“We to the place have come, where I have told thee
Thou shalt behold the people dolorous
Who have foregone the good of intellect.” (canto 3)
Midway between Christmas and new year, I found myself, fat and indolent, on the sofa, contemplating a year-end post.
The trouble with 2016, I realised, is that it made clear that Dante’s Inferno was not, as we had all rashly assumed, a work of literature but rather a travel guide in terza rima. We were just lost tourists, trying to identify from unfamiliar surroundings exactly which circle of Hell we were currently in.
Even setting aside the year’s major catastrophes and looking just at housing, it has been and remains a desolate landscape. Any year that starts with the passage of the Housing and Planning Bill is setting out its stall as being A Very Bad Year right from the start.
Look at it this way, amongst the highlights of the year were the Govt decisions not to implement pay to stay and to delay for an unspecified time the introduction of forced sell offs of ‘higher value’ council properties which were supposedly to fund the housing associations’ ‘voluntary right to buy’. Similarly, there was the decision to delay the introduction of the LHA rate cap on housing benefit and review the position on refuges and supported accommodation. When a mere failure to put something into effect is a highlight, times are dark.
Amongst the lowlights:
Homeless applications continue to rise, now some 27,000 a year over the 2009/10 figure of 89,000. Numbers in temporary accommodation also continue to rise – 74,630 households at September 2016 – and the number of families with dependent children and/or pregnant women placed in B&B-style accommodation increased from 630 at the end of March 2010 to 3,390 at the end of September 2016. And of course street homelessness is rising too, by about a third since early 2015.
Temporary accommodation is not exempt from the reduced benefit cap, now rolling out, so for many councils, that is where the DHP budget will go. I hate to say I told you so… But then, with the reduced benefit cap, there will quite possibly be nowhere at all that is affordable so that councils are able to discharge a homeless duty. A first prediction for 2017, there will be cases on rent for temporary accommodation, exploring R (OAO Yekini) v LB Southwark  EWHC 2096 (Admin).
Fixed term (2-10 years) for all new secure tenancies are still coming, probably in April 2017, with reduced succession rights for all. That bit of the Housing and Planning Act is being persisted with.
Housing associations are responding to the looming LHA rate cap on housing benefit by ceasing to let to single under 35s. How on earth they will respond to the risks (to their arrears) of the reduced benefit cap is anyone’s guess, but plenty to worry about.
Cardiff CC v Lee caused havoc late in the year, with every social landlord (and indeed county court) trying to figure out how to cope with applying for permission for a warrant on breach of suspended possession order. A sticking plaster has been applied, for rent arrears cases, but rule changes look likely in 2017
Meanwhile, in the private sector, the Deregulation Act changes to deposit protection rules and to the validity of section 21 notices introduced from 1 October 2015 became a reality for landlords (and tenants) from February 2016 onwards. And, as expected, it has caused much confusion, for everyone. (Links are to our handy guides).
Faced with Right to Rent checks, landlords and letting agents did exactly what was expected (by everyone except the Govt) and discriminated against prospective tenants without a British passport, or with foreign names. Given that the Immigration Act 2016 criminalises letting to someone without the right to rent, this is unlikely to improve. And then there is the mystery of a ‘Home Office letter which takes effect as a High Court Order’ to look forward to. Eviction without court order?
In some areas, the phenomenon of landlords moving over to short term letting alone for properties, via Airbnb and the like, grew – with thousands of properties in London being let out as whole properties for year round availability. Under heavy pressure, Airbnb finally agreed to set the London planning limit of ’90 days per calendar year’ into its booking system in 2017. But there have been plenty of other concerns with Airbnb style short let subletting, and breaches of tenancy or lease.
And of course, it is becoming harder and harder to either bring or defend cases in the county courts, as many are closed or closing. Where cases are supposed to be going often remains a mystery. As is how people are to get to access the remaining courts, because the MoJ based travel time estimates on having a car…
But no matter, because even if there was a local court open, it is unlikely that people could get representation anyway. Legal Aid deserts for housing work have appeared, with no, or just one provider in a third of the country. And housing legal aid take up has dropped by 18% in a year. This is not due to a lack of demand, given a 53% increase in evictions since 2010, but the unsustainability of the practices. And the year ends with two more areas having ‘access issues’.
Any actual highlights, you ask? Any little flickers of hope or optimism?
Well, the post Hotak meaning of ‘significantly more vulnerable’ has proved lively in the County Court. The Court of Appeal judgment on one such appeal is awaited, and the Court of Appeal may have a second stab at the issue in Spring 2017. So far, at least, it does appear to be a distinction with a difference from the Pereira test.
The Supreme Court found at least some ‘manifestly without reasonable foundation’ disability discrimination in the Bedroom Tax regulations. Not that the DWP have taken action on any changes yet.
We won a tussle with High Court Enforcement Officers over their habit of wrongly obtaining writs for eviction of tenants.
Judicial reviews of Allocation Policies have continued to be fruitful, showing that there are limits to the Localism Act powers for councils to make up their own criteria.
The Homelessness Reduction Bill has passed second reading and is in committee stage, with Govt support and promises of (some) additional funding. Additional advice and assistance duties may help those not in priority need and as such it is a good thing, but the Local Government Association and DCLG have been fighting tooth and nail to prevent any additional accommodation duty, or even accommodating those in priority need at an earlier (pre-warrant of eviction) stage.
The Housing and Planning Act may make it possible (maybe even easier) for tenants to go after rent repayment orders against ‘rogue’ landlords, including for unlicensed properties, failure to comply with Improvement Notices, and illegal eviction. We’ll see what 2017 brings.
And that is all I’ve got… These fragments I have shored against my ruins, as TS Eliot might have put it if he were a housing lawyer. Meanwhile, I’m on the sofa, so far lacking a helpful Virgil to take us through and beyond 2017. On we will go. We are promised a housing white paper, after all…
“He from before me moved and made me stop,
Saying: “Behold Dis, and behold the place
Where thou with fortitude must arm thyself.” (canto 34)