9th August 2017
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HOUSING LAW NEWS & POLICY ISSUES

Build to Rent site receives £65 million funding
On 3 August 2017 the DCLG announced that the biggest development of homes built specifically for private rent in the UK is set to receive £65 million funding from the Government. The funding will help to secure over 7,600 new homes at the Wembley Park development in Brent, London – one of the largest strategic regeneration projects in the country. At least 6,800 of these homes will be for rent. For the announcement and further details, click here

Planning and affordable housing for Build to Rent
On 3 August 2017 the DCLG published a summary of statistical responses to the recent Government consultation on planning and affordable housing for Build to Rent. The consultation sought views on planning measures to support an increase in Build to Rent schemes across England. Key propositions were to change the National Planning Policy Framework policy to support and to increase the number of new Build to Rent homes, and the provision of Affordable Private Rent homes as the main form of affordable housing provision on Build to Rent schemes. The consultation also sought to promote the availability of longer tenancies (of 3 years or more) in Build to Rent accommodation, to those tenants who want one. The final Government policy response will be set out in the forthcoming National Planning Policy Framework revision. For the response document, click here For the consultation document, click here

Universal Credit and rented housing
On 4 August 2017 the Department for Work and Pensions published an updated version of Universal Credit and rented housing: guide for landlords which was originally published in August 2016. For the updated version, click here

Homeless people and health – Wales
On 26 July 2017 Cymorth Cymru published Health Matters, a report about the health needs of homeless people in Wales. The report highlights how health problems can be both a cause and consequence of homelessness. 33 per cent of respondents said that health problems were a primary or secondary cause of their homelessness and approximately 30 per cent said that their health had worsened over the past twelve months. Over 30 per cent said they needed more help and support for their health problems and many faced barriers to health care, including lengthy waiting lists and being unable to get appointments. Of those who had been in hospital, a quarter were discharged onto the street or into unsuitable accommodation, which doubled their chance of re-admission. For the report, click here For Cymorth Cymru’s announcement concerning the report, click here

Right to Rent
On 1 August 2017 the House of Commons Library published a briefing paper which provides an overview of Right to Rent checks which must be carried out by private landlords/agents in England. The checks were introduced by the Immigration Act 2014. Breaches may, in some circumstances, amount to a criminal offence after changes introduced by the Immigration Act 2016. For the briefing paper, click here

Land Release Fund
On 1 August 2017 the Government launched a £54 million package to transform local communities and release land for thousands of new homes. DCLG’s £54 million ‘Land Release Fund’, launched in partnership with the Cabinet Office and Local Government Association’s One Public Estate programme, will ensure local councils release some of their unused or surplus land for housing. This will help to meet the ambition to unlock enough council-owned land for at least 160,000 homes by 2020. For the announcement, click here For the Local Government Association’s announcement about the fund, click here For information about One Public Estate, click here

Migrants and housing
On 4 August 2017 the Parliamentary Office of Science and Technology published a report concerning migration and housing. The report notes that migration is often cited in public debate as a significant factor in the demand for UK housing. The report provides an overview of available research on the subject. It examines definitions and data sources on migration and its implications. It also outlines the possible impact of migrants on housing, including variation by tenure type, migrant characteristics and region. Finally, it considers the impact of housing on migrants and local communities. For the report, click here

Benefit cap – latest figures
On 3 August 2017 the Department for Work and Pensions published the latest statistics on households that have had their benefits capped between 15 April 2013 and May 2017. During that period 150,000 households had their benefits capped. The number of capped households has increased following the implementation of lower cap levels from 7 November 2016. 68,000 households were capped at May 2017 and 81,000 households had been but were no longer capped. For the statistics, click here For the response of CIH to the figures, click here For that of the Joseph Rowntree Foundation, click here

Tenancy deposit schemes
On 3 August 2017 the House of Commons Library published a briefing paper explaining the duty on private landlords to protect tenants’ deposits and summarises how the schemes operate. The paper summarises some of the early reactions to the proposal to cap deposits in England. For the briefing paper, click here

Private rental yields
On 7 August 2017 the National Landlords Association published figures which, it says, show that landlords are losing confidence in their ability to rely on steady rental yields. According to the figures the proportion of landlords who are optimistic about their ability to rely on a steady rental yield has fallen 15 per cent in the past two years – down from 64 per cent to 49 per cent. The decline in confidence coincides with the period since the announcement in July 2015 that mortgage interest relief would be removed for landlords. For the NLA’s press release on the matter, click here

Empty homes – Kensington and Chelsea
On 2 August 2017 The Guardian reported that a Kensington and Chelsea council list shows that 1,652 properties are unoccupied within the borough. Owners of the vacant properties are said to include “oligarchs, foreign royalty and multimillionaire businesspeople”. The names were revealed in a list sent, apparently by accident, to various recipients, including The Guardian. To read the report, click here For a report in The Guardian of the Labour Party’s condemnation of the number of empty homes, click here For and article about the issue by John Bibby of Shelter, click here

Grenfell Tower Inquiry
The deadline for submissions to the Grenfell Tower Inquiry as to its terms of reference expired on 4 August 2017. After considering the submissions, the Chair, Sir Martin Moore-Bick, will submit his own recommendations to the Prime Minister who is expected to set the terms of reference in the middle of August, after which the inquiry will have legal status and begin work. For the Inquiry website, click here For coverage of the terms of reference consultation in The Guardian, click here For that on the BBC News website, click here

Third systems test of cladding and insulation
On 8 August 2017 the DCLG announced that the third in the Government’s series of fire safety tests of cladding and insulation combinations has been completed by the Building Research Establishment. This test was of a wall cladding system formed using Aluminium Composite Material (ACM) panels with a fire retardant polyethylene filler (category 2) and a PIR foam insulation. The test result shows that this system failed to meet the criteria set out in building regulations guidance BR 135. There are up to 13 buildings over 18 metres tall in England known to have a combination of ACM with a fire retardant polyethylene filler with PIR foam insulation. Cladding samples from each of these buildings had already failed earlier combustibility tests conducted by Building Research Establishment (BRE) and their owners were sent government advice detailing the immediate interim safety measures that needed to be completed. For the announcement, click here For the report itself, click here For advice to building owners, click here

Second systems test of cladding and insulation
On 2 August 2017 the DCLG announced that the second in the Government’s series of fire safety tests of cladding and insulation combinations has been completed by the Building Research Establishment. This test was of a wall cladding system consisting of Aluminium Composite Material (ACM) cladding with a polyethylene filler (category 3) with stone wool insulation. The Government’s expert panel advises that the results show this combination does not meet current building regulation guidance. As of 2 August 2017, 111 buildings were known to have this combination of materials in their wall cladding systems – 90 of which are local authority or housing association owned or managed. For the announcement, click here For the report itself, click here For advice to building owners, click here For the Local Government Association’s response to the latest tests, click here

First systems test of cladding and insulation – error in report corrected
In Housing Law Week of 2 August 2017 – for which click here – it was reported that the results of the first of the ‘systems tests’ had been published. On 7 August 2017 the results were updated to correct an error in the thermocouple references in Figure 2. For the revised results report, click here

Letting agents’ fees – Wales
On 17 August 2017 the Welsh Government is due to publish the results of a study commissioned to further understand the fees letting agent charge to tenants renting in the private renting sector, as well as the possible implications if these fees were to be banned. The research comprises: interviews with Welsh and Scottish stakeholders; a survey completed by 168 letting agents in Wales (who between them managed around half of the agent-managed PRS properties in Wales); and two separate surveys completed by a total of 278 landlords. The results of the study will be reported in Housing Law Week in due course.

Current registered providers of social housing
On 1 August 2017 the Homes and Communities Agency published an updated list of all current registered providers of social housing plus new registrations and de-registrations. To download the list, click here

Debt collection from former tenants – Hammersmith and Fulham
On 27 July 2017 Hammersmith & Fulham Council announced that it had entered a joint venture with 1st Credit in order to improve the treatment of those who owe debts to the council. The council also wants to reduce dramatically the number of cases that end up in court. The scheme – called H&F Ethical Debt Collections – is committed to reduce drastically the use of bailiffs, avoiding increased hardship for residents and greater expense for the council. The joint venture has started taking over collections in the borough, beginning with former tenant arrears and housing benefit overpayments. Other types of debt will be phased in. For more information, click here

Rent Smart Wales
On 5 August 2017 the Residential Landlords Association reported that, according to latest figures, 20 per cent of landlords are still not registered with Rent Smart Wales almost two years after the introduction of the registration and licensing scheme. The report states that Cardiff Council, which runs the scheme, is reviewing its enforcement policy so that the 22 Welsh local authorities can better coordinate their efforts. For the report, click here

HOUSING LAWS IN THE PIPELINE

Local Housing Authority Debt Bill
This Bill, which had its first reading in the House of Lords on 4 July 2017, seeks to replace the current regime of limits on local housing authorities’ debt with limits determined by the existing prudential regime for local authority borrowing for non-housing-related purposes. The second reading is yet to be scheduled. For the Bill as introduced, click here To follow progress of the Bill, click here

Abolition of the Right to Buy and Associated Rights (Wales) Bill
This Bill seeks to abolish the right of eligible secure tenants to buy their home at a discount under Part 5 of the Housing Act 1985 (Right to Buy); abolish the preserved right of eligible former secure tenants to buy their home at a discount under section 171A of the Housing Act 1985 (Preserved Right to Buy); abolish the right of eligible assured or secure tenants of a registered social landlord or private registered provider to acquire their home at a discount under section 16 of the Housing Act 1996 (Right to Acquire); and encourage social landlords to build or acquire new homes for rent, the Right to Buy, Preserved Right to Buy and Right to Acquire will not be exercisable by tenants who move into new social housing stock more than two months after the Bill receives Royal Assent, subject to certain exceptions. The Bill is currently at Stage 2 in the Welsh Assembly; Stage 2 began on 19 July 2017 and Stage 2 consideration will take place in Committee on 5 October 2017. The Finance Committee laid its report in respect of the Bill on 28 June 2017. The Equality, Local Government and Communities Committee has undertaken an inquiry into the general principles of the Bill and laid its report on 7 July 2017. The Constitutional and Legislative Affairs Committee laid its report in respect of the Bill also on 7 July 2017. For progress of the Bill (including the committees’ scrutiny), the text of the Bill itself and explanatory memorandum, together with proceedings and reports of the various committees, click here and scroll down.

Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill
This is a Private Members’ Bill introduced in the House of Commons by Karen Buck. The Bill aims to amend the Landlord and Tenant Act 1985 to require that residential rented accommodation is provided and maintained in a state of fitness for human habitation; to amend the Building Act 1984 to make provision about the liability for works on residential accommodation that do not comply with Building Regulations; and for connected purposes. The Bill is being prepared for publication. The second reading is due to take place on 19 January 2018. To follow progress of the Bill, click here

NEW HOUSING CASES

Ealing LBC v R. (on the application of H and others) [2017] EWCA Civ 1127
In October 2013 the appellant local housing authority introduced a new housing allocation policy. This had the effect of ring-fencing a proportion of lettings for those who qualified under the working household priority scheme (“WHPS”) and the model tenancy priority scheme (“MTPS”).

HHJ Waksman QC sitting as a judge of the High Court made an order quashing the schemes. He held that the MTPS directly discriminated against non-council tenants, who were unable to become model tenants by definition, as the scheme only applied to existing tenants. The WHPS indirectly discriminated against women, the elderly and the disabled (“the Protected Groups”) as they were less likely to be working the requisite number of hours. This amounted to a breach of Article 14 of the ECHR (read with Article 8). He also held that implementing and maintaining the schemes amounted to a breach of the local authority’s duty to promote equality and protect the welfare of children under section 11 of the Children Act 2004 (“CA 2004”) and the Public Sector Equality Duty (“PSED”) under section 149 of the Equality Act 2010 (“EA 2010”).

The local authority appealed to the Court of Appeal.

Judgment
In summary, the Court of Appeal held that the schemes were a proportionate means to achieving a legitimate aim and were therefore justified. The court also found that the schemes did not contravene Article 8 and 14 of the ECHR or amount to a breach of section 11 of the CA 2004. Although the court found that the local authority had failed to adequately comply with the PSED in relation to the WHPS, this did not justify quashing the scheme.

Discrimination
The first issue was whether the WHPS indirectly discriminated against women, the disabled and the elderly (“the Protected Groups”) within the meaning of section 19 of the Equality Act 2010 (“EA 2010”).

It was conceded by the local authority that the WHPS was a provision, criterion or practice (“PCP”) and that the Protected Groups were less likely to be able to satisfy the requirement that applicants must work 24 hours a week. However, it argued that the housing allocation policy as a whole contained a number of safety valves to ensure that the Protected Groups were not as a whole disadvantaged by the WHPS, and disabled peopled were overall better off (see paragraphs [45] to [47]).

This argument was rejected by the court. In light of the local authority’s concession, it inevitably followed that the WHPS gave rise to indirect discrimination under section 19 of the EA 2010. The court held that the safety valves were relevant to justification under section 19(2)(d) of the EA 2010 rather than to the existence of indirect discrimination under section 19(2)(a)-(c) of the EA 2010. The court also held that it was neither necessary nor appropriate to break down the Protected Group to assess the impact of the allocation policy on particular sub-sets within the Group (see paragraph [66]).

Although the WHPS had a discriminatory effect, the court found that the WHPS was a proportionate means of achieving a legitimate aim under section 19(2)(d) of the EA 2010. The judge had been wrong to conclude that the schemes were not justified based on his own finding that they were not the least intrusive way of achieving a legitimate aim. It was not open for him to form that view on the material before him by comparing them to the housing schemes at three other local authorities as the latter were “radically different” (see paragraphs [81] to [82]).

ECHR
The court held that the MTPS did not fall within the ambit of Article 8 of the ECHR in conjunction with Article 14. The transfer of an existing secure tenant from one council property to another was not related to the core value which Article 8 was intended to protect. Although such a link did exist in relation to the WHPS, HHJ Waksman QC had wrongly applied the proportionality test when considering justification when he should have applied the manifestly without reasonable foundation test. Furthermore, the judge’s reasoning rested almost entirely on the three other local authorities’ allocation schemes but these were so radically different from the WHPS and MTPS that it was not open for him to assess the proportionality and reasonableness of their operation by reference to those other policies. (NB: Davies LJ and Underhill LJ’s reservations on whether the WHPS fell within the ambit of Article 8 at all).

PSED
The court held that the local authority had properly complied with the PSED in relation to the MTPS. In relation to the WHPS, the local authority had initially failed to comply with the PSED but conducted an assessment later when deciding to continue the schemes pending completion of a full review of their allocation policy. Although the earlier failure to provide a proper equality impact assessment had not been adequately corrected by the later assessment, it would not be necessary or appropriate to quash the WHPS in the circumstances (see paragraph [117]).

Children
HHJ Waksman QC had held that children with single-parent carers will be adversely affected by the WHPS and that the local authority had failed to give any consideration to the interests of such children. The court allowed the local authority’s appeal and held that they had not breached section 11 of the Children Act 2004. The local authority expressly had their duty under section 11(2) in mind as is made clear in their witness statement.

Summary by Clara Zang, barrister, Arden Chambers.  For the full judgment click here.

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HOUSING LAW CONSULTATIONS

Enforcement of suspended orders: alignment of procedures in the County Court and High Court
In Cardiff v Lee (Flowers) [2016] EWCA Civ 1034 the claimant landlord had obtained a possession order against the defendant secure tenant on the grounds of breach of the terms of the tenancy agreement prohibiting anti-social conduct. The order was suspended for two years on condition that the tenant complied with the provisions of his tenancy agreement, which contained covenants against causing a nuisance or annoyance to neighbours. Following further complaints from neighbours of the tenant, the landlord applied for the issue of a warrant of possession. It did so by lodging form N325, following the administrative procedure set out in CPR 83.6. The warrant was issued and the bailiff served notice of the date of intended eviction. The tenant’s application to stay execution of the warrant was dismissed by the district judge and his subsequent appeal was dismissed by the circuit judge. On appeal to the Court of Appeal it was common ground that the landlord ought to have sought permission to apply for the issue of the warrant as required by CPR 83.2. In short, CPR 83(2) states that a ‘relevant writ or warrant’ (which includes a warrant of possession) must not be issued without the permission of the court in any of the circumstances specified in CPR 83.2(3)(a)-(f). This consultation seeks views on whether amendments are required to rules and forms in light of the judgment. The consultation closes on 30 August 2017. For more details and all relevant documents, click here

Fees charged to tenants in the private rented sector – Wales

This consultation seeks views on what action the Welsh Government should take to end unfair fees charged to tenants. Examples given in the consultation document of activities for which fees are charged are: accompanied viewings; pre-tenancy negotiation; producing the tenancy agreement; producing guarantor forms, if applicable; completing reference reports; obtaining / verifying all safety certificates; protecting the deposit and issuing documentation; processing move in monies and signing documentation; issuing the inventory and schedule of property; amending tenancy agreements; renewing tenancy agreements; early termination; and moving out. The consultation seeks views on the nature and level of fees being charged to tenants. It seeks to determine which fees, if any, are justifiably being charged to tenants. It also seeks information on fees paid by landlords to agents, and also on the possible consequences of banning fees. The consultation closes on 27 September 2017. For the consultation document, click here

Draft 'Information for tenants of social landlords' document – Wales
If the Abolition of the Right to Buy and Associated Rights (Wales) Bill is passed by the National Assembly for Wales (see Housing Laws in the Pipeline), social landlords will be required to issue to all relevant tenants an ‘Information for Tenants of Social Landlords’ document. The Welsh Government is consulting on a sample document to see if it: clearly summarises the right to buy and the right to acquire; explains clearly when these rights could end; and explains clearly the financial and legal advice you should get if you want to exercise the right to buy or right to acquire. The consultation closes on 13 September 2017. For the consultation document, click here

Tackling unfair practices in the leasehold market
On 25 July 2017 the DCLG launched a consultation into proposals to remedy unfair practices in the leasehold market. For the announcement of the Government’s proposals, see Housing Law News and Policy Issues and/or click here The consultation particularly seeks views on: i) prohibiting the sale of new build leasehold houses where the developer is not obliged to sell a house on a leasehold basis; ii) restricting ground rents on new leases to a ‘peppercorn’; iii) how to tackle existing onerous ground rents; iv) possible changes to the Help to Buy scheme in relation to leasehold houses; v) providing freeholders on private estates with equivalent rights to leaseholders to challenge unreasonable service charges for the upkeep of communal areas and facilities via the First-tier Tribunal (Property Chamber). The consultation closes on 19 September 2017. For the consultation document, click here

Recognising residents’ associations, and their power to request information about tenants
On 25 July 2017 the DCLG launched a consultation seeking views on the Government’s proposals for secondary legislation in relation to section 29A of the Landlord and Tenant Act 1985. Section 29A provides a new power for the Secretary of State by regulations to impose duties on a landlord to provide the secretary of a residents’ association with information about tenants. The intention is to make it easier for a secretary of a tenants’ association to obtain contact information of qualifying tenants (leaseholders) from a landlord and so improve the prospects of the association being formally recognised. The consultation closes on 19 September 2017. For the consultation document, click here

HOUSING LAW ARTICLES & PUBLICATIONS

How can frontline workers better support homeless refugees? Chloe Morgan [2017] Homeless Link 1 August. To read this article, click here

Young people are shut out of private renting Heather Spurr [2017] Shelter Blog 1 August. To read this article, click here

The Guardian view on Grenfell and the housing crisis: no more excuses Editorial [2017] Guardian 2 August. To read this article, click here

The Benefits Cap: Social Cleansing Of London Cookie Kibbles [2017] Huffington Post 2 August. To read this article, click here

Location, location, location: how the world is tackling issue of empty homes Hilary Osborne [2017] Guardian 2 August. To read this article, click here

The benefit cap and lone parents with children under two Rachel Coyle [2017] Local Government Lawyer 3 August. To read this article, click here

Support of last resort: alternatives to local welfare schemes to prevent and relieve homelessness Vicky Pearlman [2017] Shelter Blog 3 August. To read this article, click here

Grenfell must be a turning point in housing – for staff and residents Glyn Robbin [2017] Guardian 7 August. To read this article, click here

Recent Developments in Housing Law Jan Luba QC & Nic Madge [2017] July issue of Legal Action. Available in print and on-line for Legal Action subscribers. For the latest issue, click here

HOUSING LAW DIARY

17 August 2017                        
Welsh Government publishes the results of a study concerning letting agents’ fees in the private renting sector (see Housing Law News and Policy Issues)

30 August 2017                        
Consultation closes on enforcement of suspended orders: alignment of procedures in the County Court and High Court (see Housing Law Consultations)

13 September 2017                  
Consultation closes on draft 'Information for tenants of social landlords' document – Wales (see Housing Law Consultations)

19 September 2017                  
Consultation closes on tackling unfair practices in the leasehold market (see Housing Law Consultations)

19 September 2017                  
Consultation closes recognising residents’ associations, and their power to request information about tenants (see Housing Law Consultations)

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