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.

Internal review procedure

Changes made 28 April 2020

In Hertsmere Borough Council v Kiefer and Watford Borough Council v McMahon [2020] EWCA Civ 497, the Court of Appeal held that where the local authority reviewing officers had assessed the homeless applicants’ health issues in a way that showed compliance with the public sector equality duty (PSED) under section 149 of the Equality Act 2010, there was no requirement to make separate findings about disability for the purposes of the 2010 Act. The Court held that vulnerability for the purposes of the 1996 Act was not the same as disability within the meaning of the 2010 Act – a disabled applicant would only be in priority need for accommodation within the meaning of section 189(1)(c) of the 1996 Act if they were vulnerable as a result of their disability.

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Homelessness

Changes made 27 April 2020

The page has been updated to include a link to the ‘Coronavirus information’ guide published by the charity No Recourse to Public Funds Network, which provides information on options available to people with no recourse to public funds (NRPF) who have been affected by the coronavirus pandemic. The guide includes a summary of the rules on access to the NHS for treatment related to COVID-19 and an overview of benefits that are not classed as 'public funds', and may be available to those with NRPF. [PREVIOUS WHAT'S NEW 3 April 2020: On 31 March 2020, The Coronavirus Act 2020 (Commencement No. 2) Regulations 2020 SI 2020/388 brought into force section 15 and Part 1 of Schedule 12 to the Coronavirus Act 2020 that temporarily suspend a number of duties under the Care Act 2014, including the duty to carry out care and support plans and meet eligible care needs. However, these duties must still be carried out if a failure to do so would result in a breach of human rights under the European Convention on Human Rights. The Department of Health & Social Care has published ‘Care Act easements: guidance for local authorities’ that advises local authorities are still expected to respond as soon as possible to requests for care and support, so that they do not infringe on the individual's human rights, and that the purpose of the temporary easements is to ensure the best possible care for people during the pandemic, therefore they should be implemented only where it is necessary to do so. A link to the guidance can be found under essential links on this and related pages on Shelter Legal.]

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Rent repayment orders

Changes made 23 April 2020

In Opara v Olasemo (HOUSING – RENT REPAYMENT ORDER – unlawful eviction) (2020) UKUT 96 (LC), the Upper Tribunal held that where there was strong evidence that the landlord of a house in multiple occupation (HMO) had failed to comply with licensing requirements under Part 2 Housing Act 2004 and had illegally evicted the occupier by changing the locks, it had been irrational for the First-Tier Tribunal to find the criminal standard of proof for granting a rent repayment order under section 40 of the Housing and Planning Act 2016 had not been met. The Upper Tribunal observed that the ‘beyond reasonable doubt’ criminal standard of proof did not amount to proof ‘beyond any doubt at all’.

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Right to rent immigration checks

Changes made 22 April 2020

In March 2019, in R (on the application of Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452 (Admin)), the High Court found that the right to rent scheme was unlawfully discriminatory and sections 20-37 of the Immigration Act 2014 were incompatible with Article 14 ECHR in conjunction with Article 8 ECHR. The government appealed. On 21 April 2020, in The Secretary of State for the Home Department v The Joint Council for The Welfare of Immigrants [2020] EWCA Civ 542, the Court of Appeal reversed the High Court decision. The Court of Appeal ruled that while the right to rent scheme was discriminatory, the discrimination it could cause was lawful and justified. The Court held that (1) the evidence suggested that the scheme had made ‘some, and more than insignificant, contribution’ to reducing irregular migration; (2) the scheme itself did not intend, encourage or directly create discrimination, and was capable of being operated proportionally in most individual cases; (3) any discrimination that occurred would be ‘entirely coincidental’ and ‘collateral’, and would be recognised and sought to be addressed by section 33 of the 2014 Act and the Discrimination Code of Practice; (4) it was necessary to keep in perspective the nature and level of the discrimination; (5) most landlords complied with the administrative requirements of the scheme, and individual landlords who sought to discriminate against non-British passport holders, would engage in unlawful discrimination contrary to the Equality Act 2010. The Joint Council for the Welfare of Immigrants has indicated it will seek permission to appeal to the Supreme Court.

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Workers

Changes made 21 April 2020

In KH v Bury MBC and SSWP [2020] UKUT 50 (AAC), the Upper Tribunal ruled that an EEA national who had been employed in the UK for over a year, lost their job and registered with the jobcentre, did not have to show compelling evidence of having a genuine chance of finding another job in order to retain worker status as ‘involuntary unemployed’ for more than six months. The Tribunal held that the requirement, imposed by domestic regulations 6(2)(b)(ii) and 6(7) of the Immigration EEA Regulations 2006 SI 2006/1003 (and regulations 6(2)(b)(ii) and 6(7) of the Immigration EEA Regulations 2016 SI 2016/1052), did not correspond with article 7(3)(b) EU Directive 2004/38/EC (‘Citizenship Directive’), and that EU law distinguished between workers in involuntary unemployment and jobseekers in the application of the ‘genuine chance of being engaged’ test.

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Reasonable to continue to occupy: intentional homelessness

Changes made 07 April 2020

In LB v Tower Hamlets [2020] EWCA Civ 439, the Court of Appeal held that where the applicant (LB) had not indicated she had to leave her accommodation because of domestic violence when seeking assistance from the local authority under Part VII of the Housing Act 1996 and had sought a payment arrangement with the landlord in order to be able to continue to reside at the property, the authority had correctly assessed the probability of violence within the meaning of section 177(1) of the 1996 Act and had been entitled to find that the accommodation LB had lost due to non-payment of rent had been reasonable to continue to occupy, rendering LB intentionally homeless under section 191(1) of the 1996 Act. The reviewing officer concluded there was no evidence of violence since non-molestation orders had been issued and upheld the original intentionality decision. LB appealed to the county court under section 204 of the 1996 Act and her appeal was dismissed. The Court of Appeal held that it was for the authority to decide how much weight to attach to each element of the evidence and that, unless there was an error of principle or logic in reaching this decision, it could not be said the review decision was unlawful. LB’s appeal was dismissed.

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When can an appeal be used?

Changes made 07 April 2020

In James v Hertsmere BC [2020] EWCA Civ 489, the Court of Appeal considered the jurisdiction of the county court in hearing an appeal under section 204 of the Housing Act 1996. The homeless applicant (J) approached the local authority for assistance and received a negative decision under section 184 of the 1996 Act. He requested a section 202 review, which was carried out by RMG, an independent company to which the authority had contracted out its duties for an initial period of 12 months, with possible extensions. The homelessness decision was upheld on review and the decision arrived after the end of the 12 months’ contractual period between the authority and RMG. J appealed to the county court under section 204 of the 1996 Act on a number of grounds, including the council’s failure to validly extend the contracting out of its homelessness review functions to RMG, meaning the company had no authority to continue with the review after the initial 12 months’ period had expired. The local authority argued, among other things, that contracting out section 204 duties was not a proper basis of a section 204 appeal. The county court dismissed J’s appeal. The Court of Appeal confirmed that section 204 of the 1996 Act extended to issues such as procedural error, the extent of legal powers, irrationality, and inadequacy of reasons, and observed that narrow reading would conflict with the intention of the legislation. The Court held that (1) the county court had the jurisdiction to hear J’s appeal, including the ground referring the lawfulness of the local authority’s contract with RMG; (2) as the review had been started before the 12 months’ contractual period expired, and the contract had not been subsequently terminated, RMG had been authorised to continue with the review; (3) in any event, the review decision had been validly ratified by the Leader of the Council and by the Chief Executive. In light of the above, it was unnecessary to conclude whether the contract had been validly extended.

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County court appeal time limits

Changes made 07 April 2020

In Gil v London Borough of Camden [2020] EWHC 735 (QB), the homeless applicant (G) had missed a deadline for a county court appeal under section 204 of the Housing Act 1996 by one day and the High Court agreed to hear the appeal but refused an application for adjournment. G sought to adjourn the hearing on medical grounds and because she needed more time to prepare for a remote hearing in line with the COVID-19 emergency measures. In this particular case, the Court was not satisfied that the ‘reasonable prospects of success’ test had been met. G received the council's section 202 decision in April 2016 and, after a series of adjournments, the case was listed for a hearing in August 2017. The case was heard in her absence after she attended, applied unsuccessfully for a further adjournment, and then left the court building. The appeal was dismissed, the recorder having found, among other things, that the applicant missed the hearing without good reason. The applicant appealed and applied for a further adjournment, which was refused on the grounds of lack of satisfactory evidence. The hearing was to be remote in line with Covid-19 emergency measures. The applicant stated she was unable to participate in a Skype call as her laptop had been stolen, could not afford the cost of a mobile phone hearing but could provide written submissions. The Court directed the applicant to outline her arguments in support of her appeal in an email, which she had indicated would be an acceptable option. The applicant did not do so and applied for another adjournment instead. This was refused, the appeal was heard and dismissed. [PREVIOUS WHAT'S NEW 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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Accelerated possession procedure

Changes made 06 April 2020

From 6 April 2020, regulation 8 of The Civil Procedure (Amendment) Rules 2020 SI 2020/82 amends CPR Part 55 in respect of the accelerated possession procedure for assured shorthold tenancies (AST) to restrict its use to ASTs entered into on or after 28 February 1997, and where all tenancies throughout the tenant’s occupation were either the subject of a written agreement or statutory periodic. The 2020 Rules exclude demoted ASTs from the accelerated procedure.

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When an EPC is required

Changes made 02 April 2020

The Ministry of Housing, Communities and Local Government has published guidance on how to obtain Energy Performance Certificates (EPC) during the coronavirus pandemic that confirms the requirement to obtain EPC remains in place and advises on appropriate safety precautions. A link to the 'Coronavirus (COVID-19): Energy Performance Certificates' can be found under 'Essential links' on this and related pages on Shelter Legal.

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