12th May 2021
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HOUSING LAW NEWS & POLICY ISSUES
 

Queen’s Speech
On 11 May 2021, the Queen outlined the Government’s legislative plans for the next session of Parliament. They include:

  • A Planning Bill
  • A Building Safety Bill
  • A Judicial Review Bill
  • A Leasehold Reform Bill

More details of the planned legislation will be provided in coming days. For coverage in the Guardian of the Queen’s Speech, click here. For coverage on BBC News, click here.

Fire Safety Act 2021
On 29 April 2021 the Fire Safety Bill received Royal Assent. The Fire Safety Act amends the Regulatory Reform (Fire Safety) Order 2005. It aims to make it clearer where responsibility for fire safety lies in buildings containing more than one home. The 2005 Order brought together different pieces of fire legislation. It applies to all non-domestic premises, including communal areas of residential buildings with multiple homes. The Order designates those in control of premises as the responsible person for fire safety and they have a duty to undertake assessments and manage risks. The Order is enforced by Fire and Rescue Authorities. The Act clarifies that for any building containing two or more sets of domestic premises the Order applies to the building’s structure and external walls and any common parts, including the front doors of residential areas. It also clarifies that references to external walls in the Order include “doors or windows in those walls” and “anything attached to the exterior of those walls (including balconies)”. These amendments to the Order aim to increase enforcement action in these areas, particularly where remediation of aluminium composite material (ACM) cladding is not taking place. In the late stages of the passage of the legislation, the Government resisted an amendment to the Bill intended to protect leaseholders living in unsellable and potentially dangerous high-rise homes, saying that the amendment was too widely drawn. For the Act, click here. For coverage of the attempted amendment, click here.

Cladding loan scheme
On 29 April 2021 the Commons Housing, Communities and Local Government Committee published a follow-up report on cladding urging the Government to re-commit to the principle that leaseholders should not have to pay for the removal of unsafe cladding from their homes. It also called on the Government to establish a Comprehensive Building Safety Fund that addresses the true scale of fire safety issues. Finance for the fund should be provided by Government and the building industry. For the report, click here.

Domestic Abuse Act 2021
On 29 April 2021 the Domestic Abuse Bill received Royal Assent. For the first time there will be a wide-ranging legal definition of domestic abuse which incorporates a range of abuses beyond physical violence, including emotional, coercive or controlling behaviour, and economic abuse. The measures include new protections and support for victims ensuring that abusers will no longer be allowed to directly cross-examine their victims in the family and civil courts, and giving victims better access to special measures in the courtroom to help prevent intimidation, such as protective screens and giving evidence via video link. Police will also be given new powers including Domestic Abuse Protection Notices providing victims with immediate protection from abusers, while courts will be able to hand out new Domestic Abuse Protection Orders to help prevent offending by forcing perpetrators to take steps to change their behaviour, including seeking mental health support or drug and alcohol rehabilitation.

Other measures included in the Act include:

  • extending the controlling or coercive behaviour offence to cover post-separation abuse
  • explicitly recognise children as victims if they see, hear or experience the effects of abuse
  • establish in law the office of Domestic Abuse Commissioner and set out the Commissioner's functions and powers
  • placing a duty on local authorities in England to provide support to victims of domestic abuse and their children in refuges and other safe accommodation
  • provide that all eligible homeless victims of domestic abuse automatically have 'priority need' for homelessness assistance
  • place the guidance supporting the Domestic Violence Disclosure Scheme ("Clare's law") on a statutory footing.

For the Act, click here.

Judicial Review Practice Directions issued
On 7 May 2021 a suite of Practice Directions was published, supplementing CPR Part 54 (Judicial Review). The Practice Directions have been revised in consequence of developments in caselaw and practice and come into force on 31 May 2021. A revised suite of Judicial Review forms in consequence of the reformed PDs supplementing CPR Part 54 will be published online (gov.uk) in due course. For the Practice Directions, click here.

Housing Benefit and Universal Credit (Care Leavers and Homeless) (Amendment) Regulations 2021
These Regulations, which come into force on 31 May 2021, amend the Housing Benefit Regulations 2006 (the Housing Benefit Regulations) and the Universal Credit Regulations 2013 (the Universal Credit Regulations). They extend the age ranges of the exemptions from the shared accommodation rate of the Local Housing Allowance which apply to care leavers and those who have spent at least three months in a homeless hostel whilst receiving support to assist with community resettlement or rehabilitation. For the Regulations, click here.

Housing Possession Court Duty Scheme – Slough
On 6 May 2021 a tender for the Housing Possession Court Duty Scheme (HPCDS) in Slough opened and will close on 7 June 2021. This opportunity is open to all 2018 Standard Civil Contract holders currently delivering housing and debt services. The Legal Aid Agency is offering one contract for the Slough HPCDS. For more details, click here.

Social housing lettings in England: April 2019 to March 2020
On 29 April 2021 the MHCLG published statistics on new social housing lettings in England provided by local authorities and private registered providers. Between April 2019 and March 2020:

  • There were 306,000 new social housing lettings, a decrease of 2.5 per cent or 8,000 lets from the previous year. This was driven by social rent tenancies which comprise the majority of new lets, whilst use of Affordable Rent products rose.
  • New social housing lettings decreased by 17 per cent whilst stock increased by 3 per cent over the past decade.
  • 59 per cent of new social housing lettings in 2019/20 were to tenants not in social housing immediately prior.
  • There were 1.15 million households on local authority waiting lists on 31 March 2020, a slight decrease of 1 per cent from 1.16 million in 2018/19. Over half of households (58 per cent) with a new social letting in 2019/20 were on the waiting list in that area for less than a year.
  • 18 per cent of new lettings in 2019/20 were to statutorily homeless households.
  • Lifetime tenancies comprised nearly three-quarters of new social lettings in 2019/20, mostly by local authorities.
  • Households in a new social letting in 2019/20 spent 36 per cent of their income on rent, with an average (median) rent of £81 per week.

For the full statistics, click here.

‘No fault’ section 21 evictions
On 6 May 2021 the House of Commons Library published a paper explaining the use of section 21 and reactions to its proposed abolition. The Government has committed to abolish 'no-fault' section 21 evictions in the private rented sector. A Renters' Reform Bill was promised in the 2019 Queen's Speech to achieve this. The Bill is awaited. For the paper, click here.

Forces Help to Buy Scheme quarterly statistics: 2020/21
On 29 April 2021 the Ministry of Defence published statistics on applications, payments and purchases made under the Forces Help to Buy (FHTB) scheme. Since the Scheme began in April 2014:

  • 56,540 First Stage FHTB applications have been received.
  • 28,296 of these applications have proceeded to the Second Stage.
  • Payment have been made to around 24,100 applicants, totalling around £366 million, an average of approximately £15,200 per claim.
  • At least 95 per cent of payments, as at 31 March 2021, have already resulted in a purchased property or extension.

For the full statistics, click here.

Removing rough sleepers from UK
On 7 May 2021 60 homelessness and human rights organisations issued a joint statement condemning UK Government plans to use rough sleeping as grounds for removing someone from the country, warning the policy makes non-UK nationals in vulnerable circumstances even more reluctant to accept help. The charities said the policy puts people at risk of exploitative work and potentially modern slavery, to avoid sleeping rough and putting their immigration status at risk. For the statement, click here. For the Government’s guidance, click here.

Rough sleepers in third lockdown – London
On 30 April 2021 the Combined Homelessness and Information Network (CHAIN) revealed that from January to March 2021, 3,002 people slept rough across London, this was down 9 per cent on the previous quarter, while 1,567 slept rough for the first time during this period. The figures also show:

  • 33 per cent of people rough sleeping had two or more support needs
  • 1,587 people were placed in emergency accommodation; this is up 72 per cent from the last quarter. This reflects the work of local authorities and the Greater London Authority to continue to accommodate people sleeping rough during the pandemic.

For more details and the response of Crisis, click here.

Homes for older people
On 5 May 2021 a new online survey commissioned by the Good Home Inquiry revealed that the majority (63 per cent) of people approaching later life in England see home renovations as a priority in the next two years. But half of those aged 50-70 polled said the main reason they would not be able to carry out all the renovations they say are a priority is because they cannot afford it. For more information, click here.

Breathing Space and Mental Health Crisis Debt Respite Schemes
From 4 May 2021 the Breathing Space and Mental Health Crisis Debt Respite Schemes came into effect in England and Wales. Breathing Space is a new scheme that gives people temporary protection from most types of debt collection while they take action to get on top of their debts. They can apply through a debt adviser for sixty days’ Breathing Space. They must continue to engage with their debt adviser and not take out any new borrowing over £500 in this time. They also have to continue to make certain types of payments, including ongoing housing costs, utility bills, and taxes. For information from Citizens Advice, click here and see the next item.

Assured Tenancies and Agricultural Occupancies (Forms) (Moratorium Debt) (Consequential Amendment) (England) Regulations 2021
These Regulations, which came into force on 4 May 2021 immediately after the coming into force of the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 (the Moratorium Regulations), amend the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 (the principal Regulations).

The Regulations are consequential on the coming into force of the Moratorium Regulations which establishes a scheme which will give someone in problem debt the right to legal protections from their creditors for a period of 60 days in the case of a breathing space moratorium or, in the case of a mental health crisis moratorium, the duration of the mental health crisis treatment plus 30 days. In particular, it pauses any enforcement action such as serving a notice of intention to seek possession of the rented property. These Regulations amend Form No. 3 in the Schedule to the principal Regulations to insert a reference to the legal protections offered by virtue of the Moratorium Regulations into that Form. For the 2021 Regulations, click here. For the updated form, click here. For a note by Giles Peaker concerning the form, click here.

Grenfell Tower Inquiry update
On 30 April 2021 the Grenfell Tower Inquiry published its April newsletter. It provides a digest of: resumption of limited attendance hearings; Module 3 factsheet; Inquiry financial report; disclosure figures; Core Participant figures; support arrangements during limited attendance hearings; and contact information. For the update, click here.

HOUSING LAWS IN THE PIPELINE
 

Fire Safety Act 2021
This Act makes provision about the application of the Regulatory Reform (Fire Safety) Order 2005 where a building contains two or more sets of domestic premises; and confers power to amend that order in future for the purposes of changing the premises to which it applies. The Bill received Royal Assent on 29 April 2021. For the Act, click here. To read debates on all stages of the bill, click here. For a briefing paper, published by the House of Commons Library on 19 March 2021, click here. For more details of the Act, see Housing Law News and Policy Issues (above). 

The following Bills failed to complete their passage through Parliament before the end of the session. This means that each Bill will make no further progress.

Vagrancy (Repeal) Bill
This private member’s bill, sponsored by Layla Moran, would have repealed the Vagrancy Act 1824. It received its first reading in the ouseHouse of Commons on 18 March 2020.

Sublet Property (Offences) Bill
This private member’s bill, sponsored by Sir Christopher Chope, would have made the breach of certain rules relating to sub-letting rented accommodation a criminal offence and would have made provision for criminal sanctions in respect of unauthorised sub-letting. It received its first reading on 10 February 2020.

Supported Accommodation Bill
This private member’s bill, sponsored by Steve McCabe, would have required developers to disclose for planning purposes an intention to use a building for supported housing or other accommodation that is specified for the purposes of Universal Credit and Housing Benefit; established a suitability test for accommodation proposed for such use; and made provision about the fitness of persons to be landlords or managers of supported or other specified accommodation. The bill had its first reading on 18 November 2020.

Supported Housing (Regulation) Bill
This private member's bill, sponsored by Kerry McCarthy, would have regulated supported housing; made provision about local authority oversight and the enforcement of standards of accommodation and support in supported housing; and prohibited the placing of children in care in unregulated accommodation. It received its first reading on 11 November 2020.

Mobile Homes and Park Homes Bill
This private members’ bill, sponsored by Sir Christopher Chope, would have required the use of published criteria to determine whether mobile homes and park homes are liable for council tax or non-domestic rates; made provision in relation to the residential status of such homes; and amended the Mobile Home Acts. It received its first reading in the House of Commons on 10 February 2020.

Mobile Homes Act 1983 (Amendment) Bill
This private member’s bill, sponsored by Sir Christopher Chope, sought to amend the Mobile Homes Act 1983. It received its first reading in the House of Commons on 10 February 2020.

Rented Homes Bill
This private member’s bill, sponsored by Baroness Grender, would have amended the Housing Act 1988 to abolish assured shorthold tenancies; and extended the grounds upon which landlords of residential housing may recover possession. First reading took place on 22 January 2020.

Housing and Homelessness (Local Accommodation Duty) Bill
This private member’s bill, sponsored by Karen Buck, would have placed a duty on local authorities to ensure that persons for whom a homeless duty has been accepted are accommodated in the local area, including on discharge into private rented accommodation; and would have required local authorities to publish annual reports on steps relating to housing demand and supply taken or intended to be taken to meet that duty. The bill had its first reading on 8 March 2021.

Housing Act 2004 (Amendment) Bill
This private members’ bill, sponsored by Sir Christopher Chope, sought to amend Part 3 of the Housing Act 2004 to provide that any selective licensing scheme for residential accommodation extends to social housing. It received its first reading on 10 February 2020.

Houses in Multiple Occupation Bill
This private member’s bill, sponsored by Ian Levy, would have amended the law relating to the licensing of houses in multiple occupation and increased penalties for the contravention of such licences. The bill received its first reading on 9 September 2020.

Homeless People (Current Accounts) Bill
This private member’s bill, sponsored by Peter Bone, would have required banks to provide current accounts for homeless people seeking work. It received its first reading in the House of Commons on 10 February 2020.

Evictions (Universal Credit Claimants) Bill
This private member’s bill, sponsored by Chris Stephens, sought to place a duty on the Secretary of State to prevent the evictions of Universal Credit claimants in rent arrears. It received its first reading in the House of Commons on 10 February 2020.

Domestic Properties (Minimum Energy Performance) Bill
This private member’s bill, sponsored by Sir David Amess, would require the Secretary of State to ensure that domestic properties have a minimum energy performance rating of C on an Energy Performance Certificate; to give the Secretary of State powers to require persons to take action in pursuance of that duty. The first reading was on 14 July 2020.

Caravan Sites Bill
This private member’s bill, sponsored by Sir Christopher Chope, would have amended the Caravan Sites and Control of Development Act 1960 to remove planning permission requirements for caravan site licence applicants. It received its first reading in the House of Commons on 10 February 2020.

Asylum Seekers (Accommodation Eviction Procedures) Bill
This private member’s bill, sponsored by Chris Stephens, would make provision for asylum seekers to challenge the proportionality of a proposed eviction from accommodation before an independent court or tribunal and would establish asylum seeker accommodation eviction procedures for public authorities. The first reading was on 10 February 2020.

Domestic Premises (Energy Performance) Bill
This private member’s bill, sponsored by Lord Foster of Bath, would have required the Secretary of State to ensure that domestic properties have a minimum energy performance rating of C on an Energy Performance Certificate; and to make provision regarding performance and insulation of new heating systems in existing properties. The first reading was on 8 January 2020.

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NEW HOUSING CASES
 

R (On the Application Of Elkundi & Ors) v Birmingham City Council [2021] EWHC 1024 (Admin) (23 April 2021)

The four claimants had each applied to Birmingham City Council (“the Council”) for accommodation under the homelessness provisions contained in Part VII of the Housing Act 1996 (“HA 1996”).

Each of the claimants alleged the Council was in breach of its duty to them under section 193(2) to secure suitable accommodation available for their occupation (Ground 1). This was the sole ground of challenge in Elkundi and Ross.

In Ahmed and Al Shameri, the claimants further alleged that the Council had adopted an unlawful informal system whereby it would accept that accommodation was unsuitable within the meaning of sections 206(1) and 210 HA 1996 but then go on to say that the accommodation was not unreasonable for continued occupation, over an inherently uncertain timescale, until alternative accommodation could be provided (Ground 2).

Ground 3 related solely to the case of Al Shameri, it being alleged that the Council had acted in breach of the claimant’s legitimate expectation that he would be made an offer of suitable accommodation.

The claimants succeeded on Ground 1 (save to the extent indicated in Mr Al-Shameri’s case) and Ground 2. Ground 3 was dismissed.

Judgment
In analysing the duty under s.193(2) the court agreed with the position of the claimants that the duty is triggered as soon as it is found to be owed and is not a qualified duty to provide reasonable steps [169].

The court assessed the previous case law regarding the nature of the duty under s.193(2) and agreed with the position of Linden J in M v Newham in relation to the judgments in both Anderson and Sembi that in the previous cases, the courts had mistakenly looked at the s193(2) duty as one to provide permanent accommodation, when it can be discharged by providing suitable temporary accommodation. 

The court then held that Auld LJ in Codona did not find that the duty is qualified with the words “in a reasonable time” though the court will not force an authority to do the impossible [201].

Finally, the court looked at Aweys / Birmingham v Ali. It was noted that those cases were argued on the basis that accommodation which it was not reasonable to continue to occupy could not, in principle, be suitable accommodation. Given this, the detailed facts of their respective cases were not assessed. The court therefore concluded that the lack of a finding of breach did not show that the duty is to secure suitable accommodation within a reasonable time [224]. The court again referred to the elasticity afforded by the term “suitable accommodation” as providing the sufficient flexibility, rather than any qualification of the duty.

The court then turned to the review decisions regarding suitability of the accommodation in each of the cases of Elkundi, Ahmed and Ross. The court found that on the particular facts of each case the outcomes of the reviews were that the housing was unsuitable. The Council was therefore in breach of its s.193(2) duty from the time of its finding the accommodation unsuitable [284].

The court considered the impact of limited housing stock and financial constraints. It found that these may have a bearing upon what is deemed to be suitable. Nevertheless, once it has been determined, as it was in these three cases, that accommodation secured for an applicant who is owed the main housing duty is unsuitable, lack of housing stock and lack of resources provide no defence [285].

In Mr Al-Shameri’s case, the letter sent to Mr Al-Shameri did not address suitability, only his status as homeless. The Council sought to argue that he had waived his right to be provided with temporary accommodation, choosing instead to remain homeless at home, until he later requested temporary accommodation [287]. The court rejected this, finding that the letter sent was unclear [292] and that Mr Al-Shameri did not choose on a fully informed basis to give up his right to temporary accommodation [293-294]. The court therefore found that Mr Al-Shameri was also owed the unqualified duty under s.193(2).

On 28 September 2020, the Council determined that the property was suitable for Mr Al-Shameri’s household whilst alternative accommodation was sought. The claimant did not seek review of the decision despite his family’s accommodation difficulties worsening. Taking into account that the Council believed at this time that the family had chosen to remain homeless at home, the court concluded it was not irrational to decide that it was suitable for the family to remain in their home for a few more weeks. There was therefore no breach between 28 September 2020 and 23 November 2020 [297] when an offer of accommodation was made to Mr Al-Shameri.

The court then turned to the letter sent to Mr Al-Shameri on 28.04.18 and found that its wording did not give rise to any legitimate expectation of re-housing [304].

The court then drew the following conclusions on the overall system operated by the Council:

1.         The Council had operated on the basis that an applicant may remain in unsuitable accommodation for a “reasonable time” without the Council breaching s.193(2). This misunderstanding of the nature of the duty has resulted in the Council operating an unlawful system for the performance of its duty under s.193(2) [307].

2.         Putting applicants who are owed the s.193(2) duty, and who are in unsuitable accommodation, on a waiting list for temporary accommodation is not a lawful means of fulfilling the unqualified and immediate duty to secure suitable accommodation for their occupation [308].

3.         If applicants are placed in the queue by reference to the date on which they joined the PML, the system does not operate rationally [309].

4.         In a case involving a protected characteristic, such as disability, there has to be recognition that the applicant may need to be treated more favourably than others [310].

5.         If the “Days Waiting” represent days since the applicant was placed on the PML, as the Council submits, then it would be evident that the Council is, in many cases, failing to comply with the s.193(2) duty for years [311].

6.         If the order of the queue is based on the date on which the applicant first made a homeless application, rather than the date of joining the PML, the system would still operate irrationally [312].

7.         Even if the Council was correct that the s.193(2) duty affords a reasonable time to find suitable accommodation, the system in place would fail lawfully to meet such a duty because no thought goes into the question what period is reasonable in the individual case [313].

The court granted mandatory orders in Elkundi and Ahmed giving the Council 12 weeks to secure suitable accommodation in accordance with section 193(2). In Ross, the court found that though the Council was in breach of its section 193(2) duty towards Mrs Ross, and she is entitled to a declaration to that effect, the Council had been taking all reasonable steps to secure suitable accommodation and it would be unreasonable for the court to enforce the duty via an order.

Summary by Parissa Najah, barrister, Trinity Chambers. For the judgment, click here.

HOUSING LAW CONSULTATIONS
 

Renting Homes (Wales) Act 2016 Draft Regulations
The Welsh Government is consulting on:

  • draft model written statements regulations, including the design, structure and order of the model written statements
  • draft explanatory information regulations for written statements.

The consultation ends on 16 June 2021. For the consultation document, click here. For the draft regulations, click here.

NEW HOUSING LAW ARTICLES & PUBLICATIONS
 

The Guardian view on the cladding scandal: don’t punish the innocent Editorial Guardian 28 April 2021 – to read the article, click here

Sparks Flying: Increasing Network Connectivity For Tenants Lillee Reid-Hunt, James Nelson and Natasha Barlow Local Government Lawyer 29 April 2021 – to read the article, click here

Housing case law update – April 2021 Christopher Skinner, Rebecca Asady and Filip Bodnar Local Government Lawyer 5 May 2021 – to read the article, click here

Notices and statutory nuisances Sarah Salmon Local Government Lawyer 5 May 2021 – to read the article, click here

The Queen's Speech 2021 Ami McCarthy Shelter Blog 7 May 2021 – to read the article, click here

Good jobs and stable homes – a platform for building a better life Katie Schmuecker Joseph Rowntree Foundation 7 May 2021 – to read the article, click here

Rent arrears put thousands at risk as end of eviction ban in England looms
Hilary Osborne Observer 8 May 2021 – to read the article, click here

Service charge miscellany
Giles Peaker Nearly Legal 9 May 2021 – to read the article, click here

Rent Repayment Order and legal costs Giles Peaker Nearly Legal 9 May 2021 – to read the article, click here

Dying Matters: Have your say Miranda Keast Homeless Link 10 May 2021 – to read the article, click here

Covid and Rent Arrears Amy Tagoe msbSolicitors May 2021 – to read the article, click here

Owner-occupiers: review 2021 (May 21) Dave Cowan Legal Action May 2021 – to read the article (subscription required), click here

Housing: recent developments (May 21) Sam Madge-Wyld and Jan Luba QC Legal Action May 2021 – to read the article (subscription required), click here

HOUSING LAW DIARY
 

31 May 2021                                   
End of ban on evictions from residential tenancies


31 May 2021                                   
New Judicial Review Practice Directions come into force
(see Housing Law News and Policy Issues)


31 May 2021                                   
Housing Benefit and Universal Credit (Care Leavers and Homeless)
(Amendment) Regulations 2021 come into force
(see Housing Law News and Policy Issues)

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