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HOUSING
LAW NEWS & POLICY ISSUES
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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.
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HOUSING
LAWS IN THE PIPELINE
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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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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.
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HOUSING
LAW CONSULTATIONS
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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.
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HOUSING
LAW ARTICLES & PUBLICATIONS
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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
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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)
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14th January 2022
Postponed second reading of
Caravan Site Licensing (Exemptions of
Motor Homes) Bill (see Housing Laws
in the Pipeline)
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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)
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21st January
2022
Postponed second
reading of Caravan Sites
Bill (see Housing
Laws in the Pipeline)
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31st January
2022
Rent Officers
(Housing Benefit and
Universal Credit
Functions) (Amendment
and Modification) Order
2021 comes into force
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