16th August 2017
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HOUSING LAW NEWS & POLICY ISSUES

Grenfell Tower Public Inquiry – terms of reference announced
On 15 August 2017 the Prime Minister announced that she had accepted in full the recommendations of Sir Martin Moore-Bick, the chair of the Grenfell Tower Public Inquiry. The terms of reference of the Inquiry are: to examine the circumstances surrounding the fire including: the immediate cause or causes and the means by which it spread to the whole building; the design and construction of the building and the decisions relating to its modification, refurbishment and management; the scope and adequacy of building regulations, fire regulations and other legislation, guidance and industry practice relating to the design, construction, equipping and management of high-rise residential buildings; whether the relevant legislation and guidance were complied with in the case of Grenfell Tower; the arrangements made by the local authority and others for receiving and acting upon information obtained from residents and otherwise available relating to the fire risk; the fire prevention and fire safety measures in place on the day; the response of the London Fire Brigade on the day; and the response of central and local government in the days immediately following the fire. The Inquiry will be set up as soon as possible so that it should be possible to hold a preliminary hearing in mid-September. For the correspondence between the chair and the Prime Minister, click here

Grenfell Tower – letter to local authorities from the Secretary of State
On 8 August 2017 the Communities Secretary Sajid Javid wrote to residents following the Grenfell Tower fire, with an update on the action being taken by the government in response to the tragedy, along with details of available support and assistance. For the letter, click here

Grenfell Tower – letter to local authorities from the Secretary of State
On 11 August 2017 the Communities Secretary Sajid Javid wrote to local authorities concerning the identification of all residential tower blocks with Aluminium Composite Material (ACM) and the submission of samples for testing. The letter stated that the DCLG would be seeking updates on the progress of any necessary remedial actions taken by building owners, where cladding is not compliant with current Building Regulations guidance. This might include: identifying all high-rise residential buildings with ACM cladding; ensuring the owners of such buildings identify the exact wall system (ACM cladding type and insulation material); and, based on this, advising building owners to follow the steps set out in DCLG’s advice to landlords following the large-scale system tests. The letter added that if private sector building owners did not comply with local authorities’ requests, the Secretary of State would consider what further action might be taken to support local authorities in carrying out their responsibilities. For the text of the letter, click here

Homelessness projections
On 10 August 2017 Crisis published new expert analysis, conducted by Heriot-Watt University, providing “the most complete picture to-date of the worst forms of homelessness, including rough sleeping and sofa surfing”, together with 25-year forecasts for each category across England, Wales and Scotland. The report estimates that at any one time during 2016: 9,100 people were sleeping rough, compared to previous estimates placing rough sleeping at 4,134 households for England; 68,300 households were sofa surfing; 19,300 households were living in unsuitable temporary accommodation; 37,200 households were living in hostels; 26,000 households were living in other circumstances, including: 8,900 households sleeping in tents, cars or on public transport, 12,100 households living in squats and 5,000 households in women’s refuges or winter night shelters . Nearly 160,000 households (estimated at just under a quarter of a million people) are experiencing the worst forms of homelessness across Britain, with rough sleeping forecast to rise by 76 per cent if the UK and national governments do not take long-term action to remedy the situation. For the report, click here For the Crisis press release, click here For key findings, click here

Homelessness prevention – Westminster
On 11 August 2017 Westminster City Council announced that it had selected Places for People, in partnership with Shelter and The Passage, as its preferred supplier to deliver a redesigned housing service that will be “tailored to meet the needs of people at points in their lives when homelessness is a real risk”. The new five-year contract will be focused on prevention and early intervention and will go some way to meeting the requirements of the Homelessness Reduction Act 2017, due to be implemented next year. The council says that “the new service is being awarded in four lots: (1) Frontline housing advice, homelessness prevention and support services; (2) Single person, homeless service; (3) Housing assessment, allocations and nominations; and (4) Procurement and management of homeless accommodation to meet borough need. For more information, click here

Youth homelessness and rough sleeping – Wales
On 8 August 2017 Communities and Children Secretary Carl Sargeant announced that an extra £2.1 million has been allocated to help tackle youth homelessness and rough sleeping. The funding is said to be in addition to the £8m of funding provided via the Homelessness Prevention Grant programme and the £6m allocated to local authorities to prevent homelessness. For more details, click here

Housing repossession statistics – England and Wales
On 10 August 2017 the Ministry of Justice published figures, covering the period April to June 2017, in respect of mortgage and landlord possession statistics. Landlord possession claims (32,077), orders for possession (25,195), warrants of possession (16,018) and repossessions by county court bailiffs (8,819) were down 6, 10, 12 and 16 per cent respectively, continuing the annual downward trend seen since April to June 2014. Mortgage possession claims (5,186) and orders for possession (3,343) have both increased by 17 and 8 per cent respectively. The average time to mortgage repossession has increased to 135.8 weeks. For the full statistics, click here

Housing repossession statistics – Wales only
The statistics released by the Ministry of Justice show that in Wales there were 1,335 landlord possession claims made during April to June 2017, an increase of 10 per cent on the same quarter of 2016. There were 1,018 landlord possession orders made during the quarter, down by 3 per cent compared with April to June 2016. During April to June 2017, 71 per cent of claims and 72 per cent of orders were made on behalf of social landlords. During the same period, there were 386 mortgage possession claims and 260 mortgage possession orders made, an increase of 13 per cent and a decrease of 4 per cent, respectively, on the same quarter of 2016. For more details, click here

Home ownership
On 11 August 2017 the Local Government Association said that nearly two thirds (59 per cent) of private renters on the lowest incomes in England never expect to buy their own property because they will not be able to afford one, referring to the plight as "home-owning hopelessness". The LGA is also concerned that: 21 per cent of private renters are dissatisfied with their tenure, compared to less than 1 per cent of owner-occupiers (just 2.7 per cent of renters said they rented because they preferred the flexibility of the tenure, suggesting that most renters would like to own, but cannot afford the home that they need); and since the average homebuyer is expected to pay 7.6 times their annual wages for a home, many renters are locked out of the housing market. For the LGA statement, click here

Social landlord housing stock and rents – Wales
On 9 August 2017 the Welsh Government published an annual report which includes information on the number of housing units (including bedsits and bed spaces) owned or partly owned and managed by the 11 local authorities who retain stock and by all Registered Social Landlords (RSLs) in Wales.  There continued to be a slight increase (0.5 per cent) in social housing with 228,684 social housing units (including bedsits and bed spaces) at 31 March 2017 compared with 227,441 a year earlier. Of these, RSLs owned 62 per cent and local authorities owned the rest. At 31 March 2017, there were a further 14,967 other non-social housing units owned or partly owned by social landlords of which 99 per cent were owned by RSLs. The average weekly rents set by RSLs at 1 April 2017 for 2017-18 for all self-contained general needs housing was £86.96 per week (90 pence per week more than the average charged by local authorities). This compares with a difference of £1.37 per week the year before. Rents for local authority self-contained general needs housing ranged from £72.99 for a one-bedroom flat to £111.68 per week for a four-bedroom flat whilst RSL rents ranged from £75.35 per week for a one-bedroom flat to £136.18 per week for five (or more) bedroom houses or bungalows. For the full data, click here

Private rental prices
On 15 August 2017 the Office for National Statistics published an index of prices paid for renting property from private landlords. Private rental prices paid by tenants in Great Britain rose by 1.8% in the 12 months to July 2017; this is unchanged for the fourth consecutive month. In England, private rental prices grew by 1.9%, Wales saw growth of 1.3% while Scotland saw rental prices increase by 0.2% in the 12 months to July 2017. London private rental prices grew by 1.5% in the 12 months to June 2017, 0.3 percentage points below the Great Britain 12-month growth rate. For the full statistics, click here

Leasehold and commonhold reform
On 10 August 2017 the House of Commons Library published a briefing paper considering recent trends in leasehold ownership and on-going problems associated with the sector. Areas identified for possible reform are summarised, including Government proposals which are currently subject to consultation. For the briefing, click here

Fourth systems test of cladding and insulation
On 11 August 2017 the DCLG announced that the fourth in the Government’s series of large-scale fire safety tests, that will allow experts to better understand how different types of cladding panels behave with different types of insulation in a fire, has been completed by the Building Research Establishment (BRE). This fourth test was of a wall cladding system consisting of ACM cladding with a fire resistant polyethylene filler (category 2 in screening tests) and stone wool insulation (a form of mineral wool). This combination of materials passed the test. The Government’s Expert Panel advise that the results show that this combination of materials can be compliant with current Building Regulations when installed and maintained properly. It could therefore offer a possible solution for some buildings with other cladding systems which have been identified as a hazard. However, the Expert Panel note that cladding and insulation materials can vary between manufacturers and can have different calorific values. The way materials have been fitted and maintained can also affect the safety of the cladding system. Therefore, the Expert Panel advises that building owners need to continue to take professional advice as to whether any remedial work is necessary to ensure the safety of their building. The Local Government Association responded to the test by saying: “We are talking to the councils affected about the costs they now face to remove and replace cladding and insulation systems on their high-rise blocks. With test fails affecting buildings owned by a range of different landlords across the country, it is clear that the current building regulation system has failed. It is also clear that councils cannot afford to carry out this work.” For the full DCLG announcement, click here For the test report, click here For the advice document, click here For the full LGA comment, click here

Fifth systems test of cladding and insulation
On 14 August 2017 the DCLG announced that the fifth in the Government’s series of large-scale fire safety tests has been completed by the BRE. This fifth test was of a wall cladding system consisting of Aluminium Composite material (ACM) cladding with a limited combustibility filler (category 1 in screening tests) with PIR foam insulation. The Government’s Expert Panel advises that the results show that this combination of materials can be compliant when installed and maintained properly. While government has not been informed of any tall buildings over 18 metres in England using this particular combination of materials in their wall system, it could offer a possible solution for some buildings with other cladding systems which have been identified as a fire hazard through previous large-scale tests. For the full DCLG announcement, click here For the test report, click here For the advice document, click here

Northern Ireland Housing Bulletin
On 11 August 2017 the Northern Ireland Analytical Services Unit of the Department for Communities published the latest quarterly housing bulletin, for January to March 2017, containing information on: new housing starts and completions; social renting demand, specifically the number of households presenting as homeless by reason and household type, and the number accepted as full duty applicants; the Northern Ireland House Price Index including breakdown by property type; and new dwelling sales and prices for each Local Government District. For the bulletin, click here

Private letting and declaration of rental income
On 13 August 2017 The Guardian reported that up to 13,000 landlords in the London Borough of Newham “have been identified as failing to declare their rental income, prompting estimates that unpaid tax in the capital is costing the public purse nearly £200m.” Newham is said to have disclosed landlords’ names and property addresses to HM Revenue & Customs. To read The Guardian report, click here

‘Gentrification’ and eviction of private tenants
On 14 August 2017 Generation Rent, the campaign group, published a new study, conducted by Oxford University academic David Adler, which states that the introduction of a Waitrose store is associated with an increase in evictions of private tenants in the neighbourhood of between 25 and 50 per cent. The Other Waitrose Effect seeks to illustrate the hidden costs of gentrification. To read the report, click here To read the Generation Rent blogpost about the report, click here

Supply of private sector tenancies
On 12 August 2017 the Residential Landlords Association published its latest quarterly research report. According to a survey of almost 3,000 landlords, 22 per cent plan to sell at least one of their properties over the next year, with just 18 per cent planning to buy additional properties to rent. The report finds that 33 per cent of landlords have seen an increase in demand for homes to rent over the past three years. For more details, click here

HOUSING LAWS IN THE PIPELINE

Local Housing Authority Debt Bill
This Bill, which had its first reading in the House of Lords on 4 July 2017, seeks to replace the current regime of limits on local housing authorities’ debt with limits determined by the existing prudential regime for local authority borrowing for non-housing-related purposes. The second reading is yet to be scheduled. For the Bill as introduced, click here To follow progress of the Bill, click here

Abolition of the Right to Buy and Associated Rights (Wales) Bill
This Bill seeks to abolish the right of eligible secure tenants to buy their home at a discount under Part 5 of the Housing Act 1985 (Right to Buy); abolish the preserved right of eligible former secure tenants to buy their home at a discount under section 171A of the Housing Act 1985 (Preserved Right to Buy); abolish the right of eligible assured or secure tenants of a registered social landlord or private registered provider to acquire their home at a discount under section 16 of the Housing Act 1996 (Right to Acquire); and encourage social landlords to build or acquire new homes for rent, the Right to Buy, Preserved Right to Buy and Right to Acquire will not be exercisable by tenants who move into new social housing stock more than two months after the Bill receives Royal Assent, subject to certain exceptions. The Bill is currently at Stage 2 in the Welsh Assembly; Stage 2 began on 19 July 2017 and Stage 2 consideration will take place in Committee on 5 October 2017. The Finance Committee laid its report in respect of the Bill on 28 June 2017. The Equality, Local Government and Communities Committee has undertaken an inquiry into the general principles of the Bill and laid its report on 7 July 2017. The Constitutional and Legislative Affairs Committee laid its report in respect of the Bill also on 7 July 2017. For progress of the Bill (including the committees’ scrutiny), the text of the Bill itself and explanatory memorandum, together with proceedings and reports of the various committees, click here and scroll down.

Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill
This is a Private Members’ Bill introduced in the House of Commons by Karen Buck. The Bill aims to amend the Landlord and Tenant Act 1985 to require that residential rented accommodation is provided and maintained in a state of fitness for human habitation; to amend the Building Act 1984 to make provision about the liability for works on residential accommodation that do not comply with Building Regulations; and for connected purposes. The Bill is being prepared for publication. The second reading is due to take place on 19 January 2018. To follow progress of the Bill, click here

NEW HOUSING CASES

Poplar HARCA v (1) Begum (2) Rohim [2017] EWHC 2040 (QB)
The appellant, a registered provider of social housing, appealed to the High Court against the Order of Mr Recorder Wilson QC, of 5th April 2017, in which a possession order was granted against the respondents but suspended. The appellant also appealed the Recorder’s decision to decline to make an unlawful profit order against the respondents.

Background
The respondents lived in a flat occupied under an assured tenancy granted by the appellant, originally as a ‘starter’ tenancy, on 27th October 2014.

Under the terms of the tenancy the respondents agreed that they would live at the flat as their only or principal home, were prohibited from sub-letting all of the flat, enjoyed the right to take in a lodger or sub-let part of the flat, albeit only with the appellant's prior written permission and covenanted not to use the flat for any criminal, immoral or illegal purpose.
The respondents were in receipt of full housing benefit.

In August 2015 the appellant received an email alleging that the respondents were subletting the flat. Following a joint investigation with the local authority the appellant concluded that the respondents had moved out of the flat and were subletting part of it to another couple.

On 18 January 2016, the appellant served the respondents with notice of its intention to seek possession of the flat on Grounds 10, 12 and 14 of Schedule 2 to the Housing Act 1988. They subsequently issued a claim for possession in the county court and applied for an Unlawful Profit Order under s.5 of the Prevention of Social Housing Fraud Act 2013.

On 20 May 2016, the police executed a search warrant at the flat and found the second respondent to be in possession of cannabis and drug dealing paraphernalia.
At trial on 12th October 2016 the Recorder found that the respondents had moved out of the flat and had sub-let part of it at a rent of £400 pcm. They had deliberately kept a second bedroom at the flat locked to deceive the appellant into believing, in the event of an inspection, that they and their children were still living at the flat.

The Recorder further held that the respondents and each of their family members who gave evidence in support had perjured themselves before the Court. The respondents had lied under caution, verified false witness statements and, subsequently, lied under oath. In addition, the second respondent had used threats and aggression towards the investigating officer, had been hostile towards his sub-tenants and unlawfully evicted them. The second respondent had used the property to store drugs and there were also rent arears.

Grounds 10, 12 and 14 were made out and the Recorder considered it reasonable to make a possession order however, he suspended the order and declined to make an Unlawful Profit Order.

The Appeal

The appellant contended that the exercise of the Recorder’s discretion was seriously flawed and the decision to suspend the order for possession and the failure to make an Unlawful Profit Order were plainly wrong.

The High Court allowed the appeal. The decision of the Recorder was fatally and demonstrably flawed. He had held thatit was “not a case where tenants were unscrupulously making a profit by subletting ” which overlooked the fact that the respondents were, throughout the relevant period, pocketing weekly Housing Benefit and, at the same time, fraudulently harvesting an additional £400 per month from the sub-tenants. This mistake went on seriously to contaminate his assessment of respondent’s motives.

Mr Justice Turner exercised the discretion afresh finding that the sheer scale and persistence of the respondents' initial fraudulent deceit aggravated by further and subsequent drug related offending wholly justified the making of an outright order. The Judge stressed that “it is not compassionate to allow profiteering fraudsters indefinitely to continue to occupy premises and thereby exclude from such accommodation more needy and deserving families”.

The possession order was varied to an outright order and the Judge granted the appellant an unlawful profit order for the sum of £1,550.
Summary by Alice Richardson, barrister, Arden Chambers.  For the full judgment click here.
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Bucknall v Dacorum Borough Council [2017] EWHC 2094 (QB)
The appellant applied to the authority under Pt 7, Housing Act 1996. Pending inquiries into her application, she occupied 29 Ninian Road under the terms of a non-secure licence. On 18 September 2014, the authority decided that they owed her the full housing duty under s.193(2). They explained that the appellant would be offered suitable private sector accommodation but, in the meantime, she should continue to pay the charges and abide by the conditions of her agreement to occupy the “temporary accommodation you will be provided with”.

On 27 October 2014, the authority offered the appellant accommodation at 20 Aragon Close which she viewed on 2 February 2015 and refused the following day, requesting a review of its suitability. On 11 February 2015, the authority decided that 20 Aragon Close was suitable for her. That decision was not appealed.

On 9 February 2015, the authority served the appellant with a notice to quit the property on 9 March 2015. The notice did not contain the information prescribed by s.5, Protection from Eviction Act 1977, and the Notices to Quit etc. (Prescribed Information) Regulations 1988 (SI 1988/2201). The authority brought possession proceedings and the county court granted a possession order.

On appeal to the High Court, it was held that if an applicant accepts an offer to stay in accommodation following notification of the acceptance of the full housing duty, the accommodation is provided pursuant to that duty, even though it is not settled, secure, or permanent. It was further held that the property was occupied as a dwelling because of the combination of the terms of the s.184 letter and the appellant’s continued occupation of the property. Accordingly, s.5, 1977 Act, applied to the appellant’s licence and, since the notice did not contain the prescribed information, it was not effective to terminate it. The appeal was allowed.

Summary by Toby Vanhegan of Arden Chambers who, together with Riccardo Calzavara, also of Arden Chambers and instructed by ARKrights Solicitors, appeared for the appellant.

For the full judgment click here.

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HOUSING LAW CONSULTATIONS

Enforcement of suspended orders: alignment of procedures in the County Court and High Court
In Cardiff v Lee (Flowers) [2016] EWCA Civ 1034 the claimant landlord had obtained a possession order against the defendant secure tenant on the grounds of breach of the terms of the tenancy agreement prohibiting anti-social conduct. The order was suspended for two years on condition that the tenant complied with the provisions of his tenancy agreement, which contained covenants against causing a nuisance or annoyance to neighbours. Following further complaints from neighbours of the tenant, the landlord applied for the issue of a warrant of possession. It did so by lodging form N325, following the administrative procedure set out in CPR 83.6. The warrant was issued and the bailiff served notice of the date of intended eviction. The tenant’s application to stay execution of the warrant was dismissed by the district judge and his subsequent appeal was dismissed by the circuit judge. On appeal to the Court of Appeal it was common ground that the landlord ought to have sought permission to apply for the issue of the warrant as required by CPR 83.2. In short, CPR 83(2) states that a ‘relevant writ or warrant’ (which includes a warrant of possession) must not be issued without the permission of the court in any of the circumstances specified in CPR 83.2(3)(a)-(f). This consultation seeks views on whether amendments are required to rules and forms in light of the judgment. The consultation closes on 30 August 2017. For more details and all relevant documents, click here

Fees charged to tenants in the private rented sector – Wales
This consultation seeks views on what action the Welsh Government should take to end unfair fees charged to tenants. Examples given in the consultation document of activities for which fees are charged are: accompanied viewings; pre-tenancy negotiation; producing the tenancy agreement; producing guarantor forms, if applicable; completing reference reports; obtaining / verifying all safety certificates; protecting the deposit and issuing documentation; processing move in monies and signing documentation; issuing the inventory and schedule of property; amending tenancy agreements; renewing tenancy agreements; early termination; and moving out. The consultation seeks views on the nature and level of fees being charged to tenants. It seeks to determine which fees, if any, are justifiably being charged to tenants. It also seeks information on fees paid by landlords to agents, and also on the possible consequences of banning fees. The consultation closes on 27 September 2017. For the consultation document, click here

Draft 'Information for tenants of social landlords' document – Wales
If the Abolition of the Right to Buy and Associated Rights (Wales) Bill is passed by the National Assembly for Wales (see Housing Laws in the Pipeline), social landlords will be required to issue to all relevant tenants an ‘Information for Tenants of Social Landlords’ document. The Welsh Government is consulting on a sample document to see if it: clearly summarises the right to buy and the right to acquire; explains clearly when these rights could end; and explains clearly the financial and legal advice you should get if you want to exercise the right to buy or right to acquire. The consultation closes on 13 September 2017. For the consultation document, click here

Tackling unfair practices in the leasehold market
On 25 July 2017 the DCLG launched a consultation into proposals to remedy unfair practices in the leasehold market. For the announcement of the Government’s proposals, see Housing Law News and Policy Issues and/or click here The consultation particularly seeks views on: i) prohibiting the sale of new build leasehold houses where the developer is not obliged to sell a house on a leasehold basis; ii) restricting ground rents on new leases to a ‘peppercorn’; iii) how to tackle existing onerous ground rents; iv) possible changes to the Help to Buy scheme in relation to leasehold houses; v) providing freeholders on private estates with equivalent rights to leaseholders to challenge unreasonable service charges for the upkeep of communal areas and facilities via the First-tier Tribunal (Property Chamber). The consultation closes on 19 September 2017. For the consultation document, click here

Recognising residents’ associations, and their power to request information about tenants
On 25 July 2017 the DCLG launched a consultation seeking views on the Government’s proposals for secondary legislation in relation to section 29A of the Landlord and Tenant Act 1985. Section 29A provides a new power for the Secretary of State by regulations to impose duties on a landlord to provide the secretary of a residents’ association with information about tenants. The intention is to make it easier for a secretary of a tenants’ association to obtain contact information of qualifying tenants (leaseholders) from a landlord and so improve the prospects of the association being formally recognised. The consultation closes on 19 September 2017. For the consultation document, click here

HOUSING LAW ARTICLES & PUBLICATIONS

Service level agreements and KPIs Karl Anders and Ben Sheppard [2017] Local Government Lawyer 10 August. To read this article, click here

Helping more people [Shelter is working with councils to deliver homelessness prevention, advice and support] Alison Mohammed [2017] Shelter Blog 11 August. To read this article, click here

People shouldn't have to feel grateful for social housing - it's a basic human right Lisa Mckenzie [2017] Guardian 11 August. To read this article, click here

We need housing to support our older people's independence Lynn Clayton [2017] CIH Blog 11 August. To read this article, click here

Illegal subletting – an ‘elaborate farrago of lies’ Giles Peaker [2017] Nearly Legal 13 August. To read this article, click here

Dwelling in temporary accommodation Giles Peaker [2017] Nearly Legal 13 August. To read this article, click here

Leasehold abuse – why builders won’t mind if we ban it Catharine Banks [2017] Shelter Blog 14 August. To read this article, click here

HOUSING LAW DIARY

17 August 2017                        
Welsh Government publishes the results of a study concerning letting agents’ fees in the private renting sector (see Housing Law News and Policy Issues)

30 August 2017                        
Consultation closes on enforcement of suspended orders: alignment of procedures in the County Court and High Court (see Housing Law Consultations)

13 September 2017                  
Consultation closes on draft 'Information for tenants of social landlords' document – Wales (see Housing Law Consultations)

19 September 2017                  
Consultation closes on tackling unfair practices in the leasehold market (see Housing Law Consultations)

19 September 2017                  
Consultation closes recognising residents’ associations, and their power to request information about tenants (see Housing Law Consultations)

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RECRUITMENT

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