19 January 2022
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HOUSING LAW NEWS & POLICY ISSUES
 

Levelling Up Committee inquiry into social housing
On 17 January 2022 the House of Commons Levelling Up, Housing and Communities (LUHC) Committee held the first oral evidence session for its inquiry into the regulation of social housing in England. The LUHC Committee heard from witnesses representing tenant groups and private registered providers of social housing. The LUHC Committee’s inquiry will examine concerns about the quality of social housing, with a focus on the ability of the Regulator of Social Housing and the Housing Ombudsman to identify and address problems. The inquiry will also focus on the proposals in the Government’s social housing White Paper aimed at improving the regulatory regime. For more details, click here. For the inquiry’s terms of reference, click here. To watch the evidence session, click here.

Appointment of managers under the Landlord and Tenant Act 1987 section 24
On 11 January 2022 the Property Chamber of the First-tier Tribunal issued a practice statement on the Tribunal’s consideration of whom to appoint as a manager under section 24 of the Landlord and Tenant Act 1987. The purpose of the statement is to give leaseholders, prospective managers and landlords an indication of the Tribunal’s expectations of a proposed manager when deciding whether to make an order under section 24. For the practice statement, click here.

Introduction of Renting Homes (Wales) Act 2016
On 15 January 2022 Welsh Climate Change Minister Julie James announced her intention to implement the Renting Homes (Wales) Act 2016 on 15 July 2022. Changes brought in by the Act will include:

  • All landlords being required to provide a written copy of the occupation contract to the tenant (called the ‘contract-holder’ in the legislation).
  • 'No-fault' notice periods increasing from two months to six months. It will no longer be possible to issue a notice in the first six months, meaning all contract-holders will have a minimum 12 months of security at the start of their tenancy.
  • A strengthened duty on landlords, to ensure the property they rent is fit for human habitation including the installation of smoke and carbon monoxide alarms, and regular electrical safety testing.
  • Addressing the practice of 'retaliatory eviction' (whereby a landlord serves notice on a tenant because they ask for repairs, or complain about poor conditions).
  • The introduction of a consistent approach across sectors to eviction where antisocial behaviour and domestic violence occurs.

The implementation of the Act will require the introduction of a raft of subordinate legislation, the most recent of which is set out below. For the Minister’s announcement and cabinet statement, go to wales.gov, click on ‘Housing’ and then ‘Announcements’. For the Act itself, click here. For the government’s response to the consultation in respect of implementation of the Act, click here. For the response of the National Residential Landlords Association, click here.

Renting Homes (Model Written Statements of Contract) (Wales) Regulations 2022
These regulations, which come into force on the day on which section 239 of the Renting Homes (Wales) Act 2016 comes into force, prescribe model written statements of contracts for secure contracts, periodic standard contracts and fixed term standard contracts, as established by the 2016 Act. For the Regulations, click here. For the 2016 Act, click here.

Renting Homes (Supported Standard Contracts) (Supplementary Provisions) (Wales) Regulations 2022
These regulations, which come into force on the day on which section 239 of the Renting Homes (Wales) Act 2016 comes into force, set out the supplementary provisions which are, subject to sections 21, 24 and 25 of the 2016 Act, incorporated into supported standard contracts, as supplementary terms. For the Regulations, click here. For the 2016 Act, click here.

Renting Homes (Supplementary Provisions) (Wales) Regulations 2022
These regulations, which come into force on the day on which section 239 of the Renting Homes (Wales) Act 2016 comes into force, set out the supplementary provisions which are, subject to sections 21, 24 and 25 of the 2016 Act, incorporated into occupation contracts as supplementary terms. For the Regulations, click here. For the 2016 Act, click here.

Renting Homes (Explanatory Information for Written Statements of Occupation Contracts) (Wales) Regulations 2022
These regulations, which come into force on the day on which section 239 of the Renting Homes (Wales) Act 2016 comes into force, prescribe the matters which must be contained in the written statement of the relevant occupation contract including converted contracts (see paragraph 1(1) of Schedule 12 to the 2016 Act for the definition of “converted contract”), as established by the 2016 Act. For the Regulations, click here. For the 2016 Act, click here.

Renting Homes (Fitness for Human Habitation) (Wales) Regulations 2022
These regulations, which come into force on the day on which section 239 of the Renting Homes (Wales) Act 2016 comes into force, prescribe the matters and circumstances to which regard must be had when determining whether a dwelling is fit for human habitation, as required by section 91 of the 2016 Act. This includes certain matters and circumstances which may arise because of a landlord’s failure to keep the dwelling in repair. For the Regulations, click here. For the 2016 Act, click here.

Fitness of homes for human habitation: guidance for landlords – Wales
On 13 January 2022 the Welsh Government issued guidance explaining what landlords must do from 15 July 2022 (when the Renting Homes (Wales) Act 2016 is expected to come into force – see above) to ensure their property is in good repair and fit for human habitation. For the guidance, go to wales.gov, click on ‘Housing’ and then ‘Publications’.

Housing Advisers Programme 2020-21
On 14 January 2022 the Local Government Association announced the successful applicants to the Housing Advisers Programme 2020-21. The Programme is designed to support councils by helping them meet their local housing need. It aims to be simple, flexible and locally-led. This year 16 successful applicants received money from the programme to promote, facilitate and enhance their role and capacity to meet their local housing need. For details, click here.

Second homes and tax
On 14 January 2022 the DLUHC announced that owners of second homes who abuse a tax loophole by claiming their often-empty properties are holiday lets will be forced to pay under new measures. Following consultation, the government will now bring changes to the tax system, which will mean second homeowners must pay council tax if they are not genuine holiday lets. From April 2023, second homeowners will have to prove holiday lets are being rented out for a minimum of 70 days a year to access small business rates relief, where they meet the criteria. For the announcement, click here. For the consultation document and government response, click here. For the response of the Local Government Association, click here.

The growth in short-term lettings – England
On 14 January 2022 the House of Commons Library published a paper examining the growth in short-term lettings and calls for greater regulation of the sector in England. It provides a brief overview of the regulatory approaches in other countries. For the paper, click here.

Domestic abuse victims with no access to public funds
On 12 January 2022 the Domestic Abuse Commissioner announced the appointment of researchers at the London School of Economics and Political Science, commissioned to produce a report on support for victims and survivors of domestic abuse who have no recourse to public funds (NRPF) in summer 2022. The research will be conducted over six months from January to June 2022 and will provide an estimate of the number of victims and survivors of domestic abuse in the UK who have NRPF, a condition which prevents people from accessing housing benefit and other public funds due to their immigration status. For more details, click here.

Shared owners, mortgages and subletting
On 12 January 2022 the Housing Minister wrote to mortgage lenders about steps the government is taking to make it easier for shared owners affected by building safety issues to sublet their homes. Hitherto subletting has been restricted in all but ‘exceptional’ circumstances in order to prevent homes built with public funds from being used for commercial gain. The government has now amended its grant funding guidance to make it clear that issues of building safety should be treated as an exceptional circumstance. This will allow shared owners to sublet their homes, with the agreement of their freeholder. For the letter and more details, click here.

Ownerships by leaseholders of the buildings in which they live
On 11 January 2022 the DLUHC announced proposals to allow more leaseholders in mixed-use buildings to take control and ownership of their building. The government has launched a consultation, running until 22 February 2022, seeking views on the proposals. For the announcement, click here. For the consultation, see Housing Law Consultations (below).

Housing Ombudsman’s Independent Reviewer of Service Complaints published
On 13 January 2022 the latest report of the Housing Ombudsman’s Independent Reviewer of Service Complaints was published. The report considers a sample of complaints against the HO service closed between 1 April to 30 September 2021. It reflects on how effectively the service complaints were handled with a focus on those that are more challenging to deal with, and provides recommendations where the approach could be improved. A summary of the individual complaints examined is also included in the report together with a management response to the reviewer’s recommendations and an update on the previous recommendations. For the report, click here.

Severe maladministration found for failures over six year leak: Housing Ombudsman
On 11 January 2022 the Housing Ombudsman reported that the London Borough of Ealing’s complaint handling failures led to a finding of severe maladministration after a resident experienced lengthy and frustrating delays in getting a response to her complaint. The resident had been waiting six years for a leaking roof to be replaced that was causing damp and impacting on her health. 

In its response to the complaint the landlord focused on the single issue of the delay to the roof replacement works referring to procurement issues and then COVID-19 related issues. It failed to address the other issues raised by the resident. The landlord also failed to escalate the complaint as requested by the resident and missed her response to its stage two complaint.This resulted in a protracted and unsuccessful complaints process. The Ombudsman found severe maladministration for the landlord’s complaint handling and maladministration for its response to the resident’s reports about water coming into her flat and the repairs carried out. The landlord was ordered to pay the resident compensation of £3,600 for the unreasonable delay in completing major works to the building, for the standard of temporary works to resolve the issues and for its complaint handling. For the case summary, click here.

Rough sleepers and Covid vaccination
On 11 January 2022 Local Government Chronicle reported that at a webinar with council leaders and chief executives in December, Housing Minister Eddie Hughes explained that councils could use funding from the government’s £28m ‘protect and vaccinate’ scheme both to provide accommodation and to incentivise vaccinations for rough sleepers. For the report, click here.

HOUSING LAWS IN THE PIPELINE
 

Caravan Site Licensing (Exemptions of Motor Homes) Bill
This Private Members’ Bill, sponsored by Sir Christopher Chope, would exempt motor homes from caravan site licensing requirements. It was presented to Parliament on 21 June 2021. Second reading has been further postponed to 14 January 2022.The Bill awaits publication. 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. It was presented to Parliament on 21 June 2021. Second reading has been further postponed to 21 January 2022. The Bill awaits publication. To follow progress of the Bill, click here.

Caravan Sites Bill
This Private Members’ Bill, sponsored by Sir Christopher Chope, would amend the requirements for caravan site licence applications made under the Caravan Sites and Control of Development Act 1960. It was presented to Parliament on 21 June 2021 and its second reading was been further postponed to 21 January 2022.The Bill awaits publication. To follow progress of the Bill, click here.

Asylum Seekers (Accommodation Eviction Procedures) Bill
This Private Members’ Bill, sponsored by Chris Stephens, would make provision for asylum seekers to challenge the proportionality of a proposed eviction from accommodation before an independent court or tribunal; and establish asylum seeker accommodation eviction procedures for public authorities. It was presented to Parliament on 21 June 2021. The second reading has been postponed to 14 January 2022.The Bill awaits publication. To follow progress of the Bill, click here.

Leasehold Reform (Ground Rent) Bill
This Government Bill would make provision about the rent payable under long leases of dwellings. The Bill completed its House of Lords stages on 14 September 2021 and was presented to the House of Commons on 15 September 2021. The Bill received its second reading debate on 29 November 2021. The Public Bill Committee reported the Bill with amendments to the House on 9 December 2021. The Bill is due to have its report stage and third reading on 24 January 2022. For the second reading debate, click here. For the Bill as brought from the House of Lords, click here. For a House of Commons Library briefing concerning the Bill, published on 25 November 2021, click here. To follow progress of the Bill, click here.

Building Safety Bill
This Government Bill would make provision about the safety of people in or about buildings and the standard of buildings, to amend the Architects Act 1997, and to amend provision about complaints made to a housing ombudsman. The Bill was given its first reading on 5 July 2021 and its second reading on 21 July 2021. The Public Bill Committee completed its scrutiny on 26 October 2021. The Bill is now due to have its report stage and third reading on 19 January 2022. For the Bill as amended in Committee, click here. For the Government response to the Housing, Communities and Local Government Committee's pre-legislative scrutiny of the Bill, click here. For a House of Commons Library briefing about the Bill, published on 17 January 2022, click here. To follow progress of the Bill, click here.

Fire and Building Safety (Public Inquiry) Bill
This Bill, sponsored by Daisy Cooper, would establish an independent public inquiry into the Government’s response to concerns about fire and building safety. It was introduced to Parliament on Tuesday 6 July 2021 under the Ten Minute Rule. Second reading has been rescheduled to 18 March 2022. For the Bill, as introduced, click here

Evictions (Universal Credit) Bill
This Private Members’ Bill, sponsored by Chris Stephens, would place a duty on the Secretary of State to prevent the evictions of Universal Credit claimants in rent arrears. It was presented to Parliament on 21 June 2021 and will receive its second reading on 28 January 2022.The Bill awaits publication. To follow progress of the Bill, click here.

Housing Standards (Refugees and Asylum Seekers) Bill
This Private Members’ Bill, sponsored by Chris Stephens, would make provision for national minimum standards in accommodation offered to refugees and asylum seekers. It was presented to Parliament on 21 June 2021 and will receive its second reading on 21 January 2022.The Bill awaits publication. To follow progress of the Bill, click here.

Under-Occupancy Penalty (Report) Bill
This Private Members’ Bill, sponsored by Chris Stephens, would require the Secretary of State to report to Parliament on the merits of repealing those provisions of the Welfare Reform Act 2012 which provide for persons to be paid reduced rates of housing benefit or Universal Credit because their accommodation is deemed to be under-occupied. It was presented to Parliament on 21 June 2021 and will receive its second reading on 14 January 2022.The Bill awaits publication. To follow progress of the Bill, click here.

Mobile Homes Act 1983 (Amendment) Bill
This Private Members’ Bill, sponsored by Sir Christopher Chope, would amend the Mobile Homes Act 1983. It was presented to Parliament on 21 June 2021 and will receive its second reading on 28 January 2022. The Bill awaits publication. To follow progress of the Bill, click here.

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NEW HOUSING CASES
 

FirstPort Property Services Ltd v Settlers Court RTM Company and others [2022] UKSC 1

Background to the appeal
Settlers Court is a block of flats on the Virginia Quay Estate in East London (the "Estate"). The flats in Settlers Court are held under long leaseholds. The lessees under such long leaseholds are granted the "right to manage" (the "RTM") by Part 2, Chapter 1 of the Commonhold and Leasehold Reform Act 2002 (the "2002 Act"). The RTM permits them to take over management of the block of which their flats form part from the existing manager, whether the landlord or a third party, via a single purpose company (the "RTM Company"). The RTM Company formed by the lessees of the flats in Settlers Court obtained the RTM in respect of Settlers Court on 8 November 2014. That RTM Company is the First Respondent to the appeal. The other Respondents are lessees of flats in Settlers Court.

The Estate contains other blocks of flats beyond Settlers Court. These other blocks share facilities and amenities with Settlers Court (the "Estate Facilities"). Prior to the lessees of Settlers Court exercising the RTM, the service of managing the Estate Facilities (the "Estate Services") was provided by a third party manager, the Appellant, for the benefit of the entire Estate. Under the terms of the relevant leases, the Appellant was entitled to levy charges from the lessees on the Estate in respect of providing the Estate Services (the "Estate Charges").

A dispute arose between the parties over the extent of the RTM exercised by the lessees of Settlers Court. The Respondents claimed that the statutory RTM extends beyond Settlers Court so as to include the Estate Facilities. These were said to form part of the "premises" over which the RTM is exercisable. Consequently, the RTM Company, not the Appellant, was now responsible for providing the Estate Services to the lessees of Settlers Court and the Appellant was no longer entitled to levy the Estate Charges from them. Instead, once the RTM had been exercised, the Estate Charges in respect of Settlers Court, some 15.2% of the total for the Estate, became payable to the RTM Company not the Appellant.

The Appellant disputed this, maintaining that it remained exclusively responsible for providing the Estate Services to the entire Estate because the RTM does not extend beyond the block over which it is exercised (and facilities and amenities solely relating to it). As such, it claimed to be entitled to continue to levy the Estate Charges from the lessees of Settlers Court, noting that it alone continued to provide the Estate Services to the entire Estate pursuant to its obligations under the long leases of flats in blocks other than Settlers Court, which remained in force on any view, and incurred the full costs of doing so.

The parties were unable to reach agreement as to how the Estate Facilities should be managed and the Estate Charges levied. On 8 December 2017, the Appellant therefore applied to the First-tier Tribunal (the "F-tT") to determine whether it was entitled to levy Estate Charges from the lessees of the flats in Settlers Court. The F-tT found against the Appellant, considering itself bound by the decision of the Court of Appeal in Gala Unity Ltd v Ariadne Road RTM Co Ltd [2012] EWCA Civ 1372. In that case, the Court of Appeal had decided that the RTM did extend to facilities on an estate which were shared between the block of flats over which the RTM had been exercised and other dwellings, even though this would potentially leave both the RTM Company and the pre-existing manager responsible to different groups of lessees for providing the same services simultaneously. The Upper Tribunal (the "UT") dismissed the Appellant’s appeal on the basis that, amongst other things, it too was bound by Gala Unity. The UT did however issue a leapfrog certificate for an appeal directly to the Supreme Court. This was the first time that the UT has issued such a certificate.

Judgment
The Supreme Court unanimously allows the appeal and, in doing so, holds that Gala Unity was wrongly decided. Lord Briggs gives the sole judgment with which all other members of the Court agree.

Reasons for the judgment
The RTM grants the RTM Company the right to perform the relevant management functions over "the premises" to the exclusion of any other person such as the existing manager. Treating it as applying to shared common facilities raised insuperable problems [36]. The lessees of flats in blocks other than that over which the RTM has been exercised would be effectively disenfranchised by having shared Estate Services provided by an RTM Company with which they had no formal legal relationship. This would also be contrary to the terms of their leases and was the opposite of what the RTM under the 2002 Act was supposed to achieve [37]-[38].

The statutory language in the 2002 Act, which had to be construed in light of the context and purpose of the Act, included numerous signposts pointing against the Estate Facilities forming part of the "premises" over which the RTM was exercisable. As such, the RTM could not grant the RTM Company the right or obligation to provide the Estate Services [39]-[49]. That construction of the 2002 Act was confirmed, but no more than that, by the Consultation Paper which accompanied the draft bill which later became the 2002 Act. This was admissible [51]-[53]. The particular facts of Gala Unity had served to obscure the real difficulties created by the Court of Appeal’s decision in that case and the existence of overlapping rights to provide the Estate Services between a manager and an RTM Company [50].

The scope of the RTM contended for by the Respondents would lead to outcomes, such as on the facts of the present case, which were both absurd and unworkable. The court would therefore lean against such a construction of the 2002 Act [54]. If the RTM Company was responsible for the Estate Services, it would be entitled to recover Estate Charges only from the lessees of the building in respect of which it had been set up. In this case that would mean only some 15 per cent of the costs of providing the Estate Services could be recovered by the RTM Company. This would likely pose insurmountable solvency issues for it. Conversely, if the existing manager retained responsibility for providing the Estate Services, as it was bound to do under the terms of the leases held by the lessees of buildings other than that over which the RTM had been exercised, it could not recover the costs of doing so from the lessees who had exercised the RTM. In this case, that meant that, absent some agreement with the RTM Company, the Appellant, as manager, could recover only 85 per cent of the costs of providing the Estate Services to the Estate as a whole [56]-[57]. Whilst in some cases the RTM Company and the manager might reach agreement, there was no obligation on an RTM company to do so. It was obviously preferable to interpret the 2002 Act in a way which did not lead to an unworkable situation absent such agreement [58].

The RTM under the 2002 Act does not therefore extend to the RTM Company managing the shared Estate Facilities, which do not form part of the "premises" over which the RTM is exercisable. The Appellant remains the sole party responsible for providing the Estate Services to all lessees on the Estate and entitled to levy Estate Charges accordingly, including from the lessees of flats in Settlers Court [62]. Gala Unity was wrongly decided and should be overruled [63]. The appeal is therefore allowed.

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

HOUSING LAW CONSULTATIONS
 

Housing Legal Aid: the way forward
The Ministry of Justice is consulting on a proposed new model for the delivery of housing possession legal aid. This aims to ensure the sustainability of the service and to improve the breadth and quality of advice available for individuals facing the loss of their home. The key proposals in this consultation are:

  • remodelling the delivery of the Housing Possession Court Duty Scheme (HPCDS) to become a new Housing Loss Prevention Advice Service (HLPAS), incorporating both the existing service of advice and representation at court but also early legal advice before court;
  • expanding the scope of legal aid so that HLPAS providers can offer early legal advice on social welfare law matters to individuals facing procession proceedings;
  • contracts for individual courts rather than larger geographical areas;
  • allowing providers to claim for the court duty fee in addition to a Legal Help fee for follow on work; and
  • introducing a set attendance fee for all schemes, replacing the existing nil session payment.


The consultation closes on 20 January 2022. For the consultation document, click here.

Regulator of Social Housing: Consultation on the introduction of tenant satisfaction measures
The Regulator of Social Housing is seeking views on its proposals for tenant satisfaction measures which are part of implementing changes to consumer regulation set out in the Government’s ‘The Charter for Social Housing Residents: Social Housing White Paper’. The measures would provide data about social housing landlords’ performance and the quality of their services to help tenants hold their landlord to account and help RSH in its future consumer regulation role. The Regulator looks forward to hearing from landlords, tenants and anyone with an interest in social housing by 3 March 2022. For the consultation documents, click here.

Reforming the leasehold and commonhold systems in England and Wales
The DLUHC is consulting on a number of Law Commission recommendations that would broaden access to enfranchisement (buying the freehold) and the ‘right to manage’ a building. The proposals would increase the ‘non-residential limit’ from 25 to 50 per cent, allowing leaseholders in buildings with up to 50 per cent non-residential floorspace to buy their freehold or claim a right to manage. The DLUHC is also considering recommendations that allow leaseholders to require that a landlord take on leases for any non-participating units following a collective enfranchisement; the introduction of a non-residential limit for individual freehold acquisitions; and changes to voting rights in right to manage companies. On Commonhold, the Department is considering how shared ownership products could work in commonhold settings; and the provision of information for buying and selling a commonhold property.

For the consultation, which closes on 22 February 2022, click here.

HOUSING LAW ARTICLES & PUBLICATIONS
 

The 'right to manage' and shared estate facilities Simon Allison and Kimberley Ziya Local Government Lawyer 12 January 2022 – to read the article, click here

News things Giles Peaker Nearly Legal 12 January 2022 – to read the article, click here

Supreme Court overturns Gala Unity
Landmark Chambers 12 January 2022 – to read the article, click here

Slow but determined change: Facing up to non-UK national homelessness Jennie Corbett Homeless Link 13 January 2022 – to read the article, click here

Analysing the Government’s latest plans to tackle the fire safety and building safety crisis – are Michael Gove MP’s proposals fit for purpose and what are the wider issues to consider? Michael Wharfe and James Grinstead Devonshires 13 January 2022 – to read the article, click here

Shared ownership – reverse staircasing Jonathan Jennings Local Government Lawyer 14 January 2022 – to read the article, click here

Settled by Settlers J Nearly Legal 16 January 2022 – to read the article, click here

‘The present proceedings should never have been brought.’ ASB and disability discrimination Giles Peaker Nearly Legal 16 January 2022 – to read the article, click here

Women are being failed by services when facing England's broken housing system Alex and Martha Schofield Shelter Blog 17 January 2022 – to read the article, click here

Housing: recent developments (December 21/ January 22) Sam Madge-Wyld and Jan Luba QC Legal Action – to read the article (subscription required), click here

HOUSING LAW DIARY
 

19th January 2022                                   
Report stage and third reading of Building Safety Bill (see Housing Laws in the Pipeline)


21st January 2022                                   
Postponed second reading of Caravan Sites Bill (see Housing Laws in the Pipeline)


21st January 2022                                   
Postponed second reading of Homeless People (Current Accounts) Bill (see Housing Laws in the Pipeline)


24th January 2022                                   
Report stage and third reading of Leasehold Reform (Ground Rent) Bill (see Housing Laws in the Pipeline)


31st January 2022                                   
Rent Officers (Housing Benefit and Universal Credit Functions) (Amendment and Modification) Order 2021 comes into force


22nd February 2022                                   
Closing date for submissions to the consultation on Reforming the leasehold and commonhold systems in England and Wales (see Housing Law Consultations)

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