HOUSING LAW NEWS & POLICY ISSUES

274,000 people in England are homeless: Shelter
On 8 December 2021 Shelter reported that more than 274,000 people are currently homeless in England, including 126,000 children, according to new research published by it. Shelter’s analysis of official rough-sleeping and temporary accommodation figures indicates that one in every 206 people in England are currently without a home. Of these, 2,700 people are sleeping rough on any given night, nearly 15,000 single people in direct access hostels and nearly 250,000 people are living in temporary accommodation – most of whom are families.

The report reveals the areas across England where homelessness is most acute:

• London comes out worst, with one in 53 people now homeless in the capital.
• Outside of London, Luton is the area with the highest rate of homelessness with one in 66 people homeless.
• One in 78 people are homeless in Brighton and Hove.
• One in 81 people are homeless in Manchester.
• One in 96 people are homeless in Birmingham.

For the research, click here.

Regulation of private renting: National Audit Office report
On 10 December 2021 the National Audit Office published a report on the regulation of private renting in England. The report covers:

• the coherence of the DLUHC’s regulatory strategy, and whether this is based on a good understanding of the challenges within the sector;
• the extent to which the DLUHC’s oversight of and support for local authority regulation of providers (landlords and lettings agents) contribute to its aims for the sector; and
• whether tenants are adequately supported to resolve problems and ensure they get a fair deal.

The report finds that there is evidence that a concerning proportion of private renters live in unsafe or insecure conditions with limited ability to exercise their rights. The DLUHC has made various regulatory changes aimed at improving experiences for renters, including banning letting fees and introducing temporary protections during the Covid-19 pandemic. However, the way that private renting is regulated means that these changes are not effective in ensuring the sector is consistently fair for renters. Within the reforms being developed by the DLUHC there is needed a clear vision for what it is trying to achieve and an overarching strategy for how to address the challenges raised in this report, working across central and local government where necessary, if it is to meet its overall aim to provide a better deal for renters. For the full report, click here. For a summary, click here. For the press release announcing publication of the report, click here. For comment by the National Residential Landlords Association, click here. For a report in the Guardian, click here.

Ombudsman: Family of disabled boy left without housing adaptations because of council delay
On 9 December 2021 the Local Government and Social Care Ombudsman reported that it had found that Haringey council took so long to complete adaptations to a disabled boy’s home that he had outgrown the proposals. The boy, who has severe disabilities, was initially assessed as needing the adaptations in 2015 which included a through floor lift, a ceiling track hoist system and changing benches in the bathroom and downstairs toilet. Delays because of the council and family’s circumstances meant no progress was made until the start of 2019. But when a contractor attempted to carry out the work, they found it not feasible because of structural issues. By the time the family and council spoke again about installing the adaptations, the family said they would like a revised plan because so much time had passed, and their son had grown since the original assessment.

An occupational therapist (OT) visited and, despite the family saying a deep bath was an ‘essential requirement’, recommended a shower trolley instead. The family complained to the council that the OT’s recommendation was in direct conflict with a previous assessment which stated their son was unable to tolerate a shower as the sensation distressed him. They said they also felt bullied into accepting the recommendations, despite explaining a shower bench was unsafe because of their son’s involuntary movements. The family has been shielding since March 2020 and no progress has been made. They say they just want the ceiling tracks for the hoists installed and no longer want the adaptations made to the downstairs toilet.

The Ombudsman recommended that the council should apologise to the parents and pay them £2,000 to recognise the delay. It should also contact the parents about the outstanding works. For a summary, click here. At the top right of the page opened, there is a link to the report of the case.

Human Rights Committee recommends amendments to Judicial Review and Courts Bill
On 7 December 2021 the Parliamentary Joint Committee on Human Rights published a report calling on the Government to amend proposals in the Judicial Review and Courts Bill which have the potential to deny effective judicial remedies. The Committee says that use of the power to prevent a quashing order affecting the lawfulness of things that have already happened could result in people who have already been affected by an unlawful measure, including the person bringing the judicial review claim, getting no remedy or relief. Of concern to the Committee is that the Bill would not merely allow the use of these powers, but actually require them to be used in certain circumstances. The Committee also considers that the proposal to remove so called 'Cart' judicial reviews amounts to an 'ouster clause', that would remove an area of decision making from review by the courts. For the full report, click here. For a summary, click here. For the report's conclusions and recommendations, click here.

Levelling Up Committee launches inquiry into exempt accommodation
On 7 December 2021 the Commons Levelling Up, Housing and Communities Committee launched an inquiry into exempt accommodation – a type of supported housing that is exempt from Housing Benefit rules limiting rents to particular levels. This type of accommodation is used to house a range of people with support needs, such as homeless people, people who have been at risk of domestic abuse, prison leavers, and those recovering from alcohol and drug addiction. The Committee’s inquiry follows reports, including from the West Midlands, of unscrupulous landlords failing to provide the support and care that vulnerable tenants need, or to maintain the properties to a decent standard. For more details, including the Committee’s terms of reference, click here. For a House of Commons Library briefing paper on this issue, published on 28 November 2021, click here.

Rent Officers (Housing Benefit and Universal Credit Functions) (Amendment and Modification) Order 2021
This Order, which comes into force on 31 January 2022, amends the Rent Officers (Housing Benefit Functions) Order 1997, the Rent Officers (Housing Benefit Functions) (Scotland) Order 1997 and the Rent Officers (Universal Credit Functions) Order 2013 to make changes to when Broad Rental Market Area Determinations take effect. It also modifies those Orders to make provision for the determination of local housing allowances in 2022. For the Order, click here.

Remote hearings during the Covid-19 pandemic: evaluation published
On 10 December 2021 HM Courts and Tribunals Service published an evaluation of remote hearings during the Covid-19 pandemic research report. Key findings include:

• Public users attending remotely were slightly more likely to be satisfied with the overall experience of their hearing than in-person users (benefits included greater convenience, reduced costs and removing the anxiety of being in a room with another participant, with whom they may be in conflict).
• Legal representatives were positive about remote hearings, with 93 per cent saying they felt remote hearings were an acceptable alternative during the pandemic (views were mixed about how they should be used in the future).
• 51 per cent of judges thought remote hearings were effective at creating an environment comparable to in-person hearings, but raised concerns about their impact on wellbeing and increased workload.

For the report, click here.

Domestic Abuse Commissioner pledges to end the ‘postcode lottery’ of domestic abuse services
On 7 December 2021 the Domestic Abuse Commissioner for England and Wales vowed to end the ‘shocking postcode lottery' of domestic abuse services in England and Wales. As a first step Nicole Jacobs is launching a comprehensive survey which is aimed at all domestic abuse survivors who have used or thought about using domestic abuse services in the last three years. The Domestic Abuse Commissioner's office is keen to hear from victims and survivors of all backgrounds, including women, men, those from black and minoritised communities, Deaf and disabled persons, those aged 16-25 and over 55, migrant victims, LGBT+ victims. The survey will be available online until 31 January, 2022. For more details, click here. For the survey itself, click here.

Grenfell Tower site update: summary of community online meetings
On 9 December the DLUHC released videos of community online meetings in September, October and November 2021, giving updates on the future of Grenfell Tower, safety works at the Tower, noise monitoring and Tower banner illumination. There were also updates on further soil sampling at two locations, the relocation of the local electricity substation in the Tower, and local opportunities available from the principal contractor, DUK. There was also a reminder about the health and wellbeing services available to the community. For the videos, click here.

English Housing Survey 2020 to 2021: headline report
On 9 December 2021 the DLUHC published initial findings from the English Housing Survey 2020 to 2021 on people’s housing circumstances and the condition and energy efficiency of the English housing stock. This headline report will be followed by a series of more detailed topic reports in the summer. For the report, click here.

Tables on rents, lettings and tenancies
On 9 December 2021 the DLUHC published tables providing the latest, most useful or most popular data on rents, lettings and tenancies, presented by type and other variables, including by geographical area. For the tables, click here.

Tables on dwelling stock (including vacants)
On 9 December 2021 the DLUHC published the latest data tables on dwelling stock (including vacants), organised by various criteria including tenure and district. For the tables, 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’. For more details, see Housing Law Consultations (below).

Adult Social Care Reform White Paper – the housing implications
On 9 December 2021 ARCH (the Association of Retained Council Housing) produced a policy briefing on the housing implications of the government’s adult social care reform white paper, which sets out its ten-year vision to improve adult social care and provides information on funding proposals that will be implemented over the next few years. For the briefing, click here. For the white paper, click here.

Rent arrears consequent upon the Covid pandemic
On 8 December 2021 the National Residential Landlords Association reported new research finding that average rent debts still owed by renters as a result of the pandemic have increased by 41 per cent since May 2021. A survey of over 2,000 private renters in England and Wales by research consultancy Dynata for the NRLA found that average Covid-related rent arrears owed by affected tenants had increased to £1,270, up from £900 in May. 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.

NEW HOUSING CASES

Palmview Estates Ltd v Thurrock Council [2021] EWCA Civ 1871

The Court of Appeal considered the proper construction of, and approach to, the statutory defence of "reasonable excuse" in section 72(5) of the Housing Act 2004 ("HA 2004"). The defence is available for proceedings under section 72(1) HA 2004 for the offence of having control of or managing a house in multiple occupation without a licence.

Facts
Palmview Estates Limited (“Palmview”), the Appellant, purchased a property in March 2014 and converted it for occupation with a shared kitchen by six people. It was not in dispute that Palmview had been managing or was in control of a property without an HMO licence. They relied upon the defence contained in section 72(5). Palmview contended that they had a reasonable excuse for not having an HMO licence because they had been led to believe by an employee in the Council that there was no point in applying for an HMO licence whilst planning permission for the property remained in dispute.

Lower decisions
The FTT accepted that Palmview did not apply for a licence because they were told or led to believe by the Council that such an application was a waste of time and therefore it was reasonable for Palmview to have failed to have applied for a licence. The UT rejected the argument that Palmview should have evicted enough tenants to avoid the need for an HMO licence and concluded Palmview had a reasonable excuse for having control of an HMO for the relevant period of 10 months.

The UT accepted that the FTT had made an error of law because it asked itself the wrong question; the offence is not the failure to apply for an HMO licence, it is managing or having control of an HMO without a licence and the reasonable excuse must relate to the offence.  Whatever the reasons for not applying for a licence, what the FTT had to decide was not whether the respondent had a reasonable excuse for not applying for a licence, but whether it had a reasonable excuse for continuing to manage and control the HMO without one. The FTT’s decision was set aside and the case was remitted for a full re-hearing.

The appeal
Palmview appealed the UT’s decision; the first ground being the substantive challenge on appeal namely that the UT had been wrong to decide that the FTT had made an error of law in its approach to the "reasonable excuse defence" in section 72(5) HA 2004.

The Court of Appeal considered that the starting point is the language in s.72(5) which is taken to bear its ordinary meaning in the general context of the statute. The offence to which the defence of having a reasonable excuse relates is not framed in terms of failure to apply for a licence. The prohibited activity is controlling or managing an HMO without a licence [34]. Thus, there is a defence if, viewed objectively, there is a reasonable excuse for having control of or managing an HMO without a licence. The reasonable excuse must relate to the activity of controlling or managing the HMO without a licence.

The Court of Appeal noted that it may be possible that the reason for failing to apply for a licence may provide a reasonable excuse for controlling or managing an unlicensed property when viewed in the context of all the relevant circumstances of the case. However, the excuse in relation to failure to apply for a licence cannot lead as a matter of course to the conclusion that the defence is made out [39].

Accordingly, the FTT had asked itself the wrong question focusing on the failure to apply for a licence rather than a reasonable excuse for managing or controlling the property without an HMO licence. Further, it could not be said there was only one conclusion which the FTT could have arrived at if properly directed. Accordingly, the UT was right to remit the case for a re-hearing and the appeal was ultimately dismissed.

Summary by Henry Percy-Raine, barrister, of 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

Evicted on Christmas Eve – John's Story Tilly Smith Generation Rent 8 December 2021 – to read the article, click here

The impact of a proportional property tax in London Shreya Nanda Institute of Public Policy Research 8 December 2021 – to read the briefing, click here

The shocking scale of homelessness in England Charlie Berry Shelter Blog 9 December 2021 – to read the article, click here

Quarterly Housing Update Trowers and Hamlins 9 December 2021 – to read the update, click here

No covering this up J Nearly Legal 10 December 2021 – to read the article, click here

Why the Social Care White Paper is right to make housing a focus Henry Smith Centre for Ageing Better 10 December 2021 – to read the article, click here

Grenfell delivers yet more horrors. But the guilty still fail to take responsibility Kenan Malik Guardian 12 December 2021 – to read the article, click here

Leasehold assortment Giles Peaker Nearly Legal 12 December 2021 – 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

14th January 2021                                   
Postponed second reading of Caravan Site Licensing (Exemptions of Motor Homes) Bill (see Housing Laws in the Pipeline)

14th January 2021                                   
Postponed second reading of Homeless People (Current Accounts) Bill (see Housing Laws in the Pipeline)

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