17th November 2021
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HOUSING LAW NEWS & POLICY ISSUES
 

Impact of homelessness on EU citizens living in Great Britain
On 9 November 2021 Crisis published the results of research, carried out jointly by Heriot Watt University and IPPR, showing that people from EU countries living in Britain are nearly three times more likely to experience rough sleeping than the general adult population and are twice as likely to experience homelessness overall because they struggle to access support. Job loss is a key driver of homelessness with housing insecurity and barriers to usual support also leaving many struggling without any help. Crisis is urging the Government to provide a package of emergency accommodation and specialist employment support to help EU citizens into work and a safe place to live, so they can leave homelessness behind for good. For details of the research, click here. For an article in the Guardian concerning this issue, click here.

Landlord possession statistics – England and Wales
On 11 November 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 July to September 2021. When compared to the same quarter in 2019, landlord possession claims, orders, warrants and repossessions by county court bailiffs decreased by 64 per cent, 75 per cent, 69 per cent and 35 per cent respectively. However, when compared to the same quarter in 2020, over 100 per cent increases were recorded across all actions. Possession claims rose from 3,956 to 10,202, orders from 131 to 5,600, warrants from 919 to 4,492 and repossessions from zero to 4,853. For the statistics (combined with those for mortgage possession below), click here. For the response of Crisis, click here.

Mortgage possession statistics – England and Wales
On 11 November 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 July to September 2021. Compared to 2019, pre-Covid-19 mortgage possession claims, orders, warrants and repossessions by county court bailiffs have decreased by 59 per cent, 70 per cent, 81 per cent and 68 per cent respectively. However, compared to the same quarter in 2020, all mortgage actions increased by over 100 per cent. Mortgage possession claims increased from 109 to 2,833, orders from 25 to 1,235, warrants from 24 to 933 and repossessions by county court bailiffs increased from zero to 385.For the statistics (combined with those for landlord possession above), click here.

Supported exempt accommodation – England
On 14 November 2021 the House of Commons Library published an overview of the regulation of supported exempt accommodation and calls for increased oversight, improved funding, and better standards of support provision. The sector houses more marginalised groups with support needs, such as recent prison leavers; care leavers; those fleeing domestic violence; and homeless people with substance dependence or mental health issues. For the publication, click here.

Local Government Ombudsman criticises council over ASB case
On 11 November 2021 the Local Government and Social Care Ombudsman reported its finding that Luton Borough Council did not do enough to help a local woman who had been verbally abused and harassed by her neighbours. The woman had logged concerns about antisocial behaviour (ASB) and harassment from her next-door neighbours since 2012, after she initially reported them to the council for causing a nuisance by feeding vermin. She made numerous complaints about her neighbours, but the council’s Priority ASB team closed her case. A council investigation into her complaint wrongly directed her to the Housing Ombudsman. The Local Government Ombudsman’s investigation found the council did not tell the woman about her right to use the Community Trigger (a review of the ASB complaint by the council, police and other agencies), despite her repeatedly expressing her dissatisfaction with the council’s investigation. For the report, click here and follow the link at the top right of the page opened.

Guidance: limit on annual rent increases 2022-23
On 15 November 2021 the DLUHC published its annual document containing adjusted tables to help social housing providers ensure that they use the correct annual percentage to inflate their rent. For the guidance, click here.

Housing Ombudsman: complaint handling failure orders
On 9 November 2021 the Housing Ombudsman reported that it had issued 29 complaint handling failure orders between July and September 2021, highlighting issues with progressing complaints and meeting its standards on complaint handling. The purpose of complaint handling failure orders is to ensure that a landlord’s complaint handling process is accessible, consistent and enables the timely progression of complaints for residents. In 24 cases the landlords complied, and there were five cases of non-compliance. For more details, click here. For the updated report itself, click here.

HCLG Committee to question Homes England
On 15 November 2021 the Chair and Chief Executive of Homes England appeared before the Commons Committee on Housing, Communities and Local Government. The Committee questioned the witnesses on the work and impact of Homes England, whose principal responsibilities include increasing the supply of new housing, including affordable homes, and supporting first-time buyers into homeownership. To watch the session, click here.

Criminal landlords – England
On 12 November 2021 the National Residential Landlords Association reported that two-thirds of English councils have prosecuted no landlords for offences related to standards in or the management of private rented housing over the last three years. A further 10 per cent had secured just one successful prosecution. The NRLA obtained the data via Freedom of Information Act requests from 283 local authorities across England. The Association is warning that this failure to take action against the criminal minority brings the sector into disrepute and risks undermining further reform of the sector. For more information, click here.

Fire safety
On 12 November 2021 the Guardian reported: “Rebel Conservative MPs have called on the government to stop charging VAT on fire safety repairs to rescue leaseholders from a potential £2.5bn tax bill.” Amendments were tabled to the Building Safety Bill in an attempt to protect affected households from the soaring costs of fixing combustible cladding and other defects. For the report, click here.

HOUSING LAWS IN THE PIPELINE
 

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 is expected to have its second reading debate on a date to be announced. For the Bill as brought from the House of Lords, click here. For a House of Commons Library briefing concerning the Bill, published on 22 September 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.

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 and will receive its second reading on 3 December 2021.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 has been postponed to 19 November 2021.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.

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 and will receive its second reading on 29 October 2021.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 and its second reading has been postponed to 26 November 2021.The Bill awaits publication. To follow progress of the Bill, click here.

Domestic Building Works (Consumer Protection) Bill
This Bill, sponsored by Mark Garnier, would make provision about consumer protection in relation to domestic building works. It was presented to Parliament on 21 June 2021. Second reading, is scheduled to take place on Friday 19 November 2021. The second reading is scheduled to take place on 19 November 2021. For the Bill as introduced, click here. To follow progress of the Bill, click here.

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NEW HOUSING CASES
 

Clarion Housing Association Ltd v Carter [2021] EWHC 2890 (QB)

The appellant housing association (Clarion) appealed against the decision of Deputy Circuit Judge Holt in the county court where he gave judgment dismissing the claim for possession against the respondent, Ms Louise Carter (Louise). He decided that Louise was entitled to stay on at the property where she had been living with her late mother, Monica Carter, as amongst other things, she became an assured tenant of the property in equity on her mother’s death.

Facts
Monica Carter became a secure tenant of the property in 1987. After a series of transfers and mergers, she became an assured tenant under the 1998 Act and the property was ultimately transferred to Clarion who became her landlord. In October 2004, due to health difficulties, Louise moved into the property to become her mother’s carer. It was undisputed at the time of the proceedings that the property had been Louise’s principal residence since late 2004.

In December 2015 Clarion adopted a policy whereby when a tenant died and a member of the deceased tenant's family wished to succeed to the tenancy, the general approach was to allow only one succession for each tenancy. On 13 June 2017, Monica Carter died intestate. Louise asked Clarion whether she could buy the property. Clarion refused and served a notice to quit.

In August 2017, Louise put her request in writing to succeed the tenancy. In October 2017, Clarion refused the request to succeed to the tenancy on the ground that the property was not her main home. Louise then completed an application to succeed. In January 2018, Clarion refused the application without providing any reason and confirmed it required vacant possession on 28th February 2018. Louise did not deliver up possession.

In March 2018, Clarion wrote to Louise denying that she enjoyed succession rights and requested vacant possession which was followed up with a notice of seeking possession citing ground 7 in schedule 2 to the 1988 Act. In May 2018, letters of administration were granted to Louise in respect of her mother’s intestacy. A week later there was an express assent of the tenancy to Louise. Thereafter, Clarion issued a third notice to quit and served it on the personal representatives and the Public Trustee. It then issued the possession proceedings on 7 June 2018.

First instance decision
DCJ Holt decided that on her mother's death, Louise, being in occupation of the property, became an assured tenant of the property in equity under the law of intestacy. He also found that the notice to quit was "of no effect" and if it were necessary, that the notice to quit was "incorrectly served". He rejected Clarions’ case for possession on ground 7 and found in favour of Louise on the public law and article 8 defence points.

Decision on appeal
The first issue considered on appeal was whether Louise became an assured tenant in equity on her mother’s death. Clarion argued that in the absence of any statutory succession, security of tenure was lost on Monica Carter's death, leaving Clarion free to serve a notice to quit and thereby end the tenancy. Further, Clarion claimed that DCJ Holt was wrong to find that Louise became an assured tenant in place of her mother as a beneficiary under a trust arising from the law of intestacy. Louise Carter argued she had a sufficient equitable interest to succeed to the assured tenancy; she had an inchoate right to establish title to the tenancy pending her appointment as a personal representative. Alternatively, her interest was sufficient to bring her within the wide definition of "tenant" in section 45(1) of the 1988 Act.

Mr Justice Kerr found this issue to be a difficult one but ultimately was not persuaded by the respondent’s arguments. He considered that Louise's interest, whether termed an inchoate right or a chose in action or a putative or nascent equitable interest, was too weak to count as a tenancy in equity and therefore by a narrow margin he could not agree with the decision that Louise was an assured tenant of property in equity under the law of intestacy.

The second issue on appeal was whether Louise became entitled on her mother’s death to enforce the contractual succession rights in the tenancy agreement. Clarion argued it benefited from the doctrine of privity of contract; the respondent was not a party to the tenancy agreement and it predated the effect of the Contracts (Rights of Third Parties) Act 1999. Louise contended that by an exception to the common law doctrine of privity of contact, she was the beneficiary of a trust of the promise made by Clarion to her mother not to terminate the tenancy where certain pre-conditions of entitlement in the tenancy agreement were met.

Kerr J concluded that this was a case where the equitable exception to the doctrine of privity of contract was made out and, therefore, Louise was entitled to rely as against Clarion on the succession terms in the tenancy agreement.

A remaining point to be considered was whether Louise had sufficiently complied with the contractual pre-conditions of entitlement to be entitled to succeed her mother’s tenancy. The contractual conditions were set out in the judgment at [paras 89-91]. Kerr J found the judge’s conclusion that the relevant requirements had been fulfilled was unassailable and correct. It followed that Louise was entitled to enforce and did effectively enforce the contractual succession provisions in the tenancy agreement. This had the ultimate effect that Clarion could not rely on ground 7 of Schedule 2 to the 1988 Act as it had covenanted not to rely on the ground in circumstances when the contractual succession provisions had been met.

Mr Justice Kerr also considered the remaining three issues raised on appeal, namely: the service of notice to quit on the Public Trustee and the public law and article 8 defence points. As to the former, if it were necessary to do so, he would have found the notice was properly served prior to the expiry date. On the public law defence point, Kerr J was satisfied the judge’s reasoning and conclusions on this issue were correct; Clarion’s decision to serve the notice to quit and to commence possession proceedings were tainted by illegality and procedural unfairness, had it followed its policy, it would have recognised Louise’s right to succeed the tenancy. On the article 8 point, Kerr J would have remitted this issue had it been necessary to do so as the first instance decision lacked any reasoning on this point although as a free-standing defence point, he considered unlikely to have been successful given the exceptional nature of the defence. 

Ultimately, Clarion’s appeal was dismissed for the reasons outlined above.

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

HOUSING LAW ARTICLES & PUBLICATIONS
 

Housing at the heart of climate action Matt Dicks CIH Blog 9 November 2021 – to read the article, click here

Why a landlord register is good for tenants and landlords Vanessa Vaughan Shelter Blog 10 November 2021 – to read the article, click here

Centrepoint’s legal team took on the benefits system – and won Nina Calder Centrepoint Blog 11 November 2021 – to read the article, click here

Notices of Seeking Possession revert to pre-pandemic notice periods Amirah Adekunle-Fowora Devonshires 11 November 2021 – to read the article, click here

Review or repetition? Nearly Legal 11 November 2021 – to read the article, click here

The Domestic Abuse Act 2021 – What does it mean for social housing providers? Donna McCarthy Devonshires 11 November 2021 – to read the article, click here

Focus on tenancy fraud Raj Vine Devonshires 11 November 2021 – to read the article, click here

Sector Risk Profile 2021 – what registered providers need to look out for Jo Loake Local Government Lawyer 12 November 2021 – to read the article, click here

Possession news Giles Peaker Nearly Legal 12 November 2021 – to read the article, click here

After Cornish staycation summer, locals fear a winter of evictions
Rachel Stevenson Observer 15 November 2021 – to read the article, click here

‘I have to move my bike to get to the fridge’ – the UK boom in microflats Julia Kollewe Guardian 15 November 2021 – to read the article, click here

Should we be talking about endings in Housing First? Imogen Blood Homeless Link 15 November 2021 – to read the article, click here

They’re making a list, they’re checking it twice Giles Peaker Nearly Legal 15 November 2021 – to read the article, click here

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

HOUSING LAW DIARY
 

19 November 2021                               
Postponed second reading of Caravan Sites Bill (see Housing Laws in the Pipeline)

19 November 2021                               
Second reading of Domestic Building Works (Consumer Protection) Bill (see Housing Laws in the Pipeline)

23 November 2021                               
Public Bill Committee scrutinising the Judicial Review and Courts Bill expected to report to the House of Commons

26 November 2021                               
Postponed second reading of Homeless People (Current Accounts) Bill (see Housing Laws in the Pipeline)

29 November 2021                               
Housing (Right to Buy) (Designated Rural Areas and Designated Regions) (England) Order 2021 comes into force

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