Recovering Possession and the Gas Safety Certificate Trap Part 1

Unfortunately, the number of Landlords we come across who have failed to meet the requirement to provide a tenant a copy of the most recent gas safety certificate is shocking. Many Landlords prefer to deal with tenants directly instead of instructing an agent or property manager to enter into or renew tenancies on their behalf. Whilst this can save money at the outset, it can be very costly in the future if you do not get it right at (and actually before) the start of the tenancy.

The most notable case in this area is Caridon Property Ltd v Monty Shooltz (2018). This landmark decision confirmed that for tenancies starting on or after 1 October 2015, failure to serve a gas safety certificate on a tenant before they occupy the property means that the Landlord will be precluded from using a section 21 notice to gain possession of the property on no-fault grounds.  What’s more is that in the recent case of Trecarrel House Limited v Rouncefield (2019), it was confirmed that in these circumstances, the use of the section 21 route is forever lost – it cannot be rectified by serving an up to date certificate after the tenancy has commenced. So what does this mean for Landlords? Unfortunately, Landlords who find themselves in this situation will need to rely on other (and less straightforward or speedy) grounds for possession such as rent arrears, which could lead to a counterclaim.

But what about renewal tenancies? If your tenant has been living at the same property and has bee. provided with annual gas safety certificates, if the tenancy comes up for renewal (so technically speaking the start of a new tenancy) does the Landlord have to provide the certificate again to comply? Given that the tenant is already in occupation of the property, it is safe to say that it is not necessary to provide them with the same document again (although the Landlord must ensure that he or she was provided with the most recent gas safety certificate prior to renewal within 28 days of the gas safety inspection). However what if the existing tenant starts a new tenancy with another tenant or tenants (a new joint tenancy). Is it safe to assume that, by virtue of the existing tenant having been given a copy of the annual gas certificate, the incoming tenants have also been given notice?

Section 36(6) of The Gas Safety (Installation and Use) Regulations 1998 states that every landlord shall ensure a copy of the record made is given to each existing tenant of premises to which the record relates within 28 days of the date of the check; and a copy of the last record made in respect of each appliance or flue is given to any new tenant of premises to which the record relates before that tenant occupies those premises.

A strict reading of the law suggests that any new tenant, regardless of whether they are joining an existing tenant or not, should be supplied with the gas safety record made. So in the situation whereby an existing tenant who has had notice is joined by an incoming tenant without notice, does this render the whole tenancy/flat incapable of the use of Section 21? Can you evict the one tenant with notice but not the one without?

Find out in Part 2.

Costs on Norwich Pharmacal Orders

In Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133, the House of Lords established the principle that a third party who has facilitated, albeit innocently, wrongdoing – may be ordered to provide information which will enable the victim to sue the wrongdoer.

Following this case, applications for such Orders for disclosure of documents or information acquired the name “Norwich Pharmacal Orders”.

In Jofa Ltd & Anor v Benherst Finance Ltd & Anor [2019] EWCA Civ 899, the Court of Appeal was asked to review the High Court’s order that the respondent to the Norwich Pharmacal Order pays a proportion of the applicant’s reasonable costs of making the application.

The applicant for the Norwich Pharmacal Order, in this case, was the solicitors for two investment companies on a joint venture property project who believed that they had been defrauded by a small building company, Jofa Limited and it’s sole Director – Joseph Farah. The investors had reason to believe that Jofa and Mr Farah had purportedly issued invoices for works carried out to the property that was paid for by the investors in response to cash calls made by a Mr Elie Taktouk of JMT Property Ltd (who had been engaged to manage the project) – yet the majority of these redevelopment works had not been carried out. As a result, the property had a much lower value than expected and the mortgagor exercised its power to sell. The investors lost everything.

Solicitors for the investors had repeatedly asked Mr Farah and Jofa to disclose various documents including bank statements covering the period works were allegedly being carried out to the property. They were also separately seeking disclosure of Mr Taktouk and JMT’s bank accounts and related documents. Initially, they had tried to interview Mr Farah under caution, failing which they went on to requesting documents and encouraging voluntary disclosure. After Mr Farah’s failure to engage or deliver – they sent a pre-action letter prior to seeking the Norwich Pharmacal Order.

Although Counsel for the investors had asked for their full costs, on the basis that the Jofa and Mr Farah could and should have provided the documents requested from them voluntarily without the need for court proceedings – the Judge found that the respondent should only be liable for such proportion of the costs incurred that could have been avoided had the respondent taken a “neutral position” in response to the applicant’s pre-action letter sent prior to seeking the Norwich Pharmacal Order (instead of ignoring it completely).

In giving the judgment as to costs, the judge said:

“The usual order would be for no order to be made for the costs of the applications. None is sought by the applicants against the third respondent, National Westminster Bank plc. Costs are sought by the applicants against [Jofa Limited and Mr Farah] and that is because of the history…”

Mr Farah and Jofa Ltd appealed this particular point in that the correct starting point on a successful application for a Norwich Pharmacal Order by the court is that the applicant should normally be ordered to pay the costs of the party ordered to give disclosure, including the costs of the application. On behalf of the appellants, it was submitted that the judge approached the question of costs on the wrong legal basis and thus the costs order should be set aside.

Lord Justice Leggatt allowed the appeal, setting aside the Order for costs but also ordering that the respondent in the appeal (being the investment companies) pay the appellants costs of appeal summarily assessed at £13,000. Leggatt LJ further identified that the starting point was that the respondent to a Norwich Pharmacal application does not owe any “legal duty” to the applicant to provide information without a court order, and is entitled to require the matter to be submitted to the court at the expense of the party seeking disclosure. It was also noted that the investment companies’ application for a Norwich Pharmacal Order had not been made under CPR 31.16 on the basis of a prospective claim.

Comment 

This case will be particularly welcomed by those threatened with Norwich Pharmacal Orders, such as banks and financial institutions who are often the first point of call for parties seeking financial information about a third party. These bodies have duties of confidentiality to their customers, and therefore disclosure without an order from the court could expose them to potential claims for breach.

Although a sigh of relief, respondents should not take this judgement as a green light that they will not be exposed to the costs of a Norwich Pharmacal Order application by any means – in exercising its discretion as to the extent of the presumption of costs to be borne by the applicant and the circumstances which would justify a departure from the general rule, the Court of Appeal felt that the particular facts of this case did not warrant a departure from the usual rule.

To be on the safe side, respondents to Norwich Pharmacal Orders would be better off keeping a “neutral position” in response to an application instead of ignoring the request for disclosure altogether.

Tenant Fees Act 2019

The Tenant Fees Act 2019 which came into force today was enacted in order to make provision for four principle matters:

(1)    Prohibiting landlords and letting agents from requiring certain payment to be made or other steps to be taken;

(2)    To make provision about the payment of holding deposits;

(3)    To amend the existing law on the information that is to be provided by letting agents; and

(4)    To make provision about client money protection schemes.

 

What are the Prohibitions for Landlords?

Under the Act, landlords are prohibited from requiring a relevant person (defined as a tenant or a person acting on behalf of a tenant or a person has guaranteed the payment of rent by a tenant) to make a prohibited payment to the landlord or a third party in connection with a tenancy of housing in England. Local housing authorities and the Greater London Authority and their agents are excluded from the definition of a relevant person.

Landlords must also not require a relevant person to enter into a contract with a third party in connection with a tenancy of housing in England if that the contract is for the provision of a service (unless it relates to the provision of a utility or communication service to a tenant) or a contract of insurance.

Landlords are also prohibited from requiring relevant persons to make a loan to any person in connection with a tenancy of housing in England.

In order for the abovementioned requirements to fall foul of the act and satisfy the requirement that it be “in connection with a tenancy of housing in England as per s.1 Tenant Fees Act 2019, the requirement must:

(1)     Be in return for the grant, renewal, continuance, variation, assignment, novation or termination of a tenancy of housing.

(2)    Arise out of a term of the tenancy agreement which imposes one of the prohibited requirements in the event of an act or default of a relevant person;

(3)    Arise out of a term of the tenancy agreement which imposes one of the prohibited requirements if the tenancy is varied, assigned, novated or terminated.

It also a breach of the Act for a landlord to require a person to do of any of the prohibited acts in return for a reference for that person in connection with the person’s occupation of housing.

However, a landlord does not act unlawfully by requiring a relevant person to make a payment, enter into a contract or make a loan if the landlord gives the person the option of doing such an act as an alternative to complying with another requirement imposed by the landlord or a letting agent, provided that the other requirement is not prohibited under either s.1 or s.2 of the Tenant Fees Act 2019 OR it would not otherwise be unreasonable to expect the relevant person to comply with the other requirement.

 

What are the prohibitions for Letting Agents?

Section 2 of the Act mirrors the same prohibitions for letting agents as for landlords except that the exemption for landlords to require relevant persons to enter in contracts with third parties for the provision of a utility or communication service does not apply.

However, letting agents are entitled to demand that relevant persons make payments to them or a third party or demand that a contract is entered into with themselves or a third party where:

(1)    The requirement is imposed in return for the letting agent providing a service to a tenant; and

(2)    As part of the service, the agent finds housing for the tenant to rent and the tenant rents that housing; and

(3)    The agent does not act on behalf of the landlord of that housing, whether in relation to the specific housing or any other housing.

 

What tenancy payments are permitted?

All payments are prohibited under the Act unless a payment is covered under Schedule 1, Tenant Fees Act 2019. The permitted payments are:

(1)    Rent – provided that the rent amount is consistent throughout the period of the tenancy. This does not, however, prohibit increases or reductions in the rent pursuant to an express term of the tenancy or where a subsequent agreement is reached between the landlord and tenant after the commencement of the tenancy. Also excluded are cases where the change in the amount of the rent payable takes place one year after the beginning of the tenancy;

(2)    Tenancy deposits – provided that where the annual rent is less than £50,000, it does not amount to more than 5 weeks’ rent and where the annual rent exceeds £50,000, the tenancy deposit does not exceed 6 weeks’ rent;

(3)    Holding deposits – provided that the holding deposit complies with Schedule 2, Tenant Fees Act 2019 and does not exceed 1 week’s rent and the landlord or letting agent has not previously received a holding deposit in relation to the same housing which not been repaid in full and an exception to full repayment under Schedule 2, Tenant Fees Act 2019 does not apply (exceptions to repayment include where the deposit is applied toward the rent with consent and where the tenant fails their right to rent check);

(4)    Payments in the event of a relevant default – a relevant default means the loss of a key or other security device giving access to the housing to which the tenancy relates or a failure to make payment of rent within 14 days of the due date. Payments in the event of a relevant default are lawful provided that at all times the amount of the payment represents the costs that were reasonably incurred by the landlord or agent as a result of the default and there is supporting evidence which is provided to the person who is required to make the payment. Any amount in excess of what was reasonably incurred is a prohibited payment. In relation to unpaid rent, the amount of costs requested must not exceed the aggregate amount of rent owed on each day that the rent is unpaid applying an interest rate of 3% above base rate. Furthermore, only one of the landlord or the letting agent is entitled to request payment for failing to pay the rent on time in order to avoid double recovery.

(5)    Payment of damages for breach of a tenancy agreement or an agreement between the letting agent a relevant person.

(6)    Payment on variation, assignment or novation of a tenancy – provided that the sum does not exceed the greater of the sum of £50 or the reasonable costs of the person to whom the payment is to be made in respect of the variation, assignment or novation of the tenancy.

(7)    Payment on termination of a tenancy – if it is for terminating the tenancy before the end of the fixed term or where the tenancy is periodic, without the tenant giving notice as required under the law. In both cases, the amount must not exceed the loss suffered by the landlord or the reasonable costs of the letting agent in relation to the termination as applicable.

(8)    Payments in respect of council tax to a billing authority;

(9)    Payments in respect of utilities – utilities are defined as electricity, gas or other fuel, water or sewage.

(10) Payment in respect of a television licence;

(11) Payment in respect of communication services – these are defined as a service enabling a landline telephone; the internet; cable television and satellite television.

 

What happens where a landlord or letting agent breaches a requirement of the Act?

Under s.4 Tenant Fees Act 2019, any term of a tenancy agreement which breaches ss.1-2 is not binding on a relevant person, but the rest of the agreement continues, so far as is practicable, to have effect and where a loan is made, the loan is repayable by the borrower to the relevant person on demand.

Under s.6 of the Act, there is a duty imposed on every local weights and measures authority in England to enforce the prohibitions applying to landlords and letting agents and the requirements relating to the treatment of holding deposits. However, this duty is subject to any enforcement action being taken by another enforcement authority or the lead enforcement authority.

It is interesting to note that under s.6(3) of the Act, where housing is located in the area of more than one local weights and measures authority, the breach is taken to have occurred in each of those areas. The local weights and measures authority must under s.6(4) of the Act have regard to any guidance issued by the Secretary of State or the lead enforcement authority and will have the investigatory powers set out under Schedule 5, Consumer Rights Act 2015.

District councils which are not the local weights and measures authority have a discretion to enforce the prohibitions on landlords and lettings agents as well as the requirements in relation to the treatment of holding deposits under Schedule 2, Tenant Fees Act 2019. In doing so, district councils must have regard to any guidance issued by the Secretary of State of the lead enforcement authority, and they have the same investigatory powers under Schedule 5, Consumer Rights Act 2015 as the local weights and measures authority.

Under s.8 of the Act where an enforcement authority is satisfied to the criminal standard that a landlord or letting agent is in breach of the Act, the authority may impose a financial penalty on the person in respect of the breach. The amount of the financial penalty is up to the complete discretion of the enforcement authority except that it should not ordinarily exceed £5,000. However, in cases where the enforcement authority is satisfied beyond reasonable doubt that an offence has been committed under s.12 of the Act (which deals with repeat offenders within a five-year period of the last breach or conviction), the financial penalty may exceed £5,000 but must not exceed £30,000. A financial penalty can only be enforced under one of the relevant sections and not both for the same breach. Furthermore, where financial penalties cannot be imposed whilst criminal proceedings remain pending or where a person is found not guilty of an offence.

The enforcement authority has the power under s.10 of the Tenant Fees Act 2019 to require the landlord or letting agent to repay the amount of the prohibited payment outstanding (where it has not been applied to the rent or towards the tenancy deposit with the consent of the parties) provided that the tenant has not made an application him or herself under s.15 of the Act to the First-tier Tribunal. The enforcement authority also has a discretion under s.11 of the Act to require that interest is paid on the amount due from the landlord or letting agent.

Where corporate landlords or letting agents commit an offence under s.12 of the Act with the consent or connivance of, or attributable to the neglect on the part of an officer or member of the corporate body, s.13 of the Act makes it clear that the officer or member, as well as the corporate body, is liable to be proceeded against and punished.

 

What is the procedure for imposing a financial penalty and is there a right of appeal?

Before imposing a financial penalty, an enforcement authority must serve a notice of intent within 6 months of the date that the enforcement authority had sufficient evidence of a breach. It can also serve the notice at any time that the breach is ongoing or within 6 months of the last day on which the ongoing breach occurs.

A notice of intent must set out the date the notice is served; the amount of the proposed financial penalty; the reasons for proposing to impose the penalty; and information about the right to make representations.

A person receiving a notice has 28 days to make written representations about the proposal to impose a financial penalty.

At the end of the 28-day period, the enforcement authority must decide whether to impose a financial penalty on that person and if so, the amount. Where a financial penalty is imposed, the enforcement authority serves a final notice requiring the penalty to be paid and must set out the relevant period as well as information about appeal rights.

Appeals are a re-hearing of the authority’s decision and may also consider matters which the enforcement authority was not aware of at the time of its decision (fresh evidence).  The First-tier Tribunal has the same financial penalty powers as the enforcement authority.

Where a financial penalty is unpaid in whole or in part, the relevant person may recover the penalty through the County Court and the enforcement authority may help a relevant person to make an application to recover the sums owed by conducting proceedings or by giving advice to the relevant person.

 

Is there anything else to watch out for?

Both landlords and tenants should note that under s.17 Tenant Fees Act 2019, there is a restriction on the service of a s.21 notice where a landlord receives a prohibited payment under the Act and the entirety of the prohibited payment has not been repaid save where the (part) payment or deposit has been applied towards the payment of rent or the tenancy deposit and the remainder has been returned.

Under s.18 of the Act, lettings agents are now required to publicise their fees on third party websites and to include a link back to their own website where a list of their agency fees are published. Agents are also required under s.19 of the Act required to display or publish with the list of fees a statement of whether they are a member of a client money protection scheme.

These provisions may be enforced by the local weights and measures authority in England in respect of where the breach occurs as set out under ss.20-23 of the Act.

The Tenant Fees Act 2019 is very much focused on introducing greater levels of transparency over fees, setting limits on the costs that can be imposed and recovered from tenants but without preventing landlords and agents from recovering their reasonable costs depending on all the facts of the case.

Landlords and tenants who are unsure of their rights and obligations or wish to undertake a review of their standard documentation should contact our specialist Property team for advice and assistance.

Obtaining Permission to bring Committal Proceedings for False Statements

In Zurich Insurance Plc v Romaine [2019] EWCA Civ 851, the Court of Appeal was asked to clarify the approach a court should take when asked to grant permission to bring committal proceedings under Civil Procedure Rules Part 81 against a party who has made a false statement of truth or false disclosure statement in proceedings.

The claim 

The case concerned a personal injury claimant who had brought a claim for noise-induced hearing loss. A medical report was attached to the particulars of claim and it stated that the claimant did not have any noisy hobbies. As required under Civil Procedure Rule Part 22, the particulars contained a statement of truth: in this case, it had been signed by the solicitors. The claim was defended and following disclosure of the claimant’s medical records, the records suggested that the claimant was a professional singer and motorcyclist. Both of these activities were potentially relevant to the question of whether his former employers had caused his hearing loss.

A request for further information was submitted by the defendant insurers and in the reply, the claimant denied that he was a professional singer, that he was in a live band and stated that he practiced the guitar only occasionally.  The reply also had a statement of truth: this time signed by the claimant.  These statements were repeated in the claimant’s witness statement: signed by the claimant. Searches of the claimant’s Facebook page revealed amongst other things that in fact, he had ridden motorcycles; he performed in a live rock-and-roll band and played the electric guitar as well as being the lead singer; the band performed and rehearsed regularly.

As a result of the discoveries, the defendant applied to strike out the claim for dishonesty.  Shortly after, a notice of discontinuance was filed by the claimant’s solicitors and a week after that, the solicitors were intervened by the SRA. The defendant then issued committal proceedings against the claimant alleging that the claimant was guilty of contempt of court for making a false statement in a document verified by a statement of truth. A witness statement in response was submitted by the claimant.

The application for permission to bring committal proceedings was dismissed on paper for two reasons. Firstly, the Judge decided that whilst there was good evidence of false statements being made deliberately, the documents on which the statement of truths appeared had not been signed by the claimant (whose signature had been digitally inserted) and it was not a sufficiently strong case bearing in mind the need for great caution before granting permission. Secondly, although it was in the public interest that dishonesty in litigation is identified publicly, it was not in the public interest that committal proceedings be brought in this particular case where the claimant had discontinued his claim at an early stage of the proceedings.

Following an oral hearing, the application was again dismissed and the applicants appealed to the Court of Appeal.

The principles relevant to the grant of permission to bring committal proceedings

The Court of Appeal reviewed the case law and identified the following principles:

  1. A person who makes a statement verified with a statement of truth or a false disclosure statement is only guilty of contempt if the statement is false and the person knew it to be so when he made it.
  2. It must be in the public interest for proceedings to be brought. In deciding whether it is in the public interest, it is relevant whether (I) there is a strong case; (ii) the false statements have been significant in the proceedings; and (iii) did the party understand the likely effect of the statement and the use to which it would be put in the proceedings.
  3. The court at the permission stage must give reasons but should be careful to avoid prejudicing the outcome of the full hearing.
  4. Only limited weight should be attached to the likely penalty.
  5. A failure to warn the party against whom the application is made at the earliest opportunity that they may have committed a contempt of court is a matter the court may take into account.
  6. Ultimately, the only question is whether it is in the public interest for contempt proceedings to be brought.
  7. At the permission stage, the court in determining whether the alleged contempt is of sufficient gravity for there to be a public interest in taking proceedings in relation to it will consider (I the strength of the evidence tending to show that the statement in question was false; (ii) the strength of the evidence tending to show that the maker knew at the time the statement was false; (iii) the significance of the false statement having regard to the nature of the proceedings in which it was made; (iv) the use to which the statement was put in the proceedings; (v) any evidence available as to the maker’s state of mind at the time, including his understanding as to the likely effect of the statement and his motivations in making the statement.
  8. The court should consider whether the contempt proceedings would justify the resources which would have to be devoted to them.
  9. The court should have regard to whether proceedings would further the overriding objective.
  10. The penalty which the contempt, if proved, might attract plays a part in assessing the public interest in bringing proceedings.

At [28], the Court stated that the overall approach of a court to an application for permission to bring committal proceedings should start with a consideration of whether there is a strong case that both the statement was untrue and that the maker knew it was untrue at the time that he made it. All the other relevant factors set out above will then have to be taken into account in making a final decision.

Ultimately, the Court emphasised that the issue for a court on an application for permission to bring committal proceedings is not whether a contempt has been committed, but whether it is in the public interest for proceeding to be brought to establish whether it has or not and what, if any, penalty should be imposed. Therefore, “the question of the public interest also naturally includes a consideration of proportionality” at [30].

The Court allowed the appeal because it considered that the Judge was mistaken in his approach to the issue of the absence of a warning to the claimant and that the Judge should have factored in the tactic of early discontinuance by unscrupulous claimants and lawyers as a way of protecting themselves from the consequences of their dishonest conduct.

On the warning issue, the Court held that the absence of a warning would not be a relevant factor in all cases. In practice, the absence of a warning was unlikely to be relevant in cases where the alleged party making the false statement is himself the claimant in the underlying claim and where the allegedly false statements are contained in claims documents prepared by himself or his solicitors and signed with a statement of truth: “it is difficult to conceive of circumstances where a claimant can be heard to say that he was prejudiced by the absence of warnings about the risks of contempt proceedings if he, himself, has been responsible for bringing a fraudulent claim” – at [47].

On the discontinuance issue, it was held that the Judge should have had regard to the real mischief that the tactic of early discontinuance represents in the low-value personal injury arena and the court needed to be astute to protect its court processes being used as an instrument of, or aid to, fraud in any way.

 

Black Antelope Law Partners Up With CrowdJustice

Black Antelope Law is pleased to announce that it has partnered up with the innovative lawtech company, CrowdJustice, as part of its continuing commitment to making high-quality legal services as accessible as possible.

CrowdJustice enables litigants to raise funds for legal fees and costs from friends, family and other supporters online. Funds can be raised publicly, by crowdfunding from a community of online supporters, or privately, through CrowdJustice Private, which enables them to set up a whip-round among their close network, with invitation-only access to their fundraising page. Funds raised can also be used to help litigants cover some of the risk of paying the other side’s legal costs if they lose.

Funds raised on CrowdJustice are transferred directly to our client account on the litigant’s behalf, which means that clients do not need to handle the administration of payments or deal with the compliance issues involved in holding funds. It also means that litigants can tell everyone donating that funds raised will be transferred directly to their lawyers’ client account, rather than to them personally.

Black Antelope Law, a winner of the CorporateLiveWire Innovation & Excellence Awards 2019, believes that this new partnership will be an exciting development for its business and consumer clients whilst also widening access to justice for those who wish to work with our lawyers but who have previously been unable to due to financial constraints and will complement its existing options for litigation funding.

 

 

Privacy Rights of Tenants When Enforcing Possession Orders

In Ali & Anor v Channel 5 Broadcasting Ltd [2019] EWCA Civ 677, the Court of Appeal was asked to consider the privacy rights of tenants when High Court Enforcement Officers (HCEOs) are filmed enforcing possession orders.

“Can’t Pay? We’ll Take It Away” is a popular Channel 5 series which records the work of High Court Enforcement Officers executing Writs of Possession. Footage is shown of HCEOs entering properties and evicting tenants who have fallen behind payments due under their tenancy.

The Court was told that the aim of the producer, Mr Brinkworth, was to raise public levels of awareness of the process and effects of enforcement and in particular, how possession can be expedited by enforcing County Court Orders in the High Court. Mr Brinkworth felt that a large number of tenants were unaware of this process and once proceedings had reached that stage, the tenants’ rights were very limited. He hoped to help the public appreciate the harsh reality and consequences of debt.

The story of Shakir Ali and Shahida Aslam, the Claimants in this matter is a perfect example of tenants who are ignorant of the expedited eviction process. When their eviction was filmed in 2015, Mr Ali appeared shocked and confused as he was under the impression that he had a lot longer to leave the property. He was woken up by the bailiffs entering his home just after 8am in the morning and was recorded looking rather flustered in his pyjamas and a vest top. Mr Ali and Mrs Aslam repeatedly told the film crew not to film, and Mr Ali even wrote a letter to Channel 5 objecting to the airing of the footage, particularly as his daughter was being bullied in school as a result of the eviction. However, Channel 5 decided to broadcast the programme.

Being faced with Bailiffs entering your home is a distressing experience, which understandably one would not want to share with 9.65 million viewers. Meanwhile, the Landlord’s son recorded two short videos of the eviction and published these on his social media accounts through which the Claimants’ friends and relatives became aware of the eviction.

Mr Ali and Mrs Aslam challenged the airing of footage displaying their eviction as a breach of the privacy rights of tenants. They did not complain about the broadcasting of the fact that they were being evicted but argued that the images conveying the claimants, their home and the details of the eviction amounted to a misuse of private information. During the episode not only was Mr Ali filmed in his pyjamas but shots were also aired of the family’s possessions in bags, their children’s bedrooms as well as a scene of the Landlord’s son humiliating the couple. The show revealed details of the Claimants’ financial situation (both being unemployed and in receipt of housing benefit).

Channel 5 defended the claim for damages on the basis that the claimants did not have a reasonable expectation of privacy in these circumstances, and if they did, this was outweighed by the right to freedom of expression due to the significant public interest in this matter. The High Court Judge found that the Claimants’ Article 8 rights to privacy had been engaged and the airing of what he considered to be “fairly sensitive” private information was not justified for the purpose of public interest. He awarded the Claimants £10,000 each in damages. In arriving at that figure, the Judge took into account the fact that the information was already in the public domain to a certain extent given the posting of the videos on social media. The Claimants appealed the amount of damages awarded and the Judge’s approach to arriving at the figure whilst the Channel 5 cross-appealed on the finding of liability. The Court of Appeal rejected both appeals and found that the amount awarded in damages to the Claimant was reasonable and also that the High Court Judge had correctly found that the tenants right to privacy outweighed the right to freedom of expression/the public interest.

Lessons learned:

  1. It is important to note that the filming of the eviction was not of itself considered an unlawful breach of the privacy rights of tenants nor was the broadcasting of the fact that the tenants had been evicted.
  2. Landlords need not be concerned if they have consented to and/or had an eviction filmed for the show as they are not liable in such proceedings (liability being with Channel 5 who broadcasted the programme)
  3. Landlords should, however, bear in mind that tenants, even those who fail to leave a property voluntarily within the time specified in a Possession Order still have a reasonable expectation of privacy.

Does this mean the end of one of Britain’s favourite shows? Channel 5 has no plans to stop the show as far as we are aware but will certainly need to tone down or adopt a less intrusive approach going forward if they want to avoid similar claims.

Innovator Visa Requirements and the Start-Up Visa

From the end of March 2019, the UK government has introduced the innovator visa for foreign entrepreneurs and officially closed the Tier 1 (Entrepreneur) category. The innovator visa is designed for experienced entrepreneurs who have £50,000 investment and for less experienced entrepreneurs, the start-up visa route has been created as an alternative (discussed below).

The requirements

Those applying for the innovator visa need to fulfil two sets of criteria, which are at Part W3 and Part W6 of the Immigration Rules.

The general requirements are:

·       Endorsement — by an approved body

·       £50,000 investment

·       Maintenance requirement — £945 in savings for 90 days, dependents £630 each

·       English language ability — test passed at level B2

·       Credibility assessment

·       Must be 18 years or above

·       None of the general grounds for refusal apply

·       Innovator must devote their entire time to the business (unlike start-up visa holders who can work elsewhere)

·       Successful applicants must pay the Immigration Health Surcharge

·       A criminal records certificate is needed for overseas applicants

·       The application costs — entry clearance is £1,021 and extensions £1,277

Switching from start-up visas and certain other work visa categories into the Innovator visa route is permitted. This visa may be curtailed if the endorsement is withdrawn or if the endorser loses its status as an endorsing body. A refusal of the visa can only be challenged by administrative review.

The £50,000 could be from any source, e.g. from the applicant, a third-party individual, the endorsing body, a UK organisation employing 10+ people, or a UK or overseas organisation with fewer than 10 employees plus a legal representative’s and bank letter.

UK start-up visa

From 29 March 2019 onwards, new applicants may apply for a ‘start-up’ visa. By introducing the ‘start-up’ visa, the UK government has replaced the Tier 1 (Graduate Entrepreneur) and intends to encourage the development of entrepreneurship in the UK to promote an improving economy.

Unlike the Tier 1 (Graduate Entrepreneur) route, new applicants for the purposes of obtaining the ‘start-up visa’ do not need to show that they have secured funds to invest into their business and can also apply from outside of the UK or switch from Tier 1 (Graduate Entrepreneur), Tier 2 and Tier 4 (General) (subject to certain restrictions). An interesting point to note that new applicants may also be able to switch from the visitor category if they have been undertaking permitted activities as a prospective entrepreneur.

Under the ‘Start-up- visa route, new applicants need to fulfil two sets of criteria, which are at Part W3 and Part W5 of the Immigration Rules.

Part W3 contains general requirements that also apply to other visas as a whole. A new applicant needs to be over 18 years of age and pass an English language test at the upper intermediate (B2) level.

A new Applicant will also need to meet a maintenance requirement by showing they have held £945 in savings over a 90-day period before they apply. However, they do not need to provide evidence of maintenance funds if the letter from their endorsing body confirms they have been awarded funding of at least £945.

Part W5 contains the requirement that the Applicant must be endorsed by an organisation that will assess the Applicant’s business idea. Much similar to the Tier 1 (Graduate Entrepreneur) Route, the start-up visa will outsource the assessments of business ideas to independent bodies familiar with supporting entrepreneurs. They will scrutinise an idea for its innovation, viability, and scalability. This will be the trickiest part of the application as a number of the organisations are not yet issuing endorsements.

The start-up visa, if granted to an Applicant, will be for a set period of two years, or the remaining balance of two years if the applicant has previously held leave in the Tier 1 (Graduate Entrepreneur) or start-up categories. At the end of the two years, the person can switch into the innovator category based on the same business idea, provided they can still obtain an endorsement.

The Involvement of Children In Family Proceedings under FPR 16.6

In the recent decision in CS v SBH [2019] EWHC 634 (Fam), the High Court was asked to decide whether or not a child who had instructed a legal representative, had sufficient understanding of the family proceedings within the meaning of Family Procedure Rule 16.6 so as to give instructions to their representative to pursue an appeal.

The case is of relevance to family practitioners as most of the case law on the participation of children in family law appeals have been in the context where the Civil Procedure Rules apply, i.e. at Court of Appeal level and not in cases involving appeals from a Circuit Judge to the High Court as in this case, where the Family Procedure Rules (FPR) apply.

Background

The family proceedings had started out as an application to vary a child arrangements order made by the Family Court in January 2017 by the child’s mother. In January 2017, the court had ordered that the child should live with her father and spend time with her mother. On 6 November 2018, the Family Court dismissed the mother’s application. Following the order on 6 November 2018, the child (CS), appealed the court’s refusal to make an order that she should live with her mother. At the date of the order of 6 November 2018 and at the date of the hearing before the High Court, CS was 12 years old going on 13.

The dispute over the child arrangements for CS had first begun in 2015 and during the original court proceedings, CS had the benefit of a Children’s Guardian. When the variation application was pursued by the mother, the same Children’s Guardian was appointed to act for CS under FPR 16.4 and she, in turn, appointed a child law solicitor to act for the child. In October 2018, CS’ solicitor met with her to decide whether or not CS was competent to instruct her directly without a Children’s Guardian in case there should be a conflict situation between the Children’s Guardian and CS’ own wishes and feelings. CS’ solicitor decided that CS was not competent in applying the criteria under rule 16.29 of the Family Procedure Rules.

In the end, there was no conflict and the Children’s Guardian filed a report recommending that the child should live with her mother.

Finally, prior to the final hearing of the mother’s variation application on 6 November 2018, CS wrote a letter to the Judge saying that her views were not influenced by her mother.

In a detailed judgment, the Judge considered that although there was evidence of change in the mother’s emotional stability, there was insufficient evidence of a change in the mother’s attitude to the father so as to enable the court to change the child’s primary place of residence as there remained a significant risk of parental alienation with the father if the court did so.

The Appeal

On appeal, CS was represented by a Solicitor who had been contacted by the child’s mother. CS had not returned to her previous Solicitor because she disagreed with the competency assessment that had been carried out in October 2018.

A further issue identified by the court on appeal was whether an appeal constituted new proceedings or not for the purposes of FPR 16.6. If so, the criteria to be applied was that under FPR 16.6(3) and it was for the new Solicitor to make an assessment of competency, subject to the court’s power to intervene of its own motion. If the appeal did not constitute new proceedings, the criteria to be applied was set out under FPR 16.6(6) and the court’s permission would be required before CS could instruct a legal representative. After balancing the factors for and against, Mr Justice Williams decided that the appeal was a continuation of the first instance proceedings and therefore the correct test was FPR r16.6(6) which requires the court to consider that “the child has sufficient understanding to conduct the proceedings”.

In arriving at its decision as to CS’ competency, the High Court reviewed the authorities at paragraphs 51-59 and found at [63] that the case law showed there has been a shift from a paternalistic approach in favour of an approach giving significantly more weight to the autonomy of the child in evaluating whether they have sufficient understanding.

In carrying out its assessment, the Court observed that the letter from CS to the Judge in October 2018 was at odds with the decisions of the previous judges and the expert in the first set of proceedings that CS’ wishes were enmeshed with those of her mother and were not in fact independent.

The court also had statements from both the previous solicitor who had acted for CS alongside the Children’s Guardian and her solicitor on appeal. The solicitors on appeal had first seen CS in May 2018 but did not go on to be instructed until more recently. However, they had assessed her as competent at that point in time. No further assessments had been carried out since she “instructed” them to appeal. On the other hand, CS’ previous solicitor maintained that she lacked competence in the proceedings which had been determined and implied that she would still lack competence on appeal.

Balancing all the relevant factors, the Court found that CS did not have sufficient understanding to conduct the proceedings and that its answer would have been the same under both the tests provided for under FPR 16.6. A particularly persuasive factor was the fact that the child’s previous solicitor was more fully aware of the entire history of the proceedings and so her evaluation was a more informed evaluation of the child’s sufficiency of understanding than that of CS’ new solicitor.

As a result, the court ruled that the child was unable to pursue an appeal without a Children’s Guardian as the circumstances under FPR 16.6 had not been met by CS.

Proxy Marriages and EU Law

An important principle in EU law is the concept of abuse of rights, as the exercise of Treaty rights by individuals may require EU Member States to ignore their own national laws.

In the UK, the Home Office will sometimes refuse applications if it believes that there is a clear intention to abuse EU rights by an applicant, e.g. where there has been a use of fake payslips or a marriage of convenience (i.e. a sham marriage). The onus is on the Home Office to provide evidence of the lack of genuineness of the applicant‘s employment or marriage.

In IS (marriages of convenience) Serbia [2008] UKAIT 00031, the Asylum and Immigration Tribunal held that the burden of proving that a marriage is not a “marriage of convenience” for the purposes of the EEA Regulations rests on the appellant: however, the appellant is not required to discharge it in the absence of evidence of matters supporting a suspicion that the marriage is one of convenience (i.e. there is an evidential burden on the Respondent Home Office).

In practice when allegations are made that a marriage is a sham, it is usually necessary to show the genuineness of the relationship by providing witnesses who are acquainted with the couple, close family members, best friends, managers, co-workers, etc.  Appellants would also be expected to provide proof of communication, itemised bills, or social media information. This list is not exhaustive and will depend on the circumstances surrounding the case.

Particular issues arise time and again in relation to proxy marriages:

1.     The appellant must prove that the proxy marriage is lawful in the country in which it was contracted.

2.     The appellant has the obligation to prove that their proxy marriage was in accordance with the laws of the country in which it took place and that both parties were free to marry.

In this situation, the production of a marriage certificate duly attested and issued by a competent authority of the country in which the marriage took place, would in some ways satisfy the presumption of validity.

For a long time it was believed that a proxy marriage contracted according to the laws of the country in which it took place was also required to be validly recognised as a marriage by the EU country of the other contracting spouse: Kareem (Proxy marriages – EU law) [2014] UKUT 24 (IAC).

However, in Awuku v SSHD [2017] EWCA Civ 178, the courts finally put it to rest that proxy marriages are a matter of private international law and not EU law and that marital status and nationality are clearly distinguishable. Provided that a proxy marriage complies with the law of the land in which it is celebrated it will be recognised in England and Wales.

How does a person then prove that the proxy marriage complies with the law of the land in which it is celebrated? Some practitioners suggest a country expert with a detailed report, but others prefer to get an official document issued by Foreign Ministers and then provide an endorsement by their Ambassador in the UK.  A letter from an Ambassador can negate the use of expert reports because the Ambassador is the representative of his or her Government in the UK. Furthermore, considering that embassies can be registered as a place where their citizens can freely get married, it is surprising that to-date many embassies have taken no action towards providing this confirmation service.

Very often it is our experience that the Home Office fails to grapple with issues of what constitutes a proxy marriage in some countries, for example, Senegal. Senegal is a Muslim country and about 95 percent of the population is Muslim. Many of its citizens are abroad and not everyone can return home to get married.

A proxy wedding or proxy marriage is a wedding in which one or both of the individuals being united are not physically present. Usually, being represented instead by other people and this would be the only option available to them.

Many Senegalese are unable to physically attend their wedding in Senegal for various reasons and this is due to material circumstances which are almost impossible to overcome. This might be caused by military service, criminal convictions, travel restrictions, immigration status or even religious and cultural reasons.

It is worth noting however that the legal requirement for an expert report of Ambassador’s letter is not enough on its own. The documents submitted alongside applications must clearly evidence companionship, emotional support and an abiding interest in each other‘s welfare and wellbeing from the beginning of their relationship.

In other claims, the Judge is asked to assess the durability of the relationship as opposed to the fact of marriage. In light of the numerous considerations set out above as to why proxy marriages are an important option for couples, it is essential that we remind ourselves there are no formal ways to truly assess marriages, as couples live in marriage in so many different ways and styles. As a result, in assessing whether there is sufficient evidence or suspicion by the state so as to interfere with EU law rights, decision-makers (both the Home Office and Judges) must not impose their own expectations of how a couple might conduct their relationship and should instead consider whether the evidence that has been presented is properly corroborative of the relationship claimed as directed in the Upper Tribunal decision in Goudey (subsisting marriage – evidence) Sudan [2012] UKUT 00041 (IAC).

Homes (Fitness for Human Habitation) Act 2018 – A Review

On 20 March 2019, the Homes (Fitness for Human Habitation) Act 2018 (“the Act”) came into force. The Act amends the Landlord and Tenant Act 1985 by introducing new sections (in England only) 9A, B and C.

What is the purpose of the Act? 

The purpose of this legislation, as suggested by its title, is to ensure that rented accommodation meet certain property standards and are safe for human habitation. To achieve this, Section 9A implies a covenant into any tenancy granted on or after 20 March 2019 that the property is fit for human habilitation at the time the tenancy is granted and will remain so during its term. What is interesting is that the obligation on the landlord to ensure fitness for human habilitation applies not only to the particular dwelling occupied by a tenant but also to other parts of the building which the landlord has an interest in, including common parts and retained parts (such as the roof, stairwells, hallways, entrances, etc.).

What tenancies does the Act apply to?

The Act applies to both private and social rented properties as follows:

  1. Leases granted for a term of less than 7 years
  2. Secure, assured or introductory tenancies for a fixed term of 7 years or more
  3. Tenancies granted before, but renewed for a fixed term on or after 20 March 2019
  4. From the 20 March 2020 the Act will apply to all periodic tenancies. This is because the Act gives landlords of properties let before 20 March 2019 12 months from the date of commencement to comply.

What standard is considered “unfit” for human habilitation? 

It is ultimately for the court to decide whether a dwelling is or is not fit for human habilitation.

In arriving at its decision, the court will have regard to the condition of the property with respect to the following factors set out in section 10 of the Landlord and Tenant Act 1985:

  • the condition of the building
  • the stability of the building
  • any damp problems
  • the safety of the internal layout
  • the extent of natural lighting
  • the sufficiency of ventilation
  • the supply of hot and cold water
  • the drainage and sanitary facilities
  • the facilities for the preparation and cooking of food and for the disposal of wastewater.

In addition, a property may be deemed unfit as a result of any hazard that is described in the Housing Health and Safety Rating System which currently lists 29 hazards including asbestos, fire, pests and noise.

Rented accommodation will be unfit for human habilitation if the condition of the property is such that, in relation to any of the factors listed above, it is not reasonably suitable for occupation by humans.

Are there any exceptions? 

A landlord will not be held responsible if the property is unfit for habitation as a result of the tenants’ behaviour/treatment of the property and/or breach of the tenant covenants. Nor will they be held responsible for damage or destruction as a result of events beyond the Landlord’s control such as fire, storm, flooding, etc.

The landlord is not obliged to carry out works to the property if doing so would put him in breach of an enactment (such as planning permission) or require the consent of a third party (such as a superior landlord) which has been withheld. The same applies in respect of items that the tenant is entitled to remove from the dwelling.

What does the Act mean for tenants?

If a landlord fails to adequately maintain the property, a tenant can seek redress by taking their landlord to court for breach of contract (namely, breach of the implied covenant of fitness for human habilitation). If the court finds that the breach has occurred, it can award damages to compensate the tenant for the living situation and/or order specific performance for the landlord to rectify the issues identified. The amount of damages awarded to the tenant is at the discretion of the judge taking into account the severity of the unfitness, the length of the issues and the potential harm to the tenant.

It is important that a tenant notifies its landlord of any problems as soon as possible as the landlord is responsible from the moment he or she is made aware of the issue by the tenant (save for HMOs).

What does the Act mean for Landlords? 

For Landlords of joint tenancies, the tenant will need to notify the landlord of any property defect making the property unsuitable or unsafe. The landlord will have to address the issue in a reasonable amount of time. As to what is reasonable depends on the seriousness of the defect as well as the particular circumstances. For example, extreme damp and mould in a property housing a child with asthma are likely to be considered more urgent then say the same property housing a single, healthy young adult.

However, this does not mean that landlords can sit back and wait for the tenant’s call regarding any potential defect under the Act.

A landlord is considered immediately responsible for any defect in the common or retained parts of the building. Therefore, landlords must be vigilant and ensure the building and shared areas are well-maintained and safe for human use. For landlords letting out their property on a room by room basis (such as HMO), they will be held immediately responsible for a defect from the moment it occurs regardless of tenant notification, although they still have a reasonable time in which to fix it. The best way for Landlords to ensure they are compliant in these situations is to ensure they conduct regular inspections and keep detailed records.

Comment

The changes to the Landlord and Tenant Act 1985 will fundamentally change the law of disrepair. Until now, the 1985 Act only required landlords to keep rented properties in “repair”. Therefore, if a defect was not classed as a “disrepair” there was no obligation on the landlord to address this. For example, if a boiler was faulty then the landlord would need to repair this, however, if the property had no heating at all then technically speaking the landlord would not be obliged to install a boiler because there was no “disrepair” and doing so would amount to an improvement. The coming into effect of the Act now means that landlords will have to take active steps to improve properties to ensure that they meet standards “fit for habitation” instead of waiting for an existing feature to fall into disrepair before being held accountable.

The new legislation will be particularly welcomed by local authority tenants experiencing health and safety hazards in their homes. Whilst such tenants could and can complain to their landlord, Local Authorities cannot take enforcement action against themselves which left their tenants at a substantial disadvantage. The Homes (Fitness for Human Habitation) Act 2018 allows such tenants to bring claims against local authorities that fail to provide accommodation fit for human habitation.

Commentators believe the legislation opens up the avenue for a whole new set of “fitness claims” to be brought against Landlords, in addition to disrepair claims.  It is likely that the existing Housing Disrepair Pre-Action Protocol will be amended to include this head of claim.

Whatever the future holds, Black Antelope Law has specialist experience in acting for both tenants and landlords in housing disrepair and condition disputes and can assist you every step of the way.