16th September 2020
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HOUSING LAW NEWS & POLICY ISSUES
 

Amended forms for possession proceedings
On 11 September 2020 HM Courts & Tribunals Service published amended forms for possession proceedings. For amended form N5B England: Claim possession of a property located wholly in England (accelerated procedure), click here. For Form N11B England: Defence form (accelerated possession procedure) (Assured shorthold tenancy) where the property is located wholly or partly in England, click here.

Future of legal aid: Commons Justice Committee
On 7 September 2020 the Commons Justice Committee launched an inquiry into the future of legal aid in light of concerns raised during the coronavirus pandemic about pressures on the system. The inquiry aims to look ahead to the future of legal aid, to identify the major challenges facing clients and providers and how they might be tackled. The inquiry is especially keen to hear about the sustainability of the legal aid market, the impact of Covid-19 and the increasing reliance on digital technology to deliver legal advice and court services. Submissions should be made by 19 October 2020 via the website, including on these terms of reference:

  • The role of the Legal Aid Agency;
  • Recruitment and retention problems among legal aid professionals;
  • The impact of the court reform programme and the increasing use of technology on legal aid services and clients;
  • The impact of Covid-19 on legal aid services and clients; and
  • What the challenges are for legal aid over the next decade, what reforms are needed and what can be learnt from elsewhere.

For more information about the inquiry, click here.

Draft Building Safety Bill
On 14 September 2020 the Commons Housing, Communities and Local Government Committee took evidence from fire safety and construction industry representatives as part of its pre-legislative scrutiny of the draft Building Safety Bill. To watch the session, click here. For more details of the inquiry, click here.

Family left in unsuitable accommodation for three years: Ombudsman
On 10 September 2020 the Local Government and Social Care Ombudsman reported a case in which a disabled father and his family were left in mouldy, mouse-infested temporary accommodation, despite Enfield council accepting it was not suitable for their needs. The father, who has mobility problems and uses a wheelchair, first approached the Ombudsman in 2017. That investigation found the council had delayed reviewing the suitability of the accommodation it offered to the family. Following a review which found the home to be unsuitable for the family, the council said it would provide the family with alternative accommodation.

Despite this, and despite the family’s representative telling the council there was severe mould and mice infestations, that the toilet leaked and the landlord was slow to fix any problems, the council failed to provide them with a new home. A second Ombudsman investigation found the council at fault for not having a housing procurement policy in place detailing how it would meet expected demand. It also found fault with the way the council handled the disrepair problems at the property, and for failing to accept the representative’s concerns as a separate complaint.

The family was eventually provided with a new home by a local housing association in August 2020. The council will apologise to the family and conduct a fresh Care Act assessment of the father. It will also ensure the occupational therapy equipment it provides is fit for purpose. The council has also agreed to pay the family £250 for every month they were in unsuitable accommodation. For the report, click here.

Coronavirus: Ban on evictions and help for rough sleepers
On 13 September 2020 the House of Commons Library published an updated briefing explaining measures taken by the Government during the coronavirus outbreak to assist households to retain their homes and enable local authorities to tackle the specific challenges faced by rough sleepers. The paper covers the decision to extend further the stay on eviction hearings in England and Wales to 20 September and new notice provisions introduced on 29 August. The paper is being updated regularly to take account of new developments. For the briefing, click here.

Lease-based model used for housing vulnerable people
On 8 September 2020 the Bureau of Investigative Journalism published a report concerning a “new model [which] has emerged in which private companies buy up properties and lease them to housing associations for the accommodation of the most vulnerable people in society. The model hinges on the government providing Specialist Support Housing for vulnerable people, for which it pays out high rates of housing benefit. There is no cap for how much can be charged and the Bureau has found evidence of rent for a single person reaching up to £700 per week. Investors have honed in on this opportunity and a whole market has formed.” According to the report, the leases last upwards of 20 years, with built-in annual increases. This model, it says, has raised concerns at the Regulator of Social Housing that not enough money is being left for the housing associations to run effectively. For the report, click here.

Mental health in housing
On 11 September 2020 Chartered Institute of Housing president Aileen Evans launched a new guide to help housing organisations whose tenants and other customers may have mental health problems. The guide, developed with support from the mental health charity Mind and CIH, looks at the approaches that will help organisations as a whole to improve their performance. The guide emphasises the importance of using plain language and understanding people’s communication preferences. It includes practical recommendations in three key areas:

  • Managing rent arrears
  • Communicating effectively with tenants and residents
  • Training staff.

It also includes a quick guide to help individuals and teams reflect on their day to day work at each stage, from pre-tenancy through to moving on. For the guide, click here.

Rough sleeping – London
On 9 September 2020 the Combined Homelessness and Information Network (CHAIN) published  figures for rough sleeping in London between April 2019 and March 2020. The figures show:

  • 10,726 people were sleeping rough between April 2019 to March 2020, up from 8,855 the previous year.  
  • There was a 28 per cent increase in people sleeping rough for the first time compared with 2018/19.
  • 38 per cent (1276) of new rough sleepers’ last settled accommodation was a privately rented home.
  • There was a 14 per cent increase in people living on the streets compared with 2018/19.
  • CHAIN data released last month also showed that the number of people newly sleeping rough between April-June 2020 rose by 77 per cent from the same period last year.

For more details, click here. For the response of Homeless Link, click here.

Covid-19: effect on private landlords
On 11 September 2020 the National Residential Landlords Association published the results of a poll of private landlords that found that 19 per cent of those questioned had lost up to half of their usual rental income as a result of Covid-19 and three per cent had lost more than half.  An analysis of the results by the NRLA suggests that among those landlords surveyed who said that they have faced a loss of rent, the average (median) loss was between £751 and £1,000. Applied across the sector as a whole, this suggests that the total rental income lost by private landlords with properties in England as a result of Covid has been between £328m and £437m. For the report, click here.

Second ‘No DSS’ discrimination claim succeeds
On 9 September 2020 Shelter reported that a disabled father has won a claim against housing benefit discrimination at Birmingham County Court. Judgment was handed down on 8 September. This is the second time an English court has ruled ‘No DSS’ unlawful. Supported by Shelter solicitor Rose Arnall, Stephen Tyler was barred from viewing properties advertised by a Birmingham estate agent, purely on the grounds of receiving housing benefit. The discrimination Mr Tyler faced was deemed in breach of the Equality Act because it disproportionally affects disabled people, who are more likely to need some support with paying their rent. Shelter research shows that 45 per cent of private renters who claim disability benefits such as Disability Living Allowance and Serious Disability Allowance also claim housing benefit. For the report, click here.

Covid-19 and financial difficulties
On 10 September 2020 the Institute for Fiscal Studies published research finding that many recipients of government support after the onset of the Covid-19 crisis saw their income fall one or two months before receiving support. In the interim, household spending hit a low and non-payment of bills hit a high. This particularly affected the self-employed and those who started claiming universal credit. Many in the latter group experienced falls in income of more than two-thirds in the month before support was paid, and even afterwards their average incomes had fallen by 40 per cent relative to before the crisis. The research also found that about half of new UC claimants who had been repaying a mortgage stopped doing so, almost entirely before the first UC payment arrived (and likely largely through mortgage holidays). Before receiving the grant, Self-Employment Income Support Scheme claimants’ mortgage payments had fallen by around a third, but they mostly bounced back after grant receipt. Some SEISS recipients have also fallen behind on rent. For more details, click here.

HOUSING LAWS IN THE PIPELINE
 

Houses in Multiple Occupation Bill
This private member’s bill, sponsored by Ian Levy, would amend the law relating to the licensing of houses in multiple occupation and increase penalties for the contravention of such licences. The bill received its first reading on 9 September 2020 and is scheduled to receive its second reading on 5 February 2021. The bill is being prepared for publication. To follow progress of the bill, click here.

Fire Safety Bill
This Government bill would make provision about the application of the Regulatory Reform (Fire Safety) Order 2005 where a building contains two or more sets of domestic premises; and would confer power to amend that order in future for the purposes of changing the premises to which it applies. The bill completed its final stages in the House of Commons on 7 September 2020. It received its first reading in the House of Lords on 8 September 2020. It will receive its second reading on a date to be announced. For the bill, as introduced in the House of Lords, click here. To read debates on all stages of the bill, click here. To follow progress of the bill, click here.

Domestic Premises (Energy Performance) Bill
This private member’s bill, sponsored by Lord Foster of Bath, would require the Secretary of State to ensure that domestic properties have a minimum energy performance rating of C on an Energy Performance Certificate; to make provision regarding performance and insulation of new heating systems in existing properties. The first reading was on 8 January 2020 and the second reading on 7 February 2020. The committee stage will commence on a date to be appointed. For the bill, as introduced, click here. To follow progress of the bill, click here.

Domestic Properties (Minimum Energy Performance) Bill
This private member’s bill, sponsored by Sir David Amess, would require the Secretary of State to ensure that domestic properties have a minimum energy performance rating of C on an Energy Performance Certificate; to give the Secretary of State powers to require persons to take action in pursuance of that duty. The first reading was on 14 July 2020 and the second reading will now take place on 25 September 2020. The bill is being prepared for publication. To follow progress of the bill, click here.

Rented Homes Bill
This private member’s bill, sponsored by Baroness Grender, would amend the Housing Act 1988 to abolish assured shorthold tenancies; and to extend the grounds upon which landlords of residential housing may recover possession. First reading took place on 22 January 2020. The second reading will be on a date to be announced. For the bill, as introduced, click here. To follow progress of the bill, click here.

Telecommunications Infrastructure (Leasehold Property) Bill
This Government bill would amend the electronic communications code set out in Schedule 3A to the Communications Act 2003; by doing so, it would address one stated policy barrier: making it easier for telecoms companies to access multi-dwelling buildings (such as blocks of flats) where a tenant has requested a new connection, but the landlord has not responded to requests for access rights. The bill received its first reading in the House of Commons on 8 January 2020 and its second reading on 22 January 2020. For the second reading debate, click here. The committee stage was completed on 11 February 2020. For the committee debate, click here. The third reading in the House of Commons was on 10 March 2020; for the debate, click here. First reading in the House of Lords was on 11 March 2020. The second reading was on 22 April 2020. The committee stage was completed on 2 June 2020 and the report stage on 29 June 2020. The third reading will be on a date to be announced. For the bill, as introduced in the House of Lords, click here. To follow progress of the bill, click here. For a briefing, prepared by the House of Commons Library after second reading in the House of Commons, click here.

Renting Homes (Amendment) (Wales) Bill
This Welsh Government bill seeks to amend the Renting Homes (Wales) Act 2016 to provide greater security for people who rent their homes in Wales. This will particularly affect those who live in the private rented sector and occupy their homes under a ‘standard occupation contract’, the equivalent to the current assured shorthold tenancy, after the 2016 Act comes into force. This additional security will primarily be achieved by extending the minimum notice period for issuing a section 173 notice under the 2016 Act (the equivalent of the current section 21 notice under the Housing Act 1988) from two months to six months. Landlords will also be prevented from issuing such a notice until at least six months from the date of occupancy. Further provisions will also ensure that landlords are unable to issue rolling ‘speculative’ notices on a ‘just in case’ basis. The bill was introduced in the Senedd on 10 February 2020. The Equality, Local Government and Communities Committee considered the bill on various dates up to 20 July 2020. The Business Committee will report on its scrutiny of the bill by 2 October 2020. For the bill, as introduced, all other documents relating to it, and to follow progress on the  bill, click here.

Caravan Sites Bill
This private members’ bill, sponsored by Sir Christopher Chope, would amend the Caravan Sites and Control of Development Act 1960 to remove planning permission requirements for caravan site licence applicants. The bill is being prepared for publication. It received its first reading in the House of Commons on 10 February 2020. The second reading has been brought forward to 23 October 2020. To follow progress of the bill, click here.

Evictions (Universal Credit Claimants) Bill
This private members’ bill, sponsored by Chris Stephens, seeks to place a duty on the Secretary of State to prevent the evictions of Universal Credit claimants in rent arrears. The bill is being prepared for publication. It received its first reading in the House of Commons on 10 February 2020. The second reading has been further postponed to 29 January 2021. To follow progress of the bill, click here.

Homeless People (Current Accounts) Bill
This private members’ bill, sponsored by Peter Bone, would require banks to provide current accounts for homeless people seeking work. The bill is being prepared for publication. It received its first reading in the House of Commons on 10 February 2020. The second reading has been postponed to 5 March 2021. To follow progress of the bill, click here.

Mobile Homes Act 1983 (Amendment) Bill
This private members’ bill, sponsored by Sir Christopher Chope, seeks to amend the Mobile Homes Act 1983. The bill is being prepared for publication. It received its first reading in the House of Commons on 10 February 2020. The second reading has been further postponed to 23 October 2020. To follow progress of the bill, click here.

Mobile Homes and Park Homes Bill
This private members’ bill, sponsored by Sir Christopher Chope, would require the use of published criteria to determine whether mobile homes and park homes are liable for council tax or non-domestic rates; make provision in relation to the residential status of such homes; and amend the Mobile Home Acts. The bill is being prepared for publication. It received its first reading in the House of Commons on 10 February 2020. The second reading has been further postponed to 15 January 2021. To follow progress of the bill, click here.

Housing Act 2004 (Amendment) Bill
This private members’ bill, sponsored by Sir Christopher Chope, seeks to amend Part 3 of the Housing Act 2004 to provide that any selective licensing scheme for residential accommodation extends to social housing. The bill is being prepared for publication. It received its first reading on 10 February 2020. The second reading has been further postponed to 15 January 2021. To follow progress of the bill, click here.

Sublet Property (Offences) Bill
This private members’ bill, sponsored by Sir Christopher Chope, would make the breach of certain rules relating to sub-letting rented accommodation a criminal offence and would make provision for criminal sanctions in respect of unauthorised sub-letting. The bill is being prepared for publication. It received its first reading on 10 February 2020. The second reading has been further postponed to 13 November 2020. To follow progress of the bill, click here.

Vagrancy (Repeal) Bill
This private members’ bill, sponsored by Layla Moran, would repeal the Vagrancy Act 1824. It received its first reading in the House of Commons on 18 March 2020. The second reading has been further postponed to 23 October 2020. For the bill as introduced, click here. To follow progress of the bill, click here.

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NEW HOUSING CASES
 

R (London Borough of Islington) v Arun Bajaj [2020] EWCA Crim 1111
The prosecutor, Islington Borough Council (the Council), applied for leave to appeal under the Proceeds of Crime Act 2002 against a confiscation order of £200 made by Reading Crown Court. The underlying criminal context was the breach of various regulations relating to the management of houses in multiple occupation.

Background
The respondent and a co-accused, Mr Ferraiulo, were connected with two properties in North London, 190 Seven Sisters Road and 147 Grosvenor Avenue. An agreement was reached, whereby Mr Ferraiulo would manage the properties for rental purposes. Mr Ferraiulo made substantial, unauthorised alterations to both properties which increased the number of rooms. Concerns of overcrowding and poor living conditions were reported to the Council. The maximum legal capacity of 190 Seven Sister Road is eight occupants, but there were 20 occupants. The situation was similar at 147 Grosvenor Avenue.

The trial was heard at Highbury Corner Magistrates’ Court. It was not disputed that the respondent was considered a manager of the properties under s.263, Housing Act 2004. A person managing a property is obligated by s.234 of the 2004 Act to comply with any regulations made pursuant to that section; not to do so is a criminal offence (s.234(3)). Overcrowding and several other charges relating to the squalid living conditions were breaches of the regulations. The respondent invoked s.234(4): “it is a defence if he had a reasonable excuse for not complying with the regulation”. The reasonable excuse advanced was that Mr Ferraiulo had sole responsibility for the management of the properties.

District Judge Williams found the charges not proven against the respondent concerning 147 Grosvenor Avenue but proven in relation to 190 Seven Sister Road. The judge reasoned that by 2016 the respondent had become aware of what was happening at 147 Grosvenor Avenue and, therefore, should have kept a “close eye” on 190 Seven Sisters. Instead, he chose to turn a blind eye to the situation.

The matter was committed to the Crown Court for confiscation and sentence. The Council submitted that the correct method for determining the pecuniary advantage to be confiscated was through calculating how much it would costs to provide accommodation to the 12 occupants who could not be lawfully housed on the premises. The Council advanced several alternative hypotheses and corresponding figures as to how this could be achieved, including constructing an extension at the property, by the acquisition of a new property or by lease of a new property, or by building a new property. The judge rejected the Council’s approach and determined confiscation at £200.

The appeal
The Council sought leave to appeal on the ground that “a sum of money equal to the pecuniary advantage” in s.76(5), 2002 Act extends to the advantage the respondent saved from not properly housing the 12 occupants who could not be lawfully housed on the premises. That was to be determined by the costs of providing alternative accommodation.

The judgment
The application to appeal was refused.

Lord Justice Davis held that the factual circumstances of this case do not lend themselves to a sustainable proposition that the notional costs of providing appropriate, regulation-compliant, alternative accommodation for 12 occupants are to be treated as a saving constituting a pecuniary advantage within the remit of s.76 of the 2002 Act. It is a far too broad, indeed speculative, approach to have sufficient connection with the alleged conduct. The respondent was not under a lawful obligation to house the 12 occupants.

The purpose of confiscation proceedings is to disgorge the proceeds of criminality, which is separate from the punishment of the offender. The case was viewed as a test case, therefore the Court certified that their judgment may be cited to inform other local authorities of the prospective limitations on pursuing confiscation proceeding in similar contexts.

The Court observed that putting the property into the required condition and repair for the eight occupants who could lawfully be housed on the premises would fall within the remit of s.76 of the 2002 Act. That figure would be £14,305. However, this was not advanced by the Council as an alternative and the Court has no power to remit this to the Crown Court for further consideration.

The Court was concerned why this case had proceeded without any reference to planning legislation. It was assumed that the unauthorised changes had been made without planning consent. If so, an enforcement notice could have been served and, if not complied with, a criminal offence under s.176, Town and County Planning Act would have arisen. If that had been pursued, confiscation proceedings would then be available and might extend to the entirety of the gross rents received throughout the breach for all 20 occupants.

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

HOUSING LAW CONSULTATIONS
 

Intermediate Homes for London
Intermediate housing is one of the main forms of affordable homes built in London. The Mayor of London is consulting on a broad range of proposals in relation to intermediate homes, including how to address concerns with the affordability of shared ownership homes, what more can be done to support delivery of these homes and how allocations for intermediate homes can be made more transparent and consistent. The consultation also provides an opportunity to think about whether more can be done to help key workers access and benefit from these homes in London. This is particularly important in the context of the current health crisis which has highlighted the key role many occupations play in supporting the capital’s resilience during times of crisis. The consultation closes on 11 October 2020. For more information about the consultation, click here. For the consultation document, click here.

Raising accessibility standards for new homes
This consultation considers how to raise accessibility standards, recognising the importance of suitable homes for older and disabled people. In particular, it considers how the existing optional accessible and adaptable standard for homes and the wheelchair user standard are used and whether government should mandate a higher standard or reconsider the way the existing optional standards are used. The consultation closes on 1 December 2020. For the consultation document, click here.

HOUSING LAW ARTICLES & PUBLICATIONS
 

Tenants’ Hardship Loan Funds – an effective anchor? Deborah HayJoseph Rowntree Foundation 7 September 2020 – to read the article, click here

Understanding the link between homelessness and modern slavery Viktor Dubrava Homeless Link 9 September 2020 – to read the article, click here

No Fixed Abode by Maeve McClenaghan review – how rough sleepers die [book review] Harry Stopes Guardian 10 September 2020 – to read the review, click here

Possession Notices – all change once more! Alex Loxton Local Government Lawyer 11 September 2020 – to read the article, click here

Homelessness application: Interim relief, suitability and housing benefit Clare Cullen Local Government Lawyer 11 September 2020 – to read the article, click here

The Guardian view on housing policy: Grenfell survivors deserve better Editorial Guardian 13 September 2020 – to read the article, click here

Updated Section 21 Validity flowchart Giles Peaker Nearly Legal 13 September 2020 – to access the flowchart, click here

Homelessness in post-coronavirus England Liz Davies Legal Action September 2020 – to read the article, click here

Housing: recent developments Jan Luba QC and Sam Madge-Wyld Legal Action September 2020 ‒ to read the article (subscription required), click here

HOUSING LAW DIARY
 

20 September 2020                              
Stay on possession proceedings ends

25 September 2020                              
Re-scheduled second reading of Domestic Properties (Minimum Energy Performance) Bill (see Housing Laws in the Pipeline)

2 October 2020                                     
Business Committee of the National assembly of Wales to report on its scrutiny of Renting Homes (Amendment) (Wales) Bill (see Housing Laws in the Pipeline)

11 October 2020                                   
Deadline for submission to consultation on Intermediate Homes for London (see Housing Law Consultations)

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