What’s new

The pages on Shelter Legal are updated regularly to reflect changes in the law. This page lists the most recent updates to Shelter Legal with a brief description of the amendment.

Rent repayment orders

Changes made 15 January 2018

In response to user feedback, information has been added to the page about rent repayment orders obtained under Housing Act 2004 (transitional provisions). These relate to some licensing offences committed before 5 April 2018. A link to claim form RRO2 has also been added.

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The regulator of social housing

Changes made 15 January 2018

From January 2018, the regulation of social housing providers in England will be carried out by the Regulator of Social Housing (RSH). The RSH is a 'stand-alone' agency, which fulfils one of the roles of the former Homes and Communities Agency (HCA). The HCA closed in January 2018. It was the regulator from April 2012. The HCA's other role, investing in land in England to fund new affordable housing, will be carried out by the newly launched Homes England.

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Paying for private rented housing

Changes made 11 January 2018

Information about deposit replacement insurance policies has been added to this page. These policies are marketed as an alternative to tenancy deposits, and are sometimes referred to as ‘smart deposits’.

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Public law and human rights defences

Changes made 10 January 2018

In Ahern v Southern Housing Group [2017] EWCA Civ 1934, the Court of Appeal dismissed an appeal (against the making of a possession order) brought on grounds that the housing association landlord had not complied with its own policies in taking possession proceedings against a vulnerable alcoholic assured shorthold tenant who had engaged in repeated antisocial behaviour. The Court stressed that not every departure from the strict wording of a policy will involve an error of law, because policies must be subjected to a ‘purposive and pragmatic’ construction.

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Benefit rates 2018/19

Changes made 09 January 2018

Pages with the rates to be used to calculate housing benefit in 2018/19 have been added to Shelter Legal. These figures are due to come into effect on Sunday 1 April 2018 where rent is paid monthly (or at any interval which is not a week or multiples of a week), or on Monday 2 April 2018 where rent is paid weekly (or multiples of a week). HB Circular A10/2017 contains related guidance. NB, the orders or regulations bringing the rates for in 2018/19 into effect are still subject to approval through the Parliamentary process.

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Help for ineligible children and families in England

Changes made 03 January 2018

In R (on the application of U and U) v Milton Keynes BC [2017] EWHC 3050 (Admin), the High Court held that a child in need assessment was unlawful because it failed to take into account that a parent who had overstayed her visa was unlikely to be able to lawfully rent accommodation for herself and her two children because of the 'right to rent' provisions of the Immigration Act 2014. Whilst the authority may have been entitled to conclude that the claimant had access to funds, it had not factored in her inability to use such funds to pay for privately rented accommodation. The court rejected the authority's suggestion that the applicant could avoid the right to rent provisions by paying for hotel accommodation, explaining that the restrictions would apply to a person whose occupation amounted to ‘living in’ a hotel. The alternative of a series of short-term hotel lets would be disruptive to the children, and this would need to be addressed in a child in need assessment. [PREVIOUS WHAT'S NEW 28 November 2017] In R (on the application of OK & Ors) v Barking & Dagenham LBC [2017] EWHC 265 (Admin), the High Court found that the local authority's decision, on an application for assistance under section 17 of the Children Act 1989, that the claimants were not destitute, and that their children were therefore not 'in need', was irrational and therefore unlawful. The court stressed that irrationality is a 'high threshold', but that in this case the failure of the authority to properly consider the evidence in relation to destitution had breached that threshold. The authority had not reviewed the decision it had reached on initial assessment with a 'fair and open mind', and had ignored material which contradicted its original conclusion.

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Self-employed persons

Changes made 27 December 2017

In Gusa v Minister for Social Protection (Ireland) Case C-442/16 [2017], the European Court of Justice (CJEU) has ruled that, according to the Citizenship Directive 2004/38/EC, a self-employed person who becomes involuntarily unemployed (eg because their source of work dries up) and who registers as a job-seeker retains her/his self-employed status (and thus a right to reside) in the same way that a worker in the same situation retains their status. This expands the situations in which self-employed persons can retain their status, which under regulation 6(4) of the Immigration (European Economic Area) Regulations 2016 SI 2016/1052 includes only cases where such persons are temporarily unable to pursue their self-employment because of illness or an accident.

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Restrictions on eligible rents: Social rented sector tenants

Changes made 21 December 2017

[1] In Nuneaton and Bedworth BC v RH and the Secretary of State for Work and Pensions [2017] UKUT 471 (AAC), the Upper Tribunal held that, if a room was not large enough to accommodate two children who would normally be expected to share a bedroom then the local authority should consider whether it could accommodate a child by her/himself. If so, and there are no other spare rooms able to accommodate both children, then the claimant may be entitled to a bedroom for each child. [2] In M v Secretary of State for Work & Pensions [2017] UKUT 443 (AAC), the Upper Tribunal held that a room may be classed as a bedroom even if there is no room for a separate bedside table and clothes storage furniture - one piece of furniture may serve both purposes. [PREVIOUS WHAT'S NEW: 16 November 2017] The number of bedrooms allowed under the social sector size criteria is laid out in regulation B13 of the Housing Benefit Regulations 2006. A bedroom is allowed for a foster child or child awaiting a foster placement. In Secretary of State for Work and Pensions v PE and Bolton MBC (HB) [2017] UKUT 393 (AAC), the Upper Tribunal ruled that it is discriminatory not to similarly allow a bedroom for an adult on or awaiting placement under an adult placement scheme. This might be respite care or a longer-term arrangement. Other pages in the benefits section have been changed to reflect this decision.

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Support for mortgage interest

Changes made 20 December 2017

A person who claimed income support (or other eligible benefit) before 5 January 2009 is subject to an upper limit of £100,000 on the value of the loan for which interest can be paid under the SMI scheme. Claims made by a working age claimant after that date are subject to the higher limit of £200,000. In Stevenson v Secretary of State for Work and Pensions [2017] EWCA Civ 2123, the High Court held that (1) the changes to the SMI loan upper limits in 2009 did not discriminate against disabled claimants and (2) the difference in treatment of disabled claimants between those who claimed income support before 5 January 2009 and those who claimed on or after that date was justifiable.

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Right to reside

Changes made 20 December 2017

[1] Regulation 23 of the Immigration (European Economic Area) Regulations 2016 SI 2016/1052 permits the removal of an EEA national where this is justified on the grounds of the misuse of a right to reside. A Home Office policy (no longer in force) had treated EEA rough sleepers as misusing their right to reside and advised they could be ‘administratively removed’ from the UK. In Gureckis v Secretary of State for the Home Department [2017] EWHC 3298 (Admin), the High Court held that rough sleeping did not constitute a 'misuse of a right to reside' under regulation 26 of the Immigration (EEA) Regulations, and the Home Office policy was not lawful. [2] In Patel v Secretary of State for the Home Department [2017] EWCA Civ 2028, the Court of Appeal held that, for the primary carer of a dependant British national to acquire a 'Zambrano' derivative right of residence, the British national must be compelled to leave the UK or EEA if her/his primary carer has to leave the UK. Being ‘compelled’ to leave is a high threshold test. Just because it may be desirable for economic reasons or to keep a family together that a non-EEA primary carer is granted a derivative right, it would not amount to compulsion if a British national were to leave the UK in order to preserve family life or a certain quality of life, if they could in practice remain in the UK.

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