12 January 2022
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HOUSING LAW NEWS & POLICY ISSUES
 

Cladding and fire risk in flats
On 10 January 2022 the Secretary of State for Levelling Up, Housing and Communities, Michael Gove, wrote to the residential property developer industry and warned developers that they must pay to fix the cladding crisis that they caused. Mr Gove has giving them a deadline of early March to agree a fully funded plan of action including remediating unsafe cladding on 11-18 metre buildings, currently estimated to be £4 billion. He warned that he will take all steps necessary to make this happen, including restricting access to government funding and future procurements, the use of planning powers and the pursuit of companies through the courts. He added that if industry fails to take responsibility, the government will if necessary impose a solution in law.

On the same day the Secretary of State made a statement to Parliament resetting the Government’s approach to building safety and guaranteeing that no leaseholder living in their own flat will have to ‘pay a penny’ to fix unsafe cladding. Mr Gove outline a four-point plan:

  • Opening up the next phase of the Building Safety Fund to drive forward taking dangerous cladding off high-rise buildings, prioritising the Government’s £5.1 billion funding on the highest risk
  • Those at fault will be held properly to account: a new team is being established to pursue and expose companies at fault, making them fix the buildings they built and face commercial consequences if they refuse
  • Restoring common sense to building assessments: indemnifying building assessors from being sued; and withdrawing the old, misinterpreted government advice that prompted too many buildings being declared as unsafe; and
  • New protections for leaseholders living in their own flats: with no bills for fixing unsafe cladding and new statutory protections for leaseholders within the Building Safety Bill.


For the letter to developers, click here. For the DLUHC announcement, click here. For the Hansard record of the Secretary of State’s statement to Parliament, click here.

Domestic abuse: police and immigration enforcement
On 5 January 2022 the Domestic Abuse Commissioner said: “The decision by the Home Office not to adopt a [data-sharing] Firewall [between the police and immigration enforcement] is extremely disappointing and will mean that migrant victims of domestic abuse are unable to safely report perpetrators for fear of deportation. In many cases victims may feel forced to stay with perpetrators who will never be brought to justice. The measures outlined in the protocol announced by the Home Office on December 16th do not go far enough to address the fear that information will be shared with immigration enforcement, which prevents many victims and survivors from reporting domestic abuse.” For the government Policy Paper response to the Commissioner’s ‘Safety Before Status’ report, click here.  For the Domestic Abuse Commissioner’s response, click here.

Domestic abuse victims
On 4 January 2022 the Ministry of Justice announced that it would seek to amend the Police, Crime, Sentencing and Courts Bill (currently at report stage in the House of Lords) in order to allow victims of domestic abuse more time to report incidents of common assault or battery against them. Currently, prosecutions must commence within six months of the offence. Under the proposed provision, the time limit to bring a prosecution will be increased to six months from the date the incident is formally reported to the police, with an overall time limit of two years from the offence. For the announcement, click here. To follow progress of the Bill, click here.

Legal aid providers of housing law advice
On 5 January 2022 the Legal Aid Agency published an updated directory of legal aid providers, including housing law advisers. For the directory, click here.

Management of flats and estates
On 12 January 2022 the Supreme Court will give judgment in FirstPort Property Services Ltd v Settlers Court RTM Company and others, and will determine whether a company incorporated by leaseholders in a block of flats which acquires the right to manage the block under the Commonhold and Leasehold Reform Act 2002, in circumstances where the leaseholders also enjoy rights over the estate in which the block is situated, acquires only the right to manage the block itself, or also the right to manage the rest of the estate. For the decision appealed against, click here.

Housing demand: Lords report
On 10 January 2022 the House of Lords Built Environment Committee published its report, Meeting housing demand, which concludes that the Government must address barriers to building much needed new homes. Too many people, it says, currently live in expensive, unsuitable, and poor-quality homes and housing supply needs to be increased to tackle the housing crisis now. Key points highlighted in the report include:

  • The role of SMEs in the housebuilding industry has collapsed. SMEs should be supported by reducing planning risk, making more small sites available, and increasing access to finance.
  • The country needs more specialist and mainstream housing suitable for the elderly.
  • Uncertainty and delays to planning reforms have had a 'chilling effect' on housebuilding and created uncertainty for housebuilders and planners. More up-to-date local plans, simpler, clearer and more transparent, are needed. Planning departments need more resource to avert an emerging crisis.
  • Skills shortages must be addressed, through broadening the base of talent, upskilling and reskilling, including for the green skills needed to address climate change. The Apprenticeship Levy needs urgent reform. The New Homes Ombudsman’s powers must be robust and adequately enforced to ensure homes are built to high standards of quality and design.
  • The money spent on housing benefit should be invested in increasing the social housing stock. Right to Buy schemes are not good value for money: increasing the housing supply would be a more effective use of funding.

For the report, click here. For the response of the Local Government Association, click here. For an article in the Guardian, click here.

Housing and health: a reading list
On 7 January 2022 the House of Commons Library published a reading list drawing together reports and other material demonstrating the relationship between housing and health. For the list, click here.

Short-term lettings – England
On 5 January 2022 the House of Commons Library published a paper examining the growth in short-term lettings and calling for greater regulation of the sector in England. It provides a brief overview of the regulatory approaches in other countries. For the paper, click here.

Ending ‘no fault’ section 21 evictions
On 31 December 2021 the House of Commons Library published a paper covering the background and reactions to date to the Government’s announcement that it is committed to abolishing 'no-fault' section 21 evictions in the private rented sector. A White Paper is expected in 2022. For the paper, click here.

Understanding the possession action process: guidance for landlords and tenants
On 22 December 2021 the DLUHC published guidance for landlords and tenants in the private and social rented sectors to explain the possession action process in the county courts in England and Wales. For the guidance, click here.

Acceptable costs for social housing grant: guidance for social landlords – Wales
On 6 January 2022 the Welsh Government published guidance explaining what costs social landlords can claim for when applying for social housing grant. For the guidance, click here.

Housing Ombudsman: managing agent relationships and noise nuisance
On 5 January 2022 the Housing Ombudsman announced that the next two Spotlight reports for 2022 will examine learning from cases that involve social landlords’ engagement with managing agents, followed by an investigation into noise nuisance. The first of the reports, due to be published in the early part of this year, will cover repairs, service charges, cladding/building safety, estate management and heat networks. For more information, click here.

Flexible tenancies: Supreme Court hearing
On 12 January 2022 the Supreme Court will hear the local authority’s appeal in Croydon London Borough Council v Kalonga. The Court will have to determine whether a landlord can terminate a flexible tenancy agreement prior to the expiry of the fixed term if the tenancy agreement does not expressly provide for re-entry or forfeiture. For the Court of Appeal judgment, click here.

Women’s experience of homelessness
On 28 December 2021 Shelter published a report – Fobbed Off – which includes analysis showing that 60 per cent of all homeless adults living temporary accommodation in England today are women, despite only making up 51 per cent of the general population. The report uses in-depth interviews with 34 women and one non-binary person with lived experience of homelessness and bad housing, alongside statistical evidence, to expose the disproportionate impact of the housing emergency on women. For the report, click here.

HOUSING LAWS IN THE PIPELINE
 

Caravan Site Licensing (Exemptions of Motor Homes) Bill
This Private Members’ Bill, sponsored by Sir Christopher Chope, would exempt motor homes from caravan site licensing requirements. It was presented to Parliament on 21 June 2021. Second reading has been further postponed to 14 January 2022.The Bill awaits publication. To follow progress of the Bill, click here.

Homeless People (Current Accounts) Bill
This Private Members’ Bill, sponsored by Peter Bone, would require banks to provide current accounts for homeless people seeking work. It was presented to Parliament on 21 June 2021. Second reading has been further postponed to 14 January 2022. The Bill awaits publication. To follow progress of the Bill, click here.

Caravan Sites Bill
This Private Members’ Bill, sponsored by Sir Christopher Chope, would amend the requirements for caravan site licence applications made under the Caravan Sites and Control of Development Act 1960. It was presented to Parliament on 21 June 2021 and its second reading was been further postponed to 21 January 2022.The Bill awaits publication. To follow progress of the Bill, click here.

Asylum Seekers (Accommodation Eviction Procedures) Bill
This Private Members’ 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 establish asylum seeker accommodation eviction procedures for public authorities. It was presented to Parliament on 21 June 2021. The second reading has been postponed to 14 January 2022.The Bill awaits publication. To follow progress of the Bill, click here.

Leasehold Reform (Ground Rent) Bill
This Government Bill would make provision about the rent payable under long leases of dwellings. The Bill completed its House of Lords stages on 14 September 2021 and was presented to the House of Commons on 15 September 2021. The Bill received its second reading debate on 29 November 2021. The Public Bill Committee reported the Bill with amendments to the House on 9 December 2021. The Bill is due to have its report stage and third reading on a date to be announced. For the second reading debate, click here. For the Bill as brought from the House of Lords, click here. For a House of Commons Library briefing concerning the Bill, published on 25 November 2021, click here. To follow progress of the Bill, click here.

Building Safety Bill
This Government Bill would make provision about the safety of people in or about buildings and the standard of buildings, to amend the Architects Act 1997, and to amend provision about complaints made to a housing ombudsman. The Bill was given its first reading on 5 July 2021 and its second reading on 21 July 2021. The Public Bill Committee completed its scrutiny on 26 October 2021. The Bill is now due to have its report stage and third reading on a date to be announced. For the Bill as amended in Committee, click here. For the Government response to the Housing, Communities and Local Government Committee's pre-legislative scrutiny of the Bill, click here. For a House of Commons Library briefing about the Bill, published on 16 July 2021, click here. To follow progress of the Bill, click here.

Fire and Building Safety (Public Inquiry) Bill
This Bill, sponsored by Daisy Cooper, would establish an independent public inquiry into the Government’s response to concerns about fire and building safety. It was introduced to Parliament on Tuesday 6 July 2021 under the Ten Minute Rule. Second reading has been rescheduled to 18 March 2022. For the Bill, as introduced, click here

Evictions (Universal Credit) Bill
This Private Members’ Bill, sponsored by Chris Stephens, would place a duty on the Secretary of State to prevent the evictions of Universal Credit claimants in rent arrears. It was presented to Parliament on 21 June 2021 and will receive its second reading on 28 January 2022.The Bill awaits publication. To follow progress of the Bill, click here.

Housing Standards (Refugees and Asylum Seekers) Bill
This Private Members’ Bill, sponsored by Chris Stephens, would make provision for national minimum standards in accommodation offered to refugees and asylum seekers. It was presented to Parliament on 21 June 2021 and will receive its second reading on 21 January 2022.The Bill awaits publication. To follow progress of the Bill, click here.

Under-Occupancy Penalty (Report) Bill
This Private Members’ Bill, sponsored by Chris Stephens, would require the Secretary of State to report to Parliament on the merits of repealing those provisions of the Welfare Reform Act 2012 which provide for persons to be paid reduced rates of housing benefit or Universal Credit because their accommodation is deemed to be under-occupied. It was presented to Parliament on 21 June 2021 and will receive its second reading on 14 January 2022.The Bill awaits publication. To follow progress of the Bill, click here.

Mobile Homes Act 1983 (Amendment) Bill
This Private Members’ Bill, sponsored by Sir Christopher Chope, would amend the Mobile Homes Act 1983. It was presented to Parliament on 21 June 2021 and will receive its second reading on 28 January 2022. The Bill awaits publication. To follow progress of the Bill, click here.

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NEW HOUSING CASES
 

Metropolitan Housing Trust Ltd v TM [2021] EWCA Civ 1890

The Court of Appeal considered the public sector equality duty ("the PSED") as set out in s. 149 of the Equality Act 2010 in a claim for possession of residential premises.

Facts
The respondent, Metropolitan, is a registered provider of social housing and freehold owner of a unit of supported housing accommodation (“the Property”). The Property is one of 17 housing units providing mental health supported accommodation for individuals with mental difficulties.

The Appellant is an adult who is diagnosed with schizoaffective disorder and treatment-resistant paranoid schizophrenia He occupied the Property under a supported living arrangement since February 2014. Metropolitan accepted he held an assured tenancy under the HA 1988.

In May 2018, there were two incidents when the Appellant exposed himself to a female resident and shortly afterwards assaulted a member of staff by hitting him on the side of the face and jaw. The relevant PSED decision-maker at the Metropolitan, Mr Print, held a meeting with the Community Mental Health Team. During this meeting, Mr Print raised the question of the Appellant’s capacity to understand his actions during the two incidents. The meeting ended with Mr Print’s request for Dr Koch to determine the Appellant’s capacity although he was unsuccessful in obtaining a definitive answer. 

Mr Print subsequently decided to issue the notice seeking possession in order to safeguard the staff and residents. There was prepared an Equalities Act Report which outlined, among other things, that the Appellant had a history of being inappropriate and aggressive towards staff and other residents and that interventions had not had any effect. Mr Print reviewed the report and decided to proceed with proceedings for possession which were brought in September 2018 against the Appellant relying on Ground 14 in schedule 2 HA 1988.

At the time of carrying out the relevant assessment required by the PSED Mr Print did not have a report from Dr Koch; that report was eventually provided after the issuing of proceedings. It set out among other things that the Appellant lacked the capacity to conduct litigation. This report was received by the Metropolitan by the time of the first hearing in October 2018.

Decision at first instance
At trial, six incidents relied upon in satisfaction of Ground 14 were found proven; they included the Appellant assaulting a member of staff, exposing himself to a female resident and slapping another resident.

One of the grounds of defence relied upon was that the duty in respect of the PSED was a continuing one and Mr Print should have re-assessed the position once he had received Dr Koch's report. In his oral evidence, Mr Print stated that in light of Dr Koch’s report, if he had to make the decision “today” he would not have pursued possession proceedings; he would have tried an alternative way of dealing with the situation if that was possible. However, he also stated that he considered it remained a proportionate response to the two (May 2018) incidents to go through with the proceedings [28].

The judge accepted that the duty in respect of the PSED was a continuing duty and that Metropolitan should have reassessed whether to continue with the proceedings once they received Dr Koch’s report and not doing so was a breach. However, the judge considered that assessment was in effect done by Mr Print in his oral evidence and his evidence was that he considered that it remained a proportionate response to carry on with the proceedings.

The Judge rejected the defence of breach of the PSED and granted possession within 28 days but stayed enforcement of the order pending a further hearing so that efforts could be made to find the appellant suitable alternative accommodation.

An appeal to the High Court was unsuccessful.

The decision of the Court of Appeal

There were two grounds of appeal [33]:
(1)        The Judge was wrong to find that, following Metropolitan's breach of the PSED, Metropolitan had corrected this breach, and thereby complied with the PSED, when Mr Print gave evidence.

(2)        The Judge was wrong to uphold an order for possession in circumstances where Metropolitan had breached the PSED and Metropolitan's own evidence was that it would have reached a different decision if the breach had not occurred. In doing so, the Judge erred in law as to the correct application of the "highly likely test" set out in s. 31(2A) of the Senior Courts Act 1981 ("SCA 1981").

Nugee LJ gave the leading judgment. On the first ground, as to whether the breach was remedied by Mr Print in the witness box, in light of his evidence that he would not have pursued possession proceedings had he made the same decision again, it was considered difficult to understand how the breach of the PSED had been remedied.  On the contrary, his evidence suggested that if he had gone through the process at the relevant time the outcome would have been different [37]. Whilst Mr Print had also outlined he considered it remained a proportionate response to continue with the proceedings, it was hard to reconcile this with his first answer. Given, the evidence was ambiguous at best, it made it very difficult to hold that the breach had been duly remedied [39]. 

Nugee LJ observed that the duty is to carry out a proper process, not to procure any particular outcome, and that it must be exercised "in substance, with rigour and with an open mind". Expecting a witness to carry out such an assessment in the witness box, was self-evidently far removed from that position and carried a risk of confirmation bias [39].

As to whether it was possible in principle to remedy or cure a breach at a later stage, Nugee LJ considered that Zacaroli J was right in Taylor v Slough BC [2020] EWHC 3520 (Ch), that in possession proceedings brought by a local authority a breach of the PSED at an early stage can be remedied by compliance with the PSED at a late stage. Nevertheless, he considered it unlikely that evidence given at trial would be sufficient for these purposes unless it perhaps related to a minor point [47].

The second ground of appeal was dealt with shortly but was also upheld. It followed from the conclusion on the first ground, it was difficult to see how it could be reconciled that it was highly likely that Metropolitan would have reached the same decision in light of Mr Print’s evidence.
Ultimately, the appeal was upheld and the case was dismissed [59].

Summary by Henry Percy-Raine, barrister, Trinity Chambers. For the judgment, click here.

HOUSING LAW CONSULTATIONS
 

Housing Legal Aid: the way forward
The Ministry of Justice is consulting on a proposed new model for the delivery of housing possession legal aid. This aims to ensure the sustainability of the service and to improve the breadth and quality of advice available for individuals facing the loss of their home. The key proposals in this consultation are:

  • remodelling the delivery of the Housing Possession Court Duty Scheme (HPCDS) to become a new Housing Loss Prevention Advice Service (HLPAS), incorporating both the existing service of advice and representation at court but also early legal advice before court;
  • expanding the scope of legal aid so that HLPAS providers can offer early legal advice on social welfare law matters to individuals facing procession proceedings;
  • contracts for individual courts rather than larger geographical areas;
  • allowing providers to claim for the court duty fee in addition to a Legal Help fee for follow on work; and
  • introducing a set attendance fee for all schemes, replacing the existing nil session payment.

The consultation closes on 20 January 2022. For the consultation document, click here.

Regulator of Social Housing: Consultation on the introduction of tenant satisfaction measures
The Regulator of Social Housing is seeking views on its proposals for tenant satisfaction measures which are part of implementing changes to consumer regulation set out in the Government’s ‘The Charter for Social Housing Residents: Social Housing White Paper’. The measures would provide data about social housing landlords’ performance and the quality of their services to help tenants hold their landlord to account and help RSH in its future consumer regulation role. The Regulator looks forward to hearing from landlords, tenants and anyone with an interest in social housing by 3 March 2022. For the consultation documents, click here.

HOUSING LAW ARTICLES & PUBLICATIONS
 

The shape of things to come – a video look forward Giles Peaker Nearly Legal 31 December 2021: to view the video, click here

Remedying breach of Public Sector Equality Duty (or not) Giles Peaker Nearly Legal 3 January 2022 – to read the article, click here

Too little too late: a successful PSED challenge to a possession order Robert Winspear Local Government Lawyer 4 January  2022 – to read the article, click here

Property guardianship companies and HMO licensing Tara O’Leary Local Government Lawyer 4 January 2022 – to read the article, click here

First Homes: model Section 106 agreement Stuart Tym Local Government Lawyer 5 January 2022 – to read the article, click here

What's coming up for housing in 2022? Rachael Williamson CIH Blog 7 January 2022 – to read the article, click here

‘I can’t tell you the feeling when a fire alarm goes off’: life in a flammable flat Robert Booth Guardian 10 January 2022 – to read the article, click here

Now is the time to talk to your council about their RSI funding plans Homeless Link 10 January 2022 – to read the article, click here

Housing: recent developments (December 21/ January 22) Sam Madge-Wyld and Jan Luba QC Legal Action – to read the article (subscription required), click here

HOUSING LAW DIARY
 

12th January 2022                                   
Supreme Court will hear the local authority’s appeal in Croydon London Borough Council v Kalonga (see Housing Law News and Policy Issues)


14th January 2022                                   
Postponed second reading of Caravan Site Licensing (Exemptions of Motor Homes) Bill (see Housing Laws in the Pipeline)


14th January 2022                                   
Postponed second reading of Homeless People (Current Accounts) Bill (see Housing Laws in the Pipeline)


14th January 2022                                   
Postponed second reading of Asylum Seekers (Accommodation Eviction Procedures) Bill (see Housing Laws in the Pipeline)


21st January 2022                                   
Postponed second reading of Caravan Sites Bill (see Housing Laws in the Pipeline)


31st January 2022                                   
Rent Officers (Housing Benefit and Universal Credit Functions) (Amendment and Modification) Order 2021 comes into force

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