Factionalism and Housing Law

Andrew Arden QC reflects on the persistence with which housing law appears to prefer factionalism to co-operation between all those involved in the task of securing housing for people most in need of it.

I have railed against factionalism in housing law for so long now – in articles, editorials and lectures – that there probably isn’t much point in doing so again: to name but a few, see A Talk to the Housing Law Practitioner Association, December 14, 2005 [2006] JHL 17, A Plague on Partisanship [2007] JHL 69 and Social Housing Law Association – January 24, 2008 – The Future Role of the Housing Lawyer [2008] JHL 39.

In particular, I have expressed concern that such factionalism allows those who oppose publicly funded housing and publicly funded housing law to exploit divisions. To me, it seems self-evident that an attack on any element of the housing law process is an attack on all: the constituents of housing law are not only those who need social housing but also those who provide it. Without revisiting all the arguments, cutting public funding for housing does not only hurt tenants and the homeless but deprives social landlords of the input they (also) provide in relation to the subject – without that check or balance, housing becomes one-sided: just because it is about the occupation of homes, housing law is about a continuing relationship as much as, say, family law – it only needs saying to appreciate the point and its implications.

I founded Arden Chambers on this principle. In the first 15 years or so of my practice, long before I did so, it had been believed that I, too, acted only on one “side” – for tenants and the homeless. In response to accusations of breach of the cab rank rule, I wrote – on behalf of the Chambers of which I was then a member – an article in the LAG Bulletin in the late 1970s entitled “Some People Can’t Afford Taxis” (or something like that – I cannot even find a copy now!). I claim no great credit for doing so: it was relatively easy to make a living on legal aid in those days: yes, it earned less than private work, but it was freely available, the rates of pay were far better than they now are and the legal aid authorities did not (as they do now) impose utterly unrealistic limits on the amount of time one could devote to a case.

There was, however, a clear point to what those of us engaged in that work, from that perspective, were doing: housing law barely existed as a subject, referring only to statutes conferring powers (few duties) on local authorities. To defend private tenants meant digging deeply into areas of landlord and tenant law that were nothing to do with how tenants at the poorer end of the rented sector actually lived or even about residential accommodation; to defend local authority tenants required burrowing into an ill-developed body of public law that was extremely resistant to challenge; courts were openly hostile to tenants – there was no homelessness law until 1977. Standing up for tenants and the homeless loudly and unqualifiedly – commensurate with a partisan approach – was, I believe, essential to the exercise of establishing the subject as one in which they had at least as loud a voice as that of the landlords and authorities whose claim on the terrain was as historically well-established as it was legally well-resourced.

For myself, I began to work with local authorities during the 1980s, in a lengthy, high profile enquiry into housing associations for the GLC and in relation to housing policies and local government finance, leading me to work closely and to form relationships with some of the most committed and – above all – most principled people I have had the privilege of knowing. Gradually, my focus expanded to include (and to appreciate and respect) what local authorities and housing associations were doing to provide housing – and to manage it better by way of, e.g., more tenant involvement, more transparency, improvement, re-development and even new developments which took full account of what those who would live in the accommodation wanted. (I am reminded of a memorandum disclosed during litigation in the late 1970s over disrepair in a large local authority estate, the design of which had won awards for its Borough Architect. The memo was from him to the Director of Housing and protested that “There was nothing wrong with these houses until you put tenants in them”).

Whether this analysis is self-justification for a form of “selling out” or a genuine evolution I do not know and I am not sure it matters – my point is that an approach which acknowledges and accommodates all housing’s constituents is far more likely to succeed in a sustainable way than keeping a score card as to which side has won the most skirmishes.

I should make clear, however, that when I refer to factionalism, I do not only mean on the tenant/homeless persons side. Some landlords’ lawyers – even those whose work is exclusively in the social housing sector – have been just as guilty of partisanship, some perhaps more so. I and my Chambers have more than occasionally suffered the withholding of work by a client local authority which took offence because we had appeared for a tenant, homeless person or waiting-list applicant against it, even where there has been absolutely no basis on which we could have refused to do so, commensurate either with cab rank or with our own sense of professionalism and purpose.

Be that potted history as it may, I had begun to think that times were a’changin’ and that the tendency towards factionalism was softening. Partly, I ascribed this to housing law starting to come of age and more of its practitioners appreciating that the most meretricious position rarely serves any useful long-term end. Partly, it was evident that the current pressure on public funding in housing was leading some practitioners to modify their publicised principles, whether one wants to call this financial realism or opportunism likewise does not really matter. (Not long ago, I was – rather painfully at the time – accused of selling out by an old friend, for whom I once had a profound admiration, now running his own firm of solicitors; a – very – few weeks later, I read an article by him, identifying his firm, in the pages of a magazine directed to – and read almost exclusively by – social landlords, given over to solicitors seeking to promote their profiles within that market. In the same vein, some of the lawyers who have made their names acting for tenants and the homeless nonetheless add to their incomes by advising social landlords, even if they are unwilling to be seen to do so and will not appear in court on their behalves).

I was, therefore, surprised and disheartened to receive information about a meeting to be held by housing practitioners, to consider making the same sort of public protest as our criminal colleagues have made about the continued reduction in public funding, possibly leading to similar action by way of “strike” that has attracted so much attention, generated so much support and is already having an effect on policy.

What has been most striking (sorry!) about this action on the part of the criminal bar is the support it has enjoyed from across the profession, from the most junior barristers to the law’s most established institutions, as indeed the information itself makes clear. Opposition to the cuts is virtually universal across the profession and rightly so: the plain and simple fact of the matter is that, as a society, we have an adversarial system of justice (criminal and civil); we don’t have to do so – we could have a more inquisitorial approach, or even one modelled more closely on a starting-point of consensus; we choose to do so and in making that choice, it requires us to ensure equality of arms – nothing else could even remotely, even arguably, comprise a system of justice. It follows as night follows day that there is a duty to ensure representation (as, in my view, Strasbourg will ultimately hold).

Which brings me – meandering as I may – to the point of this post. I congratulate the organisers of the meeting and hope that, perhaps by the time this appears on the LAG site, it proves as productive as it deserves to be. Nonetheless, organisation of the meeting was self-evidently and gratuitously partisan, drawing in three sets of chambers whose housing work is oriented towards tenants and the homeless (publicly funded) while leaving out altogether both Arden Chambers, which is the largest housing law set in the country and which routinely acts for tenants and the homeless at a volume at least commensurate with some of those involved but which also acts for landlords and local authorities, and others who may likewise confidently have been expected to make both a significant contribution to the discussion and – I am right at the core now! – to afford any action the level of support and credibility that it will need if it is to be as successful as that opposing the criminal legal aid cuts instead of being seen as self-interested and one-sided if not an opportunity to draw attention to some – but not all – those who participate in the process itself.

Of course, the meeting invites others to attend but let us not ignore reality: the foundations are laid by its organisation; the tenor is set by its proponents. After some 40 years of practising housing law – yes, I really am that old! – there is, to my mind, no greater failure than to have to witness continued partisanship amongst lawyers still being preferred to co-operation in the interests of occupiers: the cosy comfort of like-minded people rarely pushes the envelope of what is achievable.

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We shall not be moved

Andrew Arden QC and Robert Brown consider the rise and rise of the private rented sector and the corresponding need to afford more protection to tenants

Earlier this year, the English Housing Survey revealed that, for what it claims is the first time, the private rented sector was larger than the social rented sector; how accurate this is may be in doubt as, while concerned with stock rather than households, DCLG’s Live Table 104 identifies that the private rented sector was larger than the social rented sector in 1961. Be that as it may, in 2012-13, 4.0 million households in England rented from private sector landlords, while 3.7 million rented from social landlords. While the private rented sector is still considerably smaller than the owner-occupier group (comprising 14.3 million households in England), it is the largest growth area, having doubled in size since the turn of the century. The present government is keen to see this growth continue; the enhanced ability for local housing authorities to discharge their homelessness duties by placing applicants in the private sector is testament to this: Localism Act 2011, s.148 amending Housing Act 1996, s.193.

The rapid growth of the private rented has not been without problems. Rent aside, the two most important problems are security and conditions.

Tenants in the private rented sector have negligible security of tenure. Lettings are, by default, assured shorthold: Housing Act 1988, s.19A. All that is required before eviction is service of a notice telling the tenant that the landlord wants the property back after two months (HA 1988, s.21) followed by application to court for a possession order which, provided the right procedure is followed, can even be obtained without the need for a hearing (CPR 55.11-19).

While some of the private rented housing is very good, the sector also contains some of the worst stock: 9.3% of private rented homes have some form of damp problem (compared to 2.6% for owner-occupied properties and 5.4% across the social rented sector) – English Housing Survey, p.69. Indeed, 33% of dwellings in the private rented sector fail to meet the decent homes standard: English Housing Survey, p.42. By way of comparison, the equivalent proportions are 20% for owner-occupiers and 15% in the social rented sector.

Concerns have been raised about placing homeless applicants in such accommodation, to the point where the Minister for Housing, Kris Hopkins MP, felt compelled to write to the leaders of a number of local housing authorities, reminding them about the Homelessness (Suitability of Accommodation) (England) Order 2012, which includes the requirement that properties used to accommodate homeless households should be in reasonable physical condition, and about the “Gold Standard” scheme, “which aims to help local authorities raise the standard of their services to homeless people”.

It should not be like this. Tenants, whether renting in the private or social sectors and whether placed in it as homeless or not, have much the same rights so far as repair of their homes is concerned: s.11 of the Landlord and Tenant Act 1985 imposes an obligation on landlords of most residential tenancies to keep various parts of the dwelling in repair.

The difficulty for tenants in the private rented sector is enforcement, at which point the problems of security and condition collide. While it is not always plain sailing for those in the social sector, in the end a social landlord will normally carry out the necessary works. Lack of security of tenure in the private sector gives landlords an easy way out. Eviction is often a cheaper and easier option than carrying out repairs, especially given the growing demand for rental properties.

This blog has touched on the problem of “retaliatory eviction” before. Perhaps others are listening! The Government has launched a Review of Property Conditions in the Private Rented Sector. This not a full-blown consultation or any indication of policy direction. It is described as a “discussion document” and is the first stage of a review into property conditions. The Government is at pains to point out that the purpose of the discussion document is to stimulate debate. The discussion document sets out six areas of concern:

i. rights and responsibilities of tenants and landlords;

ii. retaliatory eviction;

iii. rent repayment orders;

iv. safety conditions;

v. licensing of rented housing; and

vi. the Housing Health and Safety Rating System.

It is the second of these with which this post is concerned.

The discussion document notes that there is

“anecdotal evidence to suggest that some tenants are concerned that if they request a repair or improvement to the property, their landlord will decide that the easiest course of action is to simply evict the tenant, rather than carrying out the repair or improvement.”

To say that there is “anecdotal evidence” downplays the problem: in housing terms, it is a given that to complain runs the risk of eviction, and it is sufficiently commonplace that every housing adviser has to factor it in when suggesting remedies to occupiers. For the first time, there is also now some – quite stunning – data. A recent investigation by Shelter suggests that 200,000 people had faced eviction in the previous year for having asked their landlord to fix a problem in their home. While it is true that (as pointed out by the Residential Landlords Association when it accused Shelter of “needlessly playing to people’s fears”) this figure includes those who weren’t actually evicted, it is still a staggeringly high number; nor is there any reason why people who complain about housing conditions should have to risk uncertainty and even distress especially now, when the private rented sector contains many, many more families with children than has been the case over the previous five decades.

If a tenant believes, rightly or wrongly, that eviction could be the result, it would be a bold move to complain. While the tenant could get a better (i.e. repaired) home, he could also end up with none at all. In some cases, tenants choose to keep quiet, even if they have a landlord who would be prepared to carry out repairs if asked. The fear is inherent to the nature of the relationship: however far we have travelled since all landlords wielded absolute, arbitrary authority, the relationship is one rooted in power imbalance – so deeply that it still has a psychological hangover which commonly ( not occasionally) inhibits tenants.

The suggestion put forward in the discussion document is to extend the restrictions on relying on a s.21 notice until the repairs have been carried out. At present, a landlord cannot rely on a s.21 notice where the property should have been licensed by a local authority but has not been (Housing Act 2004, ss 75 & 98) or where a deposit has been taken and not protected in accordance with a tenancy deposit scheme (Housing Act 2004, s.215). These prohibitions have been in force since in April 6, 2006, and April 6, 2007, respectively, and the sky has not fallen in on the private rented world. The discussion document considers the possibility of a similar prohibition applying where a property is in serious disrepair or needs major improvements.

A landlord would still be able to rely on any of the discretionary grounds for possession. It might be thought that this is acceptable on the basis that the court can consider the overall reasonableness of making an order for possession, as part of which the court would be able to take into account proceedings motivated by spite. In practice, however, this is marginal because the starting-point remains a level of default (arrears or ASB) sufficient to justify outright eviction (in the case of arrears, after any deduction for the counterclaim) before the issue of spite is relevant; many courts – maybe most – will take the view that what they will view as two wrongs don’t make a right; and, it is not difficult for the landlord to rebut the accusation with the simple answer that it is cheaper to repair vacant than occupied.

The landlord would also still be able to rely on the mandatory ground for possession for rent arrears, Ground 8. This applies where, broadly speaking, the tenant is two months’ behind on the rent, likewise subject to any disrepair counterclaim. In those cases, the court has no discretion and must make an order for possession. Restrictions on retaliatory eviction therefore do not come into play.

In both cases, therefore, the tenant who seeks repairs will need to be careful not to give rise to putatively legitimate grounds.

The two difficulties identified in the discussion document are how to identify an appropriate “trigger” for introducing a restriction and how to prevent spurious or vexatious complaints (which presumably would include those raised after the landlord has already begun – or threatened – eviction). The discussion document suggests that the appropriate trigger might be “following a local authority inspection or even later in the enforcement process.” It appears to be suggested that this sort of trigger would prevent spurious complaints that are designed merely to frustrate a landlord’s entitlement to possession.

To suggest that such an important protection as is being proposed should only apply once there has been a local authority inspection (or even later in the enforcement process) is surely to create yet another postcode lottery, in which the degree of protection afforded to tenants depends entirely on the relevant local authority’s willingness or ability to take action: many authorities now routinely fail to enforce lower level planning breaches simply because of cost; few authorities (if any) have reinforced their Tenancy Relations services to reflect the increase in the private rented sector; EHOs are massively overstretched (and were never in living memory one of those services which authorities resourced generously).

The better option could be to leave this as a matter for a court to adjudicate on: if it turns out that there is no disrepair, the court would be able to make an order for possession in the usual way; if, on the other hand, the tenant has made a complaint about disrepair and the landlord then serves a s.21 notice, the court should be able to presume that the notice is retaliatory and dismiss the claim for possession unless the landlord can satisfy it that the notice was not given to the tenant because of the exercise of his rights. A model, of sorts, can be found in employment law, where an employee who is dismissed because of whistleblowing (a “protected disclosure”) is treated as having been unfairly dismissed: Employment Rights Act 1996, Pt 4A & s.103A.

One possible problem with this is that many landlords serve a s.21 notice at the start of a tenancy, which they can then rely on at any point later on. The answer to that would be to implement the proposal put forward by the Law Commission in Renting Homes, so that a s.21 notice (or its equivalent under those proposals) lapses after four months if proceedings have not been commenced.

The alternative, as we have discussed previously, is for the courts to develop a positive defence of retaliatory eviction. One way to do this would be to acknowledge that an art.8 defence can be raised in the private sector, as the overwhelming body of Strasbourg law now seems to suggest (see, e.g., Tysiąc v. Poland (2007) 45 EHRR 42, Zehentner v. Austria (2011) 52 EHRR 22, Zrilić v. Croatia, Application no. 46726/11, 3 October 2013, and Brežec v Croatia [2014] HLR 3), and as the High Court has recently held (although, on the facts of the case it did not assist the occupiers): Manchester Ship Canal Developments v Persons Unknown [2014] EWHC 645 (Ch). See also the minority judgment of Sir Alan Ward in Malik v. Fassenfelt [2013] EWCA Civ 798. On this scenario, retaliatory eviction would be deemed to be a disproportionate response to a (valid) complaint about disrepair.

The blog previously bemoaned the lack of legislative development on the issue of retaliatory eviction: while the discussion document states that it does not recommend any policy or legal changes, any measure to address retaliatory eviction will necessarily require the latter. Whether the implicit premise of the proposal – that (once the works have had to be carried out) most landlords, as reasonable people, will allow the tenant to remain and enjoy the benefit of the works – is correct is something only time could tell; for the moment, the proposal is not unattractive and – re-introduction of security and/or enhanced local authority resources aside – probably the best that is likely to be on offer.

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Ass not what your landlord can do for you

Andrew Arden QC and Robert Brown consider the current Anti-social Behaviour, Crime and Policing Bill and describe how the latest extensions to the grounds for possession continue the policy of using social housing as both a carrot and a stick to control behaviour

Carrot-and-stick social housing policy is continued by the Government’s Anti-social Behaviour, Crime and Policing Bill shortly due to be passed: those considered deserving of social housing have the prospect of an allocation and even security of tenure dangled before them (see Social housing and the ‘deserving poor’), while those occupying social housing have the threat of eviction looming over them should they step out of line.

The Bill contains two radical extensions to the grounds for possession. First, it contains further provisions facilitating eviction without a court decision as to the reasonableness of an eviction – leaving the occupier dependent on the Government’s favourite new excuse for withholding conventional security, the virtually unachievable threshold of proportionality; secondly, it takes the final step to break the geographical link between ASB and the home as a ground for possession, spelling out (finally, as if it hadn’t long been clear that this is where the law was heading) the use of social housing as a tool for social control rather than the use of grounds for possession as a tool for the management of social housing.

This is the continuation of an approach that started with the ASBI in the Housing Act 1996 aimed at the media-fostered “neighbours from hell”, when – along with the ASBI – introductory tenancies were brought in and the nuisance and annoyance grounds for possession (Ground 2 for secure tenancies, Ground 14 for assured tenancies) were extended; it was developed by the Homelessness Act 2002 which put on a statutory footing the right of local housing authorities to exclude from waiting-lists those they considered guilty of ASB; it was given more teeth by the Anti-social Behaviour Act 2003, with the introduction of the demoted tenant and the change in language which shifted the ASBI from conduct actually causing – or likely to cause – a nuisance or annoyance to conduct merely capable of it; ignoring minor developments, we pause at the Localism Act 2011 amendments to allocations which made it even easier to exclude those deemed anti-social; we end (for the time being) with this Bill which retains the existing scope of the ASBI (albeit under the catchy new acronym “IPNA” – injunction to prevent nuisance and annoyance) and introduces these two new grounds for possession.

Civil libertarians have also had much to say about additional grounds for an IPNA: the universal ground (anyone, anywhere against anyone else) of harassment, alarm and distress (replacing the initial bid for conduct capable as in the ASBI which was rejected by the House of Lords leading to this compromise); and, “the Pilkington ground” (Fiona Pilkington killed herself and her disabled daughter after years of abusive conduct by local youths), conduct capable of causing nuisance or annoyance to a person in relation to occupation of residential premises. Neither of these is a housing law issue: the latter may be about housing, but that does not make it about housing law.

Changing the grounds for possession most certainly is. The first of the two new grounds is – in substance – a mandatory ground for possession, i.e. no reasonableness discretion, arising in any of five specific circumstances, in the case of a local authority landlord of a secure tenancy only preceded by an internal review à la introductory, demoted or flexible tenancy, where:

i. the tenant, or a person residing in or visiting the dwelling-house, has been convicted of a serious offence in, or in the locality of, the dwelling-house or against a person from that area or the landlord (a list of which is specified in a Schedule to be inserted into the Housing Act 1985);

ii. a court has found that the tenant, or a person residing in or visiting the dwelling-house, has breached a provision of an IPNA in, or in the locality of, the dwelling-house or has breached a provision designed to protect a person from that area or the landlord;

iii. the tenant, or a person residing in or visiting the dwelling-house, has been convicted of a breach of a criminal behaviour order in, or in the locality of, the dwelling-house or has breached a provision designed to protect a person from that area or the landlord;

iv. the dwelling-house has been subject to a closure order; or

v. the tenant, or a person residing in or visiting the dwelling-house, has been convicted of an offence under s.80(4) or s.82(8), Environmental Protection Act 1990, in relation to noise nuisance.

This is startling stuff: because you are a person against whom another order has been made, or because a member of your household is, or even because a visitor to your home (or a member of your household) is, out you may go. As under s.160A, 1996 Act as introduced by the Homelessness Act 2002 (no longer in force in England) which lumped the anti-social in with certain classes of immigrant to be excluded from allocations, this stigmatises people as a category to be excluded from social housing without regard to the extent of the conduct in question, its effect on others or its relevance to housing management. At least the 2002 amendment had the grace to qualify the exclusion in terms of being conduct so serious as to make the applicant unsuitable to be a tenant. Under this provision, that does not arise: commit the act – you are capable of being treated as unsuitable (evicted) of definition.

As for the discretionary ground, this arises when

“The tenant or an adult residing in the dwelling-house has been convicted of an indictable offence which took place during, and at the scene of, a riot in the United Kingdom.”

This does not extend to visitors and is confined to other adult members of the household; it is subject to reasonableness; critically, however, it is applicable to any such conduct anywhere which not only makes the same “stigmatisation” or “definitional” proposition, albeit subject to judicial discretion, but also breaks the link between the conduct and occupation of a particular property (as stretched since 1996 to mean occupation within a particular area, which is, of course, still a geographical or land-based limitation).

Defenders of this rely on judicial discretion. There are more than 3,000 county court judges (circuit and district) – the range of views that may be adopted is very wide indeed; furthermore, the very fact that this ground is not linked (in some way) to home and/or locality (or landlord) where other provisions are (including some that are discretionary) means that this cannot be read into the grounds as a legally essential element of them, i.e. the argument that Parliament assumed courts would never make an order without that sort of link is unlikely to succeed (although whether such an order could withstand Art.8 scrutiny must be in doubt).

As we said in June 2012

“The idea that the punishment of eviction can extend to the family of a criminal, even in relation to conduct unconnected with the home, is offensive. In criminal law, one person of full age and capacity cannot usually be held to be responsible for the acts of another… Why does that apply with less force to social housing?” (Anti-social proposals?).

There’s another question we could also ask: draconian sanctions applicable to social housing tenants – including eviction – have thus far failed to stem the perceived tide of ASB nor is there the first shred of evidence that making them even more available to landlords will have any greater effect on the problem; what on earth makes the Government think it will be any different this time?

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Something to welcome – for a change!

Andrew Arden QC and Robert Brown consider a new report on social welfare law provision and find much to support in its proposals

It makes something of a change for this blog to to find something to agree with – it happens so rarely. On the other hand, as what we are agreeing with is the proposals in the LAG-commissioned Low Commission report, Tackling the Advice Deficit: A strategy for access to advice and legal support on social welfare law in England and Wales, perhaps it’s not that big a surprise.

The Low Commission was set up in 2012 by LAG to develop a strategy for addressing problems that had arisen as a consequence of cuts to legal aid and local authority funding for social welfare law provision at the same time as demand for services was increasing.

The present Government’s approach to legal aid is well known. Several areas of law were taken out of scope for public funding by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”). Social welfare law has been hit as hard as any other area. The Ministry of Justice has estimated that £89m per year will be cut from the budget for social welfare law, out of proposed total cuts of £350m per year. At the same time, local authorities are having to cut back on expenditure. The Commission estimates that local authority funding for advice and legal support bodies will reduce from £220m for 2010/11 to £180m (or even £160m) by 2015/16.

The Report contains a precise 100 recommendations. The very first of them relates to housing, which raises mixed emotions; pleased as we are to see housing law accorded the importance it deserves, it is of course a reflection on just how badly it has been treated by Government. It appears that the general public agrees, as the Report records that the public too recognises the importance of help addressing housing disputes: a January 2012 survey found that housing law should be the second highest priority for state funding (after child protection).

Returning to the Commission’s recommendations, the first is that

“The Ministry of Justice should conduct a ‘sense check’ review of the matters excluded from the scope of the LASPO Act and consider reinstatement of some provisions to ensure that there are no inconsistencies between its stated aims and practice. In particular, we consider housing cases involving disrepair and the right to quiet enjoyment (protection from harassment and unlawful eviction); and advice on housing benefit should be restored to the legal aid scheme.”

We wholeheartedly agree. The importance of funding for disrepair and unlawful eviction cases is obvious (some of which remains in scope). Nor can the significance of advice on housing benefit be underestimated: many possession claims have their roots in a housing benefit problem. At risk of stating the obvious, a stitch in time…

It is simply too much to expect tenants to be able to address all of the benefits problems that can arise. The intricacies of benefits law are, after all, something that can surprise even the Department of Work and Pensions, as demonstrated by the recent discovery that as many as 40,000 claimants may have wrongly had their housing benefit reduced due to an apparent oversight in the drafting of regulations implementing the so-called “bedroom tax”.

Proper advice to assist with navigating the complicated bureaucratic maze that is the benefits system can stop a tenant from falling into (or deeper into) rent arrears. In turn, that can save time and money (public money where social landlords are concerned) from being spent on chasing the tenant up for the rent. Even better, benefits advice can sort a problem out before a possession claim is issued, saving court time and public money – not to mention the stress and anxiety that is avoided. Then, of course, it saves money – and avoids misery – arising out of homelessness, whether deemed unintentional or even if intentional (when there are children involved so that social service expenditure has to be incurred).

That sort of joined-up thinking has been sadly lacking in the approach to legal aid and advice funding. As the Report rightly notes, the effect of changes to legal aid funding is not just that people have to wait until they reach crisis point before they can access advice, but that they get caught up in a ‘revolving door’ in the sense that they “keep returning to crisis point as the problem will only be temporarily masked, not solved”.

That cannot be good for anyone – including those who are paying for such a manifestly ineffective system. The case for reform is overwhelming.

To that end, the Report advocates a “fresh approach, which involves measures to reduce the need for advice and legal support in the first place”. Key elements of that approach include public legal education and simplifying the legal system.

Again, we agree. The importance of public legal education has always been a significant Law Centre activity, as the Report acknowledges.

Simplicity and clarity in the law is to be commended, especially in something as fundamental as housing law. Far too often, neither can be found. It is a sorry state of affairs when even experienced housing lawyers are sometimes unable to state with any degree of certainty what benefits claimants are entitled to, or what repairing obligations their landlords have, or whether they will be ordered to leave their properties and so on. Unfortunately, that is often the position.

This is not a new complaint: see A Arden, ‘Enough is enough – a cry for a housing code’, JHL 2006, 9(6), 93-95. We therefore have little optimism that things will get better in England, although there are some encouraging signs in Scotland and Wales, which we covered in a previous post. The Report adds its voice to the continuing demand that the Department for Communities and Local Government should revisit the Law Commission’s Renting Homes recommendations, which as we all know – and keep complaining – have still not been implemented in England.

The Report also calls for promotion of the role of housing associations in

“funding the provision of independent advice, especially face-to-face advice, through publishing examples of good practice, including joint commissioning with other housing associations, while also stressing the need for advice to be seen as an integral part of the business of running a housing association.”

We are less sure about some other recommendations, in particular that

“The Local Government Associations for England and Wales, the National Housing Federation and Community Housing Cymru should investigate the feasibility of making legal insurance cover available to social housing tenants.”

This strikes us as mildly out of touch with reality: true, housing problems are not confined to those who fail to manage their affairs properly (who would therefore be unlikely to take out the cover) but we doubt that the number of those who would anticipate problems early enough to do so would be sufficient to justify the cost of the investigation or experiment. What would be more realistic is a mandatory scheme pursuant to which social landlords are required to raise a small amount of additional rent to be diverted either to legal insurance cover or directly to fund legal advice and assistace: if across the social housing board, the addition would be small: with almost four million homes in the social rented sector, a rent increase of £23 p.a. would replace the £89m cut from the MoJ budget for social welfare law, not all of which is about housing so that an even smaller sum would make up the shortfall.

Taken as a whole, the Report recognises that there are no quick fixes, given the country’s finances, but that a long-term plan is needed, such as annual reviews of the impact of LASPO and a national strategy for advice and legal support for 2015-20.

We can only hope that the Government is listening. If not this one, then the next. Or the one after. Or the one after that. Just like the ones that went before – not!

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Should auld allocations be forgot?

In their first post of 2014, Andrew Arden QC and Robert Brown discuss new housing allocations guidance

As 2013 drew to its inevitable close, an efficient civil servant at the Department for Communities and Local Government (DCLG) took the opportunity to publish new guidance that will encourage local housing authorities to restrict the allocation of social housing to – mostly – local people. The additional guidance, Providing social housing for local people: Statutory guidance on social housing allocations for local authorities in England (the Guidance) was published on December 31, 2013. A cynic might suggest that this could be viewed as a good day to bury bad news, when people have their minds on other matters. Given the doom-laden reports then prevalent about an imminent immigrant invasion, however, we suspect that the reverse is true and that the timing was designed to try to get this into, rather than out of, the news. This might be supported by the – rather misleading – press release that accompanied publication of the Guidance.

“The guidance makes clear that only hard-working families, with a well-established residency, relatives or a job in the local area can go on their council’s waiting list, so they are the first [to] benefit when homes become available.”

The Guidance follows on from the consultation issued by DCLG in October 2013, discussed in a previous blog.

“The proposals are simplistic. They promote indirect discrimination against foreign nationals and fail to take account of the realities of modern living. The outcome may – as intended – mean shorter waiting lists for social housing but only because authorities will be exercising a carte blanche to exclude large numbers of people who currently qualify and the price of it will inevitably be an increase in the number being housed under Part 7, and for longer periods. It might reduce the numbers on the waiting lists, but it is not going to reduce the number of people actually waiting for social housing so much as sweeping them under the carpet.

“…

“Why do the words ‘go home foreigners’ ring in our ears?”

It might have been hoped that the consultation process would soften some of the harsher elements, so that the Guidance did not suffer from the same failings. Sadly, there is no cup o’ kindness here.

Qualification for social housing

Instead, much of the consultation paper finds its way into the Guidance without change, some of it almost word for word. Perhaps more importantly, once we get into the substance of the Guidance, it appears that every substantive proposal put forward in the consultation paper has been adopted in the Guidance. (How far this reflects the responses is unknown: they have not yet been published).

Thus, at para.13, DCLG notes that

“Some housing authorities have decided to include a residency requirement as part of their qualification criteria, requiring the applicant (or member of the applicant’s household) to have lived within the authority’s district for a specified period of time in order to qualify for an allocation of social housing.”

The Guidance goes on to say that

“The Secretary of State believes that including a residency requirement is appropriate and strongly encourages all housing authorities to adopt such an approach. The Secretary of State believes that a reasonable period of residency would be at least two years.” (Emphasis added).

The Guidance acknowledges that housing authorities might consider adopting other qualification criteria so that applicants who are not currently resident in the district but still have a “strong association” to it can nonetheless qualify. It is not much of an amelioration, if any. The two examples are: where there is a family association; and, where the applicant or a member of their household is currently employed in the district and has been so for a number of years (para.15). Neither does anything to counter the discriminatory effect of the proposals especially as the treatment of duties under Equality Act 2010 in the Guidance is, to put it mildly, superficial: it does nothing more than reminding authorities of the need to have regard to those duties, without any clue how to do so; merely pointing out a (well-known) set of duties does not equiparate to meaningful guidance.

One new aspect is the suggestion that some authorities may choose to share a common allocation policy with neighbouring authorities and adopt a broader residency test which would be met by living in any of those neighbouring districts (para.14). This appears attractive but consider how it works: there is never an exact match between stock size and profile of waiting list; accordingly, the larger the priority pool, the harder it is for anyone else to get in.

Exceptions

As foreshadowed in the consultation paper, the Guidance does suggest some circumstances in which exceptions should be provided to the residency/association test. The examples, which are said not to be intended to be exhaustive, include: applicants who have to leave another area to escape violence or harm; homeless families (although not, apparently, homeless individuals) and care leavers previously housed by the authority outside of their district; and, applicants who need support to rehabilitate and integrate back into the community (para.19).

At para.20, however, the Guidance also suggests that:

“There may also be sound housing management reasons to disapply a residency test for hard to let stock.”

Putting the principal thrust of the Guidance together with the exceptions and this proposition, what it translates into, somewhat ominously, is the use of those in particular need to fill up the worst stock.

The Guidance also reminds authorities of the Allocation of Housing (Qualification Criteria for Armed Forces) (England) Regulations 2012 (SI 2012/1869), to ensure that members of the Armed Forces are not disadvantaged by residency requirements.

Arguably, the only stance-softening on display (or, rather, not on display) is the failure of the suggestion in the consultation paper that in “the case of foreign nationals who are sleeping rough, appropriate options might include reconnection to their own country” to make it through to the final cut. This approach is, however, already extensively used and its absence is unlikely to stop it.

The Guidance informs us that there is a further consultation to look forward to in the spring, which will look at options to implement the Government’s new “Right to Move” policy. Doubtless, we will return to this at the time, but in the meantime the Government expects

“housing authorities to make appropriate exceptions to their residency test for social tenants so as not to impede labour market mobility.”

We finish by noting that there is also one important addition in the Guidance that had not been found in the consultation paper (para.5).

“Social housing – stable and affordable – is of enormous importance for the millions who live in it now and for those who look to it to provide the support they need in future. The way it is allocated is key to creating communities where people choose to live and are able to prosper.”

We would not disagree with the sentiment: it sits ill, however, with the policy thrust of flexible tenancy; and, the Guidance itself speaks volumes about the sort of divided and discriminatory communities which the government has in mind.

We are left wondering (to borrow immodestly from Arden & Hunter, “For whom is social housing?”, JHL, 2011, 14(5), 95-98):

“If publicly subsidised housing isn’t for the most needy, then who is it for?”

The urge to answer this question with “voters” is irresistible.

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Bah humbug!

Andrew Arden QC and Emily Orme take a quick look back over the main changes in the housing sector through 2013.

 

Christmas – a time for reflecting on the past year, forgiving and making amends. Housing has had its fair share of ups and downs over the last 12 months but remains in crisis. Demand for housing continues to outstrip supply and with house prices rising at an estimated 5% year on year, nationwide “affordable housing” is a rarity. Home ownership is a pipedream for most people. The rented sector isn’t doing much better. Housing waiting lists remain long and the current campaign being run by housing charity Shelter suggests that there will be 80,000 homeless children in the UK this Christmas.

 

What has the government done to address the housing crisis in 2013?

 

A cap on benefits that has affected 28,482 households according to the most recent statistics released on December 5, 2013 by DCLG. The number of households with a cap still in place stood at 25,508 at the end of October 2013. Of those households, 24,547 had at least one child.

 

The bedroom tax (or Spare Room Subsidy to use the proper name) introduced a deduction from housing benefit if the tenant of a property was deemed to be under-occupying. The intention was to encourage people in larger properties to downsize, thus freeing up the estimated 1.5 million spare rooms in larger accommodation for those who needed it. The problem is that there is insufficient smaller accommodation (one and two bedroom) to allow everyone who wants to downsize and avoid the benefit deduction to do so. As a result, many tenants have been forced to tighten their belts or go into rent arrears. The policy has particularly affected tenants who are disabled or who have family members that are disabled: whilst an exemption exists for people who require a live-in carer, no account is taken of rooms that are required for storing medical equipment or for medical/treatment purposes.

 

The bedroom tax has added to an already growing problem of rent arrears. At the end of June 2013, the Scottish Housing Regulator estimated that as a direct result of the bedroom tax, rent arrears had increased across Scotland alone by £789,000. According to statistics from the Ministry of Justice and the Office for National Statistics, at the end of October 2013, there were 45,000 possession claims for rent arrears pending in county courts around the UK. Between January and September 2013, there were 28,132 evictions carried out by bailiffs. The statistics grow in number for each quarter.

 

Greater use of the private rented sector to discharge local authority duties towards the homeless has pushed more people into housing that lacks security of tenure, making it far more likely that they will need to keep returning to the authority for rehousing in the future. A revolving door approach to a perennial problem.

 

The Help to Buy scheme – originally scheduled to come online in 2014 – was fast-tracked and started in October 2013. The idea was to assist people in obtaining 95% loan-to-value mortgages and get them on the housing ladder. The reality is that the housing ladder has been pulled out of reach for many people who might want to get onto it because the scheme has helped fuel the already rapidly rising house prices and has added to the housing bubble.

 

There has been a number of consultations on possible new housing policies, most of which are aimed at restricting access to housing – “Providing social housing for local people: Strengthening statutory guidance on social housing allocations” (DCLG, October 2013) is just the most recent example of those and suggests that the government is seeking to reduce housing waiting lists not by providing more affordable housing but by tightening the rules for those who will qualify to be on the register in the future. Something of a head-in-the-sand way of tackling the lack of affordable housing.

 

To cap it all, at a time when innovative policy thinking and clear direction is required to deal with the problems faced by the housing sector, the post of Housing Minister was down-graded to that of Parliamentary Under-Secretary. It might have been more sensible to elevate it to Cabinet level.

 

The scrimp and scrape approach to try to find more money to reduce the spending deficit has a ring of Scrooge about it. Lets just hope that life imitates art and that in the same way Scrooge realised the error of his ways, positive change comes to housing policy in the future.

 

Don’t hold your breath.

 

Happy holidays anyway!

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Housing allocations – go home foreigners?

Andrew Arden QC and Emily Orme discuss the consultation paper on the proposed new housing allocations guidance and its likely effects.

 

On October 14, 2013, the Department for Communities and Local Government (DCLG) issued Providing social housing for local people: Strengthening statutory guidance on social housing allocations. The paper follows amendments to Part 6, Housing Act 1996 by the Localism Act 2011 to allow English authorities to set their own categories of “qualifying persons” (as a precondition to allocation, i.e. without qualifying, reasonable preference does not come into play), and the more recent ‘Allocation of accommodation: Guidance for local housing authorities in Englandissued by the DCLG on June 29, 2012. The Ministerial Foreword to the Guidance commented that “Under the previous Government housing waiting lists almost doubled, with many people left languishing on waiting lists for years.”. The changes were said to enable local authorities to “…better manage their waiting lists and promote mobility for existing social tenants.”

 

The purpose of the new proposals are to allow authorities to ensure that “…they prioritise applicants who can demonstrate a close association with their local area.” More specifically, the consultation paper includes the following.

  • All local authorities should be strongly encouraged to adopt a two-year residency test as part of the qualification criteria for housing allocation.
  • Favouring applicants able to demonstrate a strong association to the area.
  • Provision of exceptions to the above to protect:
    • people moving into a new area whilst fleeing domestic violence;
    • homeless applicants housed outside of their local authority area;
    • care leavers housed outside their local authority area;
    • applicants already in social housing who do not satisfy the proposed new residency test, but who want to downsize or move for employment purposes.
    • A sympathetic approach to ex-service personnel and their families.
    • Reminders to local authorities to operate a housing options approach alongside a restricted waiting list, i.e. assisting people to find non-social housing.

 

The last proposal is “refined” by reference to foreign nationals sleeping rough and suggests that an appropriate “housing option” might include “…reconnection to their own country”.

 

If the proposal for applicants to demonstrate a close connection to the local area in order to qualify for an allocation of social housing doesn’t restrict access for foreign nationals and immigrants, then the residency test certainly will. It is very difficult to see how this is not exclusion from social housing by the use of discriminatory criteria. The “exception” for people moving to find work applies only to those already in social housing.

 

As for the other exceptions, they do not go anything like far enough to take the edge off. Communities shift and change far more rapidly than they ever have before. National and international travel is faster, cheaper and more available than ever. People move between communities for many reasons, not just fleeing domestic violence or in search of employment: families break down and grow, people need to move into or out of areas for reasons of health, or as education begins or ends, or to be near other family members already relocated as each other’s needs change, e.g. to provide one another with care or even, as children leave the home, company. If, within two years of a move to a new local community, housing is lost and a person needs to apply for social housing, they will be excluded from re-allocation.

 

The proposals are simplistic. They promote indirect discrimination against foreign nationals and fail to take account of the realities of modern living. The outcome may – as intended – mean shorter waiting lists for social housing but only because authorities will be exercising a carte blanche to exclude large numbers of people who currently qualify and the price of it will inevitably be an increase in the number being housed under Part 7, and for longer periods. It might reduce the numbers on the waiting lists, but it is not going to reduce the number of people actually waiting for social housing so much as sweeping them under the carpet.

 

Nor will this be the end of it. The recent announcement that the government intends to limit access to welfare benefits to those who have been in the country for a year will, of course, extend to exclude assistance under Part 7. If, therefore, a worker moves here from elsewhere in the EU, with a job, family and accommodation – no benefit tourism or even work-seeking involved – but likewise loses the home through no fault of his own, it is not merely that he will not qualify for an allocation under Part 6 – realistically, he would be highly unlikely to have secured one – and not merely that he will not qualify for assistance under Part 7 but that authorities will not be able to assist him; in turn, he will not clock up time for an allocation even in the longer term.

 

Why do the words “go home foreigners” ring in our ears?

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