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Housing Matters: November 2020 round-up of legislation, case law, guidance and news

Posted on 09/12/20

Welcome to November's Housing Matters round-up.

Legislation

Cases

Guidance and news

Legislation

New protections for renters during the Covid-19 national restrictions

Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020 SI 2020/1290 – in force from 17 November 2020

These Regulations impose a stay on executing eviction writs and warrants and serving eviction notices by hand. The stay will last until 11 January 2021.

There are a number of exceptions, including enforcing possession orders on the grounds of anti-social behaviour. For more information see Covid-19: Protection for tenants on Shelter Legal.

Prisoners’ entitlement to benefits while on temporary release due to Covid-19

Social Security (Coronavirus) (Prisoners) Amendment Regulations 2020/1156 – in force from 12 November 2020 – amend Social Security (Coronavirus) (Prisoners) Regulations 2020/409

The earlier Regulations made provision to enable individuals on temporary release from prison due to the outbreak of coronavirus in Great Britain to access means tested benefits during the period of that release. The period of entitlement to benefits now expires on 12 May 2021.

The Department for Work and Pensions has issued guidance to local authorities in Housing Benefit adjudication circulars A8/2020 

Reallocation of earnings to a different UC assessment period

Universal Credit (Earned Income) Amendment Regulations 2020/1138 – in force from 16 November 2020 – implement Secretary of State for Work And Pensions v Johnson & Ors [2020] EWCA Civ 778

The Regulations provide for reallocating a calendar monthly payment of earnings to a different universal credit assessment period where it is necessary to maintain a regular payment cycle.

Changes to immigration rules affecting non-British rough sleepers 

Statement of Changes to the Immigration Rules HC 813

In force from 1 December 2020, paragraphs 9.21.1 and 9.21.2 of this Statement of Changes give the Home Office power to refuse permission to stay in the UK, or cancel permission already given if a non-British national is sleeping rough in the UK. The new rules are likely to affect only certain categories of migrants, including:

  • people on work, visitor and student visas
  • some victims of trafficking and modern slavery 
  • people with UK ancestry visas 
  • EU/EEA nationals who do not apply to the EU Settlement Scheme by 30 June 2021 
  • EU/EEA nationals who arrive in the UK after 31 December 2020. 

The Public Interest Law Centre has published a new info sheet on changes to Immigration Rules 

Changes to the ‘Right to Rent’ landlord checks

Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) (Amendment) Order 2020/1047 – in force from 2 November 2020 – amend Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) Order 2014/2874

This Order makes changes affecting the Right to Rent immigration checks that landlords must carry out when renting their properties. It amends the lists of acceptable documents and introduces a revised ‘Code of practice on right to rent: civil penalty scheme for landlords and their agents’. 

The Home Office has launched a new online tool to check the Right to Rent of individuals who have: 

  • a biometric residence card or permit
  • EU settled or pre-settled status
  • applied for a visa and used the ‘UK Immigration: ID Check’ app to scan their identity document on their phone.

The changes are fully explained in Landlord's guide to right to rent checks

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Cases

COVID-19 and priority need 

Bankole-Jones v Watford Borough Council [2020] EWHC 3100 (Admin) (24 November 2020) 

The High Court rejected the argument that every rough sleeper would be in priority need due to being vulnerable under section 189(1)(c) Housing Act 1996 (‘other special reason’) on the grounds of being at a particular risk of Covid-19. In this case, the applicant was not assessed as ‘clinically extremely vulnerable’ or ‘clinically vulnerable’ under the statutory Covid-19 guidance. The High Court accepted the local authority’s argument that to consider all those sleeping rough during the Covid-19 pandemic as meeting the statutory test of vulnerability would lead to distinguishing between different categories of homeless persons, an approach that was not supported by the legislation and case law.

Assessing when accommodation is settled 

Bullale v City of Westminster Council EWCA Civ 1587 (25 November 2020) 

The reviewing officer failed to consider all the relevant circumstances when considering whether the homeless applicant’s accommodation was ‘settled’ for the purposes of breaking the chain of intentionality under section 191 Housing Act 1996. 

When assessing whether the applicant has become homeless intentionally, the authority may look back beyond the immediate cause of homelessness to the start of the chain of events which led to it. This chain can be broken by a period of ‘settled’ accommodation. 

For more information on how the chain of causation of intentional homelessness can be broken see Shelter Legal. 

Homeless applicant not entitled to appeal against both the original and the review decisions

Stanley v Welwyn Hatfield BC [2020] EWCA Civ 1458 (6 November 2020) 

When a local authority conducted a late review under section 202 Housing Act 1996 of its homelessness decision, the applicant could choose whether to appeal against the original section 184 decision or the section 202 review decision, but was not entitled to appeal against both. 

Local authority overcharged tenants for water

The Mayor & Burgesses of the Royal Borough of Kingston-Upon-Thames v Moss [2020] EWCA Civ 1381 (27 October 2020)

The Court of Appeal confirmed that the amounts that a local authority had charged its tenants for the supply of water exceeded the maximum charge permissible. The authority was a water re-seller for the purposes of the Water Resale Orders 2001 and 2006 and the charge that it could pass on to its tenants was capped. The tenants are entitled to a refund. 

For more information on water resale rules see Shelter Legal.

Rent repayment orders for failure to licence an HMO

Chan v Bilkhu & Anor (HOUSING - RENT REPAYMENT ORDER - amount awarded) [2020] UKUT 289 (LC) (20 October 2020)

When determining the amount of a rent repayment order against a landlord who failed to licence a house in multiple occupation, the starting point should be the whole of the rent paid in the relevant period. The First-tier Tribunal's practice of routinely deducting landlords’ own costs, such as mortgage payments or service charges, is no longer appropriate.

For more information on rent repayment orders see Shelter Legal.

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Guidance and news

Social housing and homelessness assistance for EEA citizens from 1 January 2021

The Ministry of Housing, Communities and Local Government has provided local authorities with initial guidance on how to manage applications for social housing and homelessness assistance from EEA citizens after the end of the EU exit transition period on 31 December 2020.

Pending a full update of the Allocation Guidance and the Homelessness Code of Guidance, the initial guidance explains how changes to the legislation will impact on the assessment of eligibility for assistance of EEA citizens and their family members from 1 January 2021.

For full details see Letter to local authorities: EU transition notification of change

The 'Protect Programme': the next step in winter rough sleeping plan

On 5 November 2020, the government announced the ‘Protect Programme’ to run alongside the ‘Everyone In’ campaign. The aim of these schemes is to ensure that vulnerable people, including those sleeping rough, are offered somewhere safe to go during the national restrictions and the winter period. The ‘top 10’ areas to receive a share of the £15 million fund for this purpose are:

  • London
  • Bristol
  • Brighton and Hove
  • Cornwall
  • Bournemouth, Christchurch and Poole
  • Manchester
  • Salford
  • Oxford
  • Leicester
  • Birmingham

For more details see the press release Jenrick launches Protect Programme

Use of caravans and park homes during Covid-19 

On 4 November 2020 Kelly Tolhurst, Minister for Rough Sleeping and Housing, published a letter to trade bodies representing caravan and park home site owners. This makes it clear that caravans and park homes should remain open during the pandemic for those using them as their primary residence, for vulnerable groups or where it is essential for work purposes. 

For full details see Kelly Tolhurst letter to site owners and managers 

Joint protocols on meeting accommodation needs of children leaving care

On 26 October 2020 the Ministry of Housing, Communities and Local Government and the Department for Education jointly produced good practice advice for local authorities to support the development of joint protocols that can help social services and local housing authorities to meet the accommodation needs of care leavers. 

See Joint housing protocols for care leavers: good practice advice

Draft Homelessness Code of Guidance relating to the Domestic Abuse Bill 

On 29 October 2020 the Ministry of Housing, Communities and Local Government made available a draft Homelessness Code of Guidance in respect of the Domestic Abuse Bill for information purposes. The updated guidance will be formally published when the provisions in clause 71 of the Bill are brought into force. 

See the draft Homelessness Code of Guidance

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