20th November 2019
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HOUSING LAW NEWS & POLICY ISSUES
 

Bolton fire
On 17 November 2019, in the wake of the Bolton fire on 15 November 2019, The Observer reported criticisms that the government has been “downplaying the fire risk posed by the type of cladding that burned ferociously on [the] Bolton student housing block – and of refusing help to worried residents of other affected buildings”.

Commenting on the fire, Leader of Bolton Council, Councillor David Greenhalgh, said:

“This was a terrible incident and I would like to pay tribute to Greater Manchester Fire Service and the other fire services that supported them. … I’d like to pay special tribute to the university and to the neighbouring housing associations who worked together to rehouse people from the building and those nearby which were evacuated.”

For The Observer report, click here. For the council’s statement concerning support for the affected students, click here.

Homelessness: temporary accommodation costs councils over £1bn in one year
On 14 November 2019 the MHCLG released new figures which included the amount being spent by local authorities on temporary accommodation for homeless households in England in 2018/19. The figures show:

  • Councils spent £1.1 billion on temporary accommodation for homeless households between April 2018 and March 2019. This has increased by 9 per cent in the last year and 78 per cent in the last five years.
  • More than 30 per cent (£344 million) of the total was spent on emergency B&Bs.
  • Spending on B&Bs has increased by 111 per cent in the last five years.


Polly Neate, chief executive of Shelter, said:

“If consecutive governments had built the genuinely affordable social homes that are needed, fewer people would be homeless, and we would not be wasting vast sums on unsuitable temporary accommodation. 

“What’s even more shameful is that so much of this public money is lining the pockets of unscrupulous private landlords, who can charge desperate councils extortionate rates for grim B&Bs, because there’s nowhere else for families to go.”

For the data, click here and download the table entitled ‘Revenue outturn housing services (RO4) 2018 to 2019’. For comment by Shelter, click here.

Rogue landlord banning order
On 18 November 2019 Camden Council reported that it had obtained London’s first rogue landlord banning order against a man who “repeatedly placed tenants’ lives at risk through letting unsafe housing”. Following a hearing at the first tier tribunal, the decision was subsequently made to ban Cesar De Sousa Melo for four years from letting any housing in England and engaging in English letting agency work or property management work. Investigations had uncovered that Mr Melo was involved in the letting of several unlicensed houses in multiple occupation. He was convicted at Highbury Corner Magistrates’ Court in April 2019 of seven ‘banning order offences’ and fined £14,000. For a full report, click here.

Solicitor found guilty of housing fraud
On 14 November 2019 London Borough of Tower Hamlets reported that a solicitor and former councillor Muhammad Harun had been sentenced at Snaresbrook Crown Court to 16 months in custody after pleading guilty to two counts of fraud. The sentence is in addition to compensation of £124,679.94 paid to the council by Mr Harun for providing him and his family with temporary accommodation. Following an investigation, the council brought charges relating to Mr Harun’s failure to carry out his legal duty to disclose relevant facts in relation to his application for housing. For full details of the case, click here.

Landlord possession statistics – England and Wales
On 14 November 2019 the Ministry of Justice published quarterly national statistics on possession claim actions in county courts by mortgage lenders and social and private landlords. The statistics cover the period from July to September 2019. Landlord possession claims (28,431) and orders for possession (22,154) decreased by 10 and 6 per cent respectively, compared to the same quarter last year. Warrants of possession (14,276) also decreased (by 9 per cent). Repossessions by county court bailiffs (7,419) were down 10 per cent compared to the same quarter last year. For the statistics (combined with those for mortgage possession below), click here.

Mortgage possession statistics – England and Wales
On 14 November 2019 the Ministry of Justice published quarterly national statistics on possession claim actions in county courts by mortgage lenders and social and private landlords. The statistics cover the period from July to September 2019. Mortgage possession claims have increased for the fifth consecutive quarter. In the latest quarter they increased by 42 per cent (6,984) compared to the same quarter last year. Orders for possession (4,183), warrants issued (4,870) and repossessions (1,205) have increased by 35,31 and 29 per cent respectively compared to the same quarter last year. For the statistics (combined with those for landlord possession above), click here.

Housing supply 2018-2019
On 14 November the MHCLG published estimates of changes in the size of the dwelling stock in England. Annual housing supply amounted to 241,130 net additional dwellings in 2018-19, up 9 per cent on 2017-18. The net additions resulted from 213,660 new build homes, 29,260 gains from change of use between non-domestic and residential, 5,220 from conversions between houses and flats and 940 other gains (caravans, house boats etc.), offset by 7,940 demolitions. 14,107 of the net additions from change of use were through ‘permitted development rights’ (full planning permission not required). These comprised 12,032 additional dwellings from former offices, 883 from agricultural buildings, 199 from storage buildings, 69 from light industrial buildings and 924 from other non-domestic buildings. For the full statistics, click here. For the information organised by various criteria, click here. For tables for Great Britain on dwelling stock (including vacants) showing tenure and district etc and including a table specific to Wales, click here.

Affordable housing provision 2018-2019 – Wales
On 14 November 2019 the Welsh Government published details for April 2018 to March 2019 of the number of additional affordable housing units delivered in Wales and how the planning system contributed to the provision. The release shows that:

  • 2,592 additional affordable housing units were delivered, a 12 per cent increase on 2017-18 and the highest annual total to date.
  • An additional 35 housing units were delivered under the Rent to Own – Wales scheme introduced in February 2018.
  • Registered Social Landlords delivered 90 per cent of all additional affordable housing provision (2,338 units).
  • Nearly three-quarters of affordable housing units were delivered with capital grant funding (73 per cent).
  • 650 affordable housing units were delivered on land made available by the public sector, up by 22 per cent on 2017-18.


For the release, click here.

Help to Buy ISAs
On 16 November 2019 The Independent reported on confusion amongst first-time buyers concerning the availability of Help to Buy ISAs through which prospective first time buyers can earn a 25 per cent bonus on their savings. The scheme closes to new applications on 30 November 2019. For the report, click here.

Empty residential properties – Wales
On 13 November 2019 the Welsh Government published, in response to an FOI request, a letter setting out information about residential properties owned by the Welsh Government, or its subsidiaries, that have been empty for more than six months. For the letter, click here.

Homelessness and young people
On 15 November 2019 Centrepoint published results of a survey of young people living in homelessness accommodation across England and Wales. A study by the organisation has found that more than 22,000 young people could be homeless or at risk of being made homeless in England this Christmas. Thirty-seven per cent of respondents to the survey said that they had had to spend time in an abusive household before becoming homeless. Almost half of respondents identifying as LGBT+ reported staying in an abusive household because they had nowhere else to go. Three-quarters of respondents had ‘sofa surfed’, but many reported that relying on others to provide a place to stay strained relationships with family and friends. Almost one-third suffered physical assault while homeless, while one in five young women had been the victim of sexual assault. For details of the survey and of Centrepoint’s Christmas appeal, click here.

General Election campaign: Generation Rent
On 18 November 2019 Generation Rent announced details of its campaigning for the General Election. It notes that “there are around 50 seats where renter votes could make a difference”. For details of the organisation’s Renter Manifesto (based on work with ACORN, London Renters Union, New Economics Foundation, Tenants Union UK and Renters Rights London), click here. For more information about the campaign, click here.

General Election campaign: CIEH
On 14 November 2019 the Chartered Institute of Environmental Health CIEH published its manifesto for environmental health, championing housing, food safety, environmental protection, health and safety at work and public health. CIEH argues strongly for what it sees as essential improvements, including updating building control policies to ensure homes are healthy, safe and energy efficient and can mitigate the effects of climate change. It also wants to see a mandatory national registration scheme for all landlords and agents in England. For the document, click here.

Housing Ombudsman: designated person referrals during General Election campaign
On 14 November 2019 the Housing Ombudsman provided guidance concerning the designated persons referral route during the General Election campaign. If a tenant’s complaint is not resolved after the end of the landlord's complaints procedure, the complainant can contact a designated person who can help find a solution or refer the complaint directly to the HO. Whilst the designated person may generally be a member of parliament, a local councillor or a tenant panel, during the General Election, the designated persons referral route is via tenant panels or local councillors only. For the guidance, click here.

Landlord licensing scheme – Nottingham
On 18 November 2019 the Residential Landlords Association reported that a landlord licensing scheme introduced in Nottingham in August 2018 has managed to issue full licences to fewer than three per cent of the applications received. Figures provided to the council’s overview and scrutiny committee show that by August 2019, of 17,523 applications received, just 472 final licences had been issued. For the report, click here.

HOUSING LAWS IN THE PIPELINE
 

Parliament was dissolved on 6 November 2019 ahead of the General Election on 12 December. On dissolution those bills still progressing through Parliament failed and, in order to proceed, must be reintroduced in the next Parliament.

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NEW HOUSING CASES
 

RR (AP) v Secretary of State for Work and Pensions [2019] UKSC 52

Background to the appeal

On 9 November 2016 the Supreme Court gave judgment in a series of judicial review claims concerning Regulation B13 of the Housing Benefit Regulations 2006, which governed the removal of the spare room subsidy, otherwise known as the ‘bedroom tax’ (R (Carmichael) v Secretary of State for Work and Pensions [2016] UKSC 58 (‘Carmichael SC’)). It declared that where there was a ‘transparent medical need for an additional bedroom’, which was not catered for in regulation B13 (5) and (6), there was unjustified discrimination on the ground of disability, contrary to article 14 of the European Convention on Human Rights (‘the Convention’).

Regulation B13 was amended in 2017 by Parliament to reflect the ruling, but this was not retrospective. The principal question arising in this appeal is the effect of the Supreme Court’s decision in Carmichael SC on decision-makers in the housing benefit system – local authorities, and the First-tier Tribunal (‘FTT’) and the Upper Tribunal (‘UT’) hearing appeals from local authority decisions – in claims relating to periods before the amendment. A second issue is whether account should be taken of any discretionary housing payments (‘DHPs’) received by the claimant during the period, if the deduction to housing benefit should not have been applied.

RR lives with his severely disabled partner in a two bedroomed social housing property for which he claims housing benefit. They require separate bedrooms because of her disabilities and her need to accommodate medical equipment and supplies. In 2013 his local authority applied the discount to his housing benefit required by Regulation B13. He appealed to the FTT which found that he had suffered unjustified discrimination. To avoid this discrimination the FTT held that regulation B13(5)(a) should be read so as to apply to persons in RR’s position, pursuant to s 3 of the Human Rights Act 1988 (‘HRA’).

The respondent Secretary of State appealed to the UT. The appeal was stayed while a similar appeal by Mr Carmichael proceeded to the UT and then to the Court of Appeal. The UT held that the FTT’s reading of regulation B13(5)(a) was impermissible but reached the same result by holding that the decision to make a deduction from Mr Carmichael’s housing benefit was a clear breach of his Convention rights, contrary to s 6(1) HRA (‘Carmichael UT’). The Court of Appeal reversed that decision. The stay in RR’s case was then lifted and the Secretary of State’s appeal was allowed by the UT. The UT granted RR a ‘leapfrog certificate’ under s 14A Tribunals, Courts and Enforcement Act 2007, enabling him to appeal directly to the Supreme Court.

Judgment

The Supreme Court unanimously allows the appeal against the local authority’s decision. It orders that RR’s housing benefit is to be recalculated without making the under-occupancy deduction of 14 per cent, in order to avoid a breach of RR’s rights under the Convention, contrary to s 6(1) HRA. Lady Hale gives the only reasoned judgment.

Reasons for the judgment

It is not unconstitutional for a public authority, court or tribunal to disapply a provision of subordinate legislation which would otherwise result in their acting incompatibly with a Convention right, where this is necessary in order to comply with the HRA. Subordinate legislation is subordinate to the HRA, which is an Act of Parliament [27]. The HRA draws a clear and careful distinction between primary and subordinate legislation, both in s 6 (the requirement for public authorities to act compatibly with Convention rights) and in s 3 (the interpretative obligation) [28]. Primary legislation which cannot be read or given effect compatibly with Convention rights must still be given effect under the exception in s 6(2), but this exception does not extend to subordinate legislation, where there is no primary legislation preventing removal of the incompatibility [29].

The courts have consistently held that, where it is possible to do so, a provision of subordinate legislation which results in a breach of a Convention right must be disregarded, if it is possible to do so without affecting the statutory scheme [18-23, 30]. A decision-maker must find that a claimant who is unjustifiably discriminated against is entitled to the housing benefit he would have received if the discrimination had not occurred [30]. Otherwise the local authority or court would be acting in a manner which s 6 HRA declares to be unlawful [32].

On the question of whether any DHPs received by the appellant should be deducted from the housing benefit to which he is entitled as a result of this decision, the parties were agreed as to the position. The appeal concerns the initial decision made by the local authority to make a deduction under regulation B13 to the appellant’s housing benefit. At that stage no question of DHPs could have arisen and the only question was entitlement to housing benefit. It is for the local authority to consider whether there are any steps which they can or wish to take to recover any DHPs [33-34].
It follows that the Supreme Court should make the same order as the UT made in Carmichael UT for the same reason as the UT gave in that case [35].

Supreme Court Press Summary. For the full judgment, click here.

HOUSING LAW CONSULTATIONS
 

Sprinklers and other fire safety measures in new high-rise blocks of flats
On 5 September 2019 the MHCLG launched a consultation outlining the government’s intention to reduce the “trigger height” at which sprinkler systems would be required in new high-rise blocks of flats and asking for views on the trigger height options. It also seeks views on proposals to improve wayfinding signage within blocks of flats, and to install evacuation alert systems for use by fire and rescue services. The consultation closes on 28 November 2019. For the consultation document, close here.

Housing Possession Court Duty Scheme: Towards a more sustainable service
The government is consulting on proposals to change the Housing Possession Court Duty Scheme. The aim of these proposals is to ensure that the Scheme is sustainable into the future, in order to maintain this vital service for those who need it. The key proposals in this consultation are:

  • contracting for individual courts rather than larger geographical areas
  • allowing providers to claim for the scheme fee in addition to the follow up Legal Help fee
  • the introduction of a set attendance fee for all schemes in place of the existing nil session payment
  • the introduction of reasonable costs for travel as part of the competition element of the bid.


The consultation closes on 3 January 2020. For the consultation document, click here.

Draft Housing Support Grant practice guidance – Wales
The purpose of this consultation is to seek views on the new draft practice guidance for the Housing Support Grant (HSG), which has been produced by the Welsh Government in partnership with external stakeholders. The guidance sets out the framework in which local authorities should operate and administer the grant. The consultation seeks views on whether the guidance:

  • explains what the grant is for
  • will help local authorities to provide support services to those who need them.


The consultation closes on 29 November 2019. To access the consultation documents, click here.

Housing Ombudsman’s consultations
The Housing Ombudsman has launched consultations on two documents aimed at providing a faster, more accessible and more transparent service. Both the Business Plan for 2020-21 and revised Housing Ombudsman Scheme propose changes to meet the challenges of unprecedented demand for the service and to respond to resident and landlord expectations.
The Housing Ombudsman says that the Business Plan 2020-21 sets out new approaches for handling casework based on a new, more efficient operating model. It includes plans to support earlier resolution of complaints within landlords’ complaint procedures as well as faster, high-quality decisions on complaints in its formal remit.
Proposed changes to the Housing Ombudsman Scheme would increase awareness of the service and support consistent complaint handling practice across landlords. A new power would help to ensure evidence is provided in a timely manner to accelerate complaint resolution, with the initial evidence requested not being received in an estimated 25 per cent of cases. Another new power to conduct further investigations beyond the initial complaint would help to identify any potential systemic failure.
The consultations are open until 20 December 2019. For the consultations, click here.

Strengthening police powers to tackle unauthorised encampments
The Government is consulting on measures to criminalise the act of trespassing when setting up an unauthorised encampment in England and Wales and, in particular, on:

  • amending section 62A of the Criminal Justice and Public Order Act 1994 to permit the police to direct trespassers to suitable authorised sites located in neighbouring local authority areas
  • amending sections 61 and 62A of the Criminal Justice and Public Order Act 1994 to increase the period of time in which trespassers directed from land would be unable to return from three months to twelve months
  • amending section 61 of the Criminal Justice and Public Order Act 1994 to lower the number of vehicles needing to be involved in an unauthorised encampment before police powers can be exercised from six to two or more vehicles
  • amending section 61 of the Criminal Justice and Public Order Act 1994 to enable the police to remove trespassers from land that forms part of the highway.


For the consultation, which closes on 4 March 2020, click here.

HOUSING LAW ARTICLES & PUBLICATIONS
 

The future for me is already a thing of the past Giles Peaker Nearly Legal 12 November 2019 – to read the article, click here

Is an old version of the prescribed section 8 notice still useable? Michael Grant Local Government Lawyer 14 November 2019 – to read the article, click here

Spent convictions, underlying conduct and the 'fit and proper person' test James Findlay QC and Riccardo Calzavara Local Government Lawyer 14 November 2019 – to read the article, click here
Housing case law update: succession rules, 'vulnerable persons' and what constitutes suitable accommodation Christopher Skinner, Natalie Hurst and Victoria Smith Local Government Lawyer 14 November 2019 – to read the article, click here

Social housing restrictions – is Homes England consent required or not? Tanya Edmonds Local Government Lawyer 14 November 2019 – to read the article, click here

Collateral warranties – time is of the essence! Zoe Stollard and Priscilla Hall Local Government Lawyer 14 November 2019 – to read the article, click here

Homelessness reviews and temporary accommodation John Murray Local Government Lawyer 14 November 2019 – to read the article, click here

The importance of bringing a homelessness appeal in time… Adrian Davis Local Government Lawyer 14 November 2019 – to read the article, click here

Housing disrepair, ADR and letters of claim Elizabeth England Local Government Lawyer 14 November 2019 – to read the article, click here

Tribunals and human rights Giles Peaker Nearly Legal 15 November 2019 – to read the article, click here

If you go down to the woods today Giles Peaker Nearly Legal 17 November 2019 – to read the article, click here

Britain has a horrific homelessness crisis. Why isn't it an election priority? Simon Hattenstone and Daniel Lavelle The Guardian 19 November 2019 – to read the article, click here

‘A home for life’: extra-care housing helps older people stay independent David Brindle The Guardian 19 November 2019 – to read the article, click here

Housing: recent developments Sam Madge-Wyld and Jan Luba QC Legal Action November 2019 – to read the article (subscription required), click here

Gypsy and Traveller Update Chris Johnson, Dr Angus Murdoch and Marc Willers QC Legal Action November 2019 – to read the article (subscription required), click here

HOUSING LAW DIARY
 

28 November 2019                               
Closing date for submissions to the consultation on sprinklers and other fire safety measures in new high-rise blocks of flats (see Housing Law Consultations)

29 November 2019                               
Closing date for submissions to the Welsh Government’s consultation on draft Housing Support Grant practice guidance (see Housing Law Consultations)

30 November 2019                               
Closure to new applications for Help to Buy ISAs (see Housing Law News and Policy Issues)

13 December 2019                               
Opening of Parliament

20 December 2019                               
Closing date for submissions to two consultations by the Housing Ombudsman (see Housing Law Consultations)
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