Round the houses

District Judge Nic Madge reports on the latest developments in housing law

The Law Commission is continuing to work on its housing project, which aims to produce a new statutory housing code.

Copies of its consultation papers Renting Homes - 1: Status and Security (paper 162), Renting Homes - 2: Co-occupation, Transfer and Succession (paper 168) and Land, Valuation and Housing Tribunals (paper 170) can still be downloaded from its Web site at www.lawcom.gov.uk/222.htm#lccp168.

Despite the continuing consultation, the past six months have seen the implementation of a number of piecemeal reforms of housing law and procedure.

Homelessness

Most of the homelessness provisions in the Homelessness Act 2002 were brought into force on 31 July 2002 (see [2002] Gazette, 5 September, 31).

The remaining provisions (section 11 - new Housing Act 1996 section 204A allowing appeals against refusal to accommodate pending appeal, and schedule 1 paragraph 17 - power to extend time for filing of section 204 appeal) were implemented in England on 30 September 2002 by the Homelessness Act 2002 (Commencement No.

2 and Transitional Provisions (England)) Order 2002 SI No.

2324.

Some guidance on the procedure to be followed on section 204A appeals is contained in amendments to the Civil Procedure Rules 1998 (CPR) PD 52, paragraph 24.

Wherever possible, section 204A appeals should be made in the same appellant's notice (form N161) as the substantive section 204 appeal.

They should not be listed before district judges.

The Court of Appeal has already considered a new section 204A.

In Francis v Kensington and Chelsea RLBC [2003] EWCA Civ 443, 19 March 2003, it held that on an appeal against the refusal of a local authority to provide temporary accommodation pending appeal, the county court should not consider the merits of the appeal, but should apply the judicial review principles which applied under the old law (see R v Brighton & Hove Council, ex parte Nacion (1999) 31 HLR 1095, CA) unless the court decides that the local authority did not direct itself in accordance with R v London Borough of Camden, ex parte Mohammed (1998) 30 HLR 315, QBD.

Allocation

The Homelessness Act 2002 also contains provisions amending the Housing Act 1996, part 6 (allocation of local authority accommodation).

These changes were brought into force on 31 January 2003 by The Homelessness Act 2002 (Commencement No.

3) (England) Order 2002 SI No.

3114 (C.104).

They are further qualified by the Allocation of Housing (England) Regulations 2003 SI No.

3264, which:

- Prescribe circumstances in which provisions of part 6 do not apply;

- Deem eligible for allocation some categories of persons from abroad; and

- Disqualify as 'ineligible' other categories.

The Allocation of Housing (Wales) Regulations 2003 WSI No.

239 (W.36) have the same effect in Wales.

The new Allocations Code of Guidance is at: www.housing.odpm.gov.uk/local/guide/index.htm

Assured tenancies

The Regulatory Reform (Assured Periodic Tenancies) (Rent Increases) Order 2003 SI No.

259 amends section 13 of the Housing Act 1988.

That section contains a procedure allowing landlords of assured tenants to increase rents annually by serving notices proposing new rents.

The statutory instrument is designed to overcome the argument that a strict interpretation of existing section 13(2)(c) renders many rent increases made by registered social landlords invalid because, although increases may have occurred annually, in some years they may have purported to take effect a few days earlier than 'the first anniversary of the date' when the last increase took effect.

The effect of the amendment is to enable landlords to set a fixed day (for example the first Monday in April) on which rent increases are to take effect.

The first time that the rent is increased after the order comes into force, the increase may take effect not less than 52 weeks after the start of the tenancy or, if the rent has already been increased, not less than 52 weeks after the date of the last increase.

On the second and subsequent occasions, the increase may take effect not less than 52 weeks after the last increase, unless that would result in the increase taking effect on a date falling a week or more before the anniversary of the first increase after the date on which the order comes into force.

In such a case the increase may not take effect until 53 weeks after the date of the last increase.

As a result of this change the Assured Tenancies and Agricultural (Forms)(Amendment)(England) Regulations 2003 SI No.

260 prescribe new forms to be used by landlords when proposing new rents under section 13(2).

The new forms came into effect on 11 February 2003.

There was a short period when both old and new forms were valid, but landlords have had to use the new forms from 11 April 2003.

The Assured Tenancies and Agricultural Occupancies (Forms) (Amendment) (Wales) Regulations 2003 WSI No.

307 (W.46) prescribe the new forms to be used in Wales.

The amendments do not affect assured tenancies which contain a contractual provision enabling landlords to increase the rent.

In that case, no statutory notice is necessary (Housing Act 1988 section 13(5), but see Bankway Properties v Dunsford [2001] EWCA Civ 528; [2001] 1 WLR 1369).

Nor do the amendments affect the section 13(4)(a) procedure whereby a tenant who does not agree with the proposed increase can apply to the Rent Assessment Committee to determine a reasonable open market rent, but in this connection see the recent Court of Appeal decision of R (Lester) v London Rent Assessment Committee [2003] EWCA Civ 319, (2003) The Times, 25 March, where it was confirmed that the tenant's application must be received by the committee before the beginning of the period when the proposed new rent will take effect.

ASBOs

From 1 April 2003, it has been possible for 'relevant authorities' to obtain anti-social behaviour orders (ASBOs) in the county court (Crime and Disorder Act 1998, section 1B(4)).

A CPR Practice Direction (30th Update) sets out the procedure to be followed.

It provides that where the authority is the claimant in the principal proceedings, an application for an ASBO should be made in the claim form.

If the authority becomes aware of circumstances leading it to apply for an ASBO after the claim has been issued, it should make an application as soon as possible.

If the authority is not a party to the proceedings, an application to be made a party should be made in accordance with CPR part 19.

An application for an ASBO must be accompanied by written evidence.

Interim possession orders

The 30th Update also brings the procedure for applications for interim possession orders against trespassers (see Criminal Justice and Public Order Act 1994 sections 75 and 76) into CPR part 55.

Claim forms must be in form N5.

Applications for orders must be in form 130 and defendants' witness statements must be in form N133.

District Judge Nic Madge sits at West London County Court.

The third edition of his Housing Law Casebook has just been published by the Legal Action Group, tel: 020 7833 7424