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. Please contact publications@shelter.org.uk to receive What's New updates in a fortnightly email.

Buying the freehold: collective enfranchisement

Changes made 20 December 2018

Under the Leasehold Reform, Housing and Urban Development Act 1993, leaseholders who are 'qualifying tenants' have the right to purchase, on a collective basis, the freehold of their flats. The definition of a flat under section 101 of the Act requires that it is ‘constructed or adapted’ for use as a residential dwelling. In Aldford House Freehold Ltd v (1) Grosvenor (Mayfair) Estate (2) K Group Holding Inc [2018] EWHC 3430 (Ch), the High Court held that a new flat that had not yet been fitted out so that it could be used for living in met the statutory definition of a flat.

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Accommodation under section 17

Changes made 19 December 2018

In R (on the application of AE) v Brent LBC [2018] EWHC 2574 (Admin), the High Court upheld the local authority’s assessment that (when seeking accommodation under section 17 of the Children Act 1989 for an intentionally homeless family) properties which were up to one hour’s commute from the children’s grandparents and their schools would be suitable. The Court noted that the authority had revised its original position, which had been to offer accommodation further away from the claimant’s support network, after it had obtained new medical evidence in relation to the suitability of accommodation. The Court also held that the fact that no suitable accommodation had yet been provided did not mean that the authority had acted unreasonably; it was simply that properties meeting the claimant’s requirements were not readily available.

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Adverse possession

Changes made 18 December 2018

In Rashid v Nasrullah [2018] EWCA Civ 2685, the Court of Appeal held that the limitation period of at least 12 years applying to the recovery of land/property by the legal owner where there has been 'adverse possession’ by a squatter applied regardless of the fact that dispossession of the original owner was the result of fraud, and that the squatter was aware of the fraud when he took possession. The Limitation Act 1980 provides its own protection against fraudulent dispossession in that the limitation period runs from the date the fraud either was discovered (or could have been discovered with reasonable diligence). Note that in this case the entire period of adverse possession occurred before 13 October 2003, so that transitional protection from the rules applying to registered land brought in by the Land Registration Act 2002 applied.

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Civil/criminal courts and tribunals

Changes made 11 December 2018

In Secretary of State for Work and Pensions v DL and another (HB) [2018] UKUT 355 (AAC), the Upper Tribunal granted a 'leapfrog' certificate under section 14A of the Tribunals, Courts and Enforcement Act 2007 to give permission to appeal its decision direct to the Supreme Court. The Upper Tribunal's power to grant such a certificate was introduced by the Criminal Justice and Courts Act 2015 with effect from 8 August 2016.

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Assessing suitability: location

Changes made 11 December 2018

Decisions to place homeless applicants out-of-area must be approached in the right way. Each local authority should have a policy for procuring sufficient units of temporary accommodation to meet anticipated demand during the coming year. It should also have a policy for allocating those units to individual homeless households. Where there was an anticipated shortfall of units in its own area, that policy would explain the factors which would be taken into account in offering households those units, the factors which would be taken into account in offering units close to home, and if there was a shortage of such units, the factors which would make it suitable to accommodate a household further away. Both policies should be kept up-to-date and be publicly available. In Alibkhiet v Brent LBC : Adam v City of Westminster [2018] EWCA Civ 2742, the Court of Appeal held that if a local authority has adopted and implemented lawful procurement and allocation policies, then its decisions to offer out-of-area accommodation under the terms of such policies would generally be lawful and capable of discharging its duties.

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Human rights challenges

Changes made 10 December 2018

In R (on the application of MIV and Ors) v Newham LBC [2018] EWHC 3298 (Admin), the High Court held that there was no breach of a disabled child's individual rights under article 8 of the European Convention on Human Rights where he and his family (who had no recourse to public funds), were accommodated for eight months by social services under section 17 of the Children Act 1989 in unsuitable accommodation. The lack of room for the child - who suffered from significant global developmental delay and epilepsy – to play and thus to develop did not engage his article 3 rights because the living arrangements caused no substantial prejudice to the child's life, and, applying the principles in Anufrijeva v Southwark LBC [2003] EWCA Civ 1406, it was highly unlikely that a person’s individual rights under article 8 would be breached where their 'predicament' was not sufficiently severe to engage article 3.

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Housing Health and Safety Rating System (Fire safety)

Changes made 03 December 2018

On 29 November 2018, MHCLG published an ‘Addendum for the profile for the hazard of fire and in relation to cladding systems on high rise residential buildings’. The document has been issued to provide guidance for local authorities on the assessment of high-rise residential buildings with unsafe cladding. It should be read and used in conjunction with the hazard profile for fire as set out in Annex D of the Housing Health and Safety Rating System Operating Guidance.

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Public law and human rights defences

Changes made 30 November 2018

In FJM v United Kingdom, App No 76202/16 (29 November 2018), the European Court of Human Rights confirmed that a residential occupier defending possession proceedings against a private landlord is not entitled to raise defence under Article 8 ECHR to prevent or delay the possession claim. Even where the circumstances are very exceptional and the tenant is vulnerable, the court does not have power to consider the proportionality of making a possession order where a private landlord's contractual rights entitle her/him to mandatory possession.

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Overview of universal credit

Changes made 27 November 2018

On 27 November 2018, DWP published 'Guide to Universal Credit for organisations supporting the homeless, those at risk of homelessness and rough sleepers'. This guide gathers together information which may be useful to those assisting homeless people such as how to claim without the necessary identification, easements allowing work seeking conditions to be suspended to assist homeless people find accommodation and help getting online.

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Family of workers and self-employed

Changes made 27 November 2018

Under UK law, extended family members (which include unmarried partners in a durable relationship) of British nationals returning to the UK after exercising their Treaty rights in another EU Member State, do not have a right to reside in the UK under the Surinder Singh route. However, in Secretary of State for the Home Department v Banger (Citizenship of European Union - Rights of Union citizens to move and reside freely within the territory of the European Union - Judgment) [2018] EUECJ C-89/17, the Fourth Chamber of the European Court of Justice established that they have a ‘derived right of facilitation’ if they applied for a residence card. In Secretary of State for the Home Department v Christy [2018] EWCA Civ 2378, the Court of Appeal held that the derived right of facilitation of non-EU nationals in a durable relationship with British nationals returning to the UK after exercising their right of free movement under Article 21(1) TFEU is not dependent on the non-EU national obtaining a residence document under Article 3(2) of the Citizenship Directive in the Member State where the durable relationship with the British national was formed or strengthened - any decision of that Member State's immigration authorities, for example a VISA under domestic immigration law, will suffice.

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