Common Sense Advice for Defending Disrepair Claims

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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.

Register of Interests

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Rebecca Elliott, Solicitor

by Rebecca Elliott, Solicitor

Ahead of the upcoming local elections I have spent some time looking at the interests that members are required to declare upon taking office.  These are requirements of Parish, town and District Councillors.

Pecuniary Interests

Section 30 of the Localism Act 2011 states:

“A member or co-opted member of a relevant authority must, before the end of 28 days beginning with the day on which the person becomes a member or co-opted member of the authority, notify the authority’s monitoring officer of any disclosable pecuniary interests which the person has at the time when the notification is given.”

Not only does this cover the member’s own interest but also the interests of their:

-Spouse of civil Partner

-Someone they are living with as spouse or civil partner

-Family member

-Close associate

Pecuniary Interests are defined in the Relevant Authorities (Disclosable Pecuniary Interests) Regulations 2012 and include the following:

-Work

-Money received towards expenses either acting as Councillor or election expenses

-Contracts with the Council which you have beneficial interest in

-Interests in land in your Council’s area

-Licences to occupy land within your Council’s area

-Tenancies where your Council is the landlord

-Beneficial interests in securities of a body where –

  1. That body has a place of business or land in your Councils area; and
  2. Either –
  3. Value of securities exceeds £25k or 1/100 of the total issued share capital of that body; or
  4. if the share capital of that body is of more than one class, the total nominal value of the shares of any one class in which the relevant person has a beneficial interest exceeds one hundredth of the total issued share capital of that class.

Failure to register pecuniary interest is a criminal offence and may be punished by a fine of up to £5,000 and/or disqualification for up to 5 years.

Where the requirement to register a pecuniary interest is also included in your Council’s Code of Conduct, your Monitoring Officer may also take corrective action as a result of a breach of the code.  A challenge may be mounted against any decision made that the failure to declare could effect.

Sensitive Interests

There are sometimes items that fit within the list above that a Member may feel they do not wish to disclose where to do so could lead to them being subject to violence or intimidation.  For example if their partners employment was a Police Officer.

With the Monitoring Officer’s agreement these can be treated as sensitive interests.  They still have to be kept on the Council’s register but would be omitted from any copy of the register which is open to members of the public.

Non pecuniary Interest

In addition to the requirements of the legislation, Councils will detail other interests that if feels need to be disclosed for transparency. These are often referred to as non-pecuniary interests.  The requirements to disclose are usually found within the Council’s Code of Conduct.

Failure to disclose interests in accordance with the Code of Conduct could result in corrective action being taken by the Monitoring Officer.  Further a challenge may be mounted against any decision that this failure could affect.

Service Level Agreements

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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

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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

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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

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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.

NWL Legal Virtual Work Experience Week 5 – 9 September

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by Jodie Bradford, Legal Practice Manager

Week commencing 5 September saw our very first (and not last!) virtual work experience week. The programme was open to aspiring solicitors studying law at University and was well attended by a variety of students.

The team put on 10 sessions throughout the week on different aspects of working in a local government legal team. The sessions included Being a Local Government Lawyer, Running a Public Procurement Exercise, Drafting a Privacy Notice, Disrepair Claims, Dealing with a Right to Buy Transaction, Being a Trainee Solicitor in Local Government, Case Management Systems, the Admin Team and Compliance and Being a Local Government Monitoring Officer. We also held a session with some of our clients (huge thank you to Chris Elston, Clare Proudfoot and Barrie Walford for volunteering their time for this one!) and we also gave the students the opportunity to attend the Council meeting in the evening. The attendees were even treated to some homework to complete after some of the sessions!

We had some really great feedback on the week:

“…I benefited greatly from the experience and connected with great professionals. I enjoyed learning something completely new”

“Thank you all very much for working to put this together, it is really refreshing and exciting to be able to gain relevant work experience that is not exclusionary or patronising.”

We also did a closing session on the Friday whereby we received general feedback from some of the attendees that said they enjoyed the variety of the sessions, they felt they were clearly structured and organised and they liked having time between the sessions to do research and tasks. The students also said they liked that you could book onto individual sessions, rather than having to commit to every session which made it easier for those that were working throughout the week and they generally enjoyed where we talked about the local area and the involvement we have in things that go on within the district as people don’t tend to appreciate the work that goes on in the background.

One of the attendees even took the time out of their day to send our Trainee Solicitor a personal message on LinkedIn about her session “Being a Trainee Solicitor in Local Government” and said that her session was “descriptive but not overwhelming”, that Lauren was “positive and upbeat” and that she seems like a “great person to learn from”.

Overall it was a really good week and we were really glad to hear that the students felt they had gained something out of it as a lot of work went into organising the week – we are already looking at running another session next year.

The Parish Fair

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by Jodie Bradford, Legal Practice Manager

NWL Legal attended the Parish Fair on Tuesday, 27 September. The Parish Fair is an annual event organised by North West Leicestershire District Council attended by our local Parish/Town Councillors and Clerks. The fair provides an opportunity for the Clerks and Councillors to stop by and have a chat with different service areas of the district council and also attend some talks and demonstrations held by some of the teams. The last Parish Fair was in 2019 and has unfortunately been cancelled for the last 2 years so it was nice to have the event back up and running again.

Some of the workshops included a tour of the new Coalville and Whitwick Leisure Centre, a Waste Services vehicle demonstration in the car park and talks on anti-social behaviour, recruitment, resilience, enviro-crime and elections! Some of our Parish Council clients used the event as an opportunity to get an update on some of the matters they have instructed NWL Legal on.

Rebecca Elliott, Contracts Solicitor (pictured right) attended the fair on behalf of NWL Legal, having been on maternity leave. Laurent Flinders (pictured left), Information Governance Officer also attended alongside Rebecca, having been with the council since March, this was her first event on behalf of the team.

NWL Legal stall at the Parish Fair 2022

The Public Sector Equality Duty and the Councils housing function

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Section 149 of the Equality Act 2010 (“the Act”) sets out the Public Sector Equality Duty (PSED). It requires public authorities, in the exercise of their functions, to have due regard to the need to:

  1. eliminate discrimination, harassment, victimisation and any other conduct prohibited by the Act;
  2. advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and
  3. foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

“Public Authorities” are listed in Schedule 19 of the Act, and this list includes “A county council, district council or parish council in England”.

Therefore, the Council must have due regard to the PSED whenever it exercises its functions. This is particularly important when considering enforcement action. The Council has a range of enforcement functions from licensing (for example revoking a taxi driver’s licence), to environmental health/protection (for example issuing an abatement notice) to community safety (for example issuing a community protection notice). This note relates to the Council’s housing function (for example seeking possession) though the practical steps (see later) can be implemented when carrying out any enforcement function.

There are nine Protected Characteristics (s.4 of the Act), these are:

– age;

– disability;

– gender reassignment;

– marriage and civil partnership;

– pregnancy and maternity;

– race;

– religion or belief;

– sex; and

– sexual orientation.

The Protected Characteristic that arises most commonly for District Council’s in possession cases is disability.

S.149 does not dictate a certain result. Therefore, it is important to remember that the PSED is about processes not about outcomes. However, s.149 also doesn’t prescribe the process, therefore, what the Council needs to be able to do is shows that there has been rigorous consideration of the duty.

Turner J in London and Quadrant Housing Trust v Patrick [2019] EWHC 1263 (QB) provided a helpful summary of what the duty involves in possession proceedings:

Application of the PSED

(i)  When a public sector landlord is contemplating taking or enforcing possession proceedings in circumstances in which a disabled person is liable to be affected by such decision, it is subject to the PSED.

Nature and scope of the PSED

(ii)  The PSED is not a duty to achieve a result but a duty to have due regard to the need to achieve the results identified in section 149. Thus when considering what is due regard, the public sector landlord must weigh the factors relevant to promoting the objects of the section against any material countervailing factors. In housing cases, such countervailing factors may include, for example, the impact which the disabled person’s behaviour, in so far as is material to the decision in question, is having upon others (e.g. through drug dealing or other anti-social behaviour). The PSED is “designed to secure the brighter illumination of a person’s disability so that, to the extent that it bears upon his rights under other laws it attracts a full appraisal”.

Making inquires

(iii)  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.

The importance of substance over form

(iv)  The PSED must be exercised in substance, with rigour and with an open mind and should not be reduced to no more than a “tick-box” exercise.

Continuing nature of the duty

(v)  The PSED is a continuing one and is thus not discharged once and for all at any particular stage of the decision making process. Thus the requirement to fulfil the PSED does not elapse even after a possession order (whether on mandatory or discretionary grounds) is granted and before it has been enforced. However, the PSED consequences of enforcing an order ought already to have been adequately considered by the decision maker before the order is sought and, in most cases, in the absence of any material change in circumstances (which circumstances may include the decision maker’s state of knowledge of the disability), the continuing nature of the duty will not mandate further explicit reconsideration.

The timing of formal consideration of the PSED

(vi)  Generally, the public sector landlord must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before seeking and enforcing possession and not merely as a “rear-guard action” following a concluded decision. However, cases will arise in which the landlord initially neither knew nor ought reasonably to have known of any relevant disability. The duty to “have due regard” will then only take on any substance when the disability becomes or ought to have become apparent. In such cases, the lateness of the knowledge may impact on the discharge of the PSED. For example, cases may arise in which countervailing interests justify a less formal PSED assessment than would otherwise have been appropriate. Thus a tenant whose anti-social conduct has already been adversely affecting his neighbours for a considerable time but whose disability is raised at the eleventh hour may well find that the discharge of the PSED does not necessarily mandate a postponement of the date or enforcement of a possession order. Of course, the obligation to have “due regard” still arises but the result of the discharge of that obligation may well be less favourable to the person affected where, through delay, the landlord’s options have been limited and the rights and reasonable expectations of others have assumed a more pressing character. Each case will, of course, depend on its own facts.

Recording the discharge of the duty

(vii)  An important evidential element in the demonstration of the discharge of the PSED is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements. Although there is no duty to make express written reference to the regard paid to the relevant duty, recording the existence of the duty and the considerations taken into account in discharging it serves to reduce the scope for later argument. Nevertheless, cases may arise in which a conscientious decision maker focussing on the impact of disability may comply with the PSED even where he is unaware of its existence as a separate duty or of the terms of section 149.

The court must not simply substitute its own views for that of the landlord

(viii)  The court must be satisfied that the public sector landlord has carried out a sufficiently rigorous consideration of the PSED but, once thus satisfied, is not entitled to substitute its own views of the relative weight to be afforded to the various competing factors informing its decision. It is not the court’s function to review the substantive merits of the result of the relevant balancing act. The concept of ‘due regard’ requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors.

Practical steps to follow to show due regard to the PSED:

  1. Be aware of an individual’s issues/difficulties;
  2. Consider alternative action – is there alternative action available and if not why not.
  3. Liaise with relevant bodies – this could be other sections within the Council or third parties for example GPs, police, social services;
  4. Apply polices – the Council should have policies which consider the circumstances of the district, set out issues which may arise and the process to follow. This will help to ensure consistency in decision-making. However, be aware that policies cannot address every circumstance.
  5. Keep a proper paper trail – there must be rigorous consideration of the PSED but this also needs to be evidenced. Equality Impact Assessments (EIA) are valuable tools for evidencing that rigorous consideration.
  6. Be aware of changing circumstances/information and review the PSED – if necessary carry out a further EIA. This is particularly so, if there are subsequent decisions to be made, for example, an initial EIA should be carried out when the initial decision is made (for example serving a notice of seeking possession). As a result of receiving this notice, the tenant might get in touch and disclose information relevant to a Protected Characteristic. When it comes to making any further decisions (for example applying for possession), this new information needs to be taken into account and the EAI amended – it is not appropriate to rely on the initial EIA, as this has not considered all the information available at the time of making the further decision.

We are recruiting a part-time Property Lawyer…

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Senior Property Solicitor

Band G plus up to 6 market supplements

£21,201 – £27,388 per annum (annual equivalent salary £35,336 – £45,648 per annum) plus annual car allowance of £2,856

Part-time permanent contract, 21¾ hours per week

Are you ready to step into your first management role, or do you have existing management experience that you would like to develop more?

Do you enjoy and have significant experience in the areas of residential and commercial property?

Would you like to have the opportunity to further develop your skills by gaining experience in large regeneration projects?

If you have answered yes to these questions, our Senior Property Solicitor vacancy might be the role for you!

What are we looking for?

As our new senior property lawyer you will lead on all complex property legal matters for the Council and for external clients as required.  You will have line management responsibility for one team member, so previous line management experience, or an eagerness to step into a management role, is required.  As a senior member of the legal team, you will help and support the Legal Services Team Manager and Head of Legal and Commercial Services in areas of corporate governance, as well as building strong and lasting internal and external relationships.

Are we right for you? 

We are a solution-focussed council.  Through listening and fair and balanced decision-making, we aim to do the best we possibly can for our community.

Legal Services play a vital role in ensuring good governance and helping officers find solutions to problems with a ‘can do’ approach.  The Legal Services team has an existing external client base of 32 clients, with plans to grow it even further.

You will be joining a team of specialist lawyers, each with their own areas of expertise, including contracts and procurement, planning, property, regulatory and enforcement.  Our structure enables everybody to focus on their own specialisms whilst also being exposed to other areas of law through close working relationships with colleagues.

You will be supported by a first-class administration and practice management team, as well as working closely with information governance colleagues as needed.

As a Council we are embracing agile working, acknowledging that the old days of 9-5 in the office do not need to be the norm.  Your role will be classed as a hybrid role, recognising that there may be times when you need to attend the offices (for example, to complete transaction documents) but outside of that, as long as it works for us and our customers too, we are happy for you to take a flexible approach to your working arrangements.

Are you right for us? 

We want you to succeed in this role.  To do so, you will need to be able to undertake work in the areas of commercial and residential property; due diligence; property transactions; regeneration projects; and compulsory purchase orders.

You will need to be able to advise in the context of local government law and therefore experience of this is desirable but not essential, as we would hope that this develops over time.

To fit in well with the team, you will be proactive, a quick learner, able to work flexibly and someone who can bring enthusiasm to the role.

If you would like to know more about the job feel free to contact Kate Hiller, Legal Services Team Manager on 01530 454379 or by email to kate.hiller@nwleicestershire.gov.uk

You can apply for any of our posts online at https://www.nwleics.gov.uk/pages/jobs_and_careers

Applications must be made using the on-line application process.

Disabled applicants who meet the essential criteria for the job will be guaranteed an interview.

We welcome applications from all sections of the community.

Closing Date: Sunday 11 September 2022