A happy new year to all.

I was going to do a new year video, as per the last two years, but as rain lashes the windows and the daylight disappeared about 2 pm, the level of faff involved was beyond me. This seems a fitting way to end 2022… After three prime ministers, an unnecessary economic crisis, and the general collapse of anything that one might expect or hope to work properly, it is OK to be faffed out.

So, a bit of a look forward to 2023.

Much of it is likely to involve Michael Gove, who has managed to be the Secretary of State for Levelling Up, Housing and Communities twice in the last year.

The building safety crisis grinds on relentlessly, with Gove now announcing that he expects developers to sign contracts with DLUHC in January on their obligations to remediate buildings for cladding and non-cladding fire safety defects. Not all developers signed up to the pledge. Many of those that did have been hastily re-evaluating the extent of the defects and works required, downward.

Remediation order applications have started. As they have, the problems have become clearer.

Firstly, for leaseholders, the application is in the First Tier Tribunal. While this makes sense in some ways, it means that there is no practical means of costs recovery, leaving leaseholders either significantly out of pocket or having to do it themselves. The lack of costs recovery is also likely to inhibit local authorities or fire services, or indeed non-developer freeholders, from engaging in remediation order applications in any great number. Councils were given a few million (in total, not each) to support this, but there are a lot of buildings involved. A few million won’t go far.

Secondly, for blocks with right to manage companies, the RTM company has no right to apply for a remediation order (and in any event couldn’t raise the funds to do so through the service charge, as that is a prohibited cost under the Building Safety Act 2022.)

What might be a game changer is if DLUHC is itself prepared to pursue significant numbers of remediation order applications. We shall see.

Another hitch that has emerged is that there appears to be no effective remedy if a freeholder fails to provider a certificate as to whether it meets the contribution condition or not when required to do so. Sure, the freeholder is deemed to meet the contribution condition if it doesn’t provide the certificate in the time limits, but there is little point in starting a contribution order application, with the costs and work in doing so, if the freeholder then just coughs up a certificate showing they don’t meet the condition.

Leaseholders in sub 11 meter blocks remain completely stuffed. And confusion reigns over how many other properties a leaseholder can own in the UK while remaining eligible or not.

Back at the start of 2022, I wondered whether we were going to see the Renters Reform Bill reach Parliament. I start 2023 wondering whether we will see the Renters Reform Bill reach Parliament. It has been an annual ritual since January 2020. There have been noises suggesting it might happen this year, and indeed signs and portents. Personally, I am very much looking forward to retiring the section 21 validity flowchart, but there is the horrifying prospect that there might need to be a section 8 flowchart instead.

Actually in Parliament is the Social Housing (Regulation) Bill. This seems largely like a good thing, although much will depend on what the beefed up regulator of social housing actually does. Recently, in the wake of the tragic death of Awaab Ishak, the regulator has been making noises to social landlords that they need to treat damp and mould seriously. What enforcement might follow once the new powers are in place (and the issue is out of the spotlight) will have to be seen.

Michael Gove has also been making noises and conducting a name and shame campaign in this issue. Unfortunately the latest version published on 28 December is, to put it politely, a bit confused. As well as naming and shaming Orbit Housing, Lambeth Council and Birmingham City Council, the announcement says:

In a letter to the Law Society, Citizens Advice, and Housing Law Practitioners Association today, Michael Gove has urged solicitors to tell social housing tenants that the Ombudsman should be the first route for reporting complaints with their landlord – and that it is unacceptable for landlords to let legal proceedings get in the way of repairs.

While lawyers will always have a crucial role representing tenants in legal proceedings, the Ombudsman services are free to use and residents are now able to bring complaints directly themselves, potentially avoiding lengthy and costly legal proceedings.

And follows up with a quote from Gove:

I’m urging everyone offering advice, from solicitors to voluntary organisations, to always direct social housing tenants with complaints to the Housing Ombudsman. Every tenant deserves a decent home, and landlords must not use legal cases as an excuse to delay making repairs or act on complaints.

I’m sorry Michael, but that is not only wrong, but not in the best interests of tenants. Let me explain….

First, this ‘legal cases as an excuse to delay repairs’ thing is a nonsense, with no basis in law, as I discussed at length here.

Second, the Ombudsman is currently taking about 12 months on a complaint. Unless there has been a significant increase in resourcing and staffing for the Ombudsman, this is not a way to avoid things being lengthy.

Third, this is to confuse the relationship between an Ombudsman complaint and legal proceedings. It is not an either/or, as I discussed here.

Fourth, it doesn’t get to grips with the limits of the Ombudsman as a remedy for anything other complaints about failure to respond to complaints. There is no independent determination of what works are required – that is left to the landlord by the Ombudsman. There are no interim injunction powers for urgent issues, of course. Any recommendation by the Ombudsman on having works carried out is not enforceable (except by a further complaint to the Ombudsman). There is no enforceable order for works or settlement agreement, as with a claim. Finally, the typical compensation in an Ombudsman’s award  is much lower than that we’d expect in a claim. (From looking at them, I’d roughly estimate awards are at a rate of some 25% of what damages would be. So even with a 25% success fee deduction on damages, the tenant would still be 200% better off.)

The upshot then, is that it would not be in the tenant’s best interests for solicitors to direct tenants to the Ombudsman as the ‘first’ or only route. It would actually be arguably negligent for us to do so. An Ombudsman complaint concurrent with a claim quite possibly is to be recommended, at least at pre-action stages. If Michael Gove has written to HLPA and the Law Society, I suspect he will receive replies pointing out something similar early in the new year.

(Gove and DLUHC need to understand this, and also understand the potential impact of fixed recoverable costs – now delayed to October 2023 – on the basis that it is no good having firm legislation and regulation if there is no-one there to enforce it.)

Also in the ‘keenly awaited for 2023 but not holding my breath’ category is stage two of leasehold reform, which is promised to make enfranchisement and lease extensions more widely available, easier and cheaper, along with other items of reform. Again, we will see.

In terms of important case law, there is the forthcoming Supreme Court hearing of Rakusen v Jepson in January – the issue being whether a rent repayment order can be made against a superior landlord of the property or only the direct landlord. This is an important issue in view of the many, many incompetent, exploitative and sometimes downright criminal ‘rent to rent’ set ups operating HMOs, as well as the use of front companies to hide criminal operations.

There are also rumours of a homelessness matter also going before the Supreme Court in 2023, which should prove to be very interesting.

And of course, we will have to see what comes out of the now wholly distinct housing regime in Wales, although, in the spirit of devolved responsibilities, I may well have to rely on someone else’s abilities and insights for that.

In the short term, I’m just hoping we get to find out what the decision is in this case (link to Daily Mail), in which Italian aristocrats are claiming for harassment and attempted unlawful eviction while asserting a tenancy, and the landlord counterclaims for unpaid charges/arrears for a short let licence.