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.

Finding accommodation

Changes made 12 December 2019

The information about Foyers on this page has been amended to clarify that most Foyers require a referral, usually from the local housing authority, and that the Foyer Federation itself does not own any housing and cannot provide accommodation or make a referral. Young people and their advisers should contact their local Foyer or local housing authority and inquire about the correct referral process to follow in each case.

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Retired or incapacitated workers

Changes made 11 December 2019

In BL v SSWP (ESA) [2019] UKUT 364 (AAC), the Upper Tribunal confirmed the interpretation of ‘permanent incapacity’ pursuant to Article 17(1)(b) of the EU Directive 2004/38/EEC (‘Citizenship Directive’) and regulation 5(3) of the Immigration EEA Regulations 2006, 2016 (SI 2006/1003 and SI 2016/1052 respectively) as circumstances in which there are no realistic prospects of returning to work in the foreseeable future. The Upper Tribunal held that the First-tier Tribunal had erred in law when it had defined ‘permanent incapacity’ as ‘unchanging’ and referred to the judgment in Samin v Westminster CC [2012] EWCA Civ 1468 that ‘there is considerable danger in substituting a different expression for the words which have been, deliberately, used in the [Citizenship] Directive and the [IEEA] regulations’. However, in this case the error was immaterial and the appeal was refused. The case concerned entitlement to Employment and Support Allowance, which for EEA nationals and their family members is conditional on having a right to reside under EU law. In this case, the EEA national failed to establish a right to reside under EU law, therefore he was a person from abroad with nil applicable amount of ESA, pursuant to section 4(3) of the Welfare Reform Act 2007 and regulation 70 of the Employment and Support Allowance Regulations 2008 SI 2008/794. [PREVIOUS WHAT'S NEW 19 September 2019] In Secretary of State for Work and Pensions v NZ (ESA) (Final decision) [2019] UKUT 250 (AAC), the Upper Tribunal held that the requirement for factual rather than legal residence necessary for an EEA worker/self-employed person to acquire a permanent right to reside following retirement, as decided in Secretary of State for Work and Pensions v Gubeladze [2019] UKSC 31, applied equally to an economically active EEA national who had become permanently incapacitated.

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Other emergency housing options

Changes made 11 December 2019

Homeless Link has published guidance for local authorities, aimed at supporting them in designing and implementing appropriate measures to minimise the risk of deaths among rough sleepers during periods of severely adverse weather conditions. A link to the ‘Severe Weather Emergency Protocol (SWEP) and extended weather provision’ guidance can be found under ‘Essential links’ on this page.

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Rent repayment orders

Changes made 10 December 2019

In Wilson v Campbell (HOUSING - RENT REPAYMENT ORDER) [2019] UKUT 363 (LC), the Upper Tribunal (UT) allowed the appeal by the tenant (W) against the decision of the First-tier Tribunal (FTT) to grant a rent repayment order against the landlord (C) for having control of an unlicensed house in multiple occupation, contrary to section 72 Housing Act 2004, but fixing the award to £1 only because of alleged misconduct by W for failing to mention that she was an employee of the enforcing local authority. The UT held that there had been a breach of natural justice as the FTT made an adverse finding about W’s credibility and motivation on paper, without conducting a full hearing and giving W the opportunity to comment on C’s allegations against her. In addition, the FTT took into account irrelevant considerations and did not provide adequate reasons for the reduction of the rent repayment order award. [PREVIOUS WHAT'S NEW 18 November 2019]: This page has been amended to reflect the following changes: (1) as the 12 month anniversary of 5 April 2018 has now passed and there is a 12 month limit to make an application for a rent repayment order, the transitional provisions in the Housing and Planning Act 2016 no longer apply and all applications should now be made using Form RRO1 (2) in Taylor v Mina An Ltd (HOUSING – HOUSE IN MULTIPLE OCCUPATION) [2019] UKUT 249 (LC), the Upper Tribunal held that as an HMO licence cannot be transferred to another person, when a landlord acquires a tenanted property which requires and already has a licence, s/he cannot rely on the existing licence but must apply to the local authority for her/his own, otherwise s/he commits an offence and is liable for an RRO (3) in Goldsbrough & Anor v CA Property Management Ltd & Ors (HOUSING – HOUSE IN MULTIPLE OCCUPATION) [2019] UKUT 311 (LC), the Upper Tribunal held that where there is an ambiguity about who is the landlord, whether it is the owner of the property or an agent, such in the case of rent-to-rent arrangements, the application for an RRO can be made against either of them (4) in 34 Sarsfield Road, Perivale, Greenford, Middx UB6 7AE (case ref LON/00AJ/HMF/2018/0053, 15 May 2019), the First-tier Tribunal held that the occupiers of a property can apply to recover any period of rent during their occupancy, up to the maximum of 12 months, so long as they apply for an RRO within the limit of 12 months from the date of the offence.

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Help for ineligible adult migrants in England

Changes made 09 December 2019

In R (on the application of Shehab Aburas) v Southwark LBC [2019] EWHC 2754 (Admin), the Hight Court held that the local authority had acted lawfully when it had directed a failed asylum seeker (Mr Aburas) to seek support from the Home Office (Asylum Support). Mr Aburas suffered from depression and bi-polar disorder. He argued that: (1) he was destitute, (2) his care needs were ‘looked-after’ within the meaning of the Care Act 2014, therefore (3) the local authority should exercise its power under section 19 of the 2014 Act and provide supported accommodation in order to avoid breaching his rights under Article 3 of the European Convention of Human Rights (ECHR). The local authority argued that Mr Aburas had no ‘looked-after’ needs and that approaching the Home Office (Asylum Support) would remedy any breaches of his rights under Article 3 ECHR. The High Court held that the evidence did not indicate Mr Aburas had ‘looked-after’ needs, nor that a refusal to provide him with accommodation under the 2104 Act would lead to an ‘imminent prospect of serious suffering’, and that issues of homelessness and destitution were the responsibility of the Home Office as they were not ‘looked-after’ needs within the meaning of the 2014 Act.

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Suspension or withdrawal of support

Changes made 06 December 2019

In Haqbin v Federaal Agentschap voor de opvang van asielzoekers CJEU C-233/18, the Court of Justice of the European Union held that a sanction for breaching accommodation rules resulting in a complete withdrawal of material support from an asylum seeker and deprivation of means to satisfy her/his basic needs, such as food and clothing, would be incompatible with EU law. Any sanctions must be proportionate and must not amount to a violation of the person’s dignity. In this case, the asylum seeker was an unaccompanied minor who got involved in a brawl and even though this did not result in any criminal charges, the manager of the accommodation unit did not allow them to re-enter, meaning the child was forced to sleep rough.

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Services charges under housing benefit

Changes made 05 December 2019

In Allerdale BC v JD and others (by their respective appointees) (HB) [2019] UKUT 304 (AAC), the Upper Tribunal held that there was no correlation between excluded services and exempt accommodation in the housing benefit regime. Accommodation could be classed as exempt pursuant to paragraph 4, Schedule 3 of the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 SI 2006/217 (and therefore subject to the pre-1996 housing benefit rules), and payments for it could include service charges classed as eligible, partially eligible or ineligible under regulation 12B(2) and Schedule 1 of the Housing Benefit Regulations 2006 SI 2006/213.

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Self-employed persons

Changes made 05 December 2019

On 2 December 2019, the Department for Work and Pensions (DWP) published ADM Memo 21/19 and DMG Memo 17/19 that implement the outcome of the HMRC v Henrika Dakneviciute [2019] CJEU C-544/18 case, in which the Court of Justice for the European Union confirmed that a self-employed EEA national who gave up economic activity due to the physical constraints of the late stages of pregnancy and childbirth would retain her right to reside, provided she returned to self-employed or employment within a reasonable period after the child was born. [PREVIOUS WHAT'S NEW 20 September 2019]: In HMRC v Henrika Dakneviciute [2019] CJEU C-544/18, the Court of Justice of the European Union (CJEU) confirmed that there can be no difference between the treatment of self-employed EEA nationals who cease their economic activity because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth and EEA workers in the same situation, who are able to retain their right to reside under the ‘St Prix’ principle (see St Prix v Secretary of State for Work and Pensions [2014] CJEU C-507/12). Therefore, a self-employed EEA national who gives up self-employment due to the physical constraints of the late stages of pregnancy and childbirth will retain her right to reside, provided she returns to self-employed or employment within a reasonable period after the child is born. The Court noted that it had been previously established in case law that Article 45 and Article 49 of the Treaty on the Functioning of the European Union offer the same level of legal protection and that workers and self-employed nationals are in a ‘comparable vulnerable position if obliged to stop working’, therefore should be afforded the same level of protection in terms of retaining their right to reside in another Member State. The question was referred to CJEU by the Upper Tribunal in 2018 in relation to the HMRC v HD [2018] UKUT 148 (AAC) case.

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Right of first refusal: leaseholders of flats

Changes made 04 December 2019

In York House (Chelsea) Ltd v Thompson & Anor [2019] EWHC 2203 (Ch), the High Court held that leases for various parts of a block of flats and surrounding areas, granted to each other by joint freeholders (landlords) who were a married couple at no premium and at a peppercorn rent, were exempt from being ‘relevant disposals’ under section 4(2)(e) of the Landlord and Tenant Act 1987. Therefore, the landlords were not required to serve long leaseholders of the flats with prior offer notices under section 5 of the 1987 Act. The High Court ruled that the fact that the transfers had been motivated by the desire to preserve the property’s development value and prevent leaseholders from exercising their right to purchase the freehold under the Leasehold Reform, Housing and Urban Development Act 1993, had not prevented them from falling within the scope of the statutory exemption for disposals by way of gift to a member of the landlord's family.

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Violence from any person

Changes made 02 December 2019

On 2 December 2019, the Civil Partnership (Opposite-sex Couples) Regulations 2019 SI 2019/1458 amended the Civil Partnership Act 2004 to reflect the fact that opposite-sex couples are able to enter into civil partnership. Regulation 41 and Schedule 3 of the 2019 regulations made consequential and related amendments to primary and secondary legislation, including an amendment to the definition of ‘associated persons’ in section 178(3) of the Housing Act 1996, which now defines cohabitants as living together as a married couple or civil partners, rather than as husband and wife or same-sex civil partners.

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