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HOUSING LAW NEWS & POLICY ISSUES

Right to Buy (1)
On 22 September 2016 the DCLG announced that more than 56,000 households have been helped to purchase a home through the government’s revitalised Right to Buy scheme since 2012. The latest figures show that over 3,362 households bought under the Right to Buy scheme in the three months to June, a 21% increase from the same time last year. For the announcement, click here For the published statistics, click here For a speech by the Housing Minister Gavin Barwell to the National Housing federation which focused on Right to Buy, click here

Right to Buy (2)
On 26 September 2106 the Labour Party announced that it would suspend its support for Right to Buy. The shadow Housing Minister, Teresa Pearce, told the Party Conference: “The Right to Buy can only make any sense in a time of surplus. In a time of shortage it makes no sense at all.” For The Independent’s report of her speech, click here

Right to Buy (3)
On 22 September 2016 24housing published results of a survey in which just over half of the respondent housing associations said that they will probably be ready for implementation dates next year, but expressed significant concerns regarding regulations, funding and administration costs, and said that ‘there was little appetite for Right to Buy’. For details, click here

Social housing sales (including Right to Buy)
On 22 September 2016 the DCLG announced that more than 312,000 households have now purchased homes from social housing stock under government schemes including Right to Buy, Help to Buy and Help to Buy: Shared Ownership since 2010. The most common of these sales are by the Right to Buy (and preserved Right to Buy) scheme and the latest published statistics include separate tables for sales under that scheme. For those statistics, click here

Private renting – London
On 26 September 2016 Generation Rent published London's Turning: Towards a sustainable private rented sector under the new Mayor which calls on London Mayor Sadiq Khan to seek powers from central government to: approve local authority landlord licensing schemes and require landlords to upgrade the energy efficiency of their properties to C or above by 2025; set terms of private tenancies to give renters better security and protection from rent rises; provide better support to low income families dependent on housing benefit; outlaw discrimination against low-income households; and build more council homes in London. The policy document is accompanied by analysis of ONS internal migration figures which show, according to the campaign body, that there was net migration from London of 77,520 people in the year to June 2015 as a result of the high cost of housing. For the policy document, click here For the analysis of ONS figures, click here

Housing and human rights
On 22 September 2016 the British Institute of Human Rights published its Joint Civil Society Report, submitted to the United Nations as part of its Universal Periodic Review of the UK. In the report, the BIHR reported submissions to it raising concerns about housing and homelessness, including: current building rates; 29% of private sector tenants are in substandard housing; since 2010 there has been a 55% increase in rough sleeping with figures suggesting an increase of 30% from 2014 to 2015. The report recommends the abolition of the ‘bedroom tax’ on the grounds that ‘it causes destitution and has not served its purpose’. To read the report, click here

Housing associations
On 21 September 2016 the Homes and Communities Agency published its social housing sector risk profile for 2016. The annual publication sets out key challenges facing the sector and aims to help registered providers sustain their financial viability. The main points highlighted in this year’s publication include the need: to ensure that boards understand, and can manage, the risks associated with an increased reliance on sales revenues; to continue to evolve governance structures and skills as the sector continues to diversify into a range of new commercial ventures and relationships; to factor a level of control into stress testing a wide range of potential scenarios and risks; to assure themselves that the reductions in operating costs that they aim to deliver in response to social rent cuts are achievable; and to have a strong oversight on decisions around constitutional changes and disposals and be fully informed so that they can manage the reputational, legal, and financial risks when the de-regulation measures in the Housing and Planning Act 2016 commence. To read the 2016 publication, click here

Private renting – England
On 26 September 2016 Shelter published details of a survey of 3,250 tenants that suggests that in the last year one in eight private renters across England has suffered illegal acts by their landlord. Most common offences included entering homes without permission and deposits not being properly protected. The most striking findings included: the equivalent (if extrapolated) of over 64,000 renters having utilities cut off without their consent and almost 50,000 having belongings thrown out of their home and the locks changed; over 600,000 renters having had their home entered by a landlord without permission or notice being given; over 200,000 having been abused, threatened or harassed by a landlord; and over 110,000 feeling they had been treated unfairly due to their race, nationality, gender or sexual orientation. For details of the survey, click here

Private renting – Scotland
On 22 September 2016 the Private Housing (Tenancies) (Scotland) Act 2016 (Commencement No 1) Regulations 2016 were made. They bring into force from 31 October 2016 various sections of the Private Housing (Tenancies) (Scotland) Act 2016 broadly for the purpose of making regulations. For the regulations, click here For the statute, click here

Affordable Homes
On 23 September 2016 Centre for London, a politically independent think-tank and charity, published a report – In No Uncertain Terms: Securing Institutional Funding for Genuinely Affordable Homes – which advocates that government should give a guarantee that Housing Benefit payments will rise in line with inflation for specified new homes, thereby providing investors with the certainty that they need to invest in London's housing market. To read the report, click here

Local authorities
On 26 September 2016 it was reported that Kingston Council is considering whether to close its entire housing services department and outsource the functions to a private company because of funding cuts. For a report in the local media, click here

HOUSING LAWS IN THE PIPELINE

Renters’ Rights Bill
This is a Private Members’ Bill introduced in the House of Lords by Baroness Grender which seeks to provide tenants and prospective tenants with certain rights, including affording access to a local housing authority’s database of rogue landlords, ending certain letting fees and providing for certain mandatory electrical safety checks. The Bill had its Second Reading on 10 June 2016 and will enter the Committee stage on a date to be announced. For the Bill as introduced, click here To read debates at all stages of the Bill’s passage, click here For progress of the Bill, click here

Crown Tenancies Bill
This is a Private Members’ Bill introduced in the House of Commons by Wendy Morton which seeks to provide that ​Crown tenancies may be assured tenancies for the purposes of the Housing Act 1988, subject to certain exceptions; to modify the assured tenancies regime in relation to certain Crown tenancies; and for connected purposes. The Bill is being prepared for publication and is due to have its Second Reading on 16 December 2016. For progress of the Bill, click here

Homelessness Reduction Bill
This is a Private Members’ Bill introduced in the House of Commons by Bob Blackman which seeks to amend the Housing Act 1996 to make provision about measures for reducing homelessness; and for connected purposes. The Bill is being prepared for publication and is due to have its Second Reading on 28 October 2016. For progress of the Bill, click here For a record of proceedings, click here The House of Commons Select Committee for Communities and Local Government has been holding a pre-legislative inquiry into the Bill: for more information, click here  On 14 September 2016 the Local Government Association published a response to the proposed legislation stating that it will not work; for the LGA press release, click here

Housing (Tenants' Rights) Bill
This is a Private Members’ Bill introduced by Caroline Lucas which seeks to establish a Living Rent Commission to conduct research into, and provide proposals for, reducing rent levels in the private rented sector and improving terms and conditions for tenants; to require the Secretary of State to report the recommendations of the Commission to Parliament; to introduce measures to promote long-term tenancies; to establish a mandatory national register of ​landlords and lettings agents; to prohibit the charging of letting or management agent fees to tenants; and for connected purposes. The Bill is being prepared for publication and is due to have its Second Reading on 20 January 2017. For progress of the Bill, click here

NEW HOUSING CASES

Admiralty Park Management Company Limited v Olufemi Ojo [2016] UKUT 421 (LC)
This was an appeal against a decision of the First-tier Tribunal (Property Chamber) (FTT) by which it decided that Mr Ojo, the leaseholder of flat 125 Frobisher Road, Erith, was not liable to pay service charges (referred to in the lease of the property as ‘the Management Charge’) for the years 2010 to 2014 for services provided by the appellant, because the service charges had not been calculated in accordance with the method prescribed by his lease. That objection was not taken by Mr Ojo before the hearing of the application, but was raised for the first time by the FTT at the start of the hearing. The FTT refused to permit the appellant an adjournment to enable it to respond to the new point or to argue that as a result of long usage its method of calculating the service charge was not one to which any objection could now be taken.

The objection raised by the FTT related to the method of calculating the Management Charge. Rather than charging each tenant a proportion of the costs of maintaining and administering their own block (as the lease required), the managing agents charged a proportion of the costs of maintaining and administering all nine of the buildings on the estate which the appellant manages.

The appeal raised three issues: (1) Whether the FTT had acted without jurisdiction, or in a way which was procedurally unfair, by reaching its decision on the basis of a new point which had not been relied on by Mr Ojo or identified before the hearing, and without the appellant having been allowed an effective opportunity to consider and address it. (2) Whether Mr Ojo was prevented from objecting to the manner in which the Management Charges had been calculated in the past, because he had not raised any such objection since at least 2009. (3) What Management Charge, if any, was Mr Ojo liable to pay in respect of the years 2010 to 2014.

As to issue (1), the Tribunal said that “bearing in mind the FTT’s overriding objective of dealing with cases fairly and justly, avoiding unnecessary formality, seeking flexibility and using its expertise effectively, care should be taken by tribunals to avoid adopting an approach which is too narrow, technical or fixated on adherence to procedure for its own sake.” The appellant’s departure from the scheme of accounting required by the lease was so fundamental that it was both proper and inevitable, in the Tribunal’s judgment, that the FTT should raise the issue at the hearing.

However, following Regent Management Limited v Jones [2012] UKUT 369 (LC) and Birmingham City Council v Keddie [2012] UKUT 323 (LC), whilst the FTT regarded it as unacceptable to allow the appellant to put forward an argument based on long practice without giving notice in advance to Mr Ojo, the same unfairness was visited on the appellant by its not being given adequate notice of, or a sufficient opportunity to respond to, the point taken by the FTT. Accordingly, the FTT’s decision was arrived at on a basis which was unfair and the decision was set aside.

The Tribunal, when giving permission to appeal, had indicated that in the event that the appeal was allowed the original application would be re-determined on the same occasion. Consequently it considered the issues (2) and (3).

As to issue (2) the Tribunal found that Mr Ojo had acquiesced in the actual manner of calculating the Maintenance Charge and that it would be unfair for him now to be allowed to dispute his liability on grounds which he had chosen not to raise for many years. For him to be permitted to do so would require the appellant to recalculate the service charges back at least to 2009 in order to ascertain Mr Ojo’s correct contribution (and the contributions of other leaseholders), which might be more or less than the sums actually charged.

As to issue (3) the appellants calculated Mr Ojo’s liability (for an adjusted period and having given credit for sums paid) as £4,206.35. Mr Ojo raised various objections to the Maintenance Charge by way of written submissions but those objections were not accepted on the facts of the case. The balance due to be paid was therefore £4,206.35. The Tribunal rejected an application by the appellant that it be permitted to add costs of the proceedings to the service charge payable.
For the full judgment, click here

Shaja Butt v London Borough of Hackney (22 February 2016)
County Court sitting at Central London
This was an appeal in a homelessness case, focussing on a reviewing officer’s decision in the light of section 149 of the Equality Act 2010, as explained in Hotak v Southwark London Borough Council [2015] UKSC 30.

The appellant, Mr Butt, applied to the London Borough of Hackney (‘Hackney’) for homelessness assistance in 2014. The appellant claimed that in accordance with section 189(1)(c) of the Housing Act 1996 Act he had a priority need because he was ‘vulnerable’ on account of various physical and medical conditions which he specified in a pro forma sheet provided by Hackney. Hackney was satisfied that the appellant was homelessness but not that he was in priority need and rejected his application. The appellant applied for a review and provided further medical evidence.

In October 2015 Hackney’s reviewing officer wrote to the appellant and in a 14-page letter concluded that he was not satisfied that the appellant was a vulnerable person. The appellant appealed.

At the heart of the appeal were two grounds on which the appeal succeeded. Ground 1 was that “[Hackney] is in breach of its public sector equality duties set out at section 149 of the Equality Act 2010 in that the review decision fails to address the following aspects of that duty:

1. whether the appellant is ‘disabled’ as defined by section 6 of the Equality Act 2010;
2. if so the extent of his disability; and
3. apart from finding he is allegedly able to manage his affairs and/or the basic activities of daily living, there is no assessment of the likely effect of his disability when homeless, for instance, whether the effects of his disability may be exacerbated.”

Citing paragraphs 78 and 79 of Lord Neuberger’s speech in Hotak as to the effect of section 149 in this class of case, HHJ Luba QC noted that in the reviewing officer’s list of matters taken into account, in paragraph 16 of his decision letter, he had referred to “section 149 of the Equality Act 2010 and the Supreme Court judgment in Hotak.” Furthermore, in paragraph 21 he had said:

“I can confirm that I have reached this decision with the equality duty well in mind and carried out this exercise in substance, with rigour, and with an open mind. I have focussed very sharply on 1) whether you are under a disability bracket or have another protected characteristic 2) the extent of such disability 3) the likely effect of the disability when taken together with any other features on you if and when homeless and 4) whether you are as a result vulnerable.”

However, it was argued for the appellant that “what the reviewing officer was required to do … and the error of law he made relevantly by omission of it, is to undertake the exercise of having ‘due regard’ for the purposes of section 149.”

HHJ Luba QC determined that reviewing officers will have to “spell out, at least in summary form in their decisions, what conclusions they have reached on the four matters set out at the end of paragraph 78 of the judgment in Hotak [ie (i) whether the applicant is under a disability (or has another relevant protected characteristic), (ii) the extent of such disability, (iii) the likely effect of the disability, when taken together with any other features, on the applicant if and when homeless, and (iv) whether the applicant is as a result 'vulnerable']. What is not sufficient, as Lord Neuberger made clear in paragraph 78, is for reviewing officers’ decisions to simply contain:

‘no more than formulaic and high-minded mantras.’”

Ground 2 related to paragraph 59 of the reviewing officer’s decision letter. It read:

“I must conclude that [the appellant] is not in priority need under section 189 of the Housing Act 1996. As I have stated earlier I have considered his circumstances both singularly and as a whole and do not consider that he is significantly more vulnerable for the reasons given above. It may very well be the case that he is more vulnerable than ordinarily vulnerable, however I am not satisfied that these mean that he is significantly more vulnerable than ordinarily vulnerable.” [Emphasis added by the judge]

It was argued for the appellant that the reviewing officer in that paragraph did not explain what he meant by ‘significantly’: did it mean ‘to a greater extent than simply insignificant or peripheral’, or ‘something really serious’?

In paragraph 53 of Hotak Lord Neuberger had said:

“Accordingly, I consider that the approach consistently adopted by the Court of Appeal that ‘vulnerable’ in section 189(1)(c) connotes “significantly more vulnerable than ordinarily vulnerable” as a result of being rendered homeless, is correct.”

HHJ Luba QC concluded:

“[T]he obligation to give reasons in section 203, taken with the obligation to direct himself in accordance with the judgment of Lord Neuberger in Hotak, required the reviewing officer to identify the sense in which he is using the term ‘significantly’…. I am satisfied that here there is an error of law established and that insufficient reasons have in this respect been given.”

Other grounds of appeal were rejected by the judge but the appeal was allowed on the grounds above.

For the full judgment, click here.

HOUSING LAW CONSULTATIONS

Law Commission reform programme
The Law Commission has opened the consultation for its 13th Programme of law reform. The responses received will inform the majority of the Law Commission’s work from 2017 to 2020. The Commission is asking for the public’s help to identify areas of the substantive law of England and Wales that need reform, and to prioritise those reforms. It is also suggesting some potential projects that could form part of its Programme, and it would like to have views on these. Within these proposals is a suggestion that there might be areas of residential, commercial or agricultural landlord and tenant law which impose unnecessary restrictions, inefficiencies or costs. For more information about the Programme, including the criteria for project selection, click here For more details of the proposal concerning leasehold law, click here The consultation closes on 31 October 2016.

Justice system reform
The Ministry of Justice and HM Courts and Tribunal Service has published a consultation document outlining what the Ministry of Justice is doing to achieve reform of the justice system, and invites the public and interested stakeholders to give their views on certain specific measures. In respect of civil proceedings, the document proposes: introducing a new online process for resolving claims;
encouraging parties to resolve disputes themselves where possible; extending the fixed recoverable costs regime; civil enforcement; and replacing statutory declarations in county court proceedings with a witness statement verified by a statement of truth. Where required, legislation will be introduced to implement those measures. To read the consultation document, click here The document was accompanied by a joint statement from the Lord Chancellor, Lord Chief Justice, and the Senior President of Tribunals on their shared vision for the future of Her Majesty’s Courts & Tribunal Service: to read the joint statement, click here The consultation will be conducted by online survey: to access the survey, click here The consultation closes on 27 October 2016.

Welsh National Housing Pathway for ex-service personnel
The Welsh Government is consulting on the draft National Housing Pathway for ex-service personnel. The pathway will: provide advice to members of the services before their discharge, to help them avoid homelessness; and support former members of the services who are homeless. For more details, click here To respond to the consultation, click here The consultation closes on 13 October 2016.

HOUSING LAW ARTICLES & PUBLICATIONS

Recent Developments in Housing Law Jan Luba QC & Nic Madge [2016] September issue of Legal Action. Available in print and on-line for Legal Action subscribers. For the latest issue, click here For back-issues, click here

Cost of inadequate housing at the European level Steve Battersby [2016] UK Housing Professionals Forum 20 September. To read this article, click here

Debate around buy-to-let tax changes points to general need for extra safeguards for tenants John Bibby [2016] Shelter Blog 21 September. To read this article, click here

Private landlords post-Brexit: avoiding race discrimination Tom Gillie and Declan O'Dempsey [2016] CIH Online 22 September. To read this article, click here

Construction of service charge provisions Katie Gray [2016] Local Government Lawyer 22 September. To read this article, click here

The Spread of the Bedroom Boom Tom Simcock [2016] Residential Landlords Association 22 September. To read this article, click here

Housing minister signals change in government social housing policy Jane Dudman [2016] Guardian 23 September. To read this article, click here

‘Solicitor’s agents’ and rights of audience again Giles Peaker [2016] Nearly Legal 25 September. To read this article, click here

How can housing end poverty? Dawn Foster [2016] Guardian 26 September. To read this article, click here

Our immoral housing policy is set up to punish the poor Matt Wilde [2016] Guardian 26 September. To read this article, click here

THE HOUSING LAW DIARY

13 October 2016        
Consultation on Welsh National Housing Pathway for ex-service personnel closes (see Housing Law Consultations)

27 October 2016        
Consultation on Justice system reform closes (see Housing Law Consultations)

31 October 2016        
Consultation on Law Commission reform programme closes (see Housing Law Consultations)

4 November 2016        
Lime Legal’s Allocations Conference

RECRUITMENT

Housing Solicitor (Leeds)
Lester Morrill
Click here for Job Description

Interested candidates should apply with CV and covering letter indicating salary expectations to Helen.Butterworth@lmlaw.co.uk or via post to: Helen Butterworth, Lester Morrill, 27 Park Square West, Leeds, (direct applications only: strictly no canvassers).Closing date Monday 17 October 2016.

Housing Advice & Assessment Officer
Harrow Council
For details click here

Policy Officer
Peabody
London
For details click here

Quality Manager
L&Q
London
For details click here (on the linked page you’ll need to insert Quality Manager in the Job Title box and click the Search button)

Private Sector Housing Officer
Hackney Council
London
For details click here

Temporary Community Protection Manager
Ashfield District Council
Kirkby-in-Ashfield, Nottinghamshire
For details click here

Solicitor Litigation and Dispute Resolution (London)
Winckworth Sherwood Solicitors
Click here for details and a link to the online application.

Housing Solicitor/Experienced Paralegal (South London)
Burke Niazi Solicitors & Advocates
For details click here.