) but having a framework of the competencies and a timeline for when to cover them does seem quite useful.

What I have learnt from this process so far is that it seems sensible to discuss with an apprentice what competencies they have coming up each term that they need to cover in their portfolio, so you can plan training and work opportunities around developing those particular skills.  It has also made me think about our induction process and whether we can tie any of that into the early competencies that the apprentice may cover, for example, explaining more around processes for assessing conflicts and risk, even though we wouldn’t necessarily expect that to arise so early on for them.

It is certainly a new way of training and one we as a team are embracing to support Charlotte on her route to qualification.  I expect there will still be plenty more for us all to learn as the apprenticeship continues!

Entitlement to the Right to Buy

Helen Lisney, Legal Officer

by Helen Lisney, Legal Officer

The  Right to Buy is governed by Part V of the Housing Act 1985 (the Act).

Section 118 of the Act states that a secure tenant has the right to buy, subject to the certain conditions and exceptions.

What is a secure tenant?

Section 79 of the Act provides that a tenancy under which a dwelling house is let as a separate dwelling is a secure tenancy at any time when the conditions described in sections 80 and 81 as the landlord condition and the tenant condition are satisfied, subject to the certain exceptions.

Section 80 – The landlord condition is that the interests belongs to a local authority.

Section 81 – the tenant condition is that the tenant is an individual and occupies the dwelling-house as his only or principal home, or where the tenancy is a joint tenancy, each tenant is an individual and at least one of them occupies the dwelling-house as his only or principal home.

The exceptions referred to in section 79 are set out in schedule 1 to the Housing Act as follows:-

Tenancies which are not secure tenancies.

Para 1A: Introductory tenancies

Para 2: Premises occupied in connection with employment;

Para 3: If the dwelling house is on land acquired by the Council for development purposes and being used as temporary housing accommodation pending development.

Para 4: Accommodation for homeless persons

Para 4ZA: Family Intervention tenancies

Para 4A: Accommodation for asylum-seekers

Para 7: Where temporary accommodation is made available while works are carried out on the house they previously occupied.

Para 8: Where the dwelling is part of an agricultural holding

Para 9: Where the dwelling includes premises licensed to sell alcohol.

Para 10: Student accommodation

Para 11: Where the premises are let for business purposes.

Para 12: Almshouses.

Any other tenancy where the Landlord is a local authority will be a secure tenancy.

There is no mechanism to exclude properties that are owned by the Council from the right to buy, other than as set out below.

Qualifying Period for the Right to Buy  – Section 119

To qualify for the right to buy a tenant must be a secure tenant, and have been a public sector tenant for a period, or periods totalling three years.

A period qualifies if it falls within the following criteria which are included is Schedule 4 of the Housing Act 1985.

Para 2: The secure tenant, or his spouse or civil partner (if they are living together, or in the case of deceased spouse were living together at the time of death) was a public sector tenant

Para 4: The secure tenant since reaching the age of 16 occupied as his only or principle home a dwelling where his parent was the public sector tenant  and he became a public sector tenant less than two years after the end of that period.

Para 5: The secure tenant, or his spouse or civil partner occupied accommodation provided to them as a member of the armed forces.

Circumstances in which the right to buy cannot be exercised – Section 121

Even if a tenant meets the criteria set out above, they will not be able to exercise the right to buy in the following circumstances..

  1. If the tenant is subject to a court order for possession of the property;
  2. If the tenant has made a bankruptcy order that has not been determined, has a bankruptcy petition pending against him,  is an undischarged bankrupt, has a composition arrangement with his creditors the terms of which remain to be fulfilled or is a person to whom a debt relief order applies.
  3. If the tenancy is subject to a suspension period under an order made under section 121A in respect of the secure tenancy.

Exceptions to the Right to Buy – Section 120

There are certain properties that are excepted from the right buy and these are set out in Schedule 5 of the Housing Act 1985.  The following can relate to Local housing authority tenancies:-

Para 4: Where the landlord does not own the freehold of the property and does not have a sufficient interest to grant a lease.

Para 5: Where the dwelling:

– Is within the curtilage of a building which is held mainly for purposes other than housing and consists mainly of accommodation other than housing accommodation or is situated within a cemetery; and

– was let to the tenant in relation to their employment.

Para 7: Properties for occupation by physically disabled persons that are:-

– one of a group of dwellings which it is the practice of the landlord to let for occupation by physically disabled persons, and

– a social service or special facilities are provided in close proximity to the group of dwelling houses for the purpose of assisting those persons.

Para 9: Properties that are:-

– one of a group of dwellings which it is the practice of the landlord to let for occupation by persons who are suffering or have suffered from a mental disorder, and

– a social service or special facilities are provided in close proximity to the group of dwelling houses for the purpose of assisting those persons.

Para 10: Properties that are:-

– One of a group of dwellings which are particularly suitable, having regard to their location, size, design, heating systems and other fieatures, for occupation by elderly persons; and

– which is the practice of the landlord to let for occupation by persons aged 60 or more; and

– either has the services of a resident warden, or the services of a non-resident warden, a system for calling him and the use of a common room in close proximity to the group of dwelling-houses.

Para 11:  Where the dwelling house:-

– is particularly suitable, having regard to its location, size, design, heating system and other features for occupation by elderly persons; and

– was let for the occupation of a person who was aged 60 or more.

In making a decision to deny the right to buy under paragraph 11 above the decision maker will normally be expected to be satisfied on the following points:-

  1. there should be easy access on foot. Access is unlikely to be regarded as easy if it is necessary to climb three or more steps (in addition to the threshold) and there is no handrail;
  2. the accommodation should normally be on one level;
  3. in the case of a flat above ground floor there should be easy access by lift;
  4. there should be no more than two bedrooms;
  5. there should be heating arrangements which function reliably and provide heat to at least the living room and one bedroom, and
  6. the accommodation should be located reasonably conveniently for shops and public transport having regard to the nature of the area.

If the dwelling falls within one of the exceptions above, the landlord shall serve a notice under section 124 of the Act denying the right to buy and stating the reasons, why, in the opinion of the landlord the tenant does not have the right to buy.

Where the right to buy is refused on the basis of paragraph 11 above then the tenant may make an application to the First Tier Tribunal within 56 days of the service of the section 124 notice.  The question shall then be determined by the Tribunal.  If so application is made within 56 days the question shall be deemed to have been determined by the Tribunal.

If the right to buy is refused on any of the other grounds, then the tenant’s challenge would be made by an application to the county court.

Discount entitlement

Under the right to buy provisions the purchase is entitled to an initial discount of 35 % of the market value for years 3-5 of their entitlement.     After year 5 this increases by 1 % for each year of tenancy up to a possible discount of 70%

There is a cap on the amount of discount which is changed each year but is currently set at £96,000.