HOUSING LAW NEWS & POLICY ISSUES

Grenfell Tower – update on fire safety advice
On 15 March 2018 Sajid Javid, the Secretary of State at MHCLG, made a statement to Parliament concerning fire safety following a failure of glazed fire doors, used at Grenfell Tower, in tests carried out by the Metropolitan Police. The MHCLG has been advised by its Independent Expert Panel that the risks to public safety remain low. Consequently, there is no change to the fire safety advice that the public should follow. For the Secretary of State’s statement, click here For a letter to former residents about the fire door failure, click here

Manchester tower blocks – fire safety
On 19 March 2018 The Guardian reported that a Freedom of Information request had elicited that “in examinations of 489 residential tower blocks across the [Greater Manchester] region, the fire service found that only 117 of them were ‘broadly compliant’ with fire safety laws. For the report, click here

Grenfell tower fraudster found guilty
On 15 March 2018 a woman who pretended to be the widow of a Grenfell Tower victim so she could claim money and accommodation was convicted of fraud. Joyce Msokeri was found guilty at Southwark Crown Court of a number of offences connected to a scam in which she went on to claim her made-up husband had actually survived and taken refuge in a cave. In the aftermath of the fire, Msokeri gave a fake name to relief workers to falsely claim food, clothing, money, and a month’s accommodation in the Hilton hotel in Kensington. She also tried to obtain rehousing, despite living in a flat in Sutton, south London. She will be sentenced on 6 April 2018. For the Crown Prosecution Service report of the case, click here

Leasehold high-rise flats: who pays for fire safety work?
On 16 March 2018 the House of Commons Library published a paper which considers the debate about who is responsible for paying for fire safety works on blocks of flats in the wake of the Grenfell Tower fire. To read the paper, click here

Private lettings – measures to prevent overcrowding and dangerous homes
On 15 March 2018 Housing Minister Heather Wheeler laid before Parliament measures to improve overcrowded and dangerous living conditions of private tenants in shared homes. From October 2018 councils will be able to set minimum bedroom size standards and also introduce limits on how many people can live in each bedroom of a licensed multiple occupancy home. Councils will be able to use national minimum standards or apply even tougher requirements in order to address specific local needs. Breach of such restrictions will attract fines of up to £30,000. The new standards will apply to all landlords seeking new licences. Landlords of existing properties will be given up to 18 months to make necessary changes when re-applying for a licence when it expires. For details, click here   

Housing guarantee scheme rules – private rented sector
On 7 March 2018 the MHCLG published an updated document outlining the scheme rules for the private rented sector debt guarantee. The housing guarantees will support the building of new homes for the private rented sector. They will enable housing providers to raise debt with a government guarantee, where they commit to purchasing additional new homes for private rent. This will help to reduce their borrowing costs, increasing the number of new homes they can afford to provide. For the updated document, click here

Voluntary Right to Buy for housing association tenants – England
On 16 March 2018 the House of Commons Library published a briefing explaining proposals to extend the Right to Buy to assured tenants of housing associations on a voluntary basis. No implementation date for full roll-out has been announced. A large regional pilot scheme will begin in the Midlands in 2018 which will last for one year. To read the briefing, click here

Rough sleeping and homelessness
On 18 March 2018 The Guardian reported that Heather Wheeler, the new homelessness minister, had told the newspaper that she does not know why the number of rough sleepers has increased so significantly in recent years, but did not accept the suggestion that welfare reforms and council cuts had contributed to the rise. She said: “[w]e’re going to move heaven and earth” to fulfil the Conservative manifesto commitment of halving rough sleeping by 2022. For the report, click here

Homeless woman placed in ‘squalid temporary accommodation miles away from vital support’: Ombudsman
On 14 March 2018 the Local Government and Social Care Ombudsman reported an investigation that found that an older woman was left in temporary accommodation that was “at best shabby, dirty and in disrepair,” 14 miles away from her GP and social networks because Rother District Council had no temporary accommodation across the whole borough. The woman was placed in the hotel accommodation in a neighbouring borough after her landlord sought repossession of her privately-rented home. The Ombudsman’s investigation heard that during her time living in the hotel room, the woman made regular complaints about the poor state of the accommodation, but the council never told her of her right to appeal its suitability. Nor did it treat her complaints as an appeal. The Ombudsman also found fault with the council for not treating her complaint about it cancelling her housing benefit in error as an appeal. It left her to foot a four-figure bill when it decided, on very little evidence, she had swapped rooms with her adult son. The Ombudsman recommended the council provides an unreserved apology and pay the woman £1,250 in recognition of the injustice, and settle any costs awarded against her resulting from her landlord taking possession action. For more details and to access the Ombudsman’s 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

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 received its second reading on 19 January 2018. It will begin its Committee stage on a date to be announced. On 14 January 2018 the government confirmed that it would support the Bill. For the Bill as introduced, click here For a House of Commons Library research briefing, click here 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 which is due to be completed by 30 March 2018. For the Bill as introduced, click here For a research briefing on the Bill, 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 6 July 2018. 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

Affordable Home Ownership Bill
This Bill was introduced to Parliament on Tuesday 24 October 2017, also by Christopher Chope, under the Ten Minute Rule and is a Private Member’s Bill. It was said by him to make provision for affordable home ownership; to require the inclusion of rent to buy homes in the definition of affordable housing; to make provision for a minimum proportion of new affordable housing to be available on affordable rent to buy terms; to provide relief from stamp duty when an affordable rent to buy home is purchased; and for connected purposes. The Bill itself has not yet been published. Its second reading has been further postponed to 27 April 2018. To follow progress of the Bill, click here

Creditworthiness Assessment Bill
This Private Member’s Bill was introduced by Lord Buck and had its second reading in the House of Lords on 24 November 2017. The Bill would require certain matters (including rental payment history) to be taken into account when assessing a borrower’s creditworthiness. For the Bill as introduced, click here The Bill will have its Committee stage on a date to be announced. For progress of the Bill, click here

Regulation of Registered Social Landlords (Wales) Bill
The purpose of this Bill is to amend or remove those powers which are deemed by the Office for National Statistics (ONS) to demonstrate central and local government control over Registered Social Landlords (RSLs). These changes will enable the ONS to consider reclassifying RSLs as private sector organisations for the purpose of national accounts and other ONS economic statistics. The Bill is currently at Stage 3. Stage 3 commenced on 13 March 2018. Stage 3 consideration will take place in Plenary on 24 April 2018 to consider amendments to the Bill (as amended at Stage 2). For progress on the Bill, click here and scroll down.

Secure Tenancies (Victims of Domestic Abuse) Bill
This government Bill seeks to make provision about the granting of old-style secure tenancies in cases of domestic abuse. The Bill completed its House of Lords stages on 13 March 2018 and was presented to the House of Commons on 13 March 2018. Second reading took place on 19 March 2018. For the Bill as brought from the House of Lords, click here For a note of impacts, click here For a House of Commons Library Briefing prepared in advance of the second reading in the House of Commons, click here To follow progress of the Bill, click here

Private Landlords (Registration) Bill
This Bill was introduced to Parliament on 17 January 2018 under the Ten Minute Rule. The Bill seeks to require all private landlords in England to be registered. It is due to receive a second reading on 27 April 2018. The Bill is being prepared for publication. To read the debate on introduction of the Bill, click here To follow progress of the Bill, click here

Leasehold Reform Bill
This Bill, introduced to Parliament on 7 November 2017 under the Ten Minute Rule and sponsored by Justin Madders, makes provision about the regulation of the purchase of freehold by leaseholders; to introduce a system for establishing the maximum charge for such freehold; to make provision about the award of legal costs in leasehold property tribunal cases; and to establish a compensation scheme for cases where misleading particulars have led to certain leasehold agreements. It is scheduled to receive a second reading on 26 October 2018. The Bill is being prepared for publication. To follow progress of the Bill, click here

Homelessness (End of Life Care) Bill
This Bill, sponsored by Sir Edward Davey, was introduced to Parliament on 7 February 2018 under the Ten Minute Rule. It makes provision about end of life care and support for homeless people with terminal illnesses, including through the provision of housing for such people. The Bill’s second reading has been postponed to 27 April 2018. The Bill itself is being prepared for publication. To follow progress of the Bill, click here

NEW HOUSING CASES

Rother District Council v Freeman-Roach [2018] EWCA Civ 368
On 9 June 2016 Mr Freeman-Roach made a homelessness application to Rother District Council (“the Council”). He stated in his application form that he suffered from osteoarthritis, had strokes in 2006 and 2013, and had communication difficulties due to the strokes.

The Council provided him with interim accommodation. On 15 July 2016 the Council issued their decision, pursuant to section 184 of the Housing Act 1996 (“HA 1996”) and concluded that he was not in priority need because he was not a vulnerable person as defined in section 189(1)(c) of the HA 1996. Although the Council found that Mr Freeman-Roach suffered from anxiety and depression, expressive dysphasia, numbness to his right hand, high blood pressure, osteoarthritis/joint pain, and asthma, it concluded that he was not significantly more vulnerable than the ordinary person when homeless as his conditions were being treated and controlled by medication or were not so serious so as to have a significant impact.

Mr Freeman-Roach requested a review of the decision pursuant to section 202 of the HA 1996. A review decision was issued on 13 December 2016 (“the Review Decision”) which concluded again that Mr Freeman-Roach was not vulnerable under section 189(1)(c). The Council asked Mr Freeman-Roach to leave his interim accommodation by 22 December 2016.

Mr Freeman-Roach stated that he intended to appeal against the Review Decision and asked the Council to continue to secure interim accommodation pending his appeal to the county court. On 20 December 2016, the Council refused to exercise its discretion under section 204(4) of the HA 1996 to continue to provide Mr Freeman-Roach with interim accommodation pending the appeal (“the Interim Accommodation Decision”).

Mr Freeman-Roach lodged an appeal in respect of the Review Decision and the Interim Accommodation Decision on 21 December 2016 and sought injunctive relief.  An injunction was granted which ordered the Council to provide accommodation until the outcome of the county court appeal.

Mr Freeman-Roach’s appeal was heard in January 2017 and judgment was handed down in February 2017, allowing the appeal and awarding costs against the Council. The Council appealed.

Judgment
The Court of Appeal allowed the Council’s appeal in respect of both the Review Decision and the Interim Accommodation Decision.

The Review Decision: The Court of Appeal found that there was no error of law in the Review Decision. When reading the Review Decision as a whole, the decision-maker had correctly applied the test set out in Hotak v LB Southwark [2015] UKSC 30. A person is vulnerable under section 189(1)(c) if he is, because of his mental illness or physical disability, “significantly more vulnerable than an ordinary person who is in need of accommodation as a result of being rendered homeless” (see paragraphs [18] and [31]). The decision-maker had correctly set out his reasons for finding that Mr Freeman-Roach was not significantly more vulnerable than the ordinary person when homeless. The Court of Appeal referred to Holmes-Moorhouse v Richmond upon Thames LBC [2009] UKHL 7, where Lord Neuberger had stated that courts must not adopt a “nit-picking” approach when dealing with appeals against review decisions.

The Court of Appeal held that the burden of proof of showing that the reviewing officer had failed to apply the correct test lay with the applicant. It is not for the reviewing officer to demonstrate positively that he has correctly understood the law; it is for the applicant to show that he has not. Therefore, it was for Mr Freeman-Roach to show that the Review Decision contained an error of law.

The Interim Accommodation Decision: The Court of Appeal held that there was no error of law in the Interim Accommodation Decision and reminded itself of the applicable principles set out in R v Camden LBC ex p Mohammed (1998) 30 HLR 315 (QBD) when considering a local authority’s discretion to provide interim accommodation pending an appeal. It concluded that the Council had applied the correct test and had taken into account all relevant factors.

The lower court had held that the Council’s decision to withdraw interim accommodation was Wednesbury unreasonable. Mr Freeman-Roach’s personal circumstances were the same as they had been before the review decision when the Council did provide him with interim accommodation and the Council had failed to justify their decision or explain what was different now. The Court of Appeal held that this reasoning could not stand. The lower court’s conclusion ignored the key change in circumstances in that Mr Freeman-Roach was a person who the Council had decided did not have a priority need. Prior to that, he was a person whose status was still under review. This was sufficient to justify the difference in conclusion.

The lower court had also held that it was satisfied that Mr Freeman-Roach would be forced to live in his car pending the appeal and would find it difficult to engage in the appeal process so as to be substantially prejudiced. However, the Court of Appeal held that no reasons had been given for rejecting the decision-maker’s conclusion that Mr Freeman-Roach could approach shelters or stay with relatives in the intervening period. There was no evidence that Mr Freeman-Roach would have to sleep in his car. Further, the lower court had not paid attention to the point raised by the decision-maker about the demands of other homeless applicants and nor did it explain how Mr Freeman-Roach would be prejudiced given that the appeal was on a point of law.

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

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Davies v Hertfordshire County Council [2018] EWCA Civ 379, 6 March 2018
Davis, Sharp, and David Richards LJJ

The appellant was a school-caretaker who occupied a property as a service occupier from January 2003. He lived in that accommodation with his wife and four children. His employment was terminated on 12 June 2015, whereupon he became a trespasser. On 10 September 2015, the local authority brought a claim for possession in the County Court. The matter was transferred to the Queen’s Bench Division of the High Court.

Laing J. held, inter alia, that failure to comply with the duties under s.11, Children Act 2004 (best interests of the children), and/or s.149 Equality Act 2010 (public sector equality duty), could not found a defence to a claim for possession unless linked to an underlying private law right. A possession order was granted: [2017] EWHC 1488 (QB); [2017] H.L.R. 33; e-flash, 21 June 2017.

Thirwall LJ granted permission to appeal on whether the authority’s failure to comply with the statutory duties contained in s.11, Children Act 2004, and/or s.149, Equality Act 2010, could amount to a defence to the claim for possession. The Court of Appeal declined to hear argument on s.149, Equality Act 2010, and proceeded only in relation to s.11, Children Act 2004.

Sharp LJ, giving the lead judgment, held that the judge had erred because “in principle it is open to someone in the position of this appellant to raise a section 11 defence to possession proceedings brought by a local authority, notwithstanding the lack of a private law right to remain in possession”: [21]. On the facts of the case, however, in particular there being no unusual or compelling circumstances relating to the children, even had the authority considered their s.11, Children Act 2004, duty, the outcome would have been the same.

Summary by Riccardo Calzavara of Arden Chambers who appeared for the appellant with Toby Vanhegan, also of Arden Chambers. For the full judgment click here.

HOUSING LAW CONSULTATIONS

The Scottish government has launched a consultation on the landlord registration fee structure and application process. See below.

Renting Homes (Wales) Act 2016 – Regulations relating to safeguarding property in abandoned dwellings
The purpose of the regulations is to ensure a contract holder’s personal property is dealt with appropriately by a landlord. The Welsh Government is consulting on: the content of the regulations, including the specific requirements to be placed on landlords; the draft guidance on the regulations; and the draft guidance on section 220 of the Renting Homes (Wales) Act 2016 (abandonment). The consultation closes on 6 April 2018. For the consultation document, click here For details of how to respond, click here

Strengthening consumer redress in housing
The Ministry of Housing, Communities & Local Government has published a consultation seeking views on improving redress in the housing sector, including exploring the option of a single housing ombudsman. It covers the following issues: the current complaints and redress landscape, how it is working and if more can be done to improve it; what standards and services should be expected of a redress scheme/an ombudsman; how to fill the existing gaps between current services; and whether a single ombudsman service is needed to simplify access to redress across housing, and if so, what form that should take and what its remit should be. The consultation closes on 16 April 2018. For the consultation document, click here

Electrical safety in the private rented sector
The Ministry of Housing, Communities & Local Government has published a consultation seeking views and comments on the recommendations made by the Private Rented Sector Electrical Safety Working Group. The working group has recommended introducing five-yearly mandatory electrical installation checks for private rented property and that other safety measures be encouraged as good practice and set out in guidance. The consultation invites views and comments to gather additional evidence on the recommendations made by the working group. Any legislation brought forward as a result of this consultation will be subject to appropriate assessment. The consultation closes on 16 April 2018. For the consultation document, click here

Commonhold – Law Commission’s call for evidence
On 22 February 2018 the Law Commission called upon flat owners, housebuilders, mortgage lenders and lawyers to give their views on ‘a little-known and little used home ownership status’ called commonhold, which provides an alternative to residential leasehold. Commonhold was introduced in 2004 (when a law passed in 2002 came into force) as a new way to own property. It allows a person to own a freehold ‘unit’ – for example, a flat within a building – and at the same time be a member of the company which manages the shared areas and buildings. Commonhold, according to the Law Commission, has a number of potential advantages over leasehold. These are: ownership doesn’t run out – unlike leases which expire and can be costly to extend; standard rules and regulations apply – which should make conveyancing simpler and cheaper; and owners have a stake in the wider building and do not have a landlord – instead, owners run the shared areas together. Despite these advantages fewer than 20 commonhold developments have been created. The Law Commission project will look at why commonhold has failed to gain popularity, and what changes can be made to the current law to make it an attractive and workable alternative to residential leasehold. The consultation closes on 19 April 2018. For more details, click here

Supporting housing delivery through developer contributions
Following the announcements at Autumn Budget 2017, the government is seeking views on a series of reforms to the existing system of developer contributions in the short term. These reforms will benefit the local authorities who administer them, developers who pay them and the communities in which development takes place. The consultation closes on 10 May 2018. For more details, click here

Reviewing the landlord registration fee structure and application process – Scotland
The Scottish government is consulting on proposals intended to strengthen the system of landlord registration in a proportionate way that will help to ensure that homes rented to private rented sector tenants are of good quality and are managed professionally. Responses to the consultation will help to shape changes to the application process that will require landlords to demonstrate that they meet their legal responsibilities. They will also inform amendments to the way that fees are charged so that local authorities have enough resources to make informed decisions about who can be approved to operate as a landlord. The consultation closes on 7 June 2018. For more details, click here

HOUSING LAW ARTICLES & PUBLICATIONS

Section 11 of the Children Act and orders for possession Andy Lane and Tara O'Leary Local Government Lawyer 8 March 2018. To read this article, click here

On a Housing Court and (not) making things simpler Giles Peaker Nearly Legal 12 March 2018. To read this article, click here

Severe Weather Emergency Protocols: answering your questions Tasmin Maitland Homeless Link 13 March 2018. To read this article, click here

Deposits – don’t fake compliance. And the multiple breach issue Giles Peaker Nearly Legal 13 March 2018. To read this article, click here

How are we supporting single homeless people in England? Rick Henderson Homeless Link 13 March 2018. To read this article, click here

So important we explore the unique context of social housing in Northern Ireland Nicola McCrudden CIH Blog 14 March 2018. To read this article, click here

Housing First alone can't solve the UK's homelessness crisis Nicholas Pleace and Joanne Bretherton Guardian 14 March 2018. To read this article, click here

More vulnerability [Rother DC v Freeman-Loach [2018] EWCA Civ 368] Nearly Legal 15 March 2018. To read this article, click here

Selective licensing and the power to impose conditions Jonathan Manning Local Government Lawyer 16 March 2018. To read this article, click here

Benefit cap challenge beaten in Court of Appeal Heather Spurr Shelter Blog 19 March 2018. To read this article, click here

If you’re homelessness minister, maybe you should know something about it Neil Coyle Guardian 20 March 2018. To read this article, click here

Housing: Recent Developments Jan Luba QC & Nic Madge Legal Action March 2018 (subscription required). To read this article, click here

Housing repairs: update John Beckley Legal Action March 2018 (subscription required). To read this article, click here

HOUSING LAW DIARY

27 March 2018                         
Commencement of Housing (Right to Buy) (Designated Rural Areas and Designated Regions) (England) Order 2018 (see Housing Law News & Policy Issues)

3 April 2018                              
Commencement of Homeless Reduction Act 2017 and code of guidance

6 April 2018                             
Commencement of specific provisions of Housing and Planning Act 2016
(as to which click here)

16 April 2018                            
Consultation closes on strengthening consumer redress in housing (see Housing Law Consultations)

16 April 2018                            
Consultation closes on Electrical safety in the private rented sector (see Housing Law Consultations)

19 April 2018                            
Law Commission’s consultation closes on Commonhold (see Housing Law Consultations)

24 April 2018                            
Stage 3 consideration of Regulation of Registered Social Landlords (Wales) will take place in Plenary (see Housing Laws in the Pipeline)

27 April 2018                            
Postponed second reading of Affordable Home Ownership Bill (see Housing Laws in the Pipeline)

27 April 2018                            
Postponed second reading of Homelessness (End of Life Care) Bill (see Housing Laws in the Pipeline)

27 April 2018                            
Postponed second reading of Private Landlords (Registration) Bill (see Housing Laws in the Pipeline)

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