This is the fifth of our series of quarterly housing law update blogs, which will enable readers specialising in housing law to catch up on the most important cases, issues or developments. The post looks at housing law developments from December 2013 to February 2014.
Please feel free to submit a comment below or send us an Ask query if you have any views on the developments that are covered or if you think we have missed something that should be brought to the attention of housing practitioners.
Guidance published on promoting mutual exchange
The government has published guidance on the promotion of mutual exchange by social housing landlords, which sets out seven key steps that should be taken by social housing landlords to promote mutual exchange to their tenants.
Consultation on charging fees for social housing regulation
The Homes and Community Agency (HCA) has published a consultation on charging registered providers of social housing and applicants for registration to fund its regulatory activities and associated support functions, including registration, de-registration and routine regulation. The consultation proposes:
- Setting fees for initial registration with a preference for a single set fee.
- Creating an annual fee structure based on provider size (with local authorities being exempt from annual fees).
House of Commons Library standard note on “pay to stay” tenants
The House of Commons Library has published a standard note on “pay to stay” tenants, that is, requiring social housing tenants with high income to pay higher rents. The note specifically focuses on the background to the “pay to stay” policy and the concerns that were raised during the government’s consultation on the topic in relation to the income thresholds that it had proposed.
Updated allocations guidance published
The government has published updated guidance for local authorities on providing social housing for local people and prioritising applicants with a close association to their local area. Among other things, the new guidance recommends that local authorities should:
- Ensure that they prioritise applicants who have a close association with their local area (whether through family association or employment).
- Include a residency requirement of at least two years before allowing an applicant to be accepted onto the authority’s waiting list and to be considered for social housing.
Draft regulations published on power to require information in social housing fraud cases
The draft Prevention of Social Housing Fraud (Power to Require Information) (England) Regulations 2014 have been published, setting out when local authorities conducting housing fraud investigation can require information to be provided by third parties as part of their investigations. The draft regulations also state that it will be an offence to refuse or fail to provide information when required to do so.
Toolkit published for Welsh local authorities on avoiding homelessness
The Welsh Local Government Association has published a toolkit on the actions councils can take to help someone avoid homelessness. The toolkit:
- Provides an overview of the new homelessness legislation (that is the Housing (Wales) Bill 2013-14) that is expected to be implemented in April 2015.
- Explores the actions that local authorities can take to help someone avoid homelessness.
Court of Appeal jurisdiction in relation to interim relief housing (Johnson v Lord Mayor and Citizens of Westminster  EWCA Civ 773)
The Court of Appeal has held that it did not have the jurisdiction to hear an application for interim relief requiring a local authority to continue to house a homeless man pending the outcome of a substantive appeal to the Court of Appeal under section 202 of the Housing Act 1996. The substantive appeal was against a county court decision, which upheld the local authority’s decision, not to grant him accommodation on the grounds that he was intentionally homeless. The court held that there was no basis on which it should extend the meaning of section 204A of the Housing Act 1996 to include the ability to challenge a refusal to provide temporary accommodation to proceedings brought after the county court had disposed of the main appeal. Section 204A of the Housing Act 1996 deals with the ability of an applicant to challenge in the county court a failure by a local housing authority to provide temporary accommodation.
Intentionally homeless as a result of refusal of assistance to resolve co-tenant’s outstanding rent arrears (Viackiene v The London Borough of Tower Hamlets  EWCA Civ 1764)
The Court of Appeal has held that the appellant was intentionally homeless as a result of her refusal to accept assistance from her landlord to resolve her co-tenant’s outstanding rent arrears.
The appellant was a joint assured shorthold tenant. Following the loss of his job, her co-tenant, J, failed to pay his share of the rent for a considerable time, resulting in possession proceedings. The landlord had offered to assist the appellant with replacing J but this assistance was refused. The appellant had then applied for housing assistance from Tower Hamlets (TH) under Part VII of the HA 1996, which was refused. The appellant had then appealed to the Court of Appeal arguing that TH’s reviewing officer had been wrong to find that she was intentionally homeless and that there had been a number of “restraining factors”, which prevented her from accepting her landlord’s offer of assistance.
The Court of Appeal dismissed the appeal holding that she had been given opportunities to resolve her situation and also the “restraining factors” did not affect the validity of the reviewing officer’s decision that she was intentionally homeless.
Contracting out of homelessness functions (Tachie and others v Welwyn Hatfield Borough Council  EWHC 3972 (QB))
The High Court has rejected a challenge to a decision by the council to contract out its homelessness functions under Part VII of the Housing Act 1996 to an arms length management organisation (ALMO). The claimant had sought to argue that the council’s plans were in breach of its constitution and the procurement regime and had also been made incorrectly by full council and not the council’s cabinet. The High Court held that the ALMO fell under the Teckal exemption and therefore did not fall foul of the procurement regime.
Considering affordability (Birmingham City Council v Balog  EWCA Civ 1582)
The Court of Appeal has allowed an appeal by Birmingham City Council (B) against a county court decision which had held that B had failed to take into account the issue of affordability when considering whether the tenant (M) had made himself intentionally homeless. B had appealed a county court decision which had held that it had failed to have regard to the Homelessness Code of Guidance (2006) when finding M to be intentionally homeless. The Court of Appeal allowed B’s appeal holding that the decision was rational and that the reviewing officer had had regard to the Code even though he had not expressly referred to the relevant section which dealt with affordability.
Re-making homelessness decisions after investigation of untested facts (Purewal v Ealing Council  EWCA Civ 1579)
The Court of Appeal has allowed a council to potentially re-make its homelessness decision after investigating untested facts, quashing a county court decision which ruled that the applicant was homeless. The applicant had claimed that she could not live in accommodation that would otherwise have been available to her because she had been raped by a near neighbour, and did not want to live near this person. A prosecution had never been brought over the rape, and it was not clear whether the council had concluded that it believed that the rape had occurred. The council had decided that the applicant was not homeless because there was accommodation available to her. The Court of Appeal held that the council should re-make its decision, having made investigations properly and sensitively into the allegations. If the council found that the applicant had not been raped, it may be reasonable for it to conclude that she was not homeless.
Allocation scheme status (R (Alansi) v London Borough of Newham  EWHC 3722)
The High Court ruled that a council’s decision to downgrade a social housing claimant from being a “priority” homeseeker after she moved into private housing under a council Bond Scheme was unreasonable but justified. The claimant had moved to Bond Scheme housing after being assured by the Council that by doing so, she would not lose her priority status. The High Court held that the decision was justified because of pressures on social housing stock and in addition, the Council was entitled to change how it prioritised certain homeseekers under its allocation scheme.
HOUSING BENEFIT CAP AND BEDROOM TAX
Housing benefit cap and bedroom tax do not breach human rights law (R (SG and others) v Secretary of State for Work and Pensions and others  EWCA Civ 156 and R (MA and others) v Secretary of State for Work and Pensions and another  EWCA Civ 13)
The Court of Appeal has ruled on the lawfulness of the housing benefit cap and of the spare room subsidy. In both cases, the Court of Appeal ruled that the social welfare reforms did not breach the European Convention of Human Rights. The claimants are considering whether to appeal to the Supreme Court in relation to both decisions.
RIGHT TO BUY
Deregulation Bill 2013-14
The Deregulation Bill 2013-14 was laid before Parliament on 23 January 2014. Among other things the Bill reduces the qualifying period for the right to buy from five years as public sector tenants to three years.
The Department for Communities and Local Government (DCLG) has announced an increase in the maximum right to buy percentage discount for eligible social tenants in houses to 70% (from 60%). This brings the maximum discount available to eligible tenants of houses in line with the maximum discount available to eligible tenants of flats.
Guidance on licensing powers and setting site licence fees
The DCLG has published guidance for mobile home site owners on the new licensing powers of local authorities and guidance for local authorities on setting mobile home site licence fees.
Making, varying and removing site rules
The Mobile Homes (Site Rules) (England) Regulations 2014 have been made and came into force on 4 February 2014. The regulations prescribe the procedure for making, varying and removing site rules.
Mobile homes: Wales
The Mobile Homes (Wales) Act 2013 (Commencement, Transitional and Saving Provisions) Order 2014 has been made and brought certain provisions of the Mobile Homes (Wales) Act 2013 into force on 7 January 2014 and will bring the remainder of the Act into force on 1 October 2014.
In addition, a consultation has been launched on the draft Holiday Caravan Sites (Wales) Bill, which addresses concerns regarding the management and regulation of holiday caravan parks in Wales, including the powers of local authorities to address unlawful occupation of caravans.