The main provisions of the DoE consultation paper on Access to Local Authority and Housing Association Tenancies were noted in the last update.

The consultation paper has not yet given rise to any more concrete proposals.

No measures were included in the Queen's Speech, lack of parliamentary time being cited.Decision making processAuthorities' powers may be delegated to committees or sub-committees.

Committees or sub-committees may not, however, include officers and must include a proper allocation of seats amongst the political groups of the authority's members.A committee or sub-committee must allow the public access to its meetings and to its agenda material and minutes (pt VI of the Local Government Act 1972).

An authority must also maintain and publish rules governing the allocation of their housing stock (s.106(1) of the Housing Act 1985).In R v London Borough of Tower Hamlets ex p.

Khalique [1994] 26 HLR 517, QBD, the authority had accepted a permanent duty to secure accommodation for the applicant under s.65(2) of the 1985 Act, which duty it was discharging in stages.The applicant's family were in rent arrears in their intermediate accommodation, and he was informed that he had been suspended from the 'active housing list', under the authority's arrears policy.The substance of this policy, so far as is material, was that those whose arrears exceeded £500 would not be offered permanent (final stage) accommodation.

Sedley J held that as the policy in question had been formulated by a body set up within the authority known as the 'homelessness board', which comprised four majority party members and two officers, the body was not a committee of the authority and had no lawful power to determine policy or practice.The policy amounted to an instruction to officers to render the applications of pt III applicants who were more than £500 in arrears, 'non-active'.'A group of councillors and officers which does not amount to a committee of the authority, is under no obligation to give public access to its meetings or its agenda material or minutes.

Accordingly, their taking decisions on policy or practice was a 'grave abuse of power.

It is government by stealth, the antithesis of democracy and openness which both constitutionally and prescriptively under the Local Government Act 1972 are the right of every citizen and the obligation of every local authority...

The fundamental vice of the treatment of Mr Khalique...is that it has been determined by the decision of...a small group of majority party councillors sitting with two officers, who neither individually nor collectively possessed the power to decide anything on the local authority's behalf or in its name.

It is the product of a usurpation of power, and in this court it falls accordingly.'As an alternative ratio decidendi of the case, Sedley J held that it was, in any event, unlawful to refuse to offer permanent accommodation on the basis of rent arrears.

It would be invidious for the local authority, and unfair to those with housing rights under the legislation, if an authority were entitled to pick and choose amongst those who, in law, ranked equally for statutory housing rights.If rent arrears were to be taken into account, the authority would have to give the individual notice, grounds and a right of reply.

The cause of the arrears may render it unfair to penalise the tenant on account of them, and so authorities would become 'domestic courts of morals' and too often judges in their own cause.It was inconceivable that Parliament intended anything so complex or invidious to enter the discharge of housing duties.

Other remedies and consequences were prescribed by law where a tenant failed to pay the rent.In R v Tower Hamlets LBC ex p.

Khatun [1994] The Times, 8 December, the Court of Appeal rejected the proposition, enunciated at first instance by, Sir Louis Blom-Cooper QC, sitting as a Deputy High Court Judge, that an authority were obliged, when conducting an intentionality interview, to use an interviewer from outside the authority.The court held that the authority's intentionality decision was not flawed just because the interviewer was employed by the authority and was aware of the acute housing shortage it faced.Settled accommodationTwo decisions, one of the Court of Appeal and the other at first instance, offer guidance as to accommodation which may be capable of being settled.

One issue arose from three cases (R v Rushcliffe BC ex p.

Summerson [1992] 25 HLR 577; R v Brent LBC ex p.

Macwan and R v Brent LBC ex p.

Awua) in which Sir Louis Blom-Cooper QC, sitting as a Deputy, had held that temporary accommodation, provided as a stage in the discharge of the permanent housing duty, could not be settled accommodation; settled accommodation was not achieved until the final accommodation was provided.

Another issue relates to whether or not assured shorthold tenancies can constitute settled accommodation.The Court of Appeal in Awua [1994] 26 HLR 539, held that Sir Louis Blom-Cooper's proposition went too far.

Temporary accommodation and a settled residence were opposite sides of the same coin, and the intermediate stages of accommodation could amount to settled accommodation; the precise border between settled and temporary accommodation was a question of fact and degree depending upon the circumstances of the individual case.It was relevant to the question to take into account that the local authority had accepted the full permanent housing duty to an applicant, even if the accommodation in question was only a staging post to that end.Dillon LJ stated that, in Macwan, the applicant had been placed, as a stage in the process, in private sector leased accommodation under a three- year lease.

This was clearly a settled residence.

At the other end of the scale, bed and breakfast accommodation in a hotel was clearly only temporary.

His lordship would expect hostel accommodation for parents with small children to be temporary and not settled.However, it would be necessary to consider the policy of the authority as to such hoste ls.

A different policy may give rise to different results.

With elderly people, the result may be different - they may require the support of hostel staff.As to the nature of an assured shorthold tenancy ('AST'), it was argued by the applicant in R v Rochester-upon-Medway CC ex p.

Williams [1994] 26 HLR 588, that the authority had erred, when finding her intentionally homeless, in considering her last period of settled accommodation to be a 12 month AST which her landlord had not renewed after its expiration, due to damage caused to the property.She argued that an AST was not settled accommodation, so the authority ought to have considered her last settled accommodation to be the secure tenancy she had previously left due to violence.Auld J held that there was no justification for contending that the AST should have been disregarded.

The tenancy was for a period of a year but such tenancies could continue indefinitely by virtue of s.5(2) of the Housing Act 1988.His lordship also held that he would have refused any relief, in any event, in his discretion, inter alia, as the applicant had, by the date of the hearing, secured for herself a further 12 month AST.

She argued that such a tenancy was less advantageous than a secure tenancy.However, a tenant, under an AST of potentially indefinite duration, had no proper claim for relief as homeless simply because she was not as secure as she would have been if granted a council tenancy.

S.65(2) required the provision of long-term settled accommodation, but not a guarantee of permanence in the form of a secure tenancy.As paragraph 12.10 of the code of guidance indicated, an AST likely to continue indefinitely as a statutory AST under s.5(2) of the 1988 Act may qualify as a discharge of the permanent duty.

Accordingly, the applicant's current AST, of 12 months and extendible, was comparable with what she could properly have been offered under s.65 had she been found unintentionally homeless.

Should she become homeless after it expired, she could make a fresh application.DamagesIn R v Northavon DC ex p.

Palmer [1994] 26 HLR 572, a decision on the inter-relationship between public and private law duties under pt III, the authority had found an applicant to be neither homeless nor threatened with homelessness.

An application for leave to apply for judicial review was adjourned pending a reconsideration by the authority.

In the light of a change of circumstances, the authority, on its reconsideration, accepted the applicant as homeless.The restored leave application, seeking a declaration that the initial failure to process the application was a breach of statutory duty, and also an award of damages, was granted.Roger Toulson QC, sitting as a deputy, dismissed the substantive application for damages.

The duty to make enquiries under s.62 was a public law duty and gave rise to no private law cause of action for damages.

Further, no private law duty had arisen under either s.63 (temporary duty to accommodate) or s.65 (permanent duties), as the authority had not reached a decision that the conditions upon whose existence such duties depended, were satisfied.Such decisions were made in the exercise of the authority's public law functions.

Until a decision had been reached that the conditions giving rise to the duties were satisfied, the applicant had no private law rights and so any claim for breach of statutory duty would be struck out.Statutory nuisanceAn action seeking the specific performance of repairing covenants contained in leases may be brought in the county court .

Certain deficiencies in accommodation, however, will not give rise to such a cause of action, where the deficiencies do not result from or constitute a 'defect', or have not caused any 'damage'.A common example is condensation induced mould growth (see, eg Stent v Monmouth DC [1987] 19 HLR 269; Quick v Taff Ely DC [1986] QB 809, CA).

However, a prosecution in the magistrates' court may be brought under pt IIIof the Environmental Protection Act, 1990, if the state of the premises constitutes a statutory nuisance.In R v Highbury Corner Magistrates Court ex p.

Edwards [1994] HLR 682, QBD, the magistrate's clerk refused to issue a summons under s.82 of the 1990 Act, on the basis that the complainant was seeking the same remedy in civil proceedings which had already been commenced in the county court, and that accordingly the criminal proceedings were unjustified.

It would also be unfair for the landlord council to meet two cases on the same general issue, and face a fine as well.The Divisional Court held that, while it had sympathy with the clerk's concerns and the apparent duplication of proceedings and the added burdens of costs and court time, and while it was quite uncertain whether, once the works ordered in the civil proceedings were completed, the magistrates would be persuaded that there was a continuing statutory nuisance, there was material which said that there would be.

Moreover, the law recognised that the magistrates could require works to be undertaken to abate a statutory nuisance which the county court could not order.While, in general, the clerk had discretion not to issue a summons, on the material before him he had no choice but to issue one.

Moreover, there being a case for a summons to issue, he could not decline to do so simply because he thought it wrong that the council should face a fine as well as being required to undertake works.Private nuisanceIn Habinteg Housing Association v James [1994] EGCS 166, the Court of Appeal emphasised several important propositions, considering a landlord's liability in nuisance for an infestation of cockroaches in a property held under a lease which reserved no part of the property for the landlord.It held that no term could be implied into the lease that the landlord would take reasonable steps to abate a nuisance.

Such a term lacked clarity and was unnecessary to give the contract effect.

Moreover, there was no property of which the landlord was an 'occupier' nor of which he had 'control', apart from which, liability could not be established as it had not been proved that the cockroaches had entered from the landlord's property.Further, no independent liability in negligence could arise by importing a duty of care on to a landlord who had no power at common law to intervene.

Such power could only be supplemented by the statutory intervention of the Environmental Protection Act, 1990.