13th February 2019
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HOUSING LAW NEWS & POLICY ISSUES
 

Tenant Fees Bill receives Royal Assent on 12 February 2019 and becomes an Act
The Tenant Fees Act sets out the government’s approach to banning letting fees paid by tenants in the private rented sector and capping tenancy deposits in England.

The aim of the Act is to reduce the costs that tenants can face at the outset, and throughout, a tenancy, and is part of a wider package of measures aimed at rebalancing the relationship between tenants and landlords to deliver a fairer, good quality and more affordable private rented sector.

Tenants will be able to see, at a glance, what a given property will cost them in the advertised rent with no hidden costs. The party that contracts the service – the landlord – will be responsible for paying for the service, which will help to ensure that the fees charged reflect the real economic value of the services provided and sharpen letting agents’ incentive to compete for landlords’ business.

The ban on tenant fees will come into force on 1 June 2019.

The government will shortly be publishing guidance for tenants, landlords and letting agents to help explain how the legislation affects them.

For the Tenant Fees Act 2019 click here

For the Departmental Press Release James Brokenshire heralds new law protecting tenants from unfair letting fees click here

MoJ announces new legal aid strategy
On 7 February 2019 the Ministry of Justice published its new legal aid strategy: the Legal Support Action Plan which, it says, will deliver quicker and easier access to legal support services. The measures announced in the Legal Support Action Plan are in response to evidence heard during the year-long review of the changes made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The new strategy, according to the MoJ, "focuses on the individual and prioritises early intervention – giving people the breadth of support they need to solve problems quickly and easily, in many cases before they become entangled in the legal system or need legal representation".

The Action Plan’s measures include:

  • Reviewing the thresholds for legal aid entitlement and wider eligibility criteria.
  • Amending the Exceptional Case Funding process to improve timeliness and making it easier to access – this is intended to make it easier for people to access legal aid for cases which are not generally in scope, but where there is a risk of a breach of human rights and a lawyer is required.
  • Removing the mandatory requirements from the telephone gateway for debt and discrimination cases which are already in scope – by Spring 2020.

Whilst welcoming some of the government's proposals, lawyers’ groups said that much more needs to be done to reverse the effects of LASPO. For the MoJ announcement, click here. For the Legal Support Action Plan itself, click here. For the Post-Implementation Review of Part 1 of LASPO, click here. For the response of the Legal Aid Practitioners Group, click here

Rapid Rehousing Pathway: additional forty-two early adopters
On 8 February 2019 the MHCLG announced a further 42 early adopters that will receive Rapid Rehousing Pathway funding. The Pathway brings together four policy interventions: Somewhere Safe to Stay assessment hubs; supported lettings; navigators; and local lettings agencies. These interventions are all intended to help rough sleepers, and those at risk of rough sleeping, to access the support and settled housing they need. The MHCLG had previously announced eleven areas which will be piloting Somewhere Safe to Stay assessment hubs. For the announcement and details of the new adopters, click here. For the response of the Local Government Association, click here.

Buildings with smoke control systems: advice for owners
On 7 February 2019 the MHCLG published an advice note for the attention of those responsible for residential buildings of 18 metres or over. The note covers issues around the maintenance of buildings with smoke control systems. The principles of the advice may also be applicable for other building owners who have, or should have, smoke control systems installed. For the advice note, click here.

Planning for new homes: National Audit Office report
On 8 February 2019 the National Audit Office reported on the government’s reforms to the planning system, designed to help local authorities in England determine how many, where and what type of new homes should be built.

Amyas Morse, the head of the NAO, said:

“For many years, the supply of new homes has failed to meet demand. From the flawed method for assessing the number of homes required, to the failure to ensure developers contribute fairly for infrastructure, it is clear the planning system is not working well. The government needs to take this much more seriously and ensure its new planning policies bring about the change that is needed.”

For the report, click here. For a summary, click here. For a press release by the NAO, click here. For the response of the Local Government Association, click here.

Housing development: Civitas report
On 8 February Civitas published a guide, written by Daniel Bentley, which states that “the [housing] challenge is not just to increase the number of new homes, but to ensure the right ones are built in the right places”. Bentley argues that policy makers need to revisit the market in land itself and design a new framework to ensure that sites for new housing are brought forward in the quantities and at the prices that are compatible with the country’s current housing needs. He says that only by reforming the land market, and rewiring incentives for landowners, is there any hope of building sufficient homes in the places they are needed. For the report, click here. For a brief summary, click here. For the response of the Local Government Association, click here.

Rough sleeping
On 7 February 2019 the House of Commons held a Westminster Hall debate on rough sleeping. Before the debate the House of Commons Library published a briefing providing background information on the causes of rough sleeping and local authorities' duties. For the Hansard record of the debate, click here. For the briefing, click here.

Anti-social behaviour
On 7 February 2019 the House of Commons held a general debate on anti-social behaviour, sponsored by Diana Johnson. In advance of the debate, the House of Commons Library published a debate pack providing background to recent changes to the legislation that addresses anti-social behaviour; an overview of current powers; a selection of related further reading; and relevant media and parliamentary material. For the Hansard record of the debate, click here. For the briefing, click here.

Property guardians: i news investigation
On 10 February 2019 i news published a report on property guardian companies which arrange for guardians to protect vacant commercial and residential property by occupation, providing additional short term accommodation, normally at sub-market rent levels. There are estimated to be between 5,000 and 7,000 people living as property guardians in the UK. Whilst the majority of guardians are in London, i found property guardianships being advertised in 53 cities and towns across the country. According to the report, guardians have described rising costs, poor conditions and in some cases being placed in unsafe buildings. For the report, click here. For a 2018 report by the London Assembly, click here.

Private rented sector and poverty
On 8 February 2019 National Housing Federation published research which states that there are now an estimated 1.3 million children living in poverty in privately rented homes in England, an increase of 537,325 children (69 per cent) since 2008. According to the NHF report, nearly half (46 per cent) of all children in privately rented homes in England live in poverty. This is despite seven in ten (71 per cent) of such families being in work.

The report shows that by moving into social housing, typically 51 per cent of market rent, households in poverty would be around £3,172 a year better off and the government would also save around £1.8 billion per year of taxpayers’ money in housing benefit payments.

For more details, click here. For the response of the Residential Landlords Association, click here.

Breach of licensing scheme – Brent
On 6 February 2019 Brent Council reported that enforcement officers had raided a four-bedroom house in Wembley and found 19 tenants. Brent's licensing team discovered that a garage had been illegally turned into two bedrooms with a makeshift partition wall between them; a shed was in the process of being converted into what appeared to be another bedroom; and smoke alarms were in a state of disrepair. The raid was a joint operation with police officers and intelligence was shared between the Council, police and the UK Border Agency. For more details, click here

‘Benefit cap having profound impact on people's lives”: CIH
On 7 February 2019 the Chartered Institute of Housing reported analysis, conducted by it, which showed that families could be missing out on funding from Discretionary Housing Payments (DHPs) which are designed to help soften the impact of the benefit cap. Councils in England were allocated almost £53 million in DHPs from central government in 2017-18 to support people affected by the benefit cap. But they only spent £37 million, with 242 out of 274 councils failing to spend all of their allocation. The CIH notes that as at November 2018, according to figures released by the Department for Work and Pensions, 53,000 households had their housing benefit capped– 74 per cent (39,000) were single-parent families, and 76 per cent of those (29,000) had at least one child aged under five.

CIH chief executive Terrie Alafat said:

"Today’s figures show that the lower benefit cap continues to have a profound effect on people’s lives – while our analysis shows that many could be missing out on vital funding which is supposed to help soften the impact.”

For more details of CIH’s findings, click here. For the latest figures from DWP, click here.

Rough sleeping – Wales
On 5 February 2019 the Welsh Government published its annual report setting out information on the estimated number of persons sleeping rough over a two week period in October 2018. It also covers the number of persons observed sleeping rough on a single night, viz 8 November 2018. Local authorities estimated that 347 persons were sleeping rough across Wales in the two weeks between 15 and 28 October 2018. This is an increase of less than 1per cent (two persons) compared with the exercise in October 2017 with trends varying across authorities.

Local authorities reported 158 individuals observed sleeping rough across Wales between 10pm on the 8 November and 5am on 9 November 2018. This was a decrease of 16 per cent (30 persons) on the previous year mainly due to large decreases in authorities such as Wrexham and Ceredigion. Some authorities recorded an increase. Local authorities reported 184 emergency bed spaces across Wales. Of these, 33 (18 per cent) were unoccupied and available on the night of the snapshot count.

Housing and Local Government Minister Julie James said:
“Although the annual estimates of the number of people sleeping rough in Wales have shown no significant increase compared to the same time last year, we all know from walking through our towns and city centres that this most visible form of homelessness remains persistent in Wales, and there is much more for us all to do.”
For the report, click here. For a response by Crisis, click here.

Housing improvements – Wales
On 7 February 2019 the Welsh Government published an annual report including information on expenditure by local authorities on housing improvement, Disabled Facilities Grants and renewal areas. During 2017-18 overall expenditure on assistance for housing improvement (including Disabled Facilities Grants (DFGs)) increased by 7 per cent compared with the previous year to £46.5 million. Of the 22 local authorities, 13 reported an increase in overall expenditure. During that period, 4,144 Mandatory Disabled Facilities Grants, with a total value of £33.9 million, were completed by local authorities in Wales. This represents almost three quarters (73 per cent) of the overall expenditure on private sector renewal. The number of renewal areas in operation decreased to six and overall expenditure in these areas decreased by 72 per cent to £3.9 million. For the statistics, 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

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 was due to take place on 1 February 2019 but Parliament did not sit on that day and the second reading will now take place on a date to be announced. 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 and was due to receive its second reading on 23 November 2018 but was not called. 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 and was due to receive its second reading on 23 November 2018 but was not called. 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 was due to receive its second reading on 23 November 2018 but was not called. The Bill itself has not yet been published. 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. The Bill has completed all stages in the Lords. It received its first reading in the Commons on 12 September 2018. Second reading has been postponed to a date to be announced. For the Bill as brought from the Lords, click here For 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. Second reading has been postponed to a date to be announced. For the Bill, as introduced, click here 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. Second reading has been postponed to a date to be announced. For the Bill as introduced, click here 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. Second reading has been postponed to 22 March 2019. For the Bill as introduced, click here To follow progress of the Bill, click here

Housing and Planning (Local Decision-Making) Bill
This Private Member’s Bill seeks to remove powers of the Secretary of State in relation to the location of and planning permission for new housing developments; to give local authorities powers to establish requirements on such developments in their area, including requirements on the proportion of affordable and social housing. It received its first reading on 13 March 2018. Second reading has been postponed to a date to be announced. The Bill is being prepared for publication. To follow progress of the Bill, click here

Freehold Properties (Management Charges and Shared Facilities) Bill
This Private Members' Bill, sponsored by Helen Goodman, seeks to make provision for the regulation of fees charged by management companies to freeholders of residential properties; to make provision for self-management of shared facilities by such freeholders; and to require management companies to ensure shared facilities are of an adequate standard. It received its first reading on 14 November 2018. Second reading has been further postponed to 22 March 2019. The Bill is being prepared for publication. To follow progress of the Bill, click here

Gypsy and Traveller Communities (Housing, Planning and Education) Bill
This Private Members' Bill, sponsored by Andrew Selous, seeks to make provision about periodical local authority reviews of the housing needs of Gypsy and Traveller communities; to make provision for the conversion of caravan sites into settled accommodation; to require local authorities to provide temporary caravan stopping sites where there is a demonstrated need; to create a criminal offence of unauthorised encampment; to make provision about the education of Gypsy and Traveller children; and to require schools to have regard to Gypsy and Traveller culture and heritage in teaching. The bill received its first reading on 13 November 2018. Its second reading has been further postponed until 15 March 2019. The Bill is being prepared for publication. To follow progress of the Bill, click here

Renting Homes (Fees etc.) (Wales) Bill
This Welsh Government Bill includes provision for: prohibiting certain payments made in connection with the granting, renewal or continuance of standard occupation contracts; and the treatment of holding deposits. Stage 3 commenced on 30 November 2018. Stage 3 consideration will take place in Plenary on 19 March 2019 to consider amendments to the Bill (as amended at Stage 2).  For the Bill, as amended at Stage 2, associated information and to follow its progress, click here
NEW HOUSING CASES
 

JA and others v The London Borough of Bexley [2019] EWHC 130 (Admin)
In this claim for judicial review the Claimants challenged the decision of The London Borough of Bexley (the Defendant) that AA, the Claimants’ mother and litigation friend, was not destitute, and therefore the Claimants were not children in need of accommodation and support pursuant to s.17 of the Children Act 1989.

That decision was made by way of a Children and Family Assessment dated 12 June 2018 ("the assessment"). The assessment relied in part upon the findings of a fraud investigation carried out by the Defendant in 2017.

The Defendant contended that AA was concealing her resources and was far from destitute. In addition, the local authority was of the view that AA and her family can and should return to Nigeria. The Defendant asserted that there had been ongoing investigations into the family's means and that "they apparently live a lifestyle well beyond that which could be financed by the amounts given to them as subsistence by the local authority."

The Claimants contended that the Defendant's decision was unlawful for the following reasons:

i) the decision was based on material errors of fact;

ii) the Defendant failed to make sufficient enquiries and its decision was procedurally unfair;

iii) the Defendant's decision was based on a failure to take account of relevant and material considerations. The Defendant also took account of irrelevant matters; and

iv) further or alternatively, the Defendant's decision was irrational, in that on the facts of this case this was not a decision open to the local authority to take.

Legal Framework

s.17(1) Children Act 1989 (“the Act”) provides that:

It shall be the general duty of every local authority – 

(a) to safeguard and promote the welfare of children within their local area who are in need; and

(b) so far as is consistent with that duty, to promote the upbringing of such children by their families
."

The general duty under section 17(1) together with paragraph 1 of Schedule 2 imposes a duty upon local authorities to assess the needs of putative children in need: R(G) v LB Barnet  [2004] 2 AC 208 at [32].

By s.20(1)(c) of the Act every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

By s.17(3) any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child's welfare.

The Decision
The claim succeeded on all grounds and the decision was quashed. David Casement QC sitting as a Deputy High Court Judge held, inter alia, that:

  • The children’s accommodation needs had not been addressed and therefore it was difficult to see how any proper assessment could be said to have been made [40].
  • Upon close scrutiny, the findings that AA had recourse to other sources of funds was not properly based upon any of the evidence upon which the Defendant relied in reaching the decision. It was a decision which no reasonable authority could have reached on the evidence available [47].
  • The decision was flawed in that the Defendant took into account matters which it ought not to have taken into account and failed to take into account matters which it should have taken into account [48].
  • Given the evidence and materials before the Defendant at the time of the decision or which reasonably could have been available to the Defendant had appropriate enquiries been made, the decision to find that AA was not destitute and that the Claimants were not children in need was Wednesbury unreasonable [48].

Summary by Alice Richardson, barrister, Trinity Chambers For the full judgment click here.

Wells v Devani [2019] UKSC 4
The Supreme Court has handed down judgment this morning in Wells v Devani [2019] UKSC 4.

The appeal concerns an estate agent, Mr Devani, who claimed that commission became payable to him by Mr Wells, the vendor of a number flats, on the completion of the sale of the flats.

The Supreme Court unanimously allowed Mr Devani’s appeal and dismisses Mr Wells’ cross-appeal.

For the Supreme Court Press Summary click here

For the judgment click here

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HOUSING LAW CONSULTATIONS
 

Law Commission – Reinvigorating commonhold: the alternative to leasehold ownership
The Law Commission has published a consultation paper in which it makes provisional proposals “to make commonhold work for homeowners, developers, mortgage lenders and across the wider property sector”. The Paper includes proposals which would:

  • Enable commonhold to be used for larger, mixed-use developments which accommodate not only residential properties but also shops, restaurants and leisure facilities.
  • Allow shared ownership leases and other forms of affordable housing to be included within commonhold.
  • Make it easier for existing leaseholders to convert to commonhold and gain greater control over their properties.
  • Improve mortgage lenders’ confidence in commonhold to increase the choice of financing available for home buyers.
  • Provide homeowners with a greater say in how the costs of running their commonhold are met.
  • Enable homeowners to end unattractive long-term contracts imposed by developers.

The consultation closes on 10 March 2019. Comments may be sent using the online form. Where possible, it would be helpful if this form was used. For the consultation document and methods of response, click here

Improving access to social housing for members of the Armed Forces
The MHCLG is seeking views on proposals for new statutory guidance for local authorities to improve access to social housing for members of the Armed Forces, veterans, and their families. The consultation closes on 8 March 2019. For the consultation document and methods of response, click here

Revising the Mental Capacity Act 2005 Code of Practice: Call for evidence
The Ministry of Justice has issued a call for evidence in respect of the Mental Capacity Act 2005 Code of Practice. Since the Act came into force in 2007, the Code of Practice has provided practical guidance regarding its implementation. The Code offers examples of best practice to both carers and practitioners, who have a formal duty to adhere to the Code. It also serves as a fundamental piece of guidance to the friends and family of the individual, to enable them to better understand the practical insight the Act offers to those who lack capacity.

The call for evidence will seek to establish the extent to which the current Code of Practice reflects changes in case law and lessons learned through practical use of the Code of Practice over the last eleven years. The MoJ says that it is important to ensure that the Code remains relevant and places individuals at the very heart of the decision-making process. The questions in the call for evidence are designed to inform the Government's decision-making on which aspects of the Code require revision. The consultation closes on 7 March 2019.  To participate in the consultation, click here. To access the Mental Capacity Act 2005 Code of Practice document, click here.

Making it easier for leaseholders to manage their properties: Law Commission
The Law Commission has released a consultation paper comprising proposals designed to make it quicker and easier for leaseholders to take control of the day-to-day management of their building. The proposals include:

  • Extending the qualifying criteria so that leasehold houses, not just flats, qualify for the ‘right to manage’ (RTM) which gives the homeowners, rather than their landlord, responsibility for management functions relating to services, repairs, maintenance and insurance.
  • Permitting multi-block RTM on estates, and removing the 25 per cent commercial space restriction.
  • Reducing the number of notices that leaseholders must serve as part of the claim process.
  • Introducing deadlines for procedures and exchanges of information between the landlord and RTM company, so that the process doesn’t stall.
  • Exploring options for a more balanced costs regime.
  • Giving the tribunal exclusive jurisdiction over RTM disputes so it can resolve disputes quickly, and waive minor procedural mistakes made in the process of claiming the RTM.

The consultation will be open until 30 April 2019. For the consultation document, click here. For a summary, click here. For a ‘Key Facts’ document, click here.

Draft Domestic Abuse Bill: Select Committee seeks views
The Joint Select Committee on Human Rights is seeking views on the Draft Domestic Violence and Abuse Bill as part of its scrutiny. The deadline for written submissions is 15 February 2019. To send a written submission, click here. For the draft Bill and consultation, click here.
HOUSING LAW ARTICLES & PUBLICATIONS
 
The Domestic Abuse Bill: a long-awaited overhaul or flawed legislation with an implementation problem? Family Law Week, Hannah Gomersall, barrister at Coram Chambers, explores the proposed reforms set out in the government’s Domestic Abuse Bill. To read the article click here

My baby’s first home was a hostel...’
David Hutt, Shelter blog 8 February 2019 – to read the item click here

The Supreme Court considers intentional homelessness
Jo Underwood, Shelter blog 8 February 2019 – to read the item click here
HOUSING LAW DIARY
 

15 February 2019                                 
Closing date for submissions to the Joint Select Committee on Human Rights in respect of its scrutiny of the Draft Domestic Abuse Bill (see Housing Law Consultations)

7 March 2019                                       
Closing date for calls for evidence to the Ministry of Justice’s consultation on Revising the Mental Capacity Act 2005 Code of Practice (see Housing Law Consultations)

8 March 2019                                       
Closing date for submissions to the MHCLG’s consultation on Improving access to social housing for members of the Armed Forces (see Housing Law Consultations)

10 March 2019                                     
Closing date for submissions to the Law Commission’s consultation on Reinvigorating commonhold: the alternative to leasehold ownership (see Housing Law Consultations)

15 March 2019                                     
Postponed second reading of Gypsy and Traveller Communities (Housing, Planning and Education) Bill (see Housing Laws in the Pipeline)

19 March 2019                                     
Stage 3 consideration in Plenary of Renting Homes (Fees etc.) (Wales) Bill and of the amendments made at Stage 2 (see Housing Laws in the Pipeline)

22 March 2019                                     
Postponed second reading of Homelessness (End of Life Care) Bill (see Housing Laws in the Pipeline)

22 March 2019                                     
Postponed second reading of Freehold Properties (Management Charges and Shared Facilities) Bill (see Housing Laws in the Pipeline)

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