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.

Home loss payments

Changes made 02 October 2019

The Home Loss Payments (Prescribed Amounts) (England) Regulations 2019 SI 2019/1117 amend sections 30(1) and 30(2) of the Land Compensation Act 1973 to introduce new prescribed minimum and maximum home loss payments for displacement on or after 1 October 2019. The amounts are £6,400 and £64,000 respectively. More information about home loss payments is available on this page.

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Family of workers and self-employed

Changes made 24 September 2019

In ZA (Reg 9. EEA Regs; abuse of rights) Afghanistan [2019] UKUT 281 (IAC), the Upper Tribunal held that a British citizen who had returned to the UK with his non-EEA spouse after exercising EU Treaty rights in another EEA state was not required to demonstrate that he had transferred his ‘centre of life’ to the host EEA state in order for the non-EEA spouse to acquire a right to reside in the UK under the ‘Surinder Singh’ route. Regulation 9(3)(a) of the Immigration (European Economic Area) Regulations 2016 SI 2016/1052 lists ‘transferring centre of life’ as one of the relevant factors when determining if residence in another EEA state was ‘genuine’. It was held that regulation 9(3) of the 2016/1052 Regulations should be applied in accordance with EU law which does not impose this requirement. [PREVIOUS WHAT'S NEW 30 August 2019]: In ODS v Secretary of State for Work and Pensions (UC) [2019] UKUT 192 (AAC), the Upper Tribunal confirmed that a relative of a dual EEA/British national could have a right to reside as a family member under Directive 2004/38/EC (the ‘Citizenship Directive’), as long as the EEA/British national had been exercising EU Treaty rights in the UK prior to acquiring British citizenship. The Tribunal held that the decision of the European Court of Justice in Lounes v Secretary of State for the Home Department [2017] EUECJ C-165/16 was not limited to family members who were ‘third country’ (non-EEA) nationals. [PREVIOUS WHAT'S NEW 15 August 2019]: With effect from 15 August 2019, the Immigration (European Economic Area) (Amendment) Regulations 2019 SI 2019/1155 amend the Immigration (European Economic Area) Regulations 2016 SI 2016/1052 to give effect, among other, to the decision of the European Court of Justice in SM (Algeria) v Entry Clearance Officer, UK Visa Section [2019] CJEU C-129/18 where the Court held that where a child was placed in the care of a EEA national under a ‘kafala agreement’ (which under Islamic law is akin to guardianship but does not give rise to a parent-child relationship), the child would qualify as an 'extended family member' of the EEA national, rather than a 'family member' as direct descendant. The amendments also clarify that the category of 'extended family members' can include relatives of an EEA national's spouse or civil partner. [PREVIOUS WHAT'S NEW 15 August 2019]: Following users’ feedback, the section on primary carers of children in education of EEA workers (‘Baumbast’/’Ibrahim’ derivative right to reside) has been updated to clarify the conditions that have to be met in order for the primary carer to obtain a right to reside under reg 16(4) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

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Self-employed persons

Changes made 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. [PREVIOUS WHAT'S NEW 20 August 2019]: In SB v Secretary of State for Work and Pensions (UC) [2019] UKUT 219 (AAC), the Upper Tribunal confirmed that, following the decisions of the European Court of Justice in C-442/16 Gusa and C-483/17 Tarola, an EEA national who had become involuntary unemployed in the UK after a period of self-employment of less than one year had retained a right to reside as a self-employed person under Article 7(3)(c) of the Directive 2004/38/EC (the ‘Citizenship Directive’).

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Rent assessment

Changes made 20 September 2019

In Podkrolewicz v R&S Properties [2019] UKUT 211 (LC), the Upper Tribunal decided that allowing the landlord to submit new evidence at the hearing which the tenant did not attend and could not comment on amounted to procedural unfairness. The landlord (R&S Properties) served the tenant (Mr Podkrolewicz) with a rent increase notice under section 13(2) of the Housing Act 1988. The tenant referred the increase to the First-tier Tribunal (FTT). The landlord requested a hearing but neither party made written representations. During the hearing, which the tenant did not attend, the landlord’s representatives produced evidence of comparable properties which the FTT took into account. The Upper Tribunal held that this evidence should have been either excluded or the matter should have been adjourned and the case was remitted to the FTT for a re-hearing.

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Council tax support

Changes made 20 September 2019

The Local Government and Social Care Ombudsman (LGSCO) has published a good practice guide for authorities dealing with council tax reduction (CTR) enquiries, complaints and recovery. CTR, sometimes referred to as ‘council tax support’ replaced council tax benefit in 2013 and is managed locally rather than nationally. A link to the LGSCO’s guidance can be found under ‘Essential links’ on this page.

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Schemes and priorities

Changes made 19 September 2019

In R (Ades) v Camden LBC [2019] EWHC 1489 (Admin), the High Court decided that where the local authority’s allocation scheme specified that in order to be awarded additional points for housing and health related needs the applicant had to demonstrate that her medical conditions had been either caused or made worse by her housing conditions, the authority’s refusal to award additional points where no such link had been demonstrated was lawful. The Court held that the decision maker had correctly examined the evidence submitted by the applicant and acknowledged both the repair issues and the applicant’s ill health, however in the absence of any causal link between the two, the decision not to award additional points was neither irrational nor unreasonable.

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Retired or incapacitated workers

Changes made 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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Workers

Changes made 13 September 2019

Following the recent Upper Tribunal decisions in JS v Secretary of State for Work and Pensions (CA) [2019] UKUT 239 (AAC) and RF v London Borough of Lambeth (HB) [2019] UKUT 52 (AAC), this page has been updated to further clarify the fact that an EEA national pursuing an economic activity in the UK may have a right to reside as a worker or a self-employed person despite generating income below the threshold for National Insurance contributions.

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Statutory control of service charges

Changes made 13 September 2019

In Triplerose v Cakan [2019] UKUT 257 (LC), the Upper Tribunal held that where the lease provided for a service charge to be paid in advance on the basis of budgeted figures, subject to adjustments on the basis of spending in the previous year, the landlord did not have to provide evidence of actual costs incurred before the charge became payable. It was held that it would be impossible for the landlord to provide proof that the expenses set out in the Interim Maintenance Charge statement were actually incurred due to the fact that the charge was payable in advance.

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Overview of eligibility rules: non EEA/EU

Changes made 12 September 2019

This page has been updated to include an overview of the position of migrants from Commonwealth Caribbean countries who settled in the UK before 1973 (often referred to as the ‘Windrush generation’) and who have no proof of their immigration status.

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