Our quarterly housing law update blogs 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 October to December 2015.
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.
Housing and Planning Bill 2015-16 introduced into Parliament
The Housing and Planning Bill 2015-16 had its first reading in the House of Commons on 13 October 2015.
Key measures set out in the Bill include:
- Requiring social tenants on high incomes to “pay to stay” in their properties by paying market or near market rent for them.
- Allowing LHAs to apply for banning orders against letting agents or rogue landlords.
- The sale of vacant high value local authority housing by LHAs in England.
Regulations made amending the Housing (Right to Buy) (Prescribed Forms) (Wales) Regulations 2015
The Housing (Right to Buy) (Prescribed Forms) Wales (Amendment) Regulations 2015 have been made.
The regulations, which came into force on 19 October 2015, amend Part D of Schedule 1 (qualification and assessment) to the Housing (Right to Buy) (Prescribed Forms) Wales Regulations 2015 (see Legal update, Housing (Right to Buy) (Prescribed Forms) (Wales) Regulations 2015 published on legislation.gov.uk website). The amendment means that a notice claiming to exercise the right to buy will no longer refer to a discount of £16,000 but will state that the discount “cannot be greater than the maximum discount in Wales that is in force from time to time”.
No obligation on local housing authority to disregard benefits when considering the affordability of accommodation for the purposes of deciding whether a person is intentionally homeless (Samuels v Birmingham City Council  EWCA Civ 1051)
The Court of Appeal has held that a local housing authority, when considering the affordability of previous private sector rented accommodation for the purposes of deciding whether a person is intentionally homeless for failing to pay the rent under section 191 of the Housing Act 1996 (HA 1996), is entitled to take account of income from income support, child tax credits and child benefit, and is not obliged to disregard them.
The decision provides useful clarification for those local authority homelessness officers of the benefits that can be taken into account when considering whether a private sector rental tenant is intentionally homeless. The case also confirms that review officers are not obliged to identify in their decision letter each and every paragraph of the Homelessness Code of Guidance for Local Authorities that bears upon their decision since this would impose a wholly unreasonable and unnecessary burden.
High Court holds that council did have an obligation to house both mother and children under section 17 of the Children Act 1989 (PK v Harrow Council  EWHC 584 (Admin))
The High Court has held that the London Borough of Harrow’s decision not to provide assistance under section 17 of the Children Act 1989 (CA 1989) to two children who had been made homeless with their mother was unlawful. Although the council acknowledged that it had an obligation to provide accommodation to the two children under section 20 of the CA 1989, it did not accept that it had an obligation to also accommodate their mother, which would have resulted in their separation.
The council’s decision was challenged on human rights grounds (Article 8 of the ECHR) and also under section 11 of the Children Act 2004 (breach of a child’s best interests) .
The High Court held that the council’s decision was unlawful and that it was obliged to provide accommodation to the children and their mother as its obligation to the children had engaged Article 8.
Pending the carrying out of a further assessment, the council undertook to provide suitable accommodation for the children and their mother.
High Court rules in housing benefit case that benefits cap unlawfully discriminates against carers for disabled adult family members (Hurley and others v Secretary of State for Work And Pensions  EWHC 3382 (Admin))
The High Court has ruled that the government’s failure to exempt from the benefit cap those caring for severely disabled adult family members was unlawful, because it amounted to indirect discrimination against disabled people which was not objectively justifiable. Although the policy had the legitimate aims of reducing expenditure and incentivising work, it was not proportionate to those aims and it risked costing the state more in the long term, because it would mean that carers were no longer able to care for their family members at home and the state would then have to fund the cost of residential care.
The decision concerned the cap in relation to Part 8A of the Housing Benefit Regulations 2006. However, the the court decided that it could not hold that Part 8A was unlawful on the ground of irrationality or proportionality, as courts must exercise caution in deciding that a measure that has been approved by both Houses of Parliament is unlawful.
Following the decision, it remains to be seen whether the government chooses to make a change to the existing regime to add this exemption.
Article 6 applies to entitlement to accommodation under Part VII of the HA (Fazia Ali v UK)
The ECtHR has held that Article 6 of the European Convention on Human Rights (right to a fair trial) applies to entitlement to accommodation under Part VII of the HA 1996, however, in the current case there had been no breach.
The applicants had both made homelessness applications to Birmingham City Council. The council had accepted that it owed them a duty and had made them offers of accommodation; both rejected the offers made. The council stated that the accommodation it had offered was suitable for the purposes of the HA 1996 and therefore it had discharged its duty under section 193.
The applicants applied for review of the decisions stating that they had not been informed by letter of the consequences of refusing the accommodation offered. The reviewing officer, found that letters had been sent to applicants informing them of the consequence of refusing and therefore that the offers of housing were suitable and the council’s duties under the HA 1996 were discharged.
The applicants appealed to the county court relying on section 204 of the HA 1996. The applicants’ ground for appeal was that whether they had or had not received the letters from the council was a factual issue to be determined by the court. On appeal, the Supreme Court had held that Article 6 did apply but had referred the question of whether Article 6 applied to the ECtHR.
The ECtHR held that the council’s determination did amount to a civil right under Article 6, however, there had been no breach as the Homelessness Review Officer had sufficient factual grounds to conclude that the council’s offers of accommodation had been received by the applicants, in accordance with the legal requirements under the HA 1996, and had been turned down. The HA 1996 itself also provided a number of procedural safeguards to protect the civil rights of the applicants, including under a right to appeal to the County Court under section 204).
LHA duty to secure selective licensing applications was not a duty to individual landlords (Thanet DC v Grant (unreported), 29 October 2015, Divisional Court)
The Divisional Court has held that the duty to secure selective licensing applications under Part 3 of the Housing Act 2004 (HA 2004) was not a duty to individual landlords but was instead a targeted duty.
The respondent owned a tenanted property in an area that was subject to selective licensing under the HA 2004. The council prosecuted him for failing to obtain a licence contrary to section 95(1) of the HA 2004 and he sought to rely on the defence of reasonable excuse stating that the council had failed to inform him of the licensing requirement contrary to section 85(4). The magistrates’ court acquitted the respondent holding that the council had failed to publicise the scheme to him and he therefore had a reasonable excuse for failing to obtain a licence for his property. The council appealed.
The Divisional Court upheld the appeal holding that the duty under section 85(4) of the HA 2004 on local housing authorities to take reasonable steps to secure that licence applications are made to them in respect of relevant properties was not focused on any relevant landlord. It was a targeted duty, rather than a duty to each and every landlord in a relevant area.
House of Commons briefing notes published
The House of Commons Library has published briefing papers on:
ONS reclassifies housing associations as part of the public sector
The Office for National Statistics (ONS) has announced that private registered providers of social housing in England (PRPs) will be reclassified as Public Non-Financial Corporations for the purpose of the national accounts and other ONS economic statistics. The decision was made following a review, which concluded that all PRPs are subject to public sector control. The decision applies retrospectively with effect from 22 July 2008, when the Housing and Regeneration Act 2008 came into force.
The government has stated that this is a purely statistical measure and will not make a practical difference to the way that PRPs are classified more generally.