HOUSING LAW NEWS & POLICY ISSUES

Right to Buy sales in England: October to December 2020
On 15 April 2021 the MHCLG published statistics on the number of sales of dwellings under the Right to Buy scheme in England. Between October and December 2020:

• The total number of Right to Buy Sales was an estimated 1,525. This represents a decrease of 40 per cent from the 2,545 sold in the same quarter in 2019.
• From Right to Buy Sales, local authorities received £143m, 36 per cent lower than the £224 million received in the same quarter of 2019.
• The average receipt per dwelling was £ 93,958.
• The number of properties started or acquired by local authorities, using recycled Right to Buy receipts, was 1,685.

For the statistics, click here. For tables showing Right to Buy sales, receipts and starts, organised by local authority, click here and refer to tables 691,692 and 693.

Ninety-five per cent mortgage scheme launched
On 19 April 2021 the government launched a new mortgage scheme, backed by it, which is intended to help first-time buyers or current homeowners secure a mortgage with only a 5 per cent deposit. The mortgages are available in respect of properties up to £600,000. Lloyds, Santander, Barclays, HSBC and NatWest have launched mortgages under the scheme and Virgin Money expect to do so next month. For more information, click here.

Government advice on home moving during the coronavirus outbreak
On 12 April 2021 the government updated its advice on home moving during the coronavirus outbreak to reflect Step 2 of the Roadmap out of lockdown. For the advice, click here.

Magistrates’ Courts (Amendment) Rules 2021: Debt Respite Scheme
Regulation 7 of the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 (the 2020 Regulations) provides that a creditor is prohibited from taking certain steps to enforce a debt against a debtor who is in a breathing space moratorium or a mental health crisis moratorium in relation to that debt, unless the county court or any other court or tribunal where legal proceedings concerning the debt have been or could be issued has given permission for the creditor to take that step. These Rules, which come into force on 4 May 2021, amend the Magistrates’ Courts Rules 1981 to provide that where the permission of a magistrates’ court is required for the purposes of regulation 7(2)(b) of the 2020 Regulations, an application to a magistrates’ court for such permission must be made by complaint in writing and the complainant must serve a copy of the summons on the relevant debt advice provider. For the 2021 Amendment Rules, click here. For the 2020 Regulations, click here.

Electrical Safety Review
On 15 April 2021 Arch (the Association of Retained Council Housing) reported that officials from the MHCLG have established an Electrical Safety Working Group to provide a forum to discuss the best way to ensure social homes are safe in respect of electrical safety. The evidence gathered, and any recommendations arising, will be used to develop policy proposals and inform the content of a government consultation, to be published at a later date. For more details, click here.

Housing Ombudsman: call for evidence on investigation into damp and mould
On 13 April 2021 the Housing Ombudsman’s office issued its first call for evidence to support a thematic investigation which will look at damp and mould. It will enable the Ombudsman to make recommendations and share best practice to help landlords develop their services and improve the experience of residents. An initial review of case data identified a high rate of maladministration on cases that feature damp and mould. Compensation is also high with a total of £68,000 ordered in the same period, indicating a significant impact on residents in some cases. The call for evidence will close on 4 June 2021. For more details, click here.

'Unfair’ eviction notices during pandemic: Generation Rent
On 15 April 2021 Generation Rent reported the result of a new poll by Survation which found that “one in 12 private renters has been given notice to move out without a reason since March 2020”. The survey, commissioned by Generation Rent, indicates that as many as 694,000 private tenants have been served with a Section 21 notice during the pandemic. The survey also found that one in three private renters fears that they will lose their home in the year ahead – which represents nearly 3 million adults in England. For more information, click here.

Housing Support Grant: practice guidance – Wales
On 15 April 2021 the Welsh Government published updated guidance on how the Housing Support Grant can be used by local authorities. For the guidance, click here.

Shaping the Future Together: Homeless Link’s strategy to end homelessness
On 13 April 2021 Homeless Link published its new strategic plan for 2021–2024, which puts its members at the heart of the plan, as it aims to end homelessness for good by ensuring that “everyone has a place to call home and the support they need to keep it”. Homeless Link says that it will strive to achieve:

• Home Safe where everyone has their own front door and can feel safe and secure in their accommodation
• People First so that individuals experiencing homelessness are given the right support to meet their needs and aspirations and improve wellbeing
• Prevention into Action that targets its efforts and resources further upstream to prevent people from becoming homeless in the first place
• A Stronger Voice that amplifies the experiences of its members to create opportunities for shared learning and challenge systems that aren’t working.

For more details, click here. For the strategy document itself, click here.

Rogue landlord prosecuted for safety failings: Welwyn Hatfield
Welwyn Hatfield District Council has reported that a Hatfield landlord and his management company have been ordered to pay over £90,000 in fines and legal costs following a successful council prosecution. Captain Solutions and Faraz Bucha were each found guilty of 27 charges at St Alban's Magistrates’ Court relating to the management of 18 The Runway and a second property in Hatfield which is subject to ongoing proceedings. For 18 The Runway, Hatfield, eight charges related to fire safety offences – including inadequate fire alarms, lighting and fire doors – and blocking key escape routes. The property was also found to be in poor condition with neither Mr Bucha nor Captain Solutions carrying out necessary improvements, as instructed by council officers. The court had grave concerns that fire regulations were wilfully and negligently ignored over a considerable period, despite being advised of this responsibility. Passing sentence, the court issued a fine of £1,500 for each charge, resulting in a total fine for both properties of £81,000 and legal costs of £9,538. For the council’s full report, click here.

2021 Legal Aid Census: Legal Aid Practitioners Group
On 12 April 2021 the Legal Aid Practitioners Group launched a survey which seeks to gather extensive data about the backgrounds and lived experiences of those working on the social justice frontline. The LAPG survey, devised in conjunction with legal academics from Newcastle University Law School, Cardiff University and University College London, is aimed at everyone working in legal aid, those aspiring to work in legal aid and those who have left practice, at all levels (with questions tailored accordingly). Business owners and charity managers will have the chance to share data about overheads, the cost of complying with Legal Aid Agency bureaucracy, salaries, training, recruitment and system failures. All participants will be asked about the toll of the work on their wellbeing, particularly during the pandemic. To take part in the survey, click here.

HOUSING LAWS IN THE PIPELINE

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. Both Houses have agreed on the text of the bill which now waits for the final stage of Royal Assent when the Bill will become an Act of Parliament. Royal Assent is yet to be scheduled. 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.

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.

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 returned the Bill to the House of Commons with amendments. The House of Commons considered the Lords Amendments on the floor of the House on 24 February 2021. The House of Lords considered the Commons amendments to the Bill on 17 March 2021. Outstanding issues on the bill were returned to the Commons for consideration. The Commons considered the Lords message on the Bill on 22 March 2021 and have returned the Bill to the Lords as they disagreed with certain Lords amendments. The Lords was due to consider the bill on 19 April 2021. For the bill, as amended on report, click here. To read debates on all stages of the bill, click here. For a briefing paper, published by the House of Commons Library on 19 March 2021, click here. To follow progress of the bill, click here.

Housing and Homelessness (Local Accommodation Duty) Bill
This private member’s bill, sponsored by Karen Buck, would place a duty on local authorities to ensure that persons for whom a homeless duty has been accepted are accommodated in the local area, including on discharge into private rented accommodation; and would require local authorities to publish annual reports on steps relating to housing demand and supply taken or intended to be taken to meet that duty. The bill had its first reading on 8 March 2021 and is due to have a second reading on a date to be announced. The bill is being prepared for publication. 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.

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.

NEW HOUSING CASES

Alberti v Cadogan Holdings Limited [2021] UKUT 0085 (LC)

Background
In 1971 Mr Scarfe took a long lease on 10 Cheyne Walk, Chelsea (‘the property’), which at the time was divided into five separate flats. Throughout the 1970’s Mr Scarfe had made internal alterations to the building, at his own expense, to convert it into a single house. At the time, planning permission was not required to make the changes.

In 1984, the building was listed Grade II under the Town and County Planning Act. In 1987, planning permission and listed building consent were granted for the construction of a rear studio extension, such work had to begin within five years. Mr Scarfe carried out this work at his own expense. Both the conversion of the property from flats into a house and the addition of the studio are considered improvements for the purpose of the Leasehold Reform Act 1967.

In 2014, the Royal Borough of Kensington and Chelsea changed its planning policies. The effect was that if the internal alterations had not been carried out before the valuation date, any purchaser of the freehold on the valuation date would have been advised that an application for planning permission and listed building consent to change the property from five flats into a single house would have had no chance of success.

In May 2019, Mr Scarfe served Cadogan a notice claiming the freehold under the 1967 Act. The claim was admitted by Cadogan. The date of the notice making the claim is the valuation date for assessing the price payable for the freehold under the 1967 Act.

In August 2019, Mr Scarfe executed a transfer of the lease to Mrs Alberti along with the benefit of the claim to acquire the freehold.

Determination
It fell to the Tribunal to determine the price payable for the freehold. The First-Tier Tribunal requested the Upper Tribunal to determine the extent of the scope of the assumption in section 9(1A)(d) in the 1967 Act. That assumption is that the price payable for the house is to be diminished by the extent to which its value has been increased by improvements carried out by the tenant at their own expense. The specific point for determination was whether it was a necessary consequence of section 9 (1A)(d), that in its assumed condition, planning permission and listed building consent would need to be obtained by the purchaser of the property if they wished to carry out work to enable it to be occupied and used as a single house.

Mrs Alberti argued that it would be required, the starting point should be that no improvements were made by Mr Scarfe and in making such valuation the purchaser would need to go through the whole process including the planning and building control legislation and policies which existed at the valuation date. In relation to the property, any application to turn the flats into a single dwelling house would be rejected, as such the property would only be appealing to those who wanted to make refurbishments to the existing flats.

Cadogan argued that that section 9(1A)(d) is concerned only with the physical condition of the building and not the planning controls. The starting point at the valuation date should be the property as five flats, with no planning constraints on turning it into a single house.

The Tribunal’s determination was in Mrs Alberti’s favour, in that it is an inevitable consequence of treating the works as if they had never been done that any occupation of the house between the date on which the works were carried out and the valuation date must be assumed to have been of the building in its unimproved condition. It follows that the prospective purchaser of the unimproved house on the valuation date would not be advised that, although the building was divided into five flats, it nevertheless had the benefit of an established planning use which would render it lawful, without planning consent, to occupy it as a single house.

The court further stated that the best proxy for the value of the of the unimproved house would be a house next door which had been divided into flats on the date of the lease and remained in that condition on the valuation date. The planning status of the two properties would be the same and Cadogan should therefore expect to receive the same price on a notional sale of both properties.

Summary by Shada Mellor, barrister, Trinity Chambers. For the judgment, click here.


The London Borough of Barnet v Hamid Kamyab [2021] EWCA Crim 543


This appeal was brought by the prosecutor (London Borough of Barnet: ‘LBB’) pursuant to section 31(1) Proceeds of Crime Act 2002 (‘POCA’) for leave to appeal the Confiscation Order in the sum of £270 imposed on the respondent, Kamyab, in the Crown Court at Harrow on 16th December 2019.

Leave was granted, and the case raised two important issues:

1.         The scope of the decision in R v Panayi [2019] EWCA Crim 413; and

2.         The powers of the Court of Appeal when determining a prosecutor’s appeal against a confiscation order made in the lower court.

Background
In 2007, Mr Kamyab bought 24 Llanvanor Road (‘the property’) to derive rental income. At an unknown date, the property had been converted from a five-bedroom single dwelling into nine separate flats. Mr Kamyab contended this took place before he purchased the property; LBB disputed this.

LBB served an Enforcement Notice, contrary to section 179(2) Town and Country Planning Act 1990. The notice required Mr Kamyab, amongst other things, to cease the use of the land as nine units of residential accommodation. Mr Kamyab did not comply with the notice. He was subsequently charged and convicted following a trial of two offences of failure to comply with an Enforcement Notice. He was sentenced to a fine of 10,000 to be paid within 12 months with a term of 6 months’ imprisonment in default, costs of £10,000 and the Victim Surcharge.

In 2016, LBB applied for a Confiscation Order under section 6 POCA. In 2019, before the hearing of the confiscation application, the Court of Appeal handed down its judgment in Panayi, which held that the summons alleging breach of the Enforcement Notice had charged the defendant by reference to a single day of breach; and that in consequence his ‘benefit’ amount was a single day of rent received.

Following that judgment, counsel for Mr Kamyab filed a further skeleton argument relying on the ‘single day’ principle in Panayi. That was resisted by LLB who argued that there was a material difference in the language of the summons in Panayi and the present case; further, Panayi was decided without reference s.8 POCA or R v Ali [2014] EWCA Crim 1658 which supported the prosecution’s case that a defendant’s benefit from such an offence was calculated on a continuing basis.

The judge held a preliminary issue hearing to determine whether the ‘single day’ rule applied. The judge held that it did, there was no true distinction between the language of the summons in Panayi and the present case. He further held that section 8 did not have an application to a ‘single day’ offence and that Ali was distinguishable as a case of general criminal conduct. It was irrelevant that it was obvious to everyone that Mr Kamyab’s benefit was not limited to a single day and such had been conceded in written submissions.

The Court of Appeal further considered the issue of ‘single day’ breaches of Enforcement Notices in R v Roth [2020] EWCA Crim 967. Roth was distinguished from Panayi on the basis of the language of the summons, and that the Statements of Facts had made clear that the entire period as identified was subject of the summons, therefore, the appellant knew the case he had to meet, so even if there are technical deficiencies in the drafting of the summons, they are not fatal.

Judgment

The ‘single day’ rule
On the application of the ‘single day’ rule, the Court held that it did not apply, as the proper construction of the summons in the present case made it clear that his offending was not confined to a single day and thus distinguishable from Panayi. The Court went further, in that where, as in the current case, the nature of the offence charged is that it is a single offence committed throughout the period of non-compliance, to limit the benefit to a single day, would require a carefully crafted summons and presentation of the case. In the present case, as in Roth, the respondent knew the case he had to meet, so even if there were technical deficiencies in the drafting of the summons, they would not be fatal.

The Court went further to state that Panayi should be confined to its own facts. The determination as to whether it was rightly decided but confined to its own facts or decided per incuriam by reason of absence of citation of Hodgetts, Ali, and s.8 of POCA, must await a case which cannot be distinguished.

Disposal: the powers of the Court of Appeal
The Court then found itself in the difficult position of determining what its powers are when determining a prosecutor’s appeal against a Confiscation Order made in the lower court. The first question was whether there was a power to remit the case to the Crown Court following a successful prosecution appeal under section 31(1) of POCA. The Court held there was not, on the basis of the clear terms in section 32(1).

The Court has the power to confirm, quash or vary the Confiscation Order. Considerable difficulties had been caused by the judge holding the preliminary issue hearing, as the matter should have been determined at the final hearing, so on appeal, the Court had all the relevant information which would be required to determine, if and to what extent the Confiscation Order should be varied. In the exceptional circumstances of this case, the Court set directions for a further hearing on what remedy should be and whether to vary the confiscation order.

Summary by Shada Mellor, barrister, Trinity Chambers. For the judgment, click here.

HOUSING LAW CONSULTATIONS

Renting Homes (Wales) Act 2016 Draft Regulations
The Welsh Government is consulting on:

• draft model written statements regulations, including the design, structure and order of the model written statements
• draft explanatory information regulations for written statements.

The consultation ends on 16 June 2021. For the consultation document, click here. For the draft regulations, click here.

NEW HOUSING LAW ARTICLES & PUBLICATIONS

Assortment – RROs, landlord compensated for delay to homeless application, and consultation on mould Giles Peaker Nearly Legal 13 April 2021 – to read the article, click here

Scrapping Section 21 will make the private rented sector better Ami McCarthy Shelter Blog 15 April 2021 – to read the article, click here

Homeless with a child: what to do Centrepoint Blog 16 April 2021 – to read the article, click here

Relief from forfeiture – Don’t dilly dally on the way Giles Peaker Nearly Legal 18 April 2021 – to read the article, click here

The Guardian view on the house price boom: the asset-rich get richer Editorial Guardian 18 April 2021 – to read the article, click here

Section 204 appeals – weighing medical evidence and ending ‘relief duty’ Giles Peaker Nearly Legal 18 April 2021 – to read the article, click here

Housing: recent developments (April 21) Jan Luba QC and Sam Madge-Wyld Legal Action February 2021 – to read the article (subscription required), click here

HOUSING LAW DIARY

4 May 2021                                        
Magistrates’ Courts (Amendment) Rules come into force (see Housing Law News and Policy Issues)

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