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Round-up of legislation, case law, guidance and news: Dec 2020 / Jan 2021

Posted on 15/01/21

Welcome to this Housing Matters round-up for December and January.

Legislation

Cases

Guidance and news

Legislation

Stay on most evictions extended to 21 February

In force from 11 January 2021, these Regulations prevent, except in specified circumstances, attendance at a dwelling house for the purpose of executing a writ or warrant of possession or delivering a notice of eviction.

For more on the exempted specified circumstances see Covid19: protection for tenants on Shelter Legal.

Public Health (Coronavirus) (Protection from Eviction) (England) Regulations 2021 S.I. 2021/15

Increased access to legal aid for some low-income homeowners

In force from 28 January 2021, new Regulations give many more homeowners facing possession proceedings access to legal aid. The current rule states that only £100,000 of a mortgage debt can be taken into account when calculating the interest in a property. The new Regulations abolish this rule, meaning that the full value of the mortgage debt can be disregarded when calculating whether or not a client meets the £8,000 capital limit for legal aid.

The criteria for receiving civil legal aid, including capital limits, are set out on Shelter Legal.

Civil Legal Aid (Financial Resources and Payment for Services) (Amendment) Regulations 2020 amend Reg 37 of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013

Local housing allowance will continue to cover lowest 30% of rents

In force from 28 January 2021, this Order provides for the continuation of last year’s increase in local housing allowance rates. The increase covered the lowest 30 percent of local rents and was due to expire at the end of this financial year but will now continue during 2021/22.

Rent Officers (Housing Benefit and Universal Credit Functions) (Modification) Order 2020 S.I. 2020/1519

‘Breathing Space’ for debtors on the way

In force from 4 May 2021, new Regulations will introduce a debt respite scheme known as Breathing Space. The Regulations will provide for a 60-day payment break for unsecured debts, including rent arrears, for eligible debtors. This payment break must be arranged through an approved debt adviser. A debtor receiving treatment for a mental health crisis can access the scheme through an approved mental health professional.

The Breathing Space moratorium does not include debts that have been incurred through fraud, fines, child maintenance payments or crisis loans.

The Insolvency Service has produced guidance about the operation of the scheme.

The Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020/131

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Cases

Where housing offer refused, suitability is based on availability at time of offer

In Broderick v Bromley LBC  [2020] EWCA Civ 1522  (16 November 2020) the Council made Ms B a final offer of out-of-borough accommodation, which she refused. On review, the Council decided that the accommodation had been suitable.

Ms B appealed, arguing that the Council should have considered whether more suitable accommodation was available on the date the offer was refused. The County Court upheld her appeal.

Bromley appealed to the Court of Appeal, which decided that where an offer has been refused, the question of suitability of the accommodation should be determined on the basis of what was available at the time the offer was made, and it was not necessary to consider whether somewhere more appropriate might become available at a later date.

Shelter Legal sets out how location should be considered when accessing suitability of accommodation.

Statutory overcrowding due to children growing older is not ‘a deliberate act’

In Flores, R (on the application of) v London Borough of Southwark [2020] EWCA Civ 1697  (15 December 2020) the Court of Appeal has ruled that the decision of a family with two children under 10 to move into a one bedroom flat in 2014 because that was all they could afford did not amount to a ‘deliberate act’. As the children grew up the family became statutorily overcrowded, but Southwark awarded band 3 priority for an allocation of social housing, rather than band 1, on the basis that the overcrowding was a ‘deliberate act’.

An explanation of local authority allocation schemes can be found on Shelter Legal.

Room where door has restricted access is a bedroom for bedroom tax purposes

In Secretary of State for Work and Pensions -v- JM and Liverpool City Council (HB): [2020] UKUT 337 (AAC) the First Tier Tribunal held that a room in which the door could only be partially opened if the room contained a full-sized single bed was not a bedroom for bedroom tax purposes.

The SSWP appealed, and the Upper Tribunal concluded that access would be sufficient as the door could be opened to an angle of 60 degrees. The room was a spare bedroom for the purposes of B13 of the Housing Benefit regulations 2006.

EEA nationals with pre-settled status should be able to access benefits

In Fratila & Anor v Secretary of State for Works and Pensions & Anor [2020] EWCA Civ 1741  (18 December 2020) the Court of Appeal held that the regulations preventing EEA nationals from relying on pre-settled status when claiming benefits amount to unlawful direct discrimination on the grounds of nationality. 

The Court quashed the relevant sections of the regulations that exclude people with pre-settled status from claiming means tested benefits, including Universal Credit. However, the Court granted a temporary stay until 26 February 2021, during which time the SSWP does not have to implement the decision. This is to allow the Government time to decide whether to renew the application for permission to appeal to the Supreme Court.

Categories of claimants eligible for universal credit can be found on Shelter Legal

Subsequent compliance by a local authority can cure a PSED breach

In Taylor v Slough Borough Council [2020] EWHC 3520 (Ch)  (21 December 2020) the High Court held that a breach of  the Public Sector Equality Duty can be cured by compliance at a later stage.

Prior to starting a possession claim Slough carried out an Equality Act assessment on Ms Taylor on the basis that she did not have a disability. During the subsequent possession proceedings, it was confirmed that Ms Taylor was disabled under the Equality Act 2010 due to an emotionally unstable personality disorder.

Slough then carried out investigations into Ms Taylor’s circumstances, complying with the PSED at this stage. After consideration, they decided to go ahead with the possession claim and a possession order was made.

Ms Taylor was granted permission to appeal on the ground that there was a breach of the PSED, and the claim should have been dismissed. Although the Court found there was no breach in this case, the Judge did say that whether there is compliance with the PSED in particular circumstances is a question of fact.

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Guidance and news

Government ‘How to rent’ guide updated

On 10 December 2020 the Government guide for people who are looking for a house or flat to rent was updated. Whether the tenant was given the up-to date guide when starting a tenancy affects the validity of section 21 notices.

How to rent: the checklist for renting in England

Amendments to the Homelessness Code of Guidance

On 31 December Chapter 7 of the Homelessness code of guidance for local authorities was amended. This sets out the eligibility rules for homeless assistance and allocations of social housing for EEA nationals after 31 December 2020.

Homelessness code of guidance for local authorities

Updated Allocation of Accommodation Guidance

On 31 December the Ministry of Housing, Communities and Local Government published the updated Allocation of accommodation: guidance for local authorities. This update is the first since 2012 and takes account of the new rules for EEA nationals.

Allocation of accommodation: guidance for local authorities

Explanation and reaction to the rough sleeping immigration rule

House of Commons library ‘Insight’ exploring the new rule on refusal or cancellation of someone’s permission to stay in the UK if sleeping rough, when the rule fully takes effect and why it’s controversial. Includes links to the legislation, letters and written questions to the Government.

House of Commons ‘Insight’ on the rough sleeping immigration rule

CPAG free benefits advice for advisers

The Child Poverty Action Group provides a free consultancy service for advisers in not-for profit organisations. The service covers queries on welfare benefits and tax credits law.  

See the  CPAG website for further information.

Remaining joint tenant in ‘untidy tenancy’ can be treated as liable for the total rent

An untidy tenancy is where the claimant is a joint tenant with someone who no longer lives in the property. When claiming universal credit (UC), the remaining joint tenant is often treated as liable only for ‘their’ portion of the rent.

The DWP has introduced a new “to-do” option in the UC journal to ensure that these tenants get the right rent apportionment so that when a joint tenant(s) leaves the property and has not been removed from the tenancy, the claimant can be treated as liable for the total rent. The aim is to ensure that claimants are automatically correctly paid each month without the need for manual payments, or claimants having to appeal.

More information on this from the National Housing Federation website.

Funding for rough sleepers with drug and alcohol dependency

Rough sleepers across England will receive extra support to help them recover from drug and alcohol misuse. £23 million this year, followed by a further £52 million in 2021 to 2022, will be given to 43 local authority areas to support rough sleepers accommodated under the ‘Everyone In’ programme, as well as people who are currently rough sleeping. The funding is to help provide access to drug and alcohol treatment, including detox and rehabilitation services.

Extra help for rough sleepers with drug and alcohol dependency

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