The transformation of housing law is a work in progress
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Louise Heath
The past few years have been remarkable in seeing the emergence of housing issues at the front rank of political concerns. Electoral calculations and the increasing crisis in housing affordability, as well as the aftermath of the tragic events of the Grenfell Tower fire, have pushed housing up the agenda.
This has now culminated in the government’s surprising announcement that it will legislate to end ‘no-fault’ eviction by s21 notice (see page 4 of this issue). This was already Labour policy, so it seems very likely that the largest change to assured shorthold tenancies since 1996 will be taking place at some point.
In this context, it is perhaps surprising that of the three major legislative changes in housing in the past two years, only one was a government bill – the Tenant Fees Act (TFA) 2019. The other two – the Homelessness Reduction Act (HRA) 2017 and the Homes (Fitness for Human Habitation) Act (H(FHH)A) 2018 – were both private members’ bills, albeit with government support.
From the government side, at least until now, the more significant steps were in what wasn’t done. In quiet announcements, it was revealed that the worst elements of the Housing and Planning Act (HPA) 2016 would not be implemented. ‘Pay to stay’, compulsory fixed-term secure tenancies and the compulsory sell-off of ‘higher value’ council housing were all abandoned. On such issues as the cost of replacement of dangerous cladding to blocks of flats, or onerous leasehold terms such as ground rent, the government has preferred to limit itself to moral exhortation to freeholders and developers to do the right thing, with unsurprisingly limited effects.
Small extra funds have been made available to local authorities to pursue enforcement of licensing and housing standards against ‘rogue landlords’. The additional powers, including civil penalties, contained in the HPA 2016 may see more enforcement activity but, in practice, it varies greatly across local authorities, with over half doing little or none.
How the courts will approach the criteria of ‘unfit for human habitation’ will no doubt be keenly watched over the next months and years.
This variability of enforcement was one of the catalysts for the H(FHH)A 2018. It came into force on 20 March 2019 and by 20 March 2020, it should apply to the large majority of tenancies. How the courts will approach the criteria of ‘unfit for human habitation’ will no doubt be keenly watched over the next months and years, but a guide to precedent case law and interpretation of the Act is found in the newly-published sixth edition of Housing Conditions: tenants’ rights from LAG.
Legal aid is available for ‘fitness’ cases in the same way as for disrepair. It may be that the ability to deal with urgent risks to health and safety under legal aid is more attractive than with disrepair, as, where the risk is recent, not funding a claim for damages is less of an issue. The Legal Aid Agency’s internal guidance anticipates a rise in applications. However, this is one of the nonsensical limitations on legal aid for housing matters that the recent Ministry of Justice LASPO review showed no sign of acknowledging, despite the falling numbers of practices and applications for certificates.
We are now one year on from the introduction of the HRA 2017 reforms. The year-end statistics will doubtless be scrutinised in detail to assess the impact, if any, on preventing homelessness, and on the use of six-month assured shorthold private tenancies at the Housing Act (HA) 1996 s189B stage. We also await any significant case law on the operation of the new schemes, or even reported HA 1996 s204 appeals, but from anecdotal reports it seems that there is wide variation in the approaches to the new duties across councils, and challenges can only be a matter of time.
The TFA 2019 comes into force on 1 June 2019 for new tenancies, hopefully protecting tenants and prospective tenants from the widely variable and unjustifiable fees charged by letting agents and some landlords, and placing further restrictions on the use of HA 1988 s21 where the rules have been broken (although this may have a limited lifespan).
Lastly, I must note that the LAG Housing Law Conference takes place on 13 June 2019, with expert analysis and opinion on all this legislation and other key issues in housing law. Karen Buck MP, co-sponsor of the H(FHH)A 2018 and a tireless supporter of tenants’ rights, will give the keynote speech. At a time when housing conditions, tenure and homelessness are finally back on the public agenda, there is much to discuss, including the prospect of the end of ‘no-fault’ evictions.
Giles Peaker worked with Karen Buck MP on the H(FHH)A 2018 from its conception in 2015.

About the author(s)

Description: Giles Peaker
Giles Peaker is a partner in the housing team at Anthony Gold. He is the founder and editor of the Nearly Legal housing law website. Giles was the...