22 August 2018
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HOUSING LAW NEWS & POLICY ISSUES
 

Social housing green paper: responses
Several organisations have published summaries of and responses to the social housing green paper published on 14 August 2018. For that of the Association of Retained Council Housing (ARCH), click here For coverage in Environmental Health News, click here For an article by the Joseph Rowntree Foundation about how the green paper should be used to boost the supply of low-cost rented homes, click here CIH has published a briefing for members only. To read it, click here Likewise, the National Federation of ALMOs has published a members’ briefing, for which click here

Midlands Voluntary Right to Buy Pilot launched
On 16 August 2018 the MHCLG launched the Midlands Voluntary Right to Buy Pilot. Communities Secretary James Brokenshire said that “this is the first step in helping housing association tenants get a foot on the property ladder”. Places will be allocated via a ballot to ensure fairness and manage interest within the funding available. The ballot will close a month from the launch (16 September 2018), with the pilot running until spring 2020 giving successful candidates time to complete the purchase. The government will assess the impact of the pilot before deciding on the next steps for this policy.

For more information, click here For a House of Commons Library research briefing providing background on the policy and explaining progress to date, click here

Help to Buy (Equity Loan scheme) and Help to Buy: NewBuy statistics – England
On 16 August 2018 the MHCLG published statistics showing that since the launch of the Help to Buy: Equity Loan scheme (1 April 2013 to 31 March 2018), 169,102 properties were bought with an equity loan. The total value of these equity loans was £8.93 billion, with the value of the properties sold under the scheme totalling £42.23 billion. Most of the home purchases in the scheme were made by first time buyers, accounting for 136,657 (81 per cent) of total purchases. The mean purchase price of a property bought under the scheme was £249,708, compared with a mean equity loan of £52,834. In London, the maximum equity loan was increased from 20 per cent to 40 per cent from February 2016, and since then to March 2018, there were 7,978 completions in London, of which 6,548 were made with an equity loan higher than 20 per cent.

For the Help to Buy: NewBuy scheme, 5,694 house purchases were made since the launch of the scheme in March 2012. The scheme closed to new mortgage offers in March 2015.

For the full statistics, click here

Help to Buy: ISA Scheme quarterly statistics
On 16 August 2018 HM Treasury published quarterly statistics for the Help to Buy: ISA Scheme. Since the launch of the scheme 146,753 property completions have been supported by it. 196,007 bonuses have been paid through the scheme with an average bonus value of £800. The highest proportion of property completions with the support of the scheme is in the North West, Yorkshire and The Humber and West Midlands, with a lower proportion in the North East and Northern Ireland. The mean value of a property purchased through the scheme is £172,448 compared to an average first-time buyer house price of £188,429 and a national average house price of £224,144. The median age of a first-time buyer in the scheme is 27 compared to a national first-time buyer median age of 30. For the full statistics, click here

Domestic Abuse Fund, 2018 to 2020: prospectus
The Domestic Abuse Fund will support proposals for the provision of core support for refuges and other accommodation-based services, helping local areas ensure that no victim is turned away from the support they need. On 2 July 2018 the MHCLG published the prospectus explaining how local authorities across England can apply for funding. On 14 August 2018 the Ministry extended the deadline for applications to 5pm on Tuesday, 28 August 2018. For the prospectus, click here

Paying for supported housing
On 14 August 2018 the House of Commons Library published a research briefing explaining the government's proposals for the future funding of supported housing. On 9 August 2018 it was announced that Housing Benefit will continue to meet residents' rent payments in all supported housing. The paper also covers the requirement on providers to reduce rents up to 2019/20. For the briefing paper, click here

Mandatory three-year tenancies: no announcement due
On 16 August 2018 the Residential Landlords Association reported that in an official response to the Association’s enquiry, the MHCLG confirmed that no date has been set for an announcement in respect of long term tenancies. All responses to its consultation will be considered before any announcement is made. This follows a report in The Sun that the Communities Secretary James Brokenshire was backing calls for mandatory three-year tenancies, and that a ‘formal decision’ was due to be announced by the Government imminently. For the news item by the RLA, click here For details of the consultation, see Housing Law Consultations below.

Housing legal aid lawyers
On 17 August 2018 the Legal Aid Agency published an updated directory of providers of legal aid services across the various areas of law, including housing law. To access the directory, click here

Court form N5B: England
On 17 August 2018 Form N5B England: Claim possession of a property located wholly in England (accelerated procedure) was updated. For the updated form, click here

No-fault evictions
On 18 August 2018 Generation Rent published a blog piece arguing that no-fault evictions under Housing Act 1988, section 21 are the leading cause of homelessness. As part of its proposal in response to the government’s consultation on overcoming the barriers to longer tenancies in the private rented sector, Generation Rent wants a requirement on landlords to compensate blameless tenants who are evicted. This, it says, would incentivise the sale of tenanted properties as well as support the financial resilience of tenants. It would both reduce evictions and, by enabling evictees to better afford the deposit, first month’s rent, and moving costs for a new home, fewer people would present as homeless, reducing pressure on cash-strapped councils, who currently pay £845m a year on temporary accommodation. For the blog piece, click here For the consultation, see Housing Law Consultations below. For section 21, click here

Illegal encampment interim injunction granted
On 16 August 2018 Bromley Council reported that it had obtained a borough-wide injunction forbidding persons unknown from occupying land owned by the council. The interim High Court injunction, initially in place for three months, means that anyone breaching the order could be held in contempt of court and might be imprisoned, fined or have their assets seized. It is envisaged by the council that a longer term injunction may be applied for in due course. For the report, click here

HOUSING LAWS IN THE PIPELINE
 

Parliament is now in recess. The House of Commons returns on 4 September 2018 and the House of Lords on 5 September 2018.

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

Homes (Fitness for Human Habitation) Bill
This is a Private Member’s 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. On 14 January 2018 the government confirmed that it would support the Bill. It completed its committee stage on 20 June 2018 (when its original title was simplified to that above) and will have its report stage on 26 October 2018. For the Bill as amended in committee, click here For a House of Commons Library research, click here . To follow progress of the Bill, click here

Homeless People (Current Accounts) Bill
This is a Private Member’s Bill introduced in the House of Commons by Peter Bone. The Bill is intended to require banks to provide current accounts for homeless people seeking work; and for connected purposes. The Bill is being prepared for publication. The Bill received its first reading on 5 September 2017. The second reading is due to take place on 1 February 2019. To follow progress of the Bill, click here

Sublet Property (Offences) Bill
This is a Private Member’s Bill introduced in the House of Commons by Christopher Chope. It is intended to make the breach of certain rules relating to sub-letting rented accommodation a criminal offence; to make provision for criminal sanctions in respect of unauthorised sub-letting; and for connected purposes. The Bill is being prepared for publication. The Bill received its first reading on 5 September 2017. The second reading has been postponed and is now due to take place on 26 October 2018. To follow progress of the Bill, click here

Mobile Homes and Park Homes Bill
This is a Private Member’s Bill introduced in the House of Commons, also by Christopher Chope. It is intended to require the use of published criteria to determine whether mobile homes and park homes are liable for council tax or non-domestic rates; to make provision in relation to the residential status of such homes; to amend the Mobile Home Acts; and for connected purposes. The Bill is being prepared for publication. The Bill received its first reading on 5 September 2017. The second reading has been postponed until 26 October 2018. To follow progress of the Bill, click here

Affordable Home Ownership Bill
This Bill was introduced to Parliament on Tuesday 24 October 2017, also by Christopher Chope, under the Ten Minute Rule and is a Private Member’s Bill. It was said by him to make provision for affordable home ownership; to require the inclusion of rent to buy homes in the definition of affordable housing; to make provision for a minimum proportion of new affordable housing to be available on affordable rent to buy terms; to provide relief from stamp duty when an affordable rent to buy home is purchased; and for connected purposes. The Bill itself has not yet been published. Its second reading has been postponed to 26 October 2018. To follow progress of the Bill, click here

Creditworthiness Assessment Bill
This Private Member’s Bill was introduced by Lord Buck and had its second reading in the House of Lords on 24 November 2017. The Bill would require certain matters (including rental payment history) to be taken into account when assessing a borrower’s creditworthiness. For the Bill as introduced, click here The Bill had its committee stage on 11 May 2018,its report stage on 9 July 2018 and third reading on 18 July 2018. It now goes to the Commons for consideration. For progress of the Bill, click here

Private Landlords (Registration) Bill
This Bill was introduced to Parliament on 17 January 2018 under the Ten Minute Rule. The Bill seeks to require all private landlords in England to be registered. The second reading of the Bill has been postponed to 26 October 2018. For the Bill, as introduced, click here To read the debate on introduction of the Bill, click here To follow progress of the Bill, click here

Leasehold Reform Bill
This Bill, introduced to Parliament on 7 November 2017 under the Ten Minute Rule and sponsored by Justin Madders, makes provision about the regulation of the purchase of freehold by leaseholders; to introduce a system for establishing the maximum charge for such freehold; to make provision about the award of legal costs in leasehold property tribunal cases; and to establish a compensation scheme for cases where misleading particulars have led to certain leasehold agreements. It is scheduled to receive a second reading on 26 October 2018. The Bill is being prepared for publication. To follow progress of the Bill, click here

Homelessness (End of Life Care) Bill
This Bill, sponsored by Sir Edward Davey, was introduced to Parliament on 7 February 2018 under the Ten Minute Rule. It makes provision about end of life care and support for homeless people with terminal illnesses, including through the provision of housing for such people. The Bill’s second reading has been further postponed to 26 October 2018. For the Bill as introduced, click here To follow progress of the Bill, click here

Rating (Property in Common Occupation) and Council Tax (Empty Dwellings) Bill
This government Bill was given its first reading in the House of Commons on 28 March 2018. It makes provision, where two or more hereditaments occupied or owned by the same person meet certain conditions as to contiguity, for those hereditaments to be treated for the purposes of non-domestic rating as one hereditament; and to increase the percentage by which a billing authority in England may increase the council tax payable in respect of a long-term empty dwelling. The Bill has completed its passage through the House of Commons and the House of Lords where amendments were tabled at third reading. The Commons will next consider those amendments. For those amendment, click here For the government’s announcement of the Bill, click here For the government’s announcement of its latest proposed amendments, click here To follow progress of the Bill, click here

Tenant Fees Bill
This government Bill makes provision for prohibiting landlords and letting agents from requiring certain payments to be made or certain other steps to be taken; makes provision about the payment of holding deposits; to make provision about enforcement and about the lead enforcement authority; and amends the provisions of the Consumer Rights Act 2015 about information to be provided by letting agents and the provisions of the Housing and Planning Act 2016 about client money protection schemes. It received its first reading on 2 May 2018 and its second reading on 21 May 2018. For the second reading debate, click here The Bill will next be considered at report stage on 5 September 2018. For the Bill as introduced, click here For the impact assessment, click here For a research briefing prepared for the report stage, click here To follow progress of the Bill, click here

Housing and Planning (Local Decision-Making) Bill
This Private Member’s Bill seeks to remove powers of the Secretary of State in relation to the location of and planning permission for new housing developments; to give local authorities powers to establish requirements on such developments in their area, including requirements on the proportion of affordable and social housing. It received its first reading on 13 March 2018 and is due to receive its second reading on 26 October 2018. The Bill is being prepared for publication. To follow progress of the Bill, click here

Renting Homes (Fees etc.) (Wales) Bill
This Welsh Government Bill includes provision for: prohibiting certain payments made in connection with the granting, renewal or continuance of standard occupation contracts; and the treatment of holding deposits. The Bill is currently at Stage 1 and the Equality, Local Government and Communities Committee is taking oral evidence. For the Bill, as introduced, associated information and to follow its progress, click here
NEW HOUSING CASES
 

R on the application of Mr Peter Gaskin v LB Richmond Upon Thames [2018] EWHC 1996 (Admin)
Mr Gaskin let out rooms in various properties, including a property within the London Borough of Richmond Upon Thames. The property in LB Richmond met the legal definition of a house in multiple occupation (“HMO”) in the Housing Act 2004. Accordingly, Mr Gaskin required an HMO licence from LB of Richmond (“the Council”) in order to be able to let out rooms in the property.

When Mr Gaskin came to renew his HMO licence, the Council asked him to pay a fee which was designed to cover not only the costs of processing his application but also to contribute towards the Council’s costs of running its HMO licensing scheme more generally.

Mr Gaskin declined to pay the Council the total fee being demanded. He offered a lower amount but that was rejected and he was subsequently prosecuted in the Magistrates’ Court for operating an HMO without a licence.

In December 2017, the Administrative Court gave judgment on the domestic law aspects of Mr Gaskin’s claim- click here for that judgment.

The Administrative Court adjourned the question of whether the Council’s fee breached EU law to a later hearing so that the Government could be invited to take part in the claim (which the Government ultimately chose not to do).

The EU law issue
EU Directive 2006/123/EC (“the Services Directive) provides in its article 13(2) that where a charge is imposed for a person to apply to have access to a service activity, the charge must not exceed the cost of the authorisation procedures. The effect of this is that if the private letting of accommodation amounted to a service (and was thus covered by the Services Directive), then the Council would not be allowed to charge an application fee which covered not just the cost of the authorisation procedures but also the costs to the Council of managing its HMO licensing scheme more generally.

The Services Directive is implemented into English law by the Provision of Services Regulations 2009 (SI 2009/2999) (“the Regulations”). Regulation 18(4) is in materially identical terms to article 13(2) of the Services Directive.

Mr Gaskin argued that by letting out private residential accommodation, he was providing a service within the meaning of EU law, therefore his applying for an HMO licence was subject to regulation 18(4) of the Regulations and the Council’s fee was unlawful.

The Council defended the case, arguing that the private letting of accommodation was not a service within the meaning of EU law.

The Judgment
The Administrative Court handed down judgment on 31 July 2018, holding that Mr Gaskin, in letting out private accommodation in his HMO, was providing a service within the meaning of EU law.

The Administrative Court had regard to the definition of “service” in article 4 of the Services Directive (and regulation 2 of the Regulations): “any self-employed economic activity normally provided for remuneration…” The Administrative Court held that Mr Gaskin, in purchasing, converting, extending the property, in managing it himself rather than using letting agents and in carrying out tasks such as arranging for insurance and maintenance work, was engaged in a self-employed economic activity provided for remuneration. The Court held that the term “self-employed economic activity” was intended to include the broadest range of activity.

The Council argued that Mr Gaskin was not providing a service because, unlike a company, he paid council tax rather than business rates. The Council also argued that Mr Gaskin was not providing a service because he was not registered as a business. The Court rejected these arguments, holding that neither council tax rules nor whether Mr Gaskin was registered as a business had any impact on whether he was providing a service to his tenants.

The Court noted that the Services Directive (and the Regulations) expressly exclude social housing provided by the state from being a service. The Court held that if the letting of accommodation were not a service, then there would have been no need for the Services Directive expressly to exclude one subset of letting, namely the letting of social housing.

Although not forming part of its decision, the Court noted that its conclusion – that the private letting of accommodation constitutes a service – appeared to be supported by an impact assessment which was carried out by the UK Government when the Services Directive was being implemented in domestic law. That impact assessment made reference to EU statistical analyses which considered the letting of accommodation to form part of the service sector.

Having concluded that the private letting of accommodation amounted to a service within the meaning of the Services Directive (and, therefore, the Regulations), the Court held that the Council’s fee for an HMO licence was unlawful because it was not strictly limited to the costs to the Council of processing the licence application. Accordingly, the Council had not been entitled to demand the fee which it had demanded and the Council’s refusal to process Mr Gaskin’s application for a renewed HMO licence was quashed.

Summary by Alexander Campbell, barrister, Field Court Chambers who appeared for the claimant with Jonathan Manning of Arden Chambers. For the full judgment click here.

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HOUSING LAW CONSULTATIONS
 

Consultation on overcoming the barriers to longer tenancies in the private rented sector
This consultation invites view and comments on the benefits and barriers of landlords offering longer tenancies. The government is also seeking views on its proposed model for a 3-year tenancy with a 6-month break clause, and the options for implementing this. The model is designed to give tenants certainty over rents, and retains the flexibility that many desire. The consultation closes on 26 August 2018. For the consultation document, click here

Consultation on rent a room relief
On 6 July 2018 HM Treasury and HMRC published the government’s response to the consultation on rent a room relief. Rent a room relief allows individuals to earn up to £7,500 tax free from letting out furnished accommodation in their main or only residence. The government will retain rent a room relief at its current level.

However, in order to clarify the purpose of the relief and ensure it is better targeted to achieve its original objective of incentivising the use of spare rooms, the government will introduce a new ‘shared occupancy test’. The new test, set out in draft legislation accompanying the response, will require the taxpayer to be living in the residence and physically present for at least some part of the letting period, for the income to qualify for relief. The government invites comments and submissions on the proposal for a new shared occupancy clause, before its introduction in Finance Bill 2018-19 which will come into force on 6 April 2019. The closing date for submissions is 31 August 2018.

For the consultation outcome, click here

Consultation on fire safety: clarification of statutory guidance (Approved Document B)
The MHCLG is seeking views on the proposed clarification of statutory guidance on fire safety (Approved Document B) that aims to improve usability and reduce the risk of misinterpretation by those carrying out and inspecting building work. The consultation is part of the Government’s response to Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety. The consultation closes on 11 October 2018. For the consultation documents, click here

Consultation on A new deal for social housing green paper
The social housing green paper proposes to ensure social homes provide an essential, safe, well managed service for all those who need it. The government says that it will consider how it can re-balance the relationship between residents and landlords to ensure issues are resolved swiftly and residents’ voices are heard. To support this vision there is, in the government’s opinion, a powerful case to be made for strengthening the regulatory framework so that it not only focuses on the governance and financial viability of housing associations, but also on how residents are treated and the level of services they should expect. The government seeks to address the stigma that for too long has been associated with social housing and on which residents all around the country have voiced their concern. The green paper seeks views on the government’s vision for social housing providing safe, secure homes that help people get on with their lives. The consultation closes on 6 November 2018. To access the green paper, click here To respond online, click here

Review of social housing regulation: call for evidence
The social housing green paper set out the government’s intention to carry out a review of regulation of social housing to ensure it remains fit for purpose, reflects changes in the social housing sector and drives a focus on delivering a good service for residents. This call for evidence asks for information on how the regulatory regime is meeting its current objectives – both what works well and what does not. It marks, together with questions in the green paper, the first stage in the review process. The government says that it is keen to hear from a wide range of interested parties including residents, landlords and lenders. The consultation closes on 6 November 2018. For the consultation document, click here To respond online, click here

Use of receipts from Right to Buy sales
The government has expressed its wish to support local authorities to build more affordable homes. This consultation invites views on options to change the rules governing the money raised from Right to Buy sales to make it easier for councils to build more homes. It also seeks views on whether the commitment that every additional home sold (as a result of the increase in discounts in 2012) is replaced on a one-for-one basis nationally should be retained, or reformed to focus on the wider supply of social and affordable housing. The government is keen to hear from local authorities as well as residents and other stakeholders. The consultation closes on 9 October 2018. For the consultation document, click here To respond online click here

HOUSING LAW ARTICLES & PUBLICATIONS
 

Williams v The London Borough of Hackney: Guidance for parents and local authorities on the use of s.20 Children Act 1989 Louise MacLynn, Sharon Segal and Olivia Magennis,Family Law Week - to read the article click here

Manchester has twice as many rough sleepers than official data suggests Helen Pidd, The Guardian 20 August 2018 – to read the article click here

No-fault evictions making hundreds of families homeless each week Tom Wall, The Observer 18 August 2018 - to read the article click here

Families in private rental face expanding ‘income adequacy’ gap Bill Tanner, 24 Housing 20 August 2018 - to read the article click here

Appealing rent increases for assured tenancies Giles Peaker, Nearly Legal 19 August 2018 - to read the article click here

Housing associations must adapt to “new norm” Linda Convery, 24 Housing 20 August 2018 - to read the article click here

HOUSING LAW DIARY
 

26 August 2018                        
Consultation closes on overcoming the barriers to longer tenancies in the private rented sector (see Housing Law Consultations)

28 August 2018                        
Deadline for applications to the Domestic Abuse Fund, 2018 to 2020 (see Housing Law News and Policy Issues)

31 August 2018                        
Consultation closes on rent a room relief (see Housing Law Consultations)

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