25th October 2017
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HOUSING LAW NEWS & POLICY ISSUES
 

Affordable homes
On 22 October 2017 the Communities Secretary, Sajid Javid, said in interviews that the government should borrow money to fund the building of hundreds of thousands of new homes. He said that taking advantage of record-low interest rates ‘can be the right thing if done sensibly’. On the same day the DCLG launched a consultation on improving the existing home buying and selling process in order to make it cheaper, faster and less stressful. For the consultation, see Housing Law Consultations (below). For the BBC News coverage of the Communities Secretary’s comments, click here

Protecting consumers in the letting and managing agent market
On 18 October 2017 the Communities Secretary, Sajid Javid, announced plans for new measures to ‘help create a fairer property management system that works for everyone’. At the Association of Residential Managing Agents (ARMA) conference, the Communities Secretary said that the government is determined to fix the problems in the property management industry, drive down costs and protect consumers from the small minority of rogue agents. He added that the problem is not just for leaseholders, but for some of the 4.5 million tenants in the rental sector too, with overcharged costs for repairs and services often passed down to tenants. For his speech, click here For the DCLG announcement, click here For the proposals on which the government is consulting, see Housing Law Consultations (below).

Safety of residential tower blocks – letter to building owners
On 19 October 2017 the DCLG published a letter sent by Tamara Finkelstein, Director General, Building Safety Programme, to private residential building owners requesting information about their buildings. The letter seeks to ascertain whether the recipient organisation owns, manages, is a fee collecting agent for, or is a freeholder of any short or long term residential property (including hotels) that is either six storeys or more, or 18 metres high, and to establish whether those buildings have wall systems that include Aluminium Composite Material (ACM) cladding. The letter appends a form to be completed by the recipient. To read the letter, click here

Identifying residential tower blocks with ACM cladding – letter clarifying legal powers
On 19 October 2017 the DCLG published a letter from Neil O’Connor, Director, Building Safety Programme Policy, to local authority chief executives regarding the legal powers under which councils can act should enforcement action be required. The letter sets out the DCLG’s interpretation of the Housing Act 2004, and the regulations and Housing Health and Safety Rating System made under it. The DCLG’s view is that the powers available to local authorities under this regime are applicable in respect of the external cladding systems of tall residential buildings. For the letter, click here

Universal credit statistics
On 18 October 2017 the Department for Work and Pensions published statistics relating to universal credit to 14 September 2017.The number of people on universal credit as of 14 September 2017 was 610,000. Of these 230,000 (37 per cent) were in employment. The number of starts made to universal credit was 57,000 in the preceding month. For the statistics, click here

Housing Benefit bulletin
On 19 October 2017 the Department for Work and Pensions published its latest HB bulletin, including coverage of HB decisions by the Upper Tribunal and new legislation. For the bulletin, click here

Forces Help to Buy Scheme
On 19 October 2017 the Ministry of Defence published latest statistics for the Forces Help to Buy scheme for September 2017. 751 First Stage applications (ie those which pass initial eligibility checks) were received; 373 Second Stage applications (ie those which pass detailed eligibility checks) were received; 329 payments were made to Service personnel. Since the Scheme began in April 2014: 25,738 First Stage applications have been received; 15,226 of these applications have proceeded to the Second Stage; payment has been made to around 12,500 applicants, totalling around £188.6 million, an average of approximately £15,100 per claim. For the full statistics, click here For a consultation in relation to these statistics, see Housing Law Consultations (below).

Affordable housing provision – Wales
On 19 October 2017 the Welsh Government published an annual report which includes information about the number of additional units delivered, as well as how the planning system contributed to the provision of these units. In 2015-16, local authorities reported that 2,400 additional affordable housing units had been delivered across Wales, an increase of 8 per cent on the previous year. This brings the total delivered since April 2011 to 11,508 which exceeds the previous government target on affordable housing provision by 15 per cent. Welsh Registered Social Landlords delivered 94 per cent of all additional affordable housing provision during 2015-16 (2,250 units). For the full statistics, click here

Paying for supported housing
On 20 October 2017 the House of Commons Library published a briefing paper explaining the impact of the government's proposal to apply Local Housing Allowance caps, and also a requirement to reduce rents, on the supported housing sector. The sector has argued that these measures threaten its viability. On 15 September 2016 the government announced that LHA caps will apply in 2019/20. Rent reductions have applied from April 2017. For the briefing, click here

Private rented sector and universal credit
On 18 October 2017 the National Landlords Association stated that research by the association showed that only two in ten landlords say they are willing to let to tenants in receipt of housing benefit or universal credit. This is said to be down from 34 per cent at the start of 2013. For more details, click here

Households in temporary accommodation – England
On 23 October 2017 the House of Commons Library published a briefing paper providing background information on the increase in the number of homeless households placed in temporary accommodation by English local authorities and outlines various initiatives and issues associated with this increased use of temporary accommodation. To read the briefing, click here

Local housing companies
On 18 October 2017 the Smith Institute published a report – Delivering the renaissance in council-built homes: the rise of local housing companies – which describes the rapid rise in local housing companies (LHCs), which has occurred among councils of all types throughout England. The report says that this growth in council owned companies providing a mix of housing tenures has been acknowledged by the local government and housing communities, but largely over-looked by Whitehall and Westminster. Indeed, as it mentions, there is no official register or chronicle of LHCs. On the current trend, up to half of all councils in England may have a LHC by 2020, most building on council land. For the report, click here For a summary, click here For an article by the author, click here

Local authorities’ duties to homeless persons – Ombudsman’s report
On 19 October 2017 the Local Government and Social Care Ombudsman reminded local authorities about the need to house homeless families appropriately, following two separate investigations into the London Borough of Redbridge. The investigations found that families were each placed in hostel or bed and breakfast accommodation for around eight months by the council, before being found appropriate accommodation. The legal limit for bed and breakfast accommodation is just six weeks. The Ombudsman states that others in the borough will now benefit from the recommendations. The council has agreed to ensure it moves other families from unsuitable accommodation without delay and will adopt a policy on allocating temporary accommodation. For further details (including a link to the report itself), click here

Rent payments and credit scores
On 23 October 2017 Members of Parliament debated an e-petition that payment of rent on time should be recognized as evidence that mortgage re-payments can be met. The petition attracted 147,307 signatures. The government responded: ‘Lenders must consider a range of factors when assessing a mortgage application. Meeting rental payments is not sufficient in itself to demonstrate affordability over the lifetime of the loan.’ For the Hansard record of the debate, 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 completed Stage 2 on 5 October 2017. Stage 3 commenced on 6 October 2017. Stage 3 consideration will take place in Plenary on 14 November 2017 to consider amendments to the Bill (as amended at Stage 2). 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 Member’s 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

Homeless People (Current Accounts) Bill
This is a Private Member’s Bill introduced in the House of Commons by Peter Bone. The Bill is intended to require banks to provide current accounts for homeless people seeking work; and for connected purposes. The Bill is being prepared for publication. The Bill received its first reading on 5 September 2017. The second reading is due to take place on 1 February 2019. To follow progress of the Bill, click here

Housing (Amendment) Scotland Bill
This Scottish government Bill aims to amend the law on the regulation of social landlords and to reduce the influence of local authorities over registered social landlords. It was introduced on 4 September 2017 and is at Stage 1.For the Bill as introduced, click here To follow progress of the Bill, click here

Sublet Property (Offences) Bill
This is a Private Member’s Bill introduced in the House of Commons by Christopher Chope. It is intended to make the breach of certain rules relating to sub-letting rented accommodation a criminal offence; to make provision for criminal sanctions in respect of unauthorised sub-letting; and for connected purposes. The Bill is being prepared for publication. The Bill received its first reading on 5 September 2017. The second reading has been postponed and is now due to take place on 1 December 2017. To follow progress of the Bill, click here

Mobile Homes and Park Homes Bill
This is a Private Member’s Bill introduced in the House of Commons, also by Christopher Chope. It is intended to require the use of published criteria to determine whether mobile homes and park homes are liable for council tax or non-domestic rates; to make provision in relation to the residential status of such homes; to amend the Mobile Home Acts; and for connected purposes. The Bill is being prepared for publication. The Bill received its first reading on 5 September 2017. The second reading has been postponed and is due to take place on 6 July 2018. To follow progress of the Bill, click here
NEW HOUSING CASES
 

Panayiotou v Waltham Forest LBC; Smith v Haringey LBC [2017] EWCA 1624, 19 October 2017
The Court of Appeal has held that whether a person has a priority need for accommodation by reason of vulnerability requires consideration of whether he is “significantly” more vulnerable in a way that is relevant to his ability to deal with the consequences of homelessness; the question is qualitative, not quantitative.

A person has a priority need for housing if inter alia he is “vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason”: s.189(1)(c), Housing Act 1996. It was previously considered that whether a person was vulnerable required consideration of whether he would be less able to fend for himself when homeless so that he would be more likely to suffer injury or detriment than an ordinary homeless person: R. v Camden LBC ex p Pereira (1999) 31 H.L.R. 317, CA.

In Hotak v Southwark LBC [2015] UKSC 30; [2016] AC 811; [2015] H.L.R. 23, the Supreme Court held, inter alia, that a person is vulnerable if he is “significantly” more at risk of harm without accommodation than an ordinary person would be. For these purposes, an ordinary person is “an ordinary person who is homeless” not an “ordinary homeless person”.

Each of the appellants applied to their respective local housing authorities for homelessness assistance. Both sought a review of the authorities’ decisions that they were not in priority need and, on receipt of negative review decisions, appealed to the county court alleging, inter alia, that too high a threshold had been applied when considering whether they were “significantly more vulnerable than ordinarily vulnerable”. Both appeals were dismissed and both appealed to the Court of Appeal on what “significantly” meant in Hotak. The appeals were heard together.

The Court of Appeal held that “significantly” does not introduce a quantitative threshold, rather, it is to be read as applying a qualitative test: “In other words, the question to be asked is whether, when compared to an ordinary person if made homeless, the applicant, in consequence of a characteristic within section 189(1)(c), would suffer or be at risk of suffering harm or detriment which the ordinary person would not suffer or be at risk of suffering such that the harm or detriment would make a noticeable difference to his ability to deal with the consequences of homelessness”, per Lewison LJ, at [64].

In Mr Panayiotou’s case, it was held that there was no trace of any quantitative threshold being applied when the review decision-maker said “I am not satisfied that, as a result of your condition, you would be at more risk of harm from being without accommodation than an ordinary person would be.” His appeal was dismissed. In Mr Smith’s case, however, it was held that the review decision-maker had applied “significantly” as importing a quantitative threshold when he said: “It may very well be the case that you are more vulnerable than ordinarily vulnerable but I am not satisfied that you are significantly more vulnerable or even [more] vulnerable than ordinarily vulnerable.” His appeal was allowed.

Each party had an additional ground of appeal: Mr Panayiotou alleged that the review decision-maker had failed to make relevant findings of fact. That ground was dismissed on the facts.

Mr Smith’s additional ground had three parts, each of which was dismissed. The review decision had been carried out by a company for Haringey’s ALMO, to whom Haringey had delegated decisions on homelessness reviews. Mr Smith argued that it was impermissible to contract out homelessness functions because the authority were not able to delegate their public sector equality duty (PSED) under s.149(1), Equality Act 2010. Although the court noted that the PSED is non-delegable, this part of the ground was dismissed because, inter alia, functions exercised on behalf of an authority are deemed to have been exercised by the authority themselves (s.72, Deregulation and Contracting Out Act 1994), and because the external body had its own PSED (s.149(2) Equality Act 2010) there was no gap in its application.

Further, Mr Smith argued that Haringey LBC were not entitled to contract out their homelessness functions because their constitution prohibited the contracting out of “discretionary decision-making”. This part of the ground was dismissed: decisions taken within the authority’s homelessness function are not discretionary (for the reasons given in Tachie v Welwyn Hatfield BC [2013] EWHC 3972 (QB); [2014] PTSR 662).

Finally, Mr Smith argued that the procurement process by which the external body was appointed was flawed because the authority had not considered the PSED at the relevant time. This part of the ground was dismissed on the facts.

Summary by Riccardo Calzavara, barrister, Arden Chambers who, together with Toby Vanhegan also of Arden Chambers, appeared for the appellant in Smith v Haringey LBC.

For the full judgment click here
_____

Doka v LB Southwark [2017] EWCA Civ 1532, 17 October 2017
Mr Doka (“the Appellant”) was a secure tenant who fell into rent arrears and was therefore evicted from his home on 30 November 2010. It was accepted that he was intentionally homeless as a result. In December 2010 the Appellant began renting a room at the home of his former employer, Mr Theobold. They entered into an arrangement whereby Mr Theobold allowed the Appellant to live in his son’s room at a rent of £500 per month for two to three years whilst his son was at university. The Appellant agreed to stay elsewhere on occasional nights when Mr Theobold’s son returned home and needed to use his room.

In December 2012 Mr Theobold’s son returned home from university and the Appellant was asked to leave. The Appellant stayed with friends between 2013 and October 2014 and then applied to the London Borough of Southwark (“the Respondent”) for housing assistance.

The Respondent found that the Appellant was intentionally homeless under section 191 of the Housing Act 1996 (“HA 96”) due to his earlier eviction in November 2010 and was therefore owed only a limited duty pursuant to section 190 HA 96 rather than the full housing duty under section 193 HA 96.

Review and Appeal
At the review stage, the Appellant argued that living with Mr Theobold constituted “settled accommodation” which broke the chain of causation between his present state of homelessness and earlier eviction from his secure tenancy. This was rejected and the reviewing officer confirmed the original decision on 20 February 2015. The Appellant’s section 204 appeal was dismissed by Mr Recorder Hancock QC on 29 April 2016.

Permission for a second appeal was refused on the papers but the court granted permission following an oral hearing to consider what constitutes settled accommodation based on Gilby v City of Westminster [2007] EWCA Civ 604; [2008] HLR 109.

Judgment
Appeal dismissed.

The Appellant argued that two years was a significant period of time and that living with Mr Theobold constituted settled accommodation. The court held that the length of the period of accommodation relied on is not conclusive as to whether it should be treated as settled. What an applicant needs to establish is a period of occupation under either a licence or tenancy which has at its outset or during its term a real prospect of continuation for a significant or indefinite period of time so that the applicant’s transition from his earlier accommodation cannot be said to have put him into a more precarious position than he previously enjoyed (see paragraph [18]).

In the present case, the reviewing officer was entitled to conclude that the arrangement with Mr Theobold was at all times a precarious one in that it had a finite duration and priority was given to Mr Theobold’s son’s need for the room. The Appellant was required to vacate the room for the days when Mr Theobold’s son came home and when he ended his studies at university. This was an intermittent licence under which the prospect of continuation was always uncertain (see paragraph [20]).

Summary by Clara Zang, barrister, Arden Chambers.

For the full judgment click here

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HOUSING LAW CONSULTATIONS
 

London Housing Strategy
The Mayor of London has published his draft Housing Strategy for London. It seeks to provide ‘a comprehensive plan to address the housing crisis over the next few years. This includes: starting to build 90,000 new affordable homes by 2021; ensuring a better deal for private renters; increasing the building of more genuinely affordable homes; supporting new housing providers including community builders; and helping tackle homelessness, with a way off the street for every rough sleeper.’ The three-month consultation ends on 7 December 2017. The strategy will be revised following the consultation period. For the consultation document, click here In order to respond on behalf of an organisation, click here

Planning for the right homes in the right places: consultation proposals
This consultation sets out a number of proposals to reform the planning system to increase the supply of new homes and increase local authority capacity to manage growth. Proposals include: a standard method for calculating local authorities’ housing need; how neighbourhood planning groups can have greater certainty on the level of housing need to plan for; a statement of common ground to improve how local authorities work together to meet housing and other needs across boundaries; making the use of viability assessments simpler, quicker and more transparent; and increased planning application fees in those areas where local planning authorities are delivering the homes their communities need. The attached ‘Housing need consultation data table’ sets out the housing need for each local planning authority using a proposed method, how many homes every place in the country is currently planning for, and, where available, how many homes they believe they need. The consultation closes on 9 November 2017. For more details, click here

Enabling Gypsies, Roma and Travellers – Wales
On 28 September 2017 the Welsh Government published a consultation document which replaces the Travelling to a Better future Framework for Action and Delivery Plan (2011).The consultation document makes proposals for Gypsies, Roma and Travellers that help, amongst other matters, to: improve social inclusion; allow access to culturally-appropriate and good quality accommodation; and reduce the incidence and impact of unauthorised encampments and homelessness. The consultation closes on 21 December 2017. For the consultation document and more information about the scope of the consultation, click here

A Fundamental Review of Social Housing Allocations – Northern Ireland
On 28 September 2017 the Department for Communities in Northern Ireland published a consultation document which sets out the Department’s proposals for changes to how social homes are allocated. The proposals are intended to produce five key outcomes: (1) a greater range of solutions to meet housing need; (2) an improved system for the most vulnerable applicants; (3) a more accurate waiting list that reflects current housing circumstances; (4) those in greatest housing need receive priority, with recognition of their time in need; and (5) better use of public resources by ensuring the list moves smoothly. The consultation closes on 21 December 2017. For the consultation documents, click here

Renting Homes (Wales) Act 2016 – Fitness for human habitation
The Renting Homes (Wales) Act 2016 (the 2016 Act) is intended to make it simpler and easier to rent a home in Wales, replacing various and complex pieces of existing legislation with one clear legal framework. The new 'occupation contracts' replace current tenancies and will make the rights and obligations of both landlord and contractholder much clearer. This includes the landlord’s duty, set out in section 91 of the 2016 Act, to ensure a dwelling is fit for human habitation (FFHH). Where a landlord rents a dwelling that is unfit, a contract-holder will be able to seek an order from the court requiring the landlord to remedy the problem. Section 94 of the Act requires the Welsh Ministers to make regulations in relation to determining whether a dwelling is FFHH. This consultation sets out and invites comments on the proposed Regulations. The consultation closes on 12 January 2018. For the consultation documents, click here

Homelessness code of guidance for local authorities
On 16 October 2017 the DCLG launched a consultation on a proposed revised homelessness code of guidance. The Government says that the Homelessness Reduction Act 2017, which will commence in April 2018, is designed significantly to reform England’s homelessness legislation by placing duties on local authorities to intervene at earlier stages to prevent homelessness in their areas. It also requires local authorities to provide homelessness assistance to all those affected, not just those who are protected under existing legislation. As part of the Act’s implementation the government is revising the existing statutory code of guidance. This will provide updated guidance to local authorities on how they should exercise their homelessness functions and apply the legislation in practice. This consultation seeks views on the proposed revised homelessness code of guidance. The consultation will close on 11 December 2017. For more details, click here

Protecting consumers in the letting and managing agent market: call for evidence
On 18 October 2017 Sajid Javid, the Secretary of State for Communities and Local Government, announced proposals to address the imbalance of power in the private rented market by regulating letting agents. This call for evidence seeks views on whether a new regulatory model is needed for agents in the leasehold sector. The DCLG wants to understand what form regulation of letting and managing agents should take to best protect and empower tenants and leaseholders. It is an evidence gathering exercise that will enable government to bring forward detailed proposals early next year. The consultation closes on 29 November 2017. For more details, click here

Improving the home buying and selling process: call for evidence
On 22 October 2017 the government said that it is committed to improving the existing home buying and selling process in order to make it cheaper, faster and less stressful. The DCLG is seeking views and suggestions for improvement from anyone who has an interest in the process. Responses to this call for evidence will help the government to formulate its future work programme of improvements. This consultation closes on 17 December 2017. For more information, click here

Proposed reduction in frequency of the Forces Help to Buy Official Statistic
This is a monthly publication that provides statistics on the number of applications and payments made under the Forces Help to Buy Scheme since its launch in April 2014. The Ministry of Defence is seeking external users’ views on reducing the frequency of publication of the official statistics. This consultation closes on 16 November 2017. For the details, click here

Future role of alternative dispute resolution in civil justice
An expert working group of the Civil Justice Council (CJC) has published a comprehensive interim report on the existing role and potential future role of ADR (alternate dispute resolution) in civil justice in England and Wales, including consideration of housing cases. The CJC is now seeking written submissions on the findings and recommendations of the report, ahead of organising a seminar at which the proposals can be discussed and a final report prepared and submitted to the government for consideration. Written submissions on the report should be submitted by 15 December 2017. For the document, click here
HOUSING LAW ARTICLES & PUBLICATIONS
 
Are homelessness services the last refuge for refugees? Patrick Duce [2017] Homeless Link 17 October. To read this article, click here

Getting real about options for hard-pressed renters Kate Webb [2017] Shelter Blog 20 October. To read this article, click here

Homelessness and vulnerability Riccardo Calzavara [2017] Local Government Lawyer 20 October. To read this article, click here

Making Fair Rent Homes a reality Shelter Researcher [2017] Shelter Blog 20 October. To read this article, click here

Getting along (better) with the neighbours Nicholas Dobson [2017] New Law Journal 20 October. To read this article (subscription needed), click here

Fair rent homes? Our long-term mission to transform renting Janey S [2017] Shelter Blog 23 October. To read this article, click here

Significantly more vulnerable – how much, or what kind? Giles Peaker [2017] Nearly Legal 23 October. To read this article, click here

Leaseholder Enforcement: The Basics Rebecca Sembuuze [2017] Anthony Collins Blog 23 October. To read this article, click here

Restrictions must be lifted to make way for more council homes Ian Graves [2017] The Planner 23 October. To read this article, click here

So, what’s the latest on the Letting Fees ban? Kojo Apeagyei [2017] Shelter Blog 23 October. To read this article, click here

Recent Developments in Housing Law
Jan Luba QC & Nic Madge [2017] October issue of Legal Action. Available in print and on-line for Legal Action subscribers. For the latest issue, click here
HOUSING LAW DIARY
 
25 October 2017                       
House of Commons Opposition Day Debate: Supported Housing

9 November 2017                     
Consultation closes on Planning for the right homes in the right places (see Housing Law Consultations)

16 November 2017
Consultation closes on Proposed reduction in frequency of the Forces Help to Buy official statistics (see Housing Law Consultations)
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