Legal advice re. funding of Temporary accommodation via the HRA

The request was successful.

Dear Haringey Borough Council,

Please provide full text of the legal advice referred to in Para 4.5 of the report to Cabinet 12 November 2019 entitled ‘Approval of additional Housing Revenue Account budget for new build properties and acquisitions of existing properties to house homeless households’.

Para 4.5 reads, ‘In respect of the acquisition of existing properties to be used as temporary accommodation for homeless households, the Council recently received legal advice that acquisitions of such properties should be purchased within the HRA, rather than the General Fund.’

Yours faithfully,

Paul Burnham

FOI, Haringey Borough Council



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Haringey Borough Council

Dear Mr Burnham,

 

Freedom of Information / Environmental Information Regulations Request:
LBH/9415019

 

I acknowledge your request for information received on 11 December 2019.

 

This information request will be dealt with in accordance with the Freedom
of Information Act 2000 / Environmental Information Regulations and we
will send the response by 13 January 2020

 

Yours sincerely,

 

 

 

Corporate Feedback Team

 

This email and any files transmitted with it are confidential, may be
subject to legal privilege and are intended only for the person(s) or
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Paul Burnham left an annotation ()

Response by 13 January 2020

Dear Haringey Borough Council,

Please note that this FOI response was due by 13 January 2020.

Can you please send me the response as soon as possible.

Yours faithfully,

Paul Burnham

FOI, Haringey Borough Council

Dear Mr Burnham
Thank you for your email below. I am sorry that you have not received the response to your recent FOI request. I have now chased the service.

Regards

Corporate Feedback Officer

Corporate & Customer Services

Haringey Council
5th Floor, Alexandra House, 10 Station Road, Wood Green, London N22 7TR

PLEASE NOTE THAT I DO NOT WORK MONDAY’s

www.haringey.gov.uk
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Dear Haringey Borough Council,

Please note that this FOI response was due by 13 January 2020.

I can see no reason for this continued delay.

Can you please send provide me with a date by which I can expect a response to my request.

Yours faithfully,

Paul Burnham

Haringey Borough Council

Dear Mr Burnham,

 

Thank you for your email dated 11 December 2019. 

 

I am sorry we have not responded to your enquiry / complaint by the due
date. We are chasing this with the service responsible for responding to
your enquiry.

 

 

Regards,

 

 

Corporate Feedback Team

From: Paul Burnham
Sent: Friday, January 24, 2020 9:15 PM
To: FOI
Subject: RE: Your Freedom of Information request - LBH/9415019

 

Dear Haringey Borough Council,

Please note that this FOI response was due by 13 January 2020.

I can see no reason for this continued delay.

Can you please send provide me with a date by which I can expect a
response to my request.

Yours faithfully,

Paul Burnham

show quoted sections

Paul Burnham left an annotation ()

FOI response was due by 13 January 2020. Two reminders sent and acknowledged.

Levett Robin, Haringey Borough Council

Dear Mr Burnham,

Re: Freedom of Information Act Request ref: LBH/9415019

 

Thank you for your request for information received on 11 December 2019,
in which you asked for the following:

 

“Please provide full text of the legal advice referred to in Para 4.5 of
the report to Cabinet 12 November 2019 entitled ‘Approval of additional
Housing Revenue Account budget for new build properties and acquisitions
of existing properties to house homeless households’.”

 

I apologise for my delay in responding.

 

My response is as follows:

 

The legal advice referred to is subject to an exemption under s42 of the
Freedom of Information Act 2000.  The Council considers however that the
public interest in maintaining the exemption is outweighed in respect of
the disclosure of the relevant text below by the public interest in
disclosing the information.

 

The relevant text of the legal advice referred to is as follows:

 

“Accounting for the purchase within the Housing Revenue Account

The properties are being acquired as housing land. The proposed
acquisition falls within s.17(1) in Part II of the Housing Act 1985, which
provides materially as follows:

“(1) A local housing authority may for the purposes of this Part—

(b) acquire houses, or buildings which may be made suitable as houses,
together with any land occupied with the houses or building …”

 

By s.17(2):

“The power conferred by subsection (1) includes power to acquire land for
the purpose of disposing of houses provided, or to be provided, on the
land or of disposing of the land to a person who intends to provide
housing accommodation on it …”

 

It follows that the properties (once acquired) will prima facie fall
within s.74, Local Government and Housing Act 1989 (duty to keep a Housing
Revenue Account), which provides materially as follows:

“(1) A local housing authority shall keep, in accordance with proper
practices, an account, called the ‘Housing Revenue Account’, of sums
falling to be credited or debited in respect of—

(a) houses and other buildings which have been provided under Part II of
the Housing Act 1985 (provision of housing);

(b) land which has been acquired or appropriated for the purposes of that
Part; …”

 

Consideration has been given as to whether the Scheme falls within the
following exception in s.74(3):

“(b) land acquired by the authority for the purpose of disposing of houses
provided, or to be provided, on the land, or of disposing of the land to a
person who intends to provide housing accommodation on it ...”

 

However, by s.74(5)(b):

“In this Part …

(b) references (however expressed) to a disposal are references to a
conveyance of the freehold, or a grant or assignment of a lease (other
than a shared ownership lease) which is a long tenancy within the meaning
given by section 115 of the Housing Act 1985 [term certain exceeding 21
years]”

 

Thus, for the purposes of the HRA exception in s.74(3)(b) of the 1989 Act,
“disposing of the land” has a special and limited meaning; whereas for the
purposes of Part II of the 1985 Act, it carries its ordinary and wider
meaning, viz. the voluntary transfer of rights in land.

 

For the above reasons, for the purpose of the HRA exception in s.74(3)(b),
the proposed short letting of the properties to HCBS does not amount to
“disposing of the land” in the relevant sense and therefore the proposed
short letting is not a proper basis for concluding that this exception
applies. Secondly, LBH has not yet decided whether to sell the properties
at the end of the 7 year period. At present, this remains one of several
options only. On that basis, it is difficult to argue that disposing of
them at the end of the 7 year period is the purpose of the acquisition.

 

There is a further exception in s.74(3) in respect of:

“(d) such land, houses or other buildings as the Secretary of State may
direct”

 

The HRA (Exclusion of Leases) Direction 1997 excludes from the HRA leases
acquired by a local authority for a term not exceeding ten years for the
purpose of providing accommodation pursuant to the authority’s functions
under Part VII of the Housing Act 1996. This is, I believe, the source of
the understanding among officers that Part VII TA (typically provided
under such “STL” schemes) falls outside of the HRA. However, the 1997
Direction would not apply here, since LBH is proposing to acquire freehold
and/or long leasehold interests. Nor does any other relevant direction
apply.

 

I therefore conclude that the properties would be properly accounted for
within the HRA.”

 

If you are unhappy with how we have responded to your request you can ask
us to conduct an Internal Review. If so, please contact the Corporate
Feedback Team. (Please note you should do so within two months of this
response)

 

Yours sincerely,

 

Robin Levett

Interim Senior Litigation Lawyer

Haringey Council Legal Services

Level 7, Alexandra House, 10 Station Road, Wood Green, London N22 7TR

 

T: 020 8489 3749

F: 020 8489 3963

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This email and any files transmitted with it are confidential, may be
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retention, distribution, copying or disclosure is strictly prohibited. If
you have received this email in error, please notify the system
administrator at Haringey Council immediately and delete this e-mail from
your system. Although this e-mail and any attachments are believed to be
free of any virus or other defect which might affect any computer or
system into which they are received and opened, it is the responsibility
of the recipient to ensure they are virus free and no responsibility is
accepted for any loss or damage from receipt or use thereof. All
communications sent to or from external third party organisations may be
subject to recording and/or monitoring in accordance with relevant
legislation.

References

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