HOUSING LAW NEWS & POLICY ISSUES

Tenant Fees Act 2019 (Commencement No 1) Regulations 2019
These Regulations commence section 22 of the Tenant Fees Act 2019 (the Act) from 14 February 2019. Section 22 relates to approval and designation of client money protection schemes. Specifically, it amends the Client Money Protection Schemes for Property Agents (Approval and Designation of Schemes) Regulations 2018 which set out the rules for approving client money protection schemes. For the Commencement Regulations, click here. For the Act, click here. For the 2018 Regulations, click here.

Building social housing: Local Government Association analysis
On 15 February 2019 the Local Government Association reported that new analysis commissioned by the association revealed that “building 100,000 government-funded social rent homes a year over the past two decades would have cut billions from the housing benefit bill, provided higher disposable income for tenants and generated significant economic returns.” Cambridge Economics was asked to assess the implications if 100,000 government-funded social rent homes had been built each year over the past two decades. It found that:

• Such a building programme would have enabled all housing benefit claimants living in the private rented sector to move to social rent homes by 2016.
• The housing benefit claimants who would have moved from the private rented sector to social rent homes would have benefited to the tune of £1.8 billion in extra disposable income over the period.
• Overall, the Government would have had to borrow an additional £152 billion in 2017 prices to build the homes over the 20-year period. With every pound spent on building homes generating £2.84 in return, the cost of investing in social housing would have been offset by additional tax revenues generated by the construction industry as well as welfare savings from moving housing benefit claimants to lower cost social rent homes. The rising proportion of housing benefit caseloads in the private rented sector has cost an extra £7 billion in real terms over the last decade.

For more details, click here.

Preparation for no-deal Brexit: Regulator of Social Housing
On 14 February 2019 the Regulator of Social Housing wrote to large registered providers of social housing in order to clarify the Regulator’s expectations of providers and share what the Regulator has identified as the most significant potential risks facing the social housing sector in the event of a ‘no-deal’ Brexit. The letter also highlights the importance of stress testing and effective mitigations in the context of the increased uncertainty about the terms on which Britain will leave the EU. For the text of the letter, click here.

Affordable housing
On 15 February 2019 Housing Minister Kit Malthouse announced £6 million funding to help communities build more affordable homes in their areas. The Community Led Homes Programme will provide funding of up to £10,000 to groups to cover start-up costs such as legal fees, and a further £3.5 million will be made available to provide technical advice and support to guide communities through the process of building housing. For more details, click here.

Development of public sector land
On 14 February 2019 the MHCLG and the Cabinet Office announced plans for public sector land to be developed in order to bring forward 10,000 new homes, 14,000 new jobs and save £37 million in running costs. The latest round of the One Public Estate programme will see investment of £15million and support given to more than 100 local public sector partnerships across England, to bring forward proposals for a range of new projects on public sector sites. For the announcement, click here.

Development of Ministry of Defence land
On 14 February 2019 the Communities Secretary James Brokenshire announced a new partnership between Homes England and the Ministry of Defence under which more than 10,000 properties will be built on seven military bases across the country. The Communities Secretary also announced £250 million investment to deliver almost 25,000 more homes, including £157 million for housing infrastructure in Cumbria and Devon. For the announcement, click here.

Landlord possession statistics – England and Wales
On 14 February 2019 the Ministry of Justice published quarterly national statistics on possession claim actions in county courts by mortgage lenders and social and private landlords. The statistics cover the period from October to December 2018. Landlord possession claims (28,790) and orders for possession (23,419) decreased by 8 and 5 per cent respectively, compared to the same quarter the previous year. Warrants of possession (15,996) increased slightly (by 2 per cent). Repossessions by county court bailiffs (8,243) were down 3 per cent compared to the same quarter the previous year. For the statistics (combined with those for mortgage possession below), click here.

Landlord possession statistics – Wales only
On 14 February 2019 the Ministry of Justice published quarterly national statistics, specific to Wales, on possession claim actions in county courts by mortgage lenders and social and private landlords. There were 1,227 landlord possession claims made during October to December 2018, about the same (1,225) as the same quarter of 2017. There were 1,121 landlord possession orders made during the quarter, which is the same as October to December 2017. For the statistics (combined with those for mortgage possession in Wales below), click here.

Mortgage possession statistics – England and Wales: claims and possession orders up by about 30 per cent
On 14 February 2019 the Ministry of Justice published quarterly national statistics on possession claim actions in county courts by mortgage lenders and social and private landlords. The statistics cover the period from October to December 2018. Mortgage possession claims (5,648) have increased 30 per cent compared to the same quarter the previous year. Orders for possession (3,595), warrants issued (4,571) and repossessions (1,046) have also increased by 29,30 and 5 per cent respectively compared to the same quarter the previous year. For the statistics (combined with those for landlord possession above), click here.

Mortgage possession statistics – Wales only: claims and possession orders up by about 25 per cent
On 14 February 2019 the Ministry of Justice published quarterly national statistics, specific to Wales, on possession claim actions in county courts by mortgage lenders and social and private landlords. During October to December 2018, there were 393 mortgage possession claims, up 24 per cent on the same quarter in 2017, and 263 mortgage possession orders made, up by 25 per cent, on the same quarter of 2017. For the statistics (combined with those for landlord possession in Wales above), click here.

Welfare safety net: Select committee investigation
On 13 February 2019 the House of Commons Work and Pensions Select Committee questioned a broad group of charity and public sector on their responses to the “unholy trinity”, ie debt, hunger and homelessness, which many have linked to the UK’s programme of welfare reform. The session followed the government acceptance of a link between Universal Credit and increasing food bank use. For more details of the session, click here. To watch it, click here.

Private rented housing: the rent control debate
On 15 February 2019 the House of Commons Library published a briefing paper providing an overview of the debate around rent control/regulation. It includes some information on a small selection of international rent regimes. Rents on most new private rented tenancies created after 15 January 1989 were deregulated in England. Affordability pressures in areas of high housing demand have given rise to calls for a return to regulation. For the briefing, click here.

House licensing scheme – Haringey
On 18 February 2019 Haringey Council reported that its cabinet had approved a borough-wide additional licensing scheme for Houses in Multiple Occupation (HMO). The proposed scheme will require private rental HMO landlords in the borough to license their properties with the Council so that it can ensure that such properties meet legal standards, and are properly managed to protect the health, safety and welfare of people living in them. A discounted fee is chargeable to landlords who apply for a licence before 26 May 2019. For more details, click here.

Grenfell Tower fire: role of London Fire Brigade
On 18 February 2019, Channel 4’s Dispatches broadcast a programme titled Grenfell: Did the Fire Brigade Fail? which investigates the London Fire Brigade's response to the Grenfell fire, through interviews with survivors and firefighters, and uses new evidence released by the public inquiry. In anticipation of the programme, but before it had been seen by the Fire Brigades Union, Matt Wrack, FBU general secretary, said:

“Firefighters risked their lives that night to save others, and were placed in an utterly impossible situation because of the failure of the building. Before any firefighter arrived, before any 999 calls were made, the building was a potential death trap. The building was wrapped in flammable cladding which caused the fire to spread at an unprecedented, and rapid rate.

“We have longstanding criticisms of fire and rescue policy in the UK, and have in the past made many criticisms of individual fire and rescue services, including the London Fire Brigade. The FBU has made urgent recommendations for a review of the stay put policy, but we are clear that this is a national matter which government should initiate. The government has been too slow to respond, both in terms of unsafe building materials and reviewing national fire and rescue policy.”

To watch the Dispatches programme, click here. For an article in The Guardian about the FBU’s response, click here.

Homelessness in London: Online ‘Atlas’ of services launched
On 14 February 2019 London Housing Federation, in partnership with Homeless Link, launched Atlas, an interactive website which provides an overview of the services supporting single homeless people (ie those without dependent children) in London. The data were collected between July and November 2018 and will be fully refreshed each year with updated information as well as new content. It is intended for use by policy makers, researchers, commissioners, service providers, frontline staff and anyone interested in services for homeless people in London.

For more details, 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 until 15 March 2019. 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

R on the application of B v LB Redbridge [2019] EWHC 250 (Admin)

B is a woman who fled her family home due to domestic violence perpetrated by her husband. After living in refuge accommodation, she applied to the local authority for assistance as a homeless person. In December 2017, LB Redbridge (“the Council”) offered B the tenancy of a flat which she accepted. Shortly after moving in, B requested a review of the suitability of the flat on the basis that it was unaffordable. The Council carried out a review pursuant to section 202 of the Housing Act 1996 and found that the accommodation was suitable.

Shortly after the Council had reached its negative review decision, B received her first electricity bill at the accommodation which was higher than she had anticipated. She asked the Council to carry out a new review of its decision that the accommodation was suitable in light of the higher than expected electricity bill. The Council did not respond to that request.

B unsuccessfully appealed against the section 202 review decision to the County Court under section 204 of the Housing Act 1996. The County Court judge refused to take into account the electricity bill since it had not been before the review officer making the decision under review. B applied to the Court of Appeal for permission to appeal the section 204 decision. Separately she issued judicial review proceedings challenging the Council’s failure to carry out a second review of the suitability of the accommodation in light of the electricity bill.

The Council argued that B had an alternative remedy to judicial review: namely the option of a section 204 appeal to the County Court. The High Court held, however, that such an appeal was limited to a review of the section 202 decision and that since the high electricity bill post-dated the review decision, a section 204 appeal did not provide an adequate alternative remedy.

As to the substance of the claim, the High Court noted that there is a limit on section 202 reviews by virtue of the fact that any review must be requested within a 21 day time limit. Since B had requested the second review outside that time limit, the Council had been under no obligation to carry out a second review.

B argued that the 21 day time limit should be held not to apply to reviews of suitability of accommodation because suitability is a fluid concept and therefore it can change over time, thus needing to be revisited over time. The Court rejected this argument: section 202(3) was clear on its face that the 21 day time limit applied to all section 202 reviews.

B further argued that the Council had made an implicit continuing decision that the accommodation was suitable and that she was entitled to a section 202 review of that implicit decision. The Court rejected that argument: B’s challenge had clearly been to the written section 202 decision from December 2017.

The Court further held that section 202 only permits “a” review, meaning one review, meaning that B could not seek a second one.

The Court refused to allow B to amend her claim to challenge the implicit decision of the Council not to carry out an extra-statutory review of the accommodation’s suitability since any such amendment would have caused unacceptable delay to the resolution of the claim.

In all the circumstances, the High Court dismissed B’s claim for judicial review, however it noted that B was not left without a remedy: the Court held that since a local authority has a continuing obligation to provide suitable accommodation, a person in B’s situation could ask the council to satisfy itself that the accommodation was still suitable in light of new information. Thereupon, the council would have to make a lawful decision as to whether to make a fresh decision on suitability (and, if it did, a fresh s.202 review could follow). Alternatively, the Court noted that B could request an extra-statutory review of suitability, in response to which the Council would have to make a lawful decision as to whether to do so. Alternatively, a fresh application for homelessness assistance could be made on the person that the accommodation is unsuitable and therefore that B is homeless.

Summary by Alexander Campbell, barrister, Field Court Chambers. For the full judgment click here.

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.

Enforcement of possession orders and alignment of procedures in the county court and high court
The Civil Procedure Rules (CPR), made by the Civil Procedure Rule Committee (CPRC), govern civil court processes including enforcement of court orders, and thus of orders for possession. The CPRC is concerned that the Rules regarding enforcement of possession orders ought to be reformed but wishes to obtain views from actual and potential court users, and those potentially affected, before determining what (if any) changes to make in the existing rules and system. The proposals in this consultation are intended to improve the process of enforcement of possession orders in order to bring it up to date with a modern justice system that is open and transparent and in tune with the needs of both the claimant and defendant and others affected.

The consultation closes on 2 May 2019. For more details and to complete the online survey, click here.

HHSRS Review Scoping Study: Tenant and Advice Agency Survey 
RHE is undertaking a scoping study as the first stage of a review of the Housing Health and Safety Rating System (HHSRS). The HHSRS is the approach taken to evaluate potential risks to health and safety of actual, or potential occupiers, from any deficiencies identified in dwellings. Evaluating the risks from housing conditions is the first step local authorities take when using their powers within Part 1 of the Housing Act 2004. RHE is seeking the views of tenants and those organisations and agencies that provide support and advice to tenants regarding poor housing conditions. The closing date for submissions is 24 February 2019. To undertake the survey, click here.

HOUSING LAW ARTICLES & PUBLICATIONS

Assessing the impact of the Homes (Fitness for Human Habitation) Act 2018 Matthew Wilson and Sian Evans, Local Government Lawyer 15 February 2019- to read the article click here

Building social housing over 20 years could have saved renters £1.8 billion Local Government Association website 15 February 2019 – to read the article click here

'It's not fair to expect people and their children to hop about from home to home' Alastair Ball, Shelter Blog 15 February 2019 – to read the article click here

£123 billion of property is barely used in Britain as experts call for Empty Home Tax Sarah Knapton,The Telegraph 13 February 2019 -to read the article click here

Britain's feudal leasehold system is killing the dream of homeownership, Harry Scoffin The Telegraph 15 February 2019 -to read the article click here

Pioneering project puts fire safety in the frame Bill Tanner, 24 Housing 18 February 2019 - to read the article click here

Government plans to crack down on illegal traveller sites CMS Law Now 14 February 2019 - to read the article click here

A changing judiciary in a modern age Speech by the Lord Chief Justice 18 February 2019 - to read the speech click here

HOUSING LAW DIARY

24 February 2019                                 
Closing date for submissions to HHSRS Review Scoping Study: Tenant and Advice Agency Survey (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)

15 March 2019                                     
Postponed second reading of Creditworthiness Assessment 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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