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HOUSING
LAW NEWS & POLICY ISSUES
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Unsafe cladding in residential
buildings
On 10 February 2021 the Housing
Secretary, Robert Jenrick, announced
that the government would fully fund the
cost of replacing unsafe cladding for
all leaseholders in residential
buildings 18 metres (6 storeys) and over
in England. Leaseholders in buildings
between 11 and 18 metres high with
unsafe cladding will be able to access a
new scheme that will pay for cladding
removal – where it is needed – through a
long-term, low interest,
government-backed financing arrangement.
The MHCLG says that under the latter
scheme no leaseholder will pay more than
£50 a month towards the removal of
unsafe cladding. For the announcement, click
here. For a House of
Commons Library briefing on this issue,
which has been updated to include
consideration of the government’s latest
announcement, click
here. For a statement
by the Local Government Association on
the leaseholder cladding cost measures,
click
here. For an article in
the Guardian, click
here.
‘Waking watches’ costing
Londoners £16,000 an hour: London
Assembly
On 10 February 2021 the London
Assembly published analysis finding that
‘waking watches’ are costing Londoners
who live in buildings identified as fire
risks due to the current cladding crisis
£16,000 an hour. A waking watch is a
patrol of the floors and external areas
of a building to give warning in the
event of a fire. Since the Grenfell
Tower fire, waking watches have been
used in buildings that are at high risk
to help prevent another tragedy until
dangerous cladding is removed. The
costings, published by the government in
January, show that Londoners are paying
a mean average of £20,443 per month for
a waking watch per building compared to
£15,279 for the rest of England. In
addition, according to the government,
Londoners are paying more than double
per dwelling for waking watches compared
to the rest of England. Full details of
the analysis are available from the
London Assembly upon request. For a
report of the above analysis, click
here. For the
government figures, click
here.
Extension of ban on evictions
On 14 February 2021 the MHCLG
announced that the ban on bailiff
evictions, which was introduced at the
start of the pandemic, has been extended
until 31 March 2021. Exemptions remain
in place for the most serious claims,
such as illegal occupation, anti-social
behaviour and arrears of six months’
rent or more. Landlords are also
required to give six-months’ notice to
tenants before starting possession
proceedings, except in the most serious
circumstances, meaning that most renters
now served notice can stay in their
homes until at least August 2021. For
the announcement, click
here. For comment by
the National Residential Landlords
Association, click
here.
£125 million allocated to
councils to support domestic abuse
victims
On 12 February 2021 the MHCLG
announced that councils across England
have been allocated funding of £125
million to provide support for victims
of domestic abuse and their children.
The money will fund a new duty, imposed
by the Domestic Abuse Bill (when
implemented), on councils to ensure that
victims and their children are able to
access support in safe accommodation.
For the announcement, click
here. For the
government’s response to the
consultation on this issue, click
here. For the current
form of the Domestic Abuse Bill, which
will enter the report stage in the House
of Lords on 8 March 2021, click
here.
Housing Possession Court Duty
Schemes and Service Providers
On 12 February 2021 the Legal Aid Agency
published an updated alphabetical list
of all LAA funded Housing Possession
Court Duty Schemes with the current
organisation providing the service. For
the list, click
here.
Landlord possession statistics –
England and Wales
On 11 February 2021 the Ministry of
Justice published quarterly national
statistics on possession claim actions
in county courts by mortgage lenders and
social and private landlords. The
statistics cover the period from October
to December 2020. FCA announcements and
the passing of the Coronavirus Act in
March 2020 means that possession actions
of all types have dropped to
unprecedentedly low levels. As a result,
the data are unlikely to be
representative of general trends in
possession actions. Caution should
therefore be used when interpreting and
applying these figures. Landlord
possession claims (8,382) and orders for
possession (2,195) decreased by 67 and
89 per cent respectively, compared to
the same quarter the previous year.
Warrants of possession (1,792) and
repossessions by county court bailiffs
(548) were down by 86 and 93 per cent
respectively compared to the same
quarter the previous year. For the
statistics (combined with those for
mortgage possession below), click
here. For comment by
the National Residential Landlords
Association, click
here.
Mortgage possession statistics –
England and Wales
On 11 February 2021 the
Ministry of Justice published quarterly
national statistics on possession claim
actions in county courts by mortgage
lenders and social and private
landlords. The statistics cover the
period from October to December 2020.
Note the comment in the above item
concerning caution with which the data
should be interpreted. Mortgage
possession claims in the quarter (255)
decreased 96 per cent compared to the
same quarter the previous year. Orders
for possession (29), warrants (45) and
repossessions (7) also decreased by 99
per cent in each case compared to the
same quarter the previous year. For the
statistics (combined with those for
landlord possession above), click
here.
Mortgage arrears and
repossessions – England
On 12 February 2021 the House of Commons
Library published a briefing paper
outlining temporary measures to assist
homeowners to manage their mortgage
payments during the coronavirus
(Covid-19) outbreak. It considers
lenders’ obligations towards homeowners
who are struggling with their mortgage
payments, outlines possible sources of
advice for mortgagors, and discusses the
mortgage support schemes that were
introduced in response to the 2008
financial crisis. For the paper, click
here.
Civil legal aid bills
consultation launched
On 10 February 2021 the Ministry of
Justice launched a consultation on the
proposed transfer from Her Majesty's
Courts and Tribunals Service to the
Legal Aid Agency of the assessment of
all civil legal aid bills of costs other
than those involving a detailed inter
partes assessment. In July 2020
the MoJ proposed that the assessment of
all Court Assessed Claims would be
conducted by the LAA and legal aid
providers had the option to send these
claims to the LAA or HMCTS. From 17
August 2020, it was made mandatory to
submit such claims to the LAA. Currently
the position is that providers can
choose whether to send their bills to
the LAA or HMCTS. The MoJ is now seeking
views on whether the transfer of Court
Assessed Claims from HMCTS to LAA should
be made on a permanent basis. The
consultation closes on 10 April 2021.
For the consultation document, click
here.
Loans for Mortgage Interest
(Amendment) Regulations 2021
These regulations, which come
into force on 15 March 2021, amend the
Loans for Mortgage Interest Regulations
2017 to provide that a claimant will not
be required to repay their support for
mortgage interest loan on sale of the
relevant accommodation, if they meet
specified conditions. Regulation 2(6)
amends the 2017 Regulations to clarify
that claimants who have fled the
accommodation for which they receive
support for mortgage interest loan
payments due to fear of violence in the
home will be able to continue receiving
loan payments for that accommodation for
a specified period of time. Regulation 3
amends the Social Fund Cold Weather
Payments (General) Regulations 1988 to
clarify which conditions a claimant who
receives support for mortgage interest
loan payments and is treated as entitled
to state pension credit needs to meet in
order to be entitled to a cold weather
payment. For the 2021 Amendment
Regulations, click
here. For the 2017
Regulations, click
here.
Hyde obtain a £81,000 judgment
against a former tenant
On 9 February 2021 Hyde
reported that it had obtained a court
order against a former tenant who had
unlawfully sublet his property requiring
him to pay Hyde over £81,000. Following
a call from a sub-tenant, a tenancy
officer established that the tenant was
living abroad and had not lived at the
address for several years. A notice to
quit was served and proceedings issued
for possession on the basis of unlawful
subletting since at least March 2014.
Although the tenant surrendered the
tenancy in November 2020, Batchelors,
the housing association’s solicitors,
proceeded to seek a money judgment for
the arrears, unlawful profit order and
costs. For a full report, click
here.
Housing Ombudsman: webinars on
landlord performance reports
On 9 February 2021 the Housing Ombudsman
announced that, following the
publication last year of performance
data reports on all landlords with
complaints recorded in 2019-20, the
Ombudsman has set up webinars for
landlord staff. The webinars will go
through the various elements of the
reports and explain the data together
with some geographical analysis. The
webinars are interactive sessions to
discuss key issues and offer the
opportunity to ask questions of the
Housing Ombudsman’s experts. For more
details, click
here.
Landlords given large fines for
breaching property licensing
requirements – Waltham Forest
On 11 February 2021 Waltham
Forest Council reported that two
landlords in the borough have been given
large fines, totalling £135,000 when
combined excluding additional costs and
surcharges, for failing to maintain
their privately rented homes and failing
to license their properties. At a
hearing at Thames Magistrates’ Court, Mr
Mohammed Bhatti pleaded guilty to 12
charges in relation to breaches of
management regulations at a number of
properties on High Road, Leyton, as well
as failing to license one of the homes.
During inspections of the properties
council officers discovered a wide range
of serious issues including a lack of
fire alarms, dangerous sockets, and
blocked drains. Showers and sinks were
cracked and filthy, and access to the
top-floor flat was only possible via a
dangerous staircase. Inspectors
described it as one of the worst
examples they had come across. For the
report, click
here. For an earlier
report from Waltham Council concerning a
landlord ordered to pay £336,000 for
ignoring planning notices, click
here.
Immigration advice for rough
sleepers – London
On 15 February 2021 Homeless
Link reported an announcement by the
Greater London Authority of £233,000
funding for frontline organisations to
support people sleeping rough in London
with accessing immigration advice.
Homeless Link is managing applications
to the fund on the GLA’s behalf and will
be supporting and monitoring successful
grantees. The Immigration Advice for
Rough Sleepers Fund will enable services
to support people to prove or obtain
secure immigration status and enable a
positive move-on from the streets or
from emergency accommodation. For more
details, click
here.
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HOUSING
LAWS IN THE PIPELINE
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Telecommunications
Infrastructure (Leasehold Property)
Bill
This Government bill would amend the
electronic communications code set out
in Schedule 3A to the Communications Act
2003; by doing so, it would address one
stated policy barrier: making it easier
for telecoms companies to access
multi-dwelling buildings (such as blocks
of flats) where a tenant has requested a
new connection, but the landlord has not
responded to requests for access rights.
The bill received its first reading in
the House of Commons on 8 January 2020
and its second reading on 22 January
2020. For the second reading debate, click
here. The committee
stage was completed on 11 February 2020.
For the committee debate, click
here. The third reading
in the House of Commons was on 10 March
2020; for the debate, click
here. First reading in
the House of Lords was on 11 March 2020.
The second reading was on 22 April 2020.
The committee stage was completed on 2
June 2020 and the report stage on 29
June 2020. The third reading was on 28
January 2021. The House of Lords have
returned the Bill to the House of
Commons with amendments. The amendments
will be considered on the floor of the
House on 24 February 2021.
For the bill, as amended by the Lords, click
here. To follow
progress of the bill, click
here. For a briefing,
prepared by the House of Commons Library
after second reading in the House of
Commons, click
here.
Renting Homes (Amendment)
(Wales) Bill
This Welsh Government bill seeks to
amend the Renting Homes (Wales) Act 2016
to provide greater security for people
who rent their homes in Wales. This will
particularly affect those who live in
the private rented sector and occupy
their homes under a ‘standard occupation
contract’, the equivalent to the current
assured shorthold tenancy, after the
2016 Act comes into force. This
additional security will primarily be
achieved by extending the minimum notice
period for issuing a section 173 notice
under the 2016 Act (the equivalent of
the current section 21 notice under the
Housing Act 1988) from two months to six
months. Landlords will also be prevented
from issuing such a notice until at
least six months from the date of
occupancy. Further provisions will also
ensure that landlords are unable to
issue rolling ‘speculative’ notices on a
‘just in case’ basis. The bill was
introduced in the Senedd on 10 February
2020. The Stage 1 motion to agree the
general principles of the Bill was
agreed in Plenary on 13 October 2020.
Stage 2 began on 14 October 2020. Stage
2 consideration took place in Committee
on 27 November 2020. Stage 3 commenced
on 30 November 2020. Stage 3
consideration was due to take place in
Plenary on 10 February 2021 to consider
amendments to the Bill (as amended at
Stage 2). For the bill as amended at
Stage 3, all other documents relating to
it, and to follow progress on the bill,
click
here.
Fire Safety Bill
This Government bill
would make provision about the
application of the Regulatory Reform
(Fire Safety) Order 2005 where a
building contains two or more sets of
domestic premises; and would confer
power to amend that order in future for
the purposes of changing the premises to
which it applies. The bill completed its
final stages in the House of Commons on
7 September 2020. It received its first
reading in the House of Lords on 8
September 2020 and its second reading on
1 October 2020. The committee stage was
completed on 29 October 2020. The report
stage took place on 17 November 2020.
The third reading took place on 24
November 2020. The House of Lords have
returned the Bill to the House of
Commons with amendments. The amendments
will be considered on the floor of the
House on 24 February 2021.
For the bill, as amended on report, click
here. To read debates
on all stages of the bill, click
here. For a briefing
note prepared by the Local Government
Association on second reading in the
House of Lords, click
here. To follow
progress of the bill, click
here.
Supported Accommodation
Bill
This private member’s bill, sponsored by
Steve McCabe, would require 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;
establish a suitability test for
accommodation proposed for such use; and
make 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 and is due
to have its second reading on a date to
be announced. The bill is being prepared
for publication. To follow progress of
the bill, click
here.
Supported Housing
(Regulation) Bill
This private member's bill, sponsored by
Kerry McCarthy, would regulate supported
housing; make provision about local
authority oversight and the enforcement
of standards of accommodation and
support in supported housing; and
prohibit the placing of children in care
in unregulated accommodation. It
received its first reading on 11
November 2020. The second reading has
been further postponed to a date to be
announced. The bill is being prepared
for publication. To follow progress of
the bill, click
here.
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 and the
second reading has been further
postponed to a date to be announced. The
bill is being prepared for publication.
To follow progress of the bill, click
here.
Sublet Property (Offences)
Bill
This private members’ bill,
sponsored by Sir Christopher Chope,
would make the breach of certain rules
relating to sub-letting rented
accommodation a criminal offence and
would make provision for criminal
sanctions in respect of unauthorised
sub-letting. The bill is being prepared
for publication. It received its first
reading on 10 February 2020. The second
reading has been yet further postponed
to a date to be announced. To follow
progress of the bill, click
here.
Mobile Homes and Park Homes
Bill
This private members’ bill, sponsored by
Sir Christopher Chope, would require the
use of published criteria to determine
whether mobile homes and park homes are
liable for council tax or non-domestic
rates; make provision in relation to the
residential status of such homes; and
amend the Mobile Home Acts. The bill is
being prepared for publication. It
received its first reading in the House
of Commons on 10 February 2020. The
second reading has been yet further
postponed to a date to be announced. To
follow progress of the bill, click
here.
Mobile Homes Act 1983
(Amendment) Bill
This private members’ bill, sponsored by
Sir Christopher Chope, seeks to amend
the Mobile Homes Act 1983. It received
its first reading in the House of
Commons on 10 February 2020. The second
reading has been yet further postponed
to a date to be
announced. For the bill as introduced, click
here. To follow
progress of the bill, click
here.
Houses in Multiple
Occupation Bill
This private member’s
bill, sponsored by Ian Levy, would amend
the law relating to the licensing of
houses in multiple occupation and
increase penalties for the contravention
of such licences. The bill received its
first reading on 9 September 2020. The
second reading has been further
postponed to a date to be announced. The
bill is being prepared for 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. The bill is being
prepared for publication. It received
its first reading in the House of
Commons on 10 February 2020. The second
reading has been further postponed to a
date to be announced. To follow progress
of the bill, click
here.
Caravan Sites Bill
This private members’ bill,
sponsored by Sir Christopher Chope,
would amend 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. The
second reading has been further
postponed to a date to be announced. For
the bill as introduced, click
here. 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 would establish asylum seeker
accommodation eviction procedures for
public authorities. The first reading
was on 10 February 2020. The second
reading has been postponed to a date to
be announced. The bill is being prepared
for publication. To follow progress of
the bill, click
here.
Vagrancy (Repeal) Bill
This private members’ bill, sponsored by
Layla Moran, would repeal the Vagrancy
Act 1824. It received its first reading
in the House of Commons on 18 March
2020. The second reading has been
further postponed to a date to be
announced. For the bill as introduced, click
here. To follow
progress of the bill, click
here.
Domestic Premises (Energy
Performance) Bill
This private member’s bill, sponsored by
Lord Foster of Bath, 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 make
provision regarding performance and
insulation of new heating systems in
existing properties. The first reading
was on 8 January 2020 and the second
reading on 7 February 2020. The
committee stage will commence on a date
to be appointed. For the bill, as
introduced, click
here. To follow
progress of the bill, click
here.
Rented Homes Bill
This private member’s bill, sponsored by
Baroness Grender, would amend the
Housing Act 1988 to abolish assured
shorthold tenancies; and to extend the
grounds upon which landlords of
residential housing may recover
possession. First reading took place on
22 January 2020. The second reading will
be on a date to be announced. For the
bill, as introduced, click
here. To follow
progress of the bill, click
here.
Evictions (Universal Credit
Claimants) Bill
This private members’ bill, sponsored by
Chris Stephens, seeks to place a duty on
the Secretary of State to prevent the
evictions of Universal Credit claimants
in rent arrears. The bill is being
prepared for publication. It received
its first reading in the House of
Commons on 10 February 2020. The second
reading has been further postponed to a
date to be announced. To follow progress
of the bill, click
here.
Housing Act 2004 (Amendment)
Bill
This private members’ bill, sponsored by
Sir Christopher Chope, seeks to amend Part
3 of the Housing Act 2004 to provide that
any selective licensing scheme for
residential accommodation extends to
social housing. The bill is being prepared
for publication. It received its first
reading on 10 February 2020. The second
reading has been further postponed to a
date to be announced. To follow progress
of the bill, click
here.
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R (On the Application Of)
Minott v Cambridge City Council
[2021] EWHC 211 (Admin)
Summary
The court looked at whether a housing
applicant might acquire a ‘local
connection’ within the meaning of the
Housing Act 1996 whilst living in
temporary accommodation in circumstances
where any housing duty owed to him had
expired, a referral to another housing
authority (HA) had been made and
accepted, and after the right of
occupation had been terminated. It
determined that this could not be the
case.
Facts
The Claimant had lived with his father
until April 2018 when this relationship
broke down. He then started sleeping in
his van, sofa surfing and staying with
his mother in Cambridge.
He made an application to Cambridge
County Council (CCC) on 26 March 2019
and moved into the temporary
accommodation property in question the
next day.
CCC decided that the Claimant was
homeless but did not have a local
connection for the purposes of ss198-199
of the Housing Act 1996. The Claimant’s
case was referred to Sandwell Council.
By letter dated the 8 August 2019 the
Claimant was informed of the decision
and that if Sandwell accepted the
referral they would owe him a housing
duty.
On 19/8/19 CCC sent a letter to the
Claimant pursuant to s.198(A1) HA 96
notifying him that Sandwell had accepted
the referral. The letter explained that
this meant CCC no longer owed him a
housing duty.
On 22 August 2019 the Claimant sought a
review of the decision. He applied on 27
August 2019 for accommodation pending
the review. This was refused and CCC
terminated the Claimant’s licence to
occupy the property by notice dated the
22 August 2019.
After 2 September 2019 the Claimant
occupied the accommodation without
permission and unlawfully. Several
attempts were made to change the locks
but were not effective as the Claimant
remained at the property. He remained in
the property at the date of this hearing
some 17 months later.
The Claimant was advised that Sandwell
would offer accommodation. The Claimant
told a member of CCC staff that ‘in a
few weeks he would acquire a local
connection’ and had therefore decided
not to take up the offer of
accommodation from Sandwell.
On 17 October 2019, following the
refusal on review, the claimant made a
further homelessness application
claiming a change in circumstances on
the basis that he had now been resident
in Cambridge for six months.
Legislation
Section 84 of the Housing Act 1996
provides that a local authority must
make enquiries as to eligibility upon a
receipt of a homeless application.
Section 188 imposes a duty to provide
interim accommodation in any case of
apparent need.
The local connection provisions prevent
popular areas from becoming overwhelmed.
Section 199 provides that a person has a
local connection with the district of a
local housing authority if:
(a) he is, or in the past was, normally
resident there, and that residence is or
was of his own choice;
(b) he is employed there;
(c) because of family associations, or
(d) because of special circumstances.
Where it is determined that there is no
local connection, the case should be
referred to the relevant local authority
(s.198(a1)) and any interim and relief
duties cease once an applicant has been
notified of referral (s.199A(1)(a).
Case Law
The court was referred to the Homeless
Code of Guidance 2018, Section 10
reiterates the guidance given by Lord
Brightman in Re Betts [1983] 2
AC 613, emphasising the importance of
local connection above its four criteria
in isolation:
’“residence” may be changed in a day…but
“local connection” means far more than
that. It must be built up and
established; by a period of residence;
or by period employment; or by family
associations which have endured in the
area; or by special circumstances which
spell out a local connection in real
terms.’
The court was also referred to Mohamed
v Hammersmith and Fulham LBC
[2003] 1 AC 547 and found that there
could be no doubt that temporary
accommodation can count as normal
residence. However, it was also clear
that ‘the decision in Mohamed
is not authority for the proposition
that the mere fact of physical
occupation of such interim accommodation
for a period of six months is sufficient
without more to establish a local
connection’ [27].
The court also noted the decision in Begum
v Tower Hamlets LBC [2005] 1 WLR
2103 where Neuberger LJ (as he then was)
rejected the requirement that the
applicant must show a ‘material change
of circumstances’ in a new application
and set out at 59-61 that the
application must instead include new
facts and these must not be ‘fanciful or
trivial’.
Judgment
In a very succinct judgment the court
set out its decision finding against the
Claimant for the following reasons:
(i) At the time of the new application
on 17 October 2019 the only alleged new
fact was that the claimant by then had
resided in the temporary accommodation
for more than six months.
(ii) From the 2 September 2019 the
Claimant had been in occupation
unlawfully and had made a decision to
remain to gain six months’ occupation.
CCC owed him no housing duty from the
time Sandwell accepted the referral.
(iii) Other than the passing of time
nothing had changed. The Claimant did
not have a local connection with
Cambridge.
(iv) The simple passing of time and the
unlawful occupation of the accommodation
cannot amount to a new fact for the
purposes of a new application under the
HA 96.
(v) The new application was wholly
fanciful. The actions of the Claimant in
remaining in the property and thereby
preventing others from using the much
needed temporary accommodation and
failing to engage with Sandwell was
tantamount to a manipulation of the
homeless statutory regime.
(vi) If such conduct were permissible
any person in similar circumstances
without a local connection, would be
able to frustrate the referral system by
refusing to leave until such time as he
had resided for six months in one area.
The court therefore found that the
decision of CCC to reject the new
homeless application was not unlawful or
irrational in a public law sense [45].
Summary by Parissa
Najah, barrister, Trinity
Chambers. For the
judgment, click
here.
Trinity House of Deptford Strond v
Prescott & Anor [2021]
EWHC 283 (QB)
Summary
The High Court held that a landlord
could not rely on the ‘substantial rent
arrears’ exception from the suspension
of evictions under the Public Health
(Coronavirus) (Protection from Eviction)
(England) Regulations 2021
(SI.No.15/2021) (‘the January
Regulations’) where a possession order
was made under s.21 of the Housing Act
1988 even in circumstances when money
judgment was made for rent arrears at
the same time as the possession order.
Facts
In November 2018, the Claimant granted
the Defendants a residential assured
shorthold tenancy on a monthly rent for
a 12-month term but determinable by two
months’ notice. In 2019, the Defendants
fell into substantial (more than two
months) rents arrears. In August 2019,
the Claimant served a s.21 notice and a
NSP under s.8 of HA 1988, relying on
arrears of rent (then five months) and
threatening proceedings under Grounds
8,10, and 11 Sch.2 HA 1988.
On 25 November 2019, the Claimant issued
a claim for possession and a money
judgment for arrears in the County
Court. The only basis relied upon in the
claim form for possession was the s.21
notice. In January 2020, the Claimant
subsequently issued an application to
amend the claim form seeking also to
rely on Grounds 8,10 and 11 Sch.2 HA
1988.
County Court
At a hearing before the Deputy District
Judge on 10th January 2020, the Judge:
(i) Made no order on the
application to amend; it appears because
the DDJ had stated that s.21 was
satisfied and counsel (presumably on the
basis the Claimant was going to obtain
possession) did not pursue the
application to amend;
(ii) Made an order for
possession to be given by 14 days;.
(iii) Held that rent arrears
existed and gave the Claimant judgment
against the Defendants in the sum of
£27,633.36 (eight months).
The Claimant subsequently applied for a
warrant of possession, and a writ of
possession; however, enforcement did not
take place due to the series of
restrictions imposed as a consequence of
the escalating Covid-19 pandemic from
March 2020.
High Court
The January Regulations prohibited the
execution of a writ or warrant of
possession or the service of a “notice
of eviction” in relation to residential
premises following the making of an
order for possession until 21 February
2021. The prohibition is, however,
subject to certain exceptions including
where there are substantial rent arrears
being more than six months’ worth in
amount (regulation 2(3)). At the time of
the hearing, the Defendants had remained
in possession of the property and
arrears had accrued to slightly over
£70,000 (21 months).
The key issue in the High Court was
whether the ‘substantial arrears’
exception applied where the possession
order was made on grounds wholly or
partly based on non-payment of rent or
whether it also applied where the order
for possession was made solely on a
different basis (s.21).
The submissions advanced on behalf of
the Claimant did not involve a judicial
review challenge of the January
Regulations or a declaration of
incompatibility under the Human Rights
Act; rather an argument that the rent
exception should be ‘read’ relying on
s.3(1) of the Human Rights Act 1998 as
extending to a situation where there
were substantial arrears and where there
was an order for possession (the order
for possession being under s.21 with a
judgment for rent arrears).
Master Dagnall expressed some concern as
to whether it was appropriate to engage
section 3 HRA 1998 to consider the
compatibility of the January Regulations
with the Convention. He decided,
however, to do so, and accepting the
January Regulations interfered with the
existing order for possession and thus
the Claimants’ A1P1 rights, and
proceeded on the assumption there was
relevant discrimination caused by the
rent exception, examined the
justification and policy objectives to
determine whether the difference in
effect was directed towards a legitimate
aim.
Master Dagnall considered that the basis
of an order for possession under s.21
fell into a different category from
orders under Grounds 8, 10 and 11 Sch.2
HA 1988. In particular, the basis of
such an order is simply a matter of a
landlord’s choice and, unlike Grounds 8,
10 and 11 Sch.2 HA 1988, it had no
necessary connection with any rent
arrears [77].
Conversely, the policy for creating an
exception to possession orders under
Grounds 8,10 and 11 Sch.2 HA 1988 was
directed towards tenants who had been
found to be in substantial arrears and
such arrears of themselves justified the
making of an order for possession. For
the tenant to continue then to be
allowed to have the substantial arrears
accruing, it was considered, would
amount to a defiance of the law and the
order for possession and would both be
egregious and affect the integrity of
the residential market [76]. Master
Dagnall, therefore, found that any
discrimination was ‘justified’ and thus
that the January Regulations were not
non-compliant with Convention Rights.
In the alternative, even if there had
been unjustified discrimination, Master
Dagnall considered that it was not
possible within the meaning of s.3 HRA
1998 to ‘read’ the rent exception in the
way contended by the Claimant both
because it was against the thrust or
grain of the legislation and such would
involve an impermissible venture of the
court into the domain of the legislator
[88].
In the circumstances, Master Dagnall was
not satisfied that the ‘rent exception’
provided for in regulation 2(3) of the
January Regulations applied to the
circumstances of this case and thus
would not make the declaration sought
and the eviction process could proceed.
Summary by Henry
Percy-Raine, barrister, Trinity
Chambers. For the
judgment, click
here
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HOUSING
LAW CONSULTATIONS
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Right to Regenerate: reform of
the Right to Contest
This consultation is to help to
shape a reform of the Right to Contest,
in order to encourage the right to be
utilised more effectively and more
widely to stimulate regeneration and the
more productive use of land. Strand 2 of
the Community Right to Contest allows
members of the public to request that
the government directs the disposal of
unused or underused land, including
vacant homes and garages, owned by
public bodies. This right is
little-known and little-used, with only
one direction to dispose issued since
2014.
The aim of this consultation, which will
close on 13 March 2021,
is to strengthen the right and make it
simpler to use as the new ‘Right to
Regenerate’. This will provide a quicker
and easier route for individuals,
businesses and organisations to
identify, purchase and redevelop
underused or empty land in their area.
In turn, the strengthened right will
support greater regeneration of
brownfield land, boost housing supply
and empower people to turn blights and
empty spaces in their areas into more
beautiful developments. For the
consultation document, click
here.
Safer buildings in Wales
The Welsh Government is
consulting on proposals for
comprehensive reform of legislation that
contributes to building safety in Wales.
It focuses on legislative change across
the lifecycle of buildings as well as
setting out aspirations for culture
change in the way buildings are
designed, constructed and managed. The
consultation ends on 12 April
2021. For the consultation
documents, click
here.
Welsh Ombudsman: New draft
Guidance on the Code of Conduct for
members of County and Community/Town
Councils
The Ombudsman for Wales has
published new draft Guidance on the Code
of Conduct for members of County and
Community/Town Councils. Any comments
should be submitted to communications@ombudsman.wales
by 28 February 2021.
For the draft guidance, click
here.
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NEW
HOUSING LAW ARTICLES & PUBLICATIONS
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#KeepTheLifeline: urging
the Government to keep the £20 UC
uplift Lucy Bannister
Joseph Rowntree Foundation 10
February 2021 – to read the article, click
here
Seeking to employ a Building
Safety Manager Emma
Burrows Trowers & Hamlins
11 February 2021 – to read the article,
click
here
“Do you remember the first
time?” Local connection and second
applications SW Nearly
Legal 12 February 2021 – to read
the article, click
here
For young people, there has
never been a more crucial time for
mental health support Pascale
Day Centrepoint Blog 12
February 2021 – to read the article, click
here
The Right to Regenerate
(potentially) Jonathan
Corris and Hannah Langford Devonshires
12 February 2021 – to read the
article, click
here
Misc – possession and
mediation, money and remediation Giles
Peaker Nearly Legal 12
February 2021 – to read the article, click
here
Substantial debts are not
substantial arrears J
Nearly Legal 14 February 2021 –
to read the article, click
here
Housing conditions: update
(Feb 21) Catherine
O'Donnell Legal Action
February 2021– to read the article
(subscription required), click
here
Housing: recent developments
(Feb 21) Jan Luba QC
and Sam Madge-Wyld Legal Action
February 2021 – to read the article
(subscription required), click
here
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18 February 2021
Closing date for legal aid
tenders for housing and debt advice
24 February 2021
Telecommunications Infrastructure
(Leasehold Property) Bill: House of
Lords amendments to be considered by the
House of Commons (see Housing Laws
in the Pipeline)
24 February 2021
Fire Safety Bill: House of Lords
amendments to be considered by the House
of Commons (see Housing Laws in the
Pipeline)
28 February 2021
Closing date for submissions to
Welsh Ombudsman’s consultation on new
draft Guidance on the Code of Conduct
for members of County and Community/Town
Councils (see Housing Law
Consultations)
8 March 2021
Report stage in the House of
Lords of the Domestic Abuse Bill
15 March 2021
Loans for Mortgage Interest (Amendment)
Regulations 2021 come into force (see Housing
Law News and Policy Issues)
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