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.

Reasonable and additional preference

Changes made 30 June 2020

On 27 June 2020 the government published ‘Improving access to social housing for members of the Armed Forces’. The purpose of the new statutory guidance is to compliment the general statutory guidance on allocation of social housing and assist local authorities when considering applications for social housing by members of the armed forces, veterans, and their families, including estranged spouses or civil partners. The guidance includes a strong recommendation to extend the exemption from local connection requirements to divorced or separated spouses or civil partners of service personnel who need to move out of accommodation provided by the Ministry of Defence and a clarification that the Certificate of Cessation of Entitlement to Occupy Service Family Accommodation is routinely included within a Notice to Vacate pack, which MoD issues at least 3 months before the date of discharge. Local authorities are advised to revise their allocation policies to reflect the new guidance. This and related pages on Shelter Legal have been updated to reflect the new guidance. A link to the guidance is available under ‘Essential links’ on this page. [PREVIOUS WHAT'S NEW 4 June 2020: In R (Idolo) v Bromley LBC [2020] EWHC 860 (Admin), the High Court refused to award compensation to a disabled local authority tenant who spent twenty months confined to his bedroom on the eight floor of a block of flats. The tenant’s needs were assessed as eligible under the Care Act 2014 and care was being provided. While the local authority awarded the tenant high property on their housing register, it took considerable time before a suitable property became available. The tenant challenged the authority’s approach on the basis that social services were wrong to delegate the issue of suitable accommodation to the housing department and the delay in accessing suitable accommodation breached his rights under Article 8 ECHR. The Court rejected these arguments and noted that: (1) section 23 of the 2014 Act prevents authorities from meeting eligible care needs by doing anything that is required under the Housing Act 1996, therefore it was not unlawful for a local authority to accommodate care needs identified under the 2014 Act under the provisions of its allocation scheme devised under the housing legislation; (2) in the absence of maladministration, unfairness or other unlawful conduct on the part of the authority, the delay itself was not sufficient to constitute a breach of Article 8 rights.]

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The lease

Changes made 25 June 2020

In Duval v 11-13 Randolph Crescent Ltd [2020] UKSC 18, the Supreme Court held that where a long lease contained an absolute covenant prohibiting leaseholders from carrying out alterations to the structural parts and provided for the landlord’s enforcement of this covenant at another leaseholder’s request, there was an implied term that the landlord would not be able to prevent this covenant from having effect by permitting one leaseholder to carry out structural works before another leaseholder objected. In this case, a leaseholder requested permission to remove part of a load-bearing wall. The landlord was inclined to agree but another leaseholder (D) objected on the grounds that if the landlord agreed, they would be breaching their obligations towards her. The Supreme Court agreed with D and dismissed the landlord’s appeal.

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Rent repayment orders

Changes made 23 June 2020

In Vadamalayan v Stewart and others [2020] UKUT 0183 (LC), the landlord (V) appealed against the decision of the First-tier Tribunal on the grounds that the amount of the rent repayment order (RRO) under sections 43 and 44 of the Housing and Planning Act 2016 was too high. The Upper Tribunal held that: (1) the RRO provisions in the 2016 Act did not require that a payment in favour of the tenant should be reasonable; (2) the starting point for calculating the RRO amount the tenant was entitled to would be the rent over the relevant period, not restricted to the landlord’s profit. The Tribunal held that the practice of deducting all the landlord’s costs in calculating the amount of the RRO under the 2016 Act should cease and refused to deduct a fine imposed by the local authority for the landlord’s failure to comply with the HMO licensing regime under the 2004 Act. The Tribunal observed that as the provisions of the 2016 Act were ‘rather more hard-edged’ than those of the 2004 Act, there was less scope for the balancing approach adopted in Parker v Waller & Ors [2012] UKUT 301 (LC). While it might be reasonable to deduct landlord’s payments for utilities that are used by the tenant, there is no automatic right to deduct all expenses incurred by the landlord during the relevant period. [PREVIOUS WHAT'S NEW 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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Judicial review procedure

Changes made 22 June 2020

In R (Nolson) v Stevenage Borough Council (2020) EWCA Civ 379, the Court of Appeal held that where an application for an injunction to compel the local authority to provide interim accommodation under section 188(3) of the Housing Act 1996 had been refused on the papers, the homeless applicant had been entitled to ask for an oral hearing with seven days. N was found intentionally homeless and applied accommodation pending a s.202 review of that decision. The local authority refused, and the applicant applied to the High Court for judicial review and interim relief. The Court refused the application for an interim injunction on the papers and when N applied for an oral reconsideration under CPR 54.12(3), the Judge held that he had no jurisdiction to deal with it. The Court of Appeal held that the Judge was wrong. An application to have the refusal of interim relief reconsidered by the High Court could be made under CPR 3.3(5). The Court gave guidance in the following terms: where the court refuses an application on the papers, unless both parties have consented to it being dealt with on the papers alone, the order should be endorsed with a statement of the right to apply under CPR rule 3.3(5), usually within seven days, to have the order set aside, varied or stayed. If the parties have consented to a paper determination, then the order will be final and can only be challenged by appeal to the Court of Appeal within 21 days.

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Restrictions on use of section 21

Changes made 19 June 2020

In Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760, the Court of Appeal held that where a landlord had carried out a gas safety check prior to the tenancy start date but had failed to provide a copy of the gas safety certificate to an assured shorthold tenant before the tenant took occupation of the premises, as required under section 21A(2)(b) Housing Act 1988 and regulation 2(1)(b) Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, the landlord could provide the certificate at a later date and serve a valid section 21 notice.

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Family of workers and self-employed

Changes made 18 June 2020

In Chowdhury (Extended family members dependency) [2020] UKUT 188 (IAC), the Upper Tribunal held that in order to qualify for a residence card as an extended family member under regulation 8(2) of the Immigration EEA Regulations 2006, 2016 (SI 2006/1003, 2016/1052), a person must have been continuously dependent on the EEA national when residing in the UK. [PREVIOUS WHAT'S NEW 21 May 2020: In HK v S (PC) [2020] UKUT 73 (AAC), the Upper Tribunal held that a British citizen returning to the UK from another EEA state where they exercised EU Treaty rights did not have to become a ‘qualified person’ within the meaning of regulation 6 of the Immigration EEA Regulations 2016 SI 2016/1052 in order for their family member to have a right to reside under regulation 9 of the 2016 Regulations, also known as the ‘Surinder Singh’ route. In this case, a British citizen married an Austrian national while working in Germany and subsequently acquired a permanent right to reside there. The couple returned to the UK and applied for benefits. The application was refused on the basis that the husband did not have a right to reside, because his British wife was not a ‘qualified person’ on her return to the UK, therefore they did not fulfil the requirement under regulation 9(7) of the 2016 Regulations. The Upper Tribunal held that this requirement should not be applied as it had no basis in EU law.]

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Ending interim duty

Changes made 12 June 2020

In R (Mitchell) v Islington LBC [2020] EWHC 1478 (Admin), the High Court held that where a homeless applicant in interim accommodation provided under section 188(1) of the Housing Act 1996 had received a non-priority need decision but no notification that no further duties would be owed after the end of the relief duty, the interim accommodation duty had not ended. Under section 188(1ZA) of the 1996 Act, unless the authority decides the relief duty is not owed, interim accommodation ends when the applicant is notified that after the end of the relief duty, no further accommodation duties will be owed.

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Covid-19: Protection for tenants

Changes made 11 June 2020

On 5 June the government announced that the stay on possession proceedings under CPR Part 55 introduced on 27 March 2020 for an initial period of 90 days would be extended by two months. Made on 9 June 2020 and in force from 25 June 2020, the Civil Procedure (Amendment No. 2) (Coronavirus) Rules 2020 SI 2020/582 will insert a new temporary Rule 55.29 into the Civil Procedure Rules 1998 SI 1998/3132 and extend the stay until 23 August 2020. The stay applies to possession claims by landlords and mortgage lenders. [PREVIOUS WHAT'S NEW 1 June 2020: The government has updated its non-statutory guidance for landlords, tenants and local authorities to reflect the revised regulations and health advice. Among other things, the guidance advises that unless the tenant is shielding or self-isolating, they can allow their landlord or the landlord's representative access to the property for the purpose of routine inspections, repairs and planned maintenance, and that tradespeople can visit people’s homes to carry out any work or maintenance provided they follow the guidance for professionals working in people’s homes. The updated guidance contains references to the Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 SI 2020/312 that come into force on 1 June 2020 and apply to private tenancies from 1 July 2020. A link to the ‘COVID-19 and renting: guidance for landlords, tenants and local authorities’ is available under ‘Essential links’ on this page.]

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Notices: Flexible tenancies

Changes made 05 June 2020

In Croydon LBC v Kalonga [2020] EWHC 1353 (QB), the High Court held that where a tenant defaulted on rent, the local authority could not end a flexible tenancy in the fixed-term other than by relying on a forfeiture clause. In the absence of such a clause, the tenancy could not be brought to an end before the expiry of the fixed-term under section 82(1A) of the Housing Act 1985.

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Rules on fees for tenants

Changes made 01 June 2020

This page has been updated to reflect the fact that from 1 June 2020, the ban on prohibited payments introduced by the Tenant Fees Act 2019 applies to all assured shorthold tenancies, licences and student lettings, regardless of their start date.

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