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.

Migration and transitional protection

Changes made 12 February 2020

In R (TP, AR & SXC) v SSWP [2020] EWCA Civ 37, the Court of Appeal upheld the previous High Court decision that the difference in treatment of claimants in receipt of disability-related legacy benefits who had moved from one local authority’s area to another and claimants who had moved within one local authority area had been unlawful. The former group was forced to claim universal credit (UC) on the grounds that the change of circumstances forced ‘natural migration’ to UC, while the latter could remain on legacy benefits and retain significantly higher levels of income. As a result of these rules, both TP and AR experienced a ‘cliff edge’ drop in income of just under £180 pcm on average. The Court also found the £80 fixed-rate transitional payment scheme for claimants previously entitled to severe disability premium (SDP) under the reg. 64 and sch 2 Universal Credit (Transitional Provisions) Regulations 2014/1230, as inserted by the Universal Credit (Managed Migration Pilot and Miscellaneous Amendments) Regulations 2019 SI 2019/1152 to be unlawful, because it differentiated between claimants in receipt of severe disability premium (SDP) who migrated onto universal credit naturally and the 'managed' migrants who, under reg 4A Universal Credit (Transitional Provisions) Regulations 2014 SI 2014/1230 inserted by reg 2 Universal Credit (Transitional Provisions) (SDP Gateway) Amendment Regulations 2019 SI 2019/10, would be prevented from migrating UC naturally and would receive more generous transitional payments as managed migrants.

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Assessments of needs

Changes made 11 February 2020

In XY v Haringey [2019] EWHC 2276 (Admin), the High Court examined the issues of non-compliance with the 35-day rule for providing detailed grounds under CPR 54.14 and the lawfulness of the local authority’s approach to its duties under section 189A of the Housing Act 1996, in relation to carrying out an assessment of the homeless applicant’s needs and devising a personalised housing plan (PHP). The applicant was a disabled single parent and a survivor of domestic violence. On the preliminary matter the High Court found that: (1) the local authority’s failure to provide detailed grounds and/or evidence within 35 days as set out in CPR Part 54.14 did not mean the authority was unable to defend the claim - submissions outside the time limit would be allowed with the court’s permission; (2) in this case, XY suffered no prejudice as a result of the authority’s failure to submit detailed grounds as the acknowledgement of service contained detailed information. On the issue of compliance with section 189A of the 1996 Act, the Court held that: (1) the duty to keep the assessment and the PHP under review continues until the authority owes no further housing duty under Part 7 of the 1996 Act; (2) there is no statutory requirement for the assessment, agreement or steps to be recorded in a single document; (3) where the authority recorded the disabled applicant’s housing needs as ‘housing wishes’, failed to take into account the needs of the applicant’s children, including a genuine need to live close to the applicant’s parents, and did not record the disability-related need for a ground-floor flat, the authority had acted unlawfully. However, as the final assessment produced by the authority was adequate and lawful, the Court held that it had rectified the unlawfulness of the previous assessments.

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What is leasehold?

Changes made 05 February 2020

The section on leaseholders’ rights has been updated to specify that where leaseholders are members of a management company responsible for the management and maintenance of the premises, they may have the right to inspect the register of the company’s members under section 116 of the Companies Act 2006. In Houldsworth Village Management Company Ltd v Barton [2019] EWHC 3590 (Ch), the High Court held that where the leaseholder (B) sought to inspect the register for the purposes of contacting other leaseholders (shareholders in the company) about replacement and removal of existing directors and the managing agent, it was a proper purpose. The judge held that the company had not discharged the burden of proof for showing lack of proper purpose on B’s part and accepted B’s undertaking that the details would not be used for purposes other than specified in his request. The company was directed to comply with B’s request immediately.

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How LHA is calculated

Changes made 04 February 2020

The Rent Officers (Housing Benefit and Universal Credit Functions) (Amendment) Order 2020 SI 2020/27 came into force on 30 January 2020. As a result, from 1 April 2020 the LHA rate 'freeze' will end and the maximum LHA rates will increase by 1.7% CPI.

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Restrictions on eligible rents: Social rented sector tenants

Changes made 04 February 2020

In SSWP v WT and Redcar and Cleveland BC (HB) [2019] UKUT 372 (AAC), the Upper Tribunal agreed with the Secretary of State for Work and Pensions (SSWP) that in its assessment of the claimant’s housing benefit entitlement under regulation B13 of the Housing Benefit Regulations 2006 SI 2006/213, the First-tier Tribunal (FTT) had failed to follow the principles established in SSWP v Nelson and Fife Council [2014] UKUT 525 (AAC) and SSWP v Rachel Hockley, Nuneaton and Bedworth Borough Council [2019] EWCA Civ 1080. The Upper Tribunal confirmed that (1) the assessment of whether a room is a bedroom is an objective one to be carried out as if the property was vacant, (2) it is independent from the particular circumstances of the claimant, and (3) the correct test is whether a room is ‘capable of being used by a bedroom’ by any of the persons listed in regulation B13(5)(a)-(e) of the 2006 Regulations, not whether it could ‘reasonably be described’ as one. The SSWP’s appeal was allowed and the FTT’s original decision was remade to reflect the fact that the room in question had the ‘necessary attributes’ to be considered a bedroom under regulation B13 of the 2006 Regulations.

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Tenant fees: enforcement and sanctions

Changes made 03 February 2020

Following feedback from users, the page has been updated to highlight the fact that the Tenant Fees Act 2019 does not prescribe a time limit for taking direct action to recover a prohibited payment in the First-tier Tribunal, however if a claim is made more than six years after the breach occurred, it is likely that the landlord or agent could rely on the Limitation Act 1980.

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Right to reside

Changes made 01 February 2020

With effect from 11pm (GMT) on 31 January 2020 the UK ceased to be member of the European Union. The European Union (Withdrawal) Act 2018, as amended by the European Union (Withdrawal Agreement) Act 2020, provides for a transition (implementation) period until 31 December 2020, during which EU free movement law will continue to apply in the UK and EU/EEA/Swiss nationals with their family members will continue to be eligible for social housing, homelessness assistance and benefits under the pre-existing EU rules. In addition, those with settled status granted under the EU Settlement Scheme will be eligible under domestic law, irrespective of whether they are exercising EU Treaty rights in the UK. [PREVIOUS WHAT'S NEW: 17 January 2020] In AM v SSWP and City and County of Swansea Council [2019] UKUT 361 (AAC), the Upper Tribunal found that an applicant, who was an EEA national but did not satisfy the criteria for a right to reside under the Directive 2004/38/EC (‘the Directive’), could not establish a ‘secondary’ right to reside as a primary carer of a direct descendant of an EEA worker, where the child was under school age. The son’s father, also an EEA national, continued to exercise Treaty rights as a worker in the UK after his cohabitation relationship with the applicant had broken down. The applicant accepted she did not have a right to reside under the Immigration (EEA) Regulations 2006 (in force at the time of her application for benefits) but argued that, as her son had a right to reside in the UK as a direct descendant of an EEA worker, she had a ‘secondary’ derivative right to reside in the UK as his primary carer. The Tribunal accepted that the child had a right to reside in the UK as a direct descendant of an EEA worker (his father), pursuant to Article 7(1)(d) of the Directive but rejected the argument that EU case law [‘Baumast’ (C-413/99), ‘Zambrano’ (C-34/09) and ‘Chen’ (C200-02)], could be interpreted as establishing a general principle in that where an EEA child had a right to reside, their primary carer would have a ‘secondary’ right to reside in order to render the child’s right effective. [PREVIOUS WHAT'S NEW 18 December 2019]: In Patel and Shah v Secretary of State for the Home Department [2019] UKSC 59, the Supreme Court confirmed that EU law differentiates between dependent British children and dependent British adults in the context of derivative right to reside pursuant to Article 20 Treaty on the Functioning of the European Union (TFEU), also referred to as a ‘Zambrano’ right to reside. In the UK this right to reside can be established by non-EEA primary carers of British dependant nationals if being expelled from the UK would mean that the dependent British national would be compelled to leave the EEA. The Court held that non-EEA primary carers of dependent British adults would be able to establish a ‘Zambrano’ right to reside only in exceptional circumstances, where the dependent British adult would actually leave the EEA in order to continue to reside with their non-EEA carer, rather than stay in the UK and rely on some other form of support, for example assistance from social services.

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EU settlement scheme

Changes made 01 February 2020

The EU settlement scheme is designed to offer EU/EEA/Swiss nationals and their family members living in the UK by 31 December 2020 the opportunity to protect under UK Immigration law their right to stay here beyond that date. People who move to the UK before 31 December 2020 may also apply. The deadline for applications is 30 June 2021. This new page on Shelter Legal provides some information on leave to remain ('settled' and 'pre-settled' status) granted under Appendix (EU) to the Immigration Rules and its impact on the eligibility for homelessness assistance and benefits of EEA nationals.

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County court appeal time limits

Changes made 30 January 2020

In Al-Ahmed v Tower Hamlets LBC [2020] EWCA Civ 51, the Court of Appeal overturned the High Court decision in London Borough of Hamlets v Al Ahmed (2019) EWHC 749 (QB) and found that difficulties in obtaining legal representation may constitute a good reason under section 204(2A) of the Housing Act 1996 for a delay in appealing a homelessness review decision. The ‘good reason’ is a statutory test under the Housing Act 1996, independent of the Civil Procedure Rules, and has to be applied to the individual facts of each case. Where a homeless applicant acts diligently but encounters difficulties beyond their control in obtaining timely legal advice or representation, it may constitute a ‘good reason’ for exceeding the 21-day time limit. The judge observed that, while the discretion whether to allow a late appeal would always remain with the court, ‘it would be both surprising and unfair if difficulties of that kind could not be taken fully into account and given appropriate weight’. Shelter intervened in the appeal by way of written and oral submissions.

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HMO licence applications

Changes made 22 January 2020

In Hussain & Ors v London Borough of Waltham Forest (HOUSING – licensing) [2019] UKUT 339 (LC), the Upper Tribunal found that the local authority had been entitled to take into account conduct leading to a conviction for an offence relevant to establishing whether the licence holder was a ‘fit and proper’ person within the meaning of section 66 of the Housing Act 2004, even if the conviction was spent under the Rehabilitation of Offenders Act 1974. If the authority wanted to rely on a spent conviction itself, it should make an application for the First-tier Tribunal (FTT) to exercise its discretion under section 7(3) of the 1974 Act, and the outcome would depend on whether the FTT was satisfied that justice could not be otherwise done. The determination involved consideration of an earlier decision in R (YA) v Hammersmith and Fulham LBC [2016] EWHC 1850 (Admin), therefore the First-tier Tribunal, bound by the High Court decision, referred the matter to the Upper Tribunal.

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