Abandon all hope, ye who enter here

We were pretty scathing about the Conservative manifesto plans before the election and, yesterday, with the Queen’s Speech, we got more detail of their plans for government. The Speech itself is available here, but what you actually need to read is the background briefing paper, available here.

The Full Employment and Welfare Benefits Bill will freeze working age welfare benefits for two years. One imagines that this will affect housing benefit and, if so, Shelter have calculated that there will only be 17 local authority areas in England where LHA (Local Housing Allowance, to give the correct name for private sector HB payments) will be sufficient to allow you to rent a property in the bottom 30% of the rental market for that area (see here). In short, if you are looking for work, there will be 17 areas where you can afford to rent. Of course, you could always top=up your rent from other income (something that those who are in work and who receive HB will also need to do) but that will simply mean you have less money for, say, food. Or heating. Or ensuring your children eat (as to which, see below).

Further, the benefit cap will be lowered from £26,000 p.a. to £23,000 p.a. Everyone reading this blog will have seen how difficult the benefit cap makes it for many people to live in major cities, especially London (and, in turn, how difficult it makes it for local authorities to discharge their homelessness duties by finding t.a. in London – watch out for more out-of-area placement disputes). We also know from the Supreme Court decision in R (SG) v Secretary of State [2015] UKSC 16 that the cap breaches the UN Convention on the Rights of the Child for cutting support to children for reasons which are unrelated to the needs of that child. The UK’s compliance with the Convention is due to be reviewed by the relevant UN Committee this year I believe, so no-doubt we’ll be criticised by the UN and the government will be able to produce more hateful bile objecting to being criticised by international bodies (see, e.g. the furore over the UN Special Rapporteur and the bedroom tax).

Finally, it looks like 18-21 year olds will have their “automatic entitlement” (sic) to housing benefit reviewed. No housing benefit for those aged 18-21. There will plainly need to be exceptions to this rule otherwise Local Authorities won’t be able to arrange housing for those young adults to whom they owe Children Act 1989 duties (i.e. former relevant children). But will there be more? Just as we’ve seen “deserving” cases fall through the cracks of the bedroom tax exemptions, no doubt we will see the same happen to young people trying to find somewhere to live.

 

No Parliament would be complete without another Housing Bill and we can expect an extra special one this time. The right-to-buy (including the associated enormous discounts) will be extended to housing association tenants and will be funded by a requirement that local authorities sell their most valuable council houses. We commented on the financial and legal idiocy of this before the election and all we said there remains true. There is a promise of something called a “Starter Home” for young, first time buyers at a 20% discount (‘tho it’s not clear who will fund that discount, since private house builders aren’t going to just accept 20% less). And, once again, there is a promise to promote “Self Build” schemes. This last one provoked much derision at work, with a number of more senior practitioners pointing out that one of the original purposes of the (now deceased) Housing Corporation was to promote self-build. It’s a scheme that pops up every few years and never makes a difference to the housing supply crisis.

Finally, an Immigration Bill will also be introduced. You may be forgiven for asking why, as housing lawyers, we care about that. But it is clear that the government intends to use immigration law as an excuse to introduce some radical – and conceptually awful – reforms to housing law. The proposals had been trailed a few days earlier (see here) but the Immigration Act 2014 restrictions on renting to certain foreign nationals will be rolled-out nation-wide. New laws will mean that a tenancy will automatically end if the tenant is unlawfully present (e.g. if their visa ends) and there will be steps taken to make it easier to evict illegal immigrants.

The full horror of this last part is just sinking in. Leaving aside the utter unreality of expecting landlords to understand immigration law, how on earth can a tenancy – an estate in land – be ended because of a transitory personal status? The safeguards needed to make this work (rent repayment? a grace period in order to see if a new right to remain can be acquired? amending the PEA 1977?) are going to be very, very complex. And, if it is proposed to create a right to possession which does not need a court order, then expect some major HRA challenges.

Conclusion

I’ve never liked the Tory party* and I do have major moral problems with this legislative programme. But these objections above are not (party) political. They are legal. This is going to be a disastrous legislative programme doing untold damage to the interests of landlords, tenants and housing law itself. The only clear winners from this will be the lawyers. This legislation will earn me lots of money as I will be asked to advise on these policies. There will be Associations who will be prepared to spend lots of money to try to get out of the RTB proposals. Landlords will need major support to make sure they comply with the immigration proposals. And the same raft of JR claims that followed the bedroom tax/benefit cap will now be re-fought on the HB restrictions. Clearly, the government is concerned for the immediate financial well-being of lawyers and for that, I thank them. For the rest of the country, things look very, very bleak.

 

  • “That is why no amount of cajolery, and no attempts at ethical or social seduction, can eradicate from my heart a deep burning hatred for the Tory Party… So far as I am concerned they are lower than vermin.” – A. Bevan, July 3, 1948.

 

About J

J is a barrister in London. He loves service charges and all things leasehold law related. He also likes beating rogue landlords and mortgage companies.
Posted in Housing law - All.

14 Comments

  1. If this proposal of the quick ending and possession of property goes ahead it raises as you say numerous conundrums. Will for example the tenancy convert to an unlawful tenancy on the day of a Border Agency raid on a property and detention of the occupants or will the border agency have to issue a certificate of illegal immigration status (with or without an appeal period)?

    Will possession of such a document allow the landlord to take immediate possession and evict any remaining occupiers or will the landlord have to apply to the court on a super fast track system? What will happen to a tenancy in the circumstances of a joint tenancy where at least one of the joint tenants is a legal occupier? Will that lawful tenant be allowed to continue in occupation as the survivor or will that occupier also be considered to be an unlawful occupier who can be evicted by summary means? Would such evictions on a given day cease to be covered by PEA.?

    If a super fast court order is required will the proposed legislation entitle or indeed require a landlord to obtain a super fast bailiffs warrant?

    These are just a few immediate thoughts, that do not necessarily need response. As the government has decided to implement the Right to Rent regs across the country without a formal assessment it does seem to be a ‘gung ho’ approach to law making. Does anyone have any info about the effectiveness of the West Midlands Scheme?

  2. I don’t know who you are but I applaud you for this posting.

    Brilliant ………………………. simply brilliant!

  3. I am not a housing lawyer, so this is a random thought, but the Immigration proposal seems to impose (yet another) obligation on a landlord; to repossess from someone who is a perfectly good maybe exemplary tenant mid tenancy with associated costs. What?

  4. A terrific blog post and I fear a very accurate analysis of the coming reality of the next few years.

  5. Slightly off topic but still linked to Housing law, associated costs and new legislation so it is within the parameters! Just thought it would be interesting to hear views…

    The Anti-Social Behaviour Injunction (under the new Act) is now in place and being used by Social Housing providers in the same way that the old one was. There are now the start of the inevitable breach proceedings…we had one yesterday on arrest. The injunction is interim at this stage and is contested. Defendant has solicitors to represent their interests, and they have the benefit of public funding.

    Yesterday I am told by said solicitor who attends to assist his arrested client that he may not get paid. “Why not” I ask – seems only fair that, as he has done his “bit” for his client facing a potential deprivation of liberty, he should get paid for his troubles. Reason, apparently, is that the breach proceedings are to be funded under a criminal contract rather than the civil contract that funds the injunctive proceedings. His firm do not practice criminal law, do not have a criminal franchise and therefore, strictly, will not get paid. I understand that there is a facility for him to make a “one off” application – but the Legal Aid Agency (or whatever they are now called) aren’t entirely sure how such “one off” applications will work…

    So, does this mean that the expectation will be that anyone arrested on a breach will be expected to instruct separate solicitors (with potentially no experience or understanding of the civil court system) to represent them in the breach? Along with the absurdity in practice of this happening, what about the costs of completion of a second application for funding, the costs of the criminal solicitors reviewing the injunction file and instructions (to protect themselves from negligence claims and to properly represent their client), the potential (as in this case) of having a defendant represented at a final hearing (where both the injunction and the breaches will be tried) by two lawyers (potentially 4 – 2 firms who both instruct Counsel to attend at trial) – one to deal with the injunction and a second to deal with the breach issues…

    Does anyone else think this is borderline bonkers???

  6. Thanks for this article: what concerns me is the link between housing and criminality. It seems that structurally we’re creating a link between housing, conformity and criminality that will mean lots of money for the private penal providers (over generations) unless we fight the notion of an underclass!

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