HOUSING LAW NEWS & POLICY ISSUES

Autumn Statement – housing in general
The government has set out various housing measures which, it said, “will address the needs of people at different stages of their lives, ensuring the housing market works for everyone, not just the privileged few”. A forthcoming Housing White Paper will present further details of a “comprehensive package of reforms to increase housing supply and tackle rising housing costs.” For the full Annual Statement 2016 policy paper, click here For the DCLG’s press release, click here For a speech on the subject by the Secretary of State for Communities and Local Government, click here For the Local Government Association’s response, click here For the individual housing-related announcements within the Annual Statement, see the following items.

Autumn Statement – Housing Infrastructure Fund
Para 4.3 of the Annual Statement policy paper states that a new Housing Infrastructure Fund of £2.3 billion by 2020-21 will be funded by the NPIF and allocated to local government on a competitive basis. It will provide infrastructure “targeted at unlocking new private house building in the areas where housing need is greatest. It is said that this will deliver up to 100,000 new homes.” The government will also examine options to ensure that other government transport funding better supports housing growth. For the full Annual Statement 2016 policy paper, click here

Autumn Statement – affordable housing
Para 4.3 of the Annual Statement policy paper also states that the government will relax restrictions on grant funding to allow providers to deliver a mix of homes for affordable rent and low cost ownership, to meet the housing needs of people in different circumstances and at different stages of their lives. The NPIF will provide an additional £1.4 billion to deliver an additional 40,000 housing starts by 2020-21. For the full Annual Statement 2016 policy paper, click here

Autumn Statement – Right to Buy
Para 4.3 of the Annual Statement policy paper further states that the government will fund a large-scale regional pilot of the Right to Buy for housing association tenants. Over 3,000 tenants will be able to buy their own home with Right to Buy discounts under the pilot. For the full Annual Statement 2016 policy paper, click here

Autumn Statement – Rough Sleeping Fund
Para 6.3 of the Annual Statement policy paper states that the government is committing a further £10 million over two years to the Rough Sleeping Fund. This will double the size of the fund, which will “support and scale up innovative approaches to preventing and reducing rough sleeping, particularly in London”. For the full Annual Statement 2016 policy paper, click here For a statement by Crisis, welcoming the commitment, click here

Autumn Statement – letting agent fees
Para 4.13 of the Annual Statement policy paper confirms plans to ban letting agents' fees to tenants in England. The DCLG will consult in the New Year ahead of bringing forward primary legislation. For the full Annual Statement 2016 policy paper, click here For the views of the Association of Residential Letting Agents, click here For articles considering the consequences of the proposed ban, see New Housing Law Articles.

Autumn Statement – social rent downrating
Para 6.2 of the Annual Statement policy paper states that refuges, almshouses, Community Land Trusts and co-operatives will be exempt from the policy to reduce social sector rents by 1% a year for four years from 2016-17. For the full Annual Statement 2016 policy paper, click here

Empty homes
On 28 November 2016, to coincide with the start of National Empty Homes week, new research from the national campaigning charity, Empty Homes, has found that over four in five (83%) of British adults believe the Government should place a higher priority on tackling empty homes. This has increased five percentage points in the two years since Empty Homes last commissioned ComRes to put the same question to the public. To read the Empty Homes press release concerning the research, click here

Private rental prices – October 2016
On 24 November 2016 the Office for National Statistics published the index of private housing rental prices in Great Britain for October 2016. Private rental prices rose by 2.3% in the 12 months to October 2016; this is unchanged compared with the year to September 2016. Private rental prices grew by 2.5% in England, decreased in Scotland (negative 0.2%) and grew by 0.4% in Wales in the 12 months to October 2016. Rental prices increased in all the English regions over the year to October 2016, with rental prices increasing the most in the South East (3.4%). For the full statistics, click here

House building statistics – quarter to September 2016
On 24 November 2016 the DCLG released latest house building statistics which show that in the quarter to September 2016 new build dwelling starts in England were estimated at 38,730 (seasonally adjusted), a 6% increase compared to the previous three months and 10% increase on a year earlier. Completions were estimated at 37,280 (seasonally adjusted), 6% higher than the previous quarter and 7% higher than a year ago. Annual new build dwelling starts totalled 147,880 in the year to September 2016, up by 4% compared with the year to September 2015. During the same period, completions totalled 141,690, an increase of 4% compared with last year. For the full statistics, click here

Housebuilding – Commons Committee inquiry into capacity in the industry
On 28 November 2016 the House of Commons Communities and Local Government Committee questioned housing associations on their relationships with private developers, the impact of shared ownership and right to buy, and whether it is easier to build homes in certain parts of the country. The Committee also heard from local authorities on the planning system, land allocation, and joint ventures and partnerships. To watch proceedings on Parliament TV, click here

Housebuilding by housing associations
Housing associations across England have the financial capacity to more than double the number of new homes they bring forward, delivering up to 84,000 a year by 2029, according to property adviser, Savills. In a new report, Releasing untapped potential for more housing, the firm identifies the potential for housing associations to deliver 44,000 extra homes a year in just over a decade, through additional borrowing against existing assets and a greater partnership approach across the sector. To read the report, click here

Forces Help to Buy
On 24 November 2016 the Ministry of Defence published latest statistics for the Forces Help to Buy scheme for October 2016.  614 First Stage applications (ie those which pass initial eligibility checks) were received; 318 Second Stage applications (ie those which pass detailed eligibility checks) were received; 310 payments were made to Service personnel. Since the Scheme began in April 2014: 18,685 First Stage applications have been received; 11,307 of these applications have proceeded to the Second Stage; payment has been made to around 9,000 applicants, totalling over £136 million, an average of approximately £15,200 per claim. For the full statistics, click here

Help to Buy – Wales: Shared Equity Loan Scheme
On 23 November 2016 the Welsh Government published new data for the Help to Buy – Wales: Shared Equity Loan Scheme. Between 1 July and 30 September 2016, 404 property purchases were completed using a Welsh Government shared equity loan. This brings the total number of purchases under the scheme since its introduction on 2 January 2014 to 4,064. At 30 September 2016 there were 637 applications for loans still outstanding. Between 1 July and 30 September, the total value of these equity loans was £14.9 million, with the value of the properties purchased totalling £75.3 million. For more details, click here

Paying for supported housing
On 28 November 2016 the House of Commons Library published a briefing paper explaining the impact of the Government's policy of requiring rent reductions, and also the application of Local Housing Allowance caps, on the supported housing sector. The sector has argued that the measures threaten its viability. On 15 September 2016 the Government announced that LHA caps will apply in 2019/20. To read the briefing, click here

Rough sleepers – access to services and support
On 24 November 2016 the House of Commons Library published a briefing paper providing an overview of the support and services – including accommodation, health, welfare, training, employment and voter registration – that are available for rough sleepers in England, and the challenges rough sleepers can face in accessing them. To read the briefing, click here

Homelessness and mental health
On 28 November 2016 homelessness charity St Mungo’s published a report – Stop the Scandal: the case for action on mental health and rough sleeping – which suggests that over two thirds (68%) of areas with high levels of rough sleeping fail to commission specialist mental health services. An earlier review of the best available data by the charity recorded by street outreach professionals working with people sleeping rough, showed that four in 10 people who sleep rough need mental health support. The new report investigates how national and local government and the NHS can build effective services “to put an end to the mental health crisis on our streets”. To read the report, click here To read St Mungo’s press release, click here

Housing Benefit cap
On 23 November 2016 the House of Commons Library published a briefing paper which explains how the household benefit cap operates and considers evidence of its impact to date. It also covers the reductions in the benefit cap being phased in from 7 November 2016, and their likely impact. To read the briefing, click here

‘Pay to stay’
On 22 November 2016 the House of Commons Library published a briefing paper providing information on the ‘pay to stay’ scheme in England under which social landlords can charge tenants with an income of over £60,000 market or near market rents. The Government included measures in the Housing and Planning Act 2016 to make higher rents compulsory in due course for council tenants earning over £40,000 in London and £31,000 elsewhere. On 21 November 2016 the Government announced that the mandatory pay to stay scheme would not be introduced. Councils and housing associations will retain discretion over whether or not to implement higher rents for tenants with higher incomes. To read the briefing, click here

Rent Smart Wales
In an address to Assembly members on 22 November 2016 Communities Secretary Carl Sargeant said that by midnight on Monday November 21st  over 55,000 private landlords had registered for Rent Smart Wales, the private landlord registration scheme. A further 12,000 had started the registration process and over 81,000 users had created accounts and were involved in the process of complying. It is not known precisely how many private landlords there are. The estimate is between 70,000 and 130,000. For details of the address, click here On 25 November 2016 BBC Wales reported that more than 13,000 private landlords in Wales may be letting properties illegally by failing to register. For that news story, click here

Homelessness Reduction Bill
On 29 November 2016 the DCLG published a series of factsheets providing further background information on the measures within the Homelessness Reduction Bill (as to the progress of which see Housing Laws in the Pipeline). The factsheets cover: advice and information; assessment and personal plans; prevention; relief; help to secure and suitability; cooperation; reviews; duty to refer; codes of practice; and local connection. To access the factsheets, click here

HOUSING LAWS IN THE PIPELINE

Homelessness Reduction Bill
This is a Private Members’ Bill introduced in the House of Commons by Bob Blackman which seeks to amend the Housing Act 1996 to make provision about measures for reducing homelessness; and for connected purposes. The Bill has won the support of the Government; for the DCLG press statement in that respect, click here The Bill entered Committee on 23 November 2016. It received its Second Reading on 28 October 2016; for a record of the debate, click here For the Bill as introduced, click here For progress of the Bill, click here The House of Commons Select Committee for Communities and Local Government has published a report following its pre-legislative scrutiny of the Bill; to read the report, click here For the Law Society’s parliament briefing on the Bill, click here For a series of policy factsheets published by the DCLG and providing further background information on the measures within the Bill, click here

Renters’ Rights Bill
This is a Private Members’ Bill introduced in the House of Lords by Baroness Grender which seeks to provide tenants and prospective tenants with certain rights, including affording access to a local housing authority’s database of rogue landlords, ending certain letting fees and providing for certain mandatory electrical safety checks. The Bill had its Second Reading on 10 June 2016 and completed its Committee stage on 18 November 2016; for a record of the debate, click here It will enter its Report stage on a date to be announced. For the Bill as amended in Committee, click here To read debates at all stages of the Bill’s passage, click here For progress of the Bill, click here

Crown Tenancies Bill
This is a Private Members’ Bill introduced in the House of Commons by Wendy Morton which seeks to provide that ​Crown tenancies may be assured tenancies for the purposes of the Housing Act 1988, subject to certain exceptions; to modify the assured tenancies regime in relation to certain Crown tenancies; and for connected purposes. The Bill is being prepared for publication and is due to have its Second Reading on 16 December 2016. For progress of the Bill, click here

Housing (Tenants' Rights) Bill
This is a Private Members’ Bill introduced by Caroline Lucas which seeks to establish a Living Rent Commission to conduct research into, and provide proposals for, reducing rent levels in the private rented sector and improving terms and conditions for tenants; to require the Secretary of State to report the recommendations of the Commission to Parliament; to introduce measures to promote long-term tenancies; to establish a mandatory national register of ​landlords and lettings agents; to prohibit the charging of letting or management agent fees to tenants; and for connected purposes. The Bill is being prepared for publication and is due to have its Second Reading on 20 January 2017. For progress of the Bill, click here

NEW HOUSING CASES

Eli Zohar v Lancaster City Council [2016] UKUT 510 (LC)
This was an appeal to the Upper Tribunal (Lands Chamber) against the dismissal of an appeal by the First-tier tribunal in relation to a decision by Lancaster City Council (“the Council”) to take emergency remedial action at a property under s.40 Housing Act 2004.

Background
The Council had had ongoing concerns about a property owned by the appellant which had been sub-divided into a number of flats.  An authorised officer of the Council inspected the property and noted that the main entrance door was insecure. An occupant of one of the flats told him that there was a persistent problem with unauthorised access to the building for drug use and that his entrance door had been insecure for some time and that belongings had been taken and that he had found “sharps” in his flat.

The officer concluded that the lack of security presented a serious risk to the health and safety of the occupants and their visitors and that emergency remedial action under s.41 Housing Act 2004 should be carried out.  A new lock was fitted by a locksmith the next day at a cost of £105 and a notice that the remedial action had been taken was left at the property.  The Council also served a notice on the appellant under s.41 Housing Act 2004 setting out the hazard it had identified and its reasons for taking emergency remedial action.

A person served with a notice under s.41 has a right of appeal by way of a re-hearing.  The appellant’s appeal to the F-tT was dismissed and the appellant was ordered to pay £105 costs of the remedial treatment and £500 in costs.

The Appeal to the Upper Tribunal (Lands Chamber)
The appeal to the Upper Tribunal was determined on written representations by His Honour Judge Huskinson who outlined the correct course of action for the F-tT to follow when faced with such an appeal.  In particular, such an appeal was to be by way of a rehearing.  The parties to such an appeal “and in particular the local housing authority” can be expected to place full evidence and argument before the F-Tt to enable it to “reach its own conclusions” upon:

1. Whether a hazard existed at the property
2. Whether it was a category 1 hazard
3. If so, whether it constituted “an imminent risk of serious harm to the health or safety of any occupiers of those or any other residential premises.”
4. Whether a management order was in force within s.40(1)
5. Whether the emergency remedial action taken fell within s.40 (2)
6. If taking such action was a course available to the local housing authority, whether it was “appropriate enforcement action within s.5.”

HHJ Huskinson concluded that in this case, the written material before the F-tT did not give clear assistance to the F-tT in dealing with all of these points and that its decision should be set aside.  It had erred in law by failing to deal with the appeal by way of a rehearing and failing to consider and to reach its own conclusions upon the various matters requiring consideration. 

The case would be remitted to the F-Tt with directions to reconsider the case and reach its own reasoned conclusions. The judge also made a direction under s.12(3) of the Tribunals, Courts and Enforcement Act 2007 that the members of the F-tT who will reconsider the case are not to be the same as those who made the decision which he had set aside. For the full judgment click here.

Birmingham City Council v Wilson [2016] EWCA Civ 1137

Birmingham City Council (“The Council”) appealed a county court decision regarding the extent of its duties to the Respondent, Ms Wilson (“the Respondent”) under the Housing Act 1996.  The Respondent was a homeless single mother with two children who had applied to the Council as homeless on 19 March 2014.  She completed the application online with the assistance of a Council officer.  She answered “yes” to a question as to whether anyone included in the application suffered from a long term physical illness but “no” to a question asking whether anyone included in the application had a physical disability or mental illness.

The Respondent’s case was that her youngest son suffered from a disability, being an extreme fear of heights.  At the time of her dealings with the Council her son had not been medically assessed but some months after the Council’s decision-making process had concluded, a psychiatrist’s report indicated that her son suffered from an autistic spectrum disorder and that he suffered from a fear of heights and lifts and suffers from panic attacks when entering a lift or looking out of a window of a high building.

The Respondent contended that the Council should have done more to follow up on matters she had mentioned at her initial meeting and in her subsequent dealings with it.  She argued that she had not appreciated her son’s condition constituted a “disability” for the purpose of the application or “as a matter of equality law.”

(There was a factual dispute about whether the Respondent had asked the council officer at the meeting not to be allocated a flat in a high rise block because her son did not like tall buildings.)

Initially, the Respondent and her two sons had been given temporary accommodation in a flat on the 11th floor of a tower block. The Respondent made a number of unsuccessful bids for other properties. The Council considered those to be unrealistic and placed a management bid on her behalf for a flat on the 8th floor of a high rise block and offered her that flat, notifying her that it was a final offer.  The Respondent refused that offer giving her son’s fear of heights as one of the reasons for that refusal.  She requested a s.202 Housing Act 1996 review of the Council’s decision that it regarded its s.193 duty to have been discharged.

The review concluded that the Council’s original decision letter should be set aside because it did not demonstrate sufficient consideration of relevant matters including the Respondent’s assertions about the children’s fears of high-rise accommodation. The reviewing officer indicated in a letter to the Respondent that the conclusion he was “minded to make” was that there was no new information which suggested the Council’s offer of accommodation was unsuitable or that the offer was not one which it was reasonable for her to accept. That letter indicated that the Respondent could make oral or written representations by 7 November but none was received.  A subsequent letter set out the final decision on the review in which the decision was that the flat which had been offered was suitable accommodation and that the Respondent’s refusal had brought the Council’s s.193 duty to an end.

The Respondent appealed to the county court and HHJ Oliver-Jones allowed her appeal, holding that the review decision had been unlawful in that it was based on inadequate inquiries into the Respondent’s youngest son’s fear of heights and claustrophobia and whether his condition amounted to a disability for the purposes of the Equality Act 2010.

The Council appealed to the Court of Appeal and its appeal was allowed.

Lord Justice Sales delivered the leading judgment and found that “the relevant duty of inquiry to which the Council was subject, whether under section 184 of the 1996 Act or under general principles of public law, is an obligation to take reasonable steps to inform itself of matters relevant to the carrying out of its tasks of assessing Ms Wilson’s application under section 193 of the 1996 Act and of doing so in a manner compatible with its equality duty under section 149 of the 2010 Act.” 

In this case the Court of Appeal held that there had been no error of approach on the reviewing officer’s part on behalf of the Council or in the conclusion he had reached. The reviewing officer had taken reasonable steps according to the standard set out in London Borough of Newham v Khatun [2004] EWCA Civ 55 to gather information on the difficulties the children experienced as a result of their fear of heights and had concluded rationally that “there was no real possibility that either of the children was disabled for the purposes of the 2010 Act”.  The officer was not subject to any further obligation of investigation by virtue of s.149 of the 2010 Act. 

Lord Justice Beatson agreed and highlighted the particular importance of standard letters and documents being expressed as clearly as possible because some recipients may not be used to receiving long communications containing complex information. For the full judgment click here.

HOUSING LAW CONSULTATIONS

Houses in multiple occupation and residential property licensing
The DCLG has opened a consultation on extending the mandatory licensing of houses in multiple occupation. The consultation seeks views on the Government’s proposed details for: the mandatory licensing of houses in multiple occupation; the assumptions made in its associated impact assessment; national room sizes; the fit and proper person test; refuse disposal facilities; and purpose built student accommodation. For the consultation document, click here To respond online, click here  The consultation closes on 13 December 2016.

Regulations and policy supporting the Private Housing (Tenancies) (Scotland) Act 2016
The Private Housing (Tenancies) (Scotland) Act 2016 creates the new private residential tenancy which will replace current assured and short assured tenancies. The purpose of the new tenancy is to improve security of tenure for tenants balanced with appropriate safeguards for landlords, lenders and investors. This consultation seeks views on the secondary legislation and further policy to support the new tenancy. The policy proposals outlined in this document are complimentary to the provisions in the 2016 Act. For the consultation document, click here To respond online, click here The consultation closes on 25 December 2016.

Recovery of Capital Grant from Unregistered Bodies General Determination 2017
The consultation paper concerns the making of a new determination by the Homes and Communities Agency to recover Social Housing Assistance given to unregistered bodies only. It seeks views on a new determination to recover capital grant given to Unregistered Bodies (bodies that are not registered with the Social Housing Regulator as Registered Providers of Social Housing). Consultees are invited to comment on the proposed set of changes, which are shown in the form of a draft Determination included in the body of the consultation paper. For the consultation document, click here Directions for responding are set out in the document. The consultation closes on 30 November 2016.

Funding for supported housing
On 21 November 2016 the DCLG and DWP launched a consultation seeking views on the government’s plans for a new housing costs funding model for supported housing as well as views on how funding for emergency and short term placements should work. It covers the following areas: devolved top-up funding to local authorities in England; and funding for emergency and short term supported housing placements across Great Britain. At the same time the government has published an evidence review of supported accommodation in Great Britain which seeks to provide a helpful insight into the estimated scale, scope and cost of the sector which respondents may find useful in responding to the consultation. For the consultation, click here For the evidence review, click here The consultation closes on 13 February 2017.

Fee-charging scheme for the regulation of private registered providers of social housing
The Homes and Communities Agency has published a statutory consultation on introducing a fee-charging scheme for the regulation of private registered providers of social housing. The consultation follows a discussion paper in 2014 setting out initial proposals and the 2015 Spending Review. The statutory consultation sets out the following anticipated fee charges: an annual fee of £5 per unit for all registered providers with 1,000 or more units of social housing; a fixed fee of £300 for providers with fewer than 1,000 social housing units; and a one-off fixed rate fee of £2,500 for successful new registrations with the regulator. For the consultation documents, click here The consultation closes on 9 January 2017.

HOUSING LAW ARTICLES & PUBLICATIONS

Private sector updates Giles Peaker [2016] Nearly Legal 23 November. To read this article, click here

Recent reports on housing supply Steve Battersby [2016] UK Housing Professionals Forum 23 November. To read this article, click here

Letting agent fees ban is great news, but will it push up rents? Liam Reynolds [2016] Shelter Blog 24 November. To read this article, click here

I’m an estate agent. Philip Hammond ought to cap letting fees, not ban them Jonathan Parker [2016] Guardian 25 November. To read this article, click here

Warrants for possession: guidance from the Senior Master Elizabeth England [2016] Local Government Lawyer 25 November. To read this article, click here

Hammond's foundations are too weak to build us out of the housing crisis Dawn Foster [2016] Guardian 25 November. To read this article, click here

Will banning letting agency fees lead to higher rents? We ask the experts Rupert Jones and Donna Ferguson [2016] Guardian 26 November. To read this article, click here

Recent Developments in Housing Law Jan Luba QC & Nic Madge [2016] November issue of Legal Action. Available in print and on-line for Legal Action subscribers. For the latest issue, click here For back-issues, click here

The long road to shifting attitudes on welfare Paul Donnelly [2016] Shelter Blog 28 November. To read this article, click here

The Value of Article 14 ECHR: The Supreme Court and the ‘Bedroom Tax’ Thomas Raine [2016] UK Constitutional Law Association Blog 28 November. To read this article, click here

THE HOUSING LAW DIARY

30 November 2016        
Consultation closes on Recovery of Capital Grant from Unregistered Bodies General Determination 2017 (see Housing Law Consultations)

13 December 2016        
Consultation closes on houses in multiple occupation and residential property licensing (see Housing Law Consultations)

16 December 2016        
Second reading of Crown Tenancies Bill (see Housing Laws in the Pipeline)

25 December 2016        
Consultation closes on Regulations and policy supporting the Private Housing (Tenancies) (Scotland) Act 2016 (see Housing Law Consultations)

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