COVID-19: round-up from law and practice
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Louise Heath
Legal Action is making all coronavirus-related law and practice content freely accessible on this page. It will be continuously updated.
Support for migrants: update (June 2020) by Sasha Rozansky, Deborah Gellner and Lara ten Caten
Policy and legislation
Immigration
Lifting no recourse to public funds restrictions
On 1 April 2020, as a result of the COVID-19 pandemic, the Home Office issued OPI 942: Change of conditions – indicators of enhanced need and case work response. The instruction allowed decision-makers to adopt a more flexible approach to the evidence required when considering requests by those granted leave under Appendix FM of the Immigration Rules for a no recourse to public funds (NRPF) condition to be lifted. A non-exhaustive list of factors that may indicate that the NRPF condition should be lifted was provided. The aim of the instruction was to ‘provide sympathetic and expeditious decision making until the constraints which might affect applicants due to COVID-19 and its restrictions are over’. This was replaced on 21 April 2020 by OPI 949: Change of conditions – exercising flexibility in requiring further additional evidence (UK Visas and Immigration (UKVI)). There is no longer an aim for sympathetic and expeditious decision-making, but instead a requirement for evidential flexibility to be applied. This OPI is due to expire on 30 June 2020. The NRPF condition has been held by the High Court to unlawfully breach European Convention on Human Rights (ECHR) article 3.
Housing
Changes to right to rent checks
From 30 March 2020, landlords no longer need to see original documents when carrying out right to rent checks. According to Home Office guidance, Coronavirus (COVID-19): landlord right to rent checks (30 March 2020):
checks of applicants’ eligibility to rent can now be carried out by video calls; and
applicants can send scanned documents by email or mobile app.
Landlords will be notified when the government considers that the COVID-19 crisis has ended and will then have to repeat the checks in the normal way, rechecking any tenancies that began after 30 March 2020.
Asylum support
COVID-19 developments
The refugee sector has been active since the COVID-19 crisis started. Two dedicated Google Groups, covering policy and operations, were set up by the British Red Cross (BRC) and UKLGIG.1To join, email: Catherine.Kelly@uklgig.org.uk. The situation is fast-moving, and so specific points are not detailed here. Very broadly, the Home Office has indicated that those already on support will not be evicted, and asylum-seekers and refused asylum-seekers seeking support should be granted it, subject to proving destitution. The BRC has been the point of contact with the Home Office, and the collated ongoing list of questions and answers can be accessed here. The key requests include the raising of support rates, IAA 1999 s4 support to be cash and the facility to grant subsistence-only s4 support.
The Refugee Council also regularly updates the information on its website, covering (currently) 22 different areas.
The BRC’s 2020 report, The costs of destitution: a cost-benefit analysis of extending the move-on period for new refugees has, for the time being, been overtaken by current events. This report, building on previous BRC research, calls for the period of asylum support, following the grant of status, to be extended from 28 to 56 days so as to prevent new refugees falling into destitution before their mainstream benefits or employment starts. The Home Office confirmed in a letter to the BRC of 27 March 2020 that asylum support will continue for those in this situation for three months, and this will be reviewed in advance of end of June.
It is likely that all destitute refused asylum-seekers are currently eligible for IAA 1999 s4 support, as set out in the Asylum Support Appeals Project (ASAP) factsheet, COVID-19 and asylum support (17 April 2020). It is believed that applications from this group are no longer being refused, except on grounds of destitution. Therefore, asylum support appeals continue, regarding both s4 and s95 applications. Almost all appeals are on the issue of destitution.
First-tier Tribunal (Asylum Support) (AST) hearings have been switched to paper and telephone hearings, as detailed in ASAP’s Briefing note on Asylum Support Tribunal procedures during COVID-19 pandemic (17 April 2020).
Children
Free school meals
On 20 April 2020, the Department for Education announced (in Providing free school meals during the coronavirus outbreak, last updated 15 May) that during the COVID-19 outbreak, and until schools have reopened to all children, eligibility for free school meals has been temporarily extended to certain groups who have NRPF, including children of Zambrano carers, children of families with NRPF with leave to remain in the UK under ECHR article 8, and children of families supported under Children Act 1989 s17; a maximum annual earnings threshold of £7,400 applies. Eligibility is also extended to children of families in receipt of IAA 1999 s4 support; this group is not subject to any earnings threshold.
Case law
Immigration
Accommodation under Sch 10
R (WP (Poland)) v Secretary of State for the Home Department2Rebecca Harrigan, Wilson Solicitors LLP, and Laura Dubinsky and Marisa Cohen, barristers, London.
Administrative Court,
16 April 2020
WP was a Polish national with a history of mental health issues including admission to a psychiatric ward. The home secretary made a decision to remove her from the UK due to criminal offences and she was detained pending her removal. WP appealed and the removal was put on hold due to the COVID-19 pandemic. A report was prepared under Detention Centre Rules 2001 SI No 238 r35, which stated that, despite WP accessing psychiatric treatment and anti-psychotic medication in detention, she may deteriorate if she remained in detention. However, although the home secretary had determined that WP was eligible for accommodation under IA 2016 Sch 10, she claimed that, due to COVID-19, there was no possibility of providing a timescale as to when accommodation would be provided. At the time WP made an application to the court, she had been in detention for four months.
The court noted that eligibility for Sch 10 accommodation does not equate to entitlement to such accommodation; entitlement begins when accommodation is available. However, there was an obligation to determine applications for support under Sch 10 fairly and rationally, and this imposed an implied obligation to act reasonably to obtain accommodation within a reasonable period. The court stated that there was considerable sympathy for the home secretary due to the unprecedented challenges presented by COVID-19, but in light of the serious concerns for WP’s mental health and her detention lasting for four months, it was appropriate to grant the application for interim relief. The home secretary was ordered to make accommodation available within seven days.
Asylum support
Asylum-seeker with COVID-19 symptoms
R (AQS) v Secretary of State for the Home Department3Simon Cox, barrister, London.
7 April 2020
AQS, who had mental health problems, was in receipt of IAA 1999 s95 support. Another man was moved into his room on 19 March 2020. The other man had a persistent cough and night sweats, and AQS was concerned this was related to COVID-19. AQS began to have symptoms and became angry that he had not been allowed his own room. An incident ensued, the police were called and he was required to leave on 20 March. On that day, AQS’s solicitor and Mr Smith of the charity Young Roots contacted Migrant Help Limited (MHL), as the single point of contact for the home secretary, but received no substantive response.
AQS stayed the weekend with some people who gave him a bed and some food. On 23 March, Mr Smith contacted MHL again, which, on his evidence, told him that asylum-seekers with COVID-19 symptoms could not apply for IAA 1999 s98 accommodation. On 24 March, MHL told Mr Smith that homeless asylum-seekers should ask for accommodation through the NHS. On 27 March, proceedings were issued, and an interim order was made the same day for him to be provided with single person accommodation. By 29 March, AQS had moved into a facility specifically for those with COVID-19 symptoms.
The matter was dealt with by written submissions. The home secretary’s summary grounds stated that there was no policy not to accommodate those with symptoms and referred to the apparent confusion on the part of MHL. The judge commented that ‘[i]t is … appropriate to be direct’ and ‘when MHL conveys information it is the secretary of state who is conveying information, through that channel’ (para 22). The summary grounds also stated the measures being taken, in conjunction with advice from Public Health England, and that there was a dedicated facility in London to accommodate those with symptoms in isolation.
The judge declined to discharge the interim order. However, he also declined to make the further order sought regarding clarifying the policy on accommodating those with symptoms and the communication of that policy.
Decisions of the First-tier Tribunal (Asylum Support)
Asylum support takes precedence over local authority support
AS/20/04/42101
18 May 2020
The appellant had first applied for asylum in 2003. His application for IAA 1999 s4(2) support had been refused on the basis that he was not destitute. Financial checks had revealed that there were bank accounts in his name which he had failed to declare. By the time of the appeal, which was heard on the papers, he had provided bank statements showing he had a total of £25.99, and also other evidence to demonstrate his destitution, including a witness statement. Since 10 April 2020, he had been housed by Liverpool City Council (LCC) in a guesthouse, due to the COVID-19 pandemic. LCC did not provide him with any food; for that he was reliant on food banks and charity.
Judge Wilkin found that the legal basis for LCC’s support was unclear, and contrary to the 1999 Act under which s4(2) and s95 support replaced support previously supplied by local authorities to those subject to ‘immigration control’. The LCC accommodation could not be considered ‘adequate’ within the meaning of the 1999 Act due to its lack of legal basis, and it was uncertain as to whether he could remain there for the next 14 days. In any event, even if it was adequate, the appellant was destitute on the alternative basis that he did not have sufficient funds to meet his essential living needs for the next 14 days.
Comment: It is likely that the emergency support currently being provided by local authorities is under the Localism Act 2011 s1. However, it remains arguably the case that asylum support takes precedence, on the basis that specific powers generally take precedence over more general ones.
Coronavirus issues and destitution
AS/20/03/41986
8 April 2020
The appellant came to the UK, with her two children, in December 2019 on a visitor’s visa, and applied for asylum on 7 March 2020. On 17 March 2020, her application for IAA 1999 s95 support was refused on the basis that she was not destitute. She had failed to explain transactions on her bank statements or the funds declared on her visa form. The respondent calculated that she would need £617.20 to house and feed herself and her children for the next 14 days, as required under s95(3) and Asylum Support Regulations 2000 SI No 704 reg 7(a). At the time of the appeal, which was a telephone hearing, she was living in s98 accommodation in Wales. The day before the hearing, the judge issued directions to both parties to address the following matters, taking into account the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020 SI No 353 (W 80):
whether the regulations, or any other legislation, prevented the appellant leaving her current accommodation in order to find new accommodation;
the practical impact of current restrictions on availability of accommodation (of the various types) in the local area;
the content of any relevant policy or guidance issued by the UK government;
right to rent restrictions for asylum-seekers; and
any specific evidence regarding availability of accommodation in the appellant’s area at this time.
The appellant’s representative submitted written responses and proof of destitution in advance of the hearing. The respondent argued for a remittal, as this was a complex issue and required policy input. The judge granted the remittal, and requested the respondent also address:
whether it is reasonable generally for asylum-seekers, in seeking to find private accommodation, to expose themselves (and others) to contracting COVID-19; and
whether it is reasonable for asylum-seekers in vulnerable groups, for whom exposure is most likely to be life-threatening (this appellant had been diagnosed with AIDS).
Comment: It is likely that support has since been granted to the appellant, and therefore these questions will not be answered in this case. In another appeal, from which the Home Office subsequently withdrew, a response to similar questions was filed. The Home Office acknowledged, in this response, that there is currently no availability to source alternative accommodation in the London area due to government restrictions imposed, that an eviction from initial accommodation will not take place until government medical advice deems it appropriate to do so, and that the appellant is not expected to expose themselves to risk by seeking alternative accommodation until present restrictions are lifted.
Reasonable excuse for leaving accommodation
AS/19/10/40694
1 November 2019
IAA 1999 s4(2) support was discontinued to the appellant, a 19-year-old Iraqi, as he had breached the conditions of his support by abandoning his accommodation. Under Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005 SI No 930 (IA(PAFAS) Regs) reg 6(2), it is a condition not to be absent from the accommodation for more than seven consecutive days, or a total of 14 days in any six-month period. The appellant, who suffered from depression and anxiety, had been sharing a bedroom with another person who had become aggressive towards him. The accommodation was in London. He made a detailed request in writing for a single room and informed the accommodation manager of the problems. When he did not receive a response, he moved to a town in Wales where he had previously been living and sofa-surfed with friends. He provided further details and medical evidence as to why he had moved prior to the discontinuation decision. The judge found that he was not in breach of the conditions of his support, as he had had a reasonable excuse for leaving the accommodation.
Comment: The Home Office obtains information of where asylum-seekers are residing from Aspen card records. In the current COVID-19 pandemic, it is likely there has been and will be an increase in those experiencing problems in their Home Office accommodation due to people being unable to leave their shared rooms/homes.
Inquests and inquiries: update (June 2020) by Daniel Machover, Helen Stone, Tom Stoate and Adam Straw
Inquests and COVID-19
The COVID-19 health crisis has had a significant impact on the justice system, including coroners’ courts. The tragic death toll caused by this virus is in the tens of thousands in the UK alone, which has meant that not only must the coronial service adapt to ‘social distancing’ requirements, and all that this entails, but it has also caused an additional strain in terms of the sheer number of extra investigations to be carried out by the service.
In response to the pandemic, the government passed the Coronavirus Act (CvA) 2020, which contains relevant sections for the four nations in relation to inquest law. The chief coroner has also issued (at the time of writing) four guidance notes (nos 34–37) since 26 March 2020, designed to assist coroners in continuing to carry out their duties lawfully.
Notification and investigation of COVID-19 deaths
As COVID-19 is a naturally occurring disease, it is capable of being categorised as a natural cause of death. As such, the fact that COVID-19 caused or contributed to death does not necessarily mean that it will be referred to a coroner. The Notification of Deaths Regulations 2019 SI No 1112 (which came into force on 1 October 2019) define the circumstances in which a doctor must notify a coroner about a death: reg 3. They are similar to the circumstances in which an investigation and inquest must be held pursuant to Coroners and Justice Act (CJA) 2009 s1, and include where the doctor suspects the person’s death was unnatural, where the cause is unknown, or where the person died while in state detention. ‘Unnatural’ in this context includes a death from natural causes that results from some culpable human failure: R v Inner North London Coroner ex p Touche [2001] EWCA Civ 383; [2001] 3 WLR 148 at paras 43–46.
An investigation and inquest will also be required if the European Convention on Human Rights (ECHR) article 2 procedural duty is triggered, for example, due to a systemic failure that led to the death, and that duty will not be satisfied by other pending proceedings (such as a criminal trial or public inquiry): see, for example, R (Parkinson) v HM Senior Coroner for Kent [2018] EWHC 1501 (Admin); [2018] 4 WLR 106 at paras 88–90; December 2018/January 2019 Legal Action 18. Thus, a coronial investigation should take place in respect of a death caused by COVID-19 where there is reason to suspect a culpable human failure and/or a breach of article 2 that has not been investigated.
Chief coroner’s guidance no 37: COVID-19 deaths and possible exposure in the workplace (28 April 2020) has drawn the most public attention, as it addresses COVID-19 deaths and possible exposure in the workplace. The revised guidance includes:
A reminder that COVID-19 constitutes a natural cause of death, but that there ‘may be’ exceptions ‘such as where the virus may have been contracted in the workplace setting’: para 7, page 2.
Reference to the fact that a death ‘may be “unnatural” where it has resulted from the effects of a naturally occurring condition or disease process but where some human error contributed to death’: para 11, page 3.
Guidance that: ‘Coroners are reminded that an inquest is not the right forum for addressing concerns about high-level government or public policy’: para 13, page 3. Scholes v Secretary of State for the Home Department [2006] EWCA Civ 1343; [2006] HRLR 44 at para 69; January 2007 Legal Action 11, and a comment by Lord Phillips in R (Smith) v Oxfordshire Assistant Deputy Coroner and another [2010] UKSC 29; [2011] 1 AC 1 at para 81 are referenced and relied on to assert that ‘an inquest would not be a satisfactory means of deciding whether adequate general policies and arrangements were in place for provision of personal protective equipment (PPE) to healthcare workers in the country or a part of it’: para 13, page 3.
Guidance (which tempers the above to some extent) that: ‘If the coroner considers that a proper investigation into the death requires that evidence or material be obtained in relation to matters of policy and resourcing (eg the adequacy of provision of PPE for clinicians in a particular hospital or department), he or she may choose to suspend the investigation until it becomes clear how such enquiries can best be pursued. In making that decision, the coroner should consider his or her own ability (a) to pursue necessary enquiries to gather evidence and (b) to proceed to an inquest, having regard to the effects of the pandemic and the lockdown restrictions’: para 14, page 3.
Guidance no 37 has attracted significant concern, with its encouragement to coroners at para 13 (page 3) that the scope of an inquest should not include, for example, the provision of PPE to a healthcare worker who died with COVID-19. The suggestion that the ‘inquest is not the right forum for addressing concerns about high-level government or public policy’ must be treated with real care. A central function of the inquest is to examine failings in systems, policies and procedures that put the lives of others at risk: see, for example, CJA 2009 Sch 5 para 7, R v HM Coroner for the Western District of Somerset ex p Middleton [2004] UKHL 10; [2004] 2 AC 182 at para 19, R v Secretary of State for the Home Department ex p Amin [2003] UKHL 51; [2004] 1 AC 653 at para 31 and R v HM Coroner for the County of West Yorkshire ex p Sacker [2004] UKHL 11; [2004] 1 WLR 796 at para 28.
A failure to provide appropriate equipment, training, resources or other systems to the health services may breach article 2 (eg, Smith and others v Ministry of Defence and other appeals [2013] UKSC 41; [2014] AC 52 at paras 63 and 68; December 2013/January 2014 Legal Action 23, R (Humberstone) v Legal Services Commission [2010] EWCA Civ 1479; [2011] 1 WLR 1460 at paras 69–70; March 2012 Legal Action 11, and Brincat and others v Malta App Nos 60908/11, 62110/11, 62129/11, 62312/11 and 62338/11, 24 July 2014 at para 112, holding masks were inadequate), as may a failure to protect patients from a care home (Watts v UK App No 53586/09, 4 May 2010; (2010) 51 EHRR SE5 at para 88). An arguable breach must be investigated.
Any exceptions to these crucial statutory and ECHR functions, of identifying dangerous flaws in systems and policies, must be narrowly construed. In Scholes, the Court of Appeal approved the investigation by an inquest of systems and policies, including the policy for deciding which type of secure institution a juvenile will be held in. However, the Court of Appeal held that a public inquiry, to investigate whether sentencing policy was appropriate, was not required. Arden LJ’s reason was based on the need to respect the democratic legitimacy of parliament: ‘The more purely political (in a broad or narrow sense) the question is, the … less likely it is to be for an appropriate matter for judicial decision’ (para 82, quoting Lord Bingham in A and others v Secretary of State for the Home Department; X and another v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68 at para 29). Thus, if investigation of an issue at an inquest will usurp the proper function of parliament, it may be inappropriate. But that will rarely be the case.
The chief coroner’s reliance on Lord Phillips’s comment at para 81 of R (Smith) v Oxfordshire Assistant Deputy Coroner and another is inappropriate. Military operations are a special context, and none of the other eight justices in that case agreed with him about this point. Indeed, Lord Brown disagreed with him (see para 151), correctly explaining that Middleton held (at para 47) that ‘[i]n the absence of full criminal proceedings, and unless otherwise notified, a coroner should assume that his inquest is the means by which the state will discharge its procedural investigative obligation under article 2’. That applies to any article 2 duty to investigate systemic failures relating to COVID-19, such as in the provision of PPE equipment or failure to protect care home residents.
It may be considered remarkable that the guidance does not refer specifically to article 2 at all. Para 14 may imply that the chief coroner believes a public inquiry will undertake a wider investigation into, for example, the provision of PPE. The merits or otherwise of a public inquiry into such matters are likely to be widely explored in the coming weeks and months ahead. However, as at the time of writing, no such public inquiry has been established and we cannot know if the terms of reference of any inquiry will include all relevant deaths. As such, inquests remain the state’s default vehicle for exploring whether any of its agents contributed to an individual’s death that was caused by the virus.
There is a real risk that the guidance will lead to confusion and to some coroners failing to discharge their obligations to explore relevant matters, for example, in any case involving an apparent failure to provide PPE to a front-line healthcare worker who subsequently died as a result of COVID-19. Coroners relying on the chief coroner’s guidance in their decision-making may need reminding that guidance does not override their statutory and common law obligations, where these may conflict with guidance. We hope that this guidance will be urgently amended to refer to all relevant case law, so as to head off any problems resulting from the controversial terms of para 13. Otherwise, it may not be long before the application of the guidance by coroners is the subject of one or more claims of judicial review.
Juries
CJA 2009 s7(2)(c) requires coroners to conduct an inquest with a jury where they have reason to suspect the death was caused by a notifiable disease. In relation to England and Wales, CvA 2020 s30 disapplies this requirement in relation to COVID-19, which is no longer ‘a notifiable disease’. However, it does not amend any of the other provisions of s7 as to when a jury will be, or may be, required, including s7(3) where an inquest may be held with a jury ‘if the senior coroner thinks that there is sufficient reason for doing so’.
There are still a number of reasons why a death related to COVID-19 may require the inquest to be heard by a jury. There has been much public focus on the exploration of how criminal trials with a jury may take place in the future, but seemingly little open discussion about the question of how jury inquests can resume. If all jury inquests are not to be simply suspended indefinitely, such discussions will need to be had in the near future, and should involve all relevant stakeholders, including, of course, those representing families who will be involved in the process.
Hearings in public
It is notable that some of this recent guidance affects not only inquests in respect of deaths related to COVID-19, but also all ongoing inquests, whatever the cause of death may be. In this regard, Chief coroner guidance no 35 – hearings during the pandemic (27 March 2020) states that the coroner has to be physically present in court, otherwise ‘it is not a court’: para 5. We understand that this has caused a large number of pre-inquest hearings to be adjourned, because coroners have been unable to hold hearings from their courts.
It is not correct that the coroner has to be physically present in court for a hearing to be effective. A coronial hearing may take place remotely online or by telephone, even if the coroner is at home or in an office. The Civil Justice in England and Wales Protocol Regarding Remote Hearings (26 March 2020) gives practical guidance on the means by which hearings can take place remotely. Chief coroner guidance no 35 is out of keeping with other courts (civil, family, criminal and the senior courts) around the country, where judges may be at home and conduct hearings remotely. The legal basis for the assertion that ‘absent a coroner, it is not a court’ is not explained in the guidance and appears to be open to challenge. The practical implications of delays will surely include the need for substantial additional resources in the future, potentially for years to come, to provide for additional coroners, their officers, and court availability in order to address the backlog that is likely to be created.
Virtual hearings do raise their own concerns and, should such hearings be introduced, significant safeguards would need to be put in place, not least to ensure that the bereaved family is at the heart of the process. A coroner would be entitled, in a particular case, to decide that a remote hearing is not appropriate, for example, where it is unfair or would undermine the ability of the interested persons to effectively participate. But there is no general rule that the coroner must be physically present in court for a remote hearing to be effective.
Appointment of coroners
Another development that has wider significance, now and in the future, is guidance no 34, Chief coroner guidance – COVID-19 (26 March 2020), which states that the chief coroner and the lord chancellor are prepared ‘in principle’ to consent to the appointment of assistant coroners by local authorities without open competition to deal with urgent workload pressures: para 11, page 4. This may include considering the appointment of assistant coroners who have no previous coronial experience. These appointments will be permanent appointments to the age of 70: paras 11–13, page 4.
It is conceivable that the ‘fast track’ appointment of assistant coroners may have both a short- and long-term impact on the diversity and suitability of those who are appointed assistant coroners. The purpose of open competition is that those selected on merit are drawn from the widest range of eligible candidates. Clearly, the current pandemic is likely to create unprecedented pressure on all coronial areas, both due to the rise in the number of deaths and because of delays caused by a range of factors affecting non-COVID-19-related deaths.
However, there will also be a need for senior coroners not to ‘panic appoint’ assistant coroners who, under normal conditions, may not have been suitable appointees, given the important function of the role and the range of skills that it requires, not least bearing in mind that each inquest needs to have the family of the deceased at its heart.
Housing: recent developments (June 2020) by Jan Luba QC and Sam Madge-Wyld
Housing law news and legislation
Housing in the national emergency
The UK government has produced further non-statutory guidance directed to specific housing issues that have arisen during the national crisis. This includes:
Coronavirus (COVID-19): guidance for social landlords on essential moves (Ministry of Housing, Communities and Local Government (MHCLG)/Public Health England, 27 April 2020);
Government advice on home moving during the coronavirus (COVID-19) outbreak (MHCLG, updated 13 May 2020). This guidance covers not only sales by homeowners but also applies to people moving into homes in the private or social rented sectors.
COVID-19: mitigating impacts on Gypsy and Traveller communities (letter from Lord Greenhalgh, communities minister, 30 April 2020);
In England, the Regulator of Social Housing (RSH) has gathered all its COVID-19 related guidance to social landlords (on matters such as gas installation servicing obligations) onto one page: ‘RSH statements on coronavirus (COVID-19)’ (RSH news story, 6 March 2020; last updated 14 May 2020).
On 18 May 2020, Christopher Pincher MP, minister of state for housing, wrote to all social housing residents in England setting out all the measures in place to support them during the next phase of the national emergency: Coronavirus (COVID-19): letter to social housing residents (MHCLG, 18 May 2020). The letter states: 'We are also strongly advising landlords not to issue new notices seeking possession during this challenging time without a very good reason to do so.'
The House of Commons Library has updated its excellent free guide, Coronavirus: housing support, reviewing all the housing measures introduced in response to the crisis (Briefing Paper No 8867, 30 April 2020).
On 9 May 2020, the Labour party set out a five-point emergency action plan to prevent more people being forced from their homes as a result of the coronavirus crisis: ‘Emergency action needed to protect renters’ (Labour party press release). This followed the suggestion made by the mayor of London of special measures to protect tenants in London from evictions once the current stay of possession claims is lifted: ‘Mayor calls for rent protection during COVID-19 crisis’ (mayor’s press release, 22 April 2020).
Homelessness
On 2 May 2020, the housing, communities and local government secretary announced the UK government’s intention to extend the ‘priority need’ concept in Housing Act (HA) 1996 Part 7 (homelessness). He said: ‘[T]hrough the Domestic Abuse Bill, the government will also be ensuring that victims of domestic violence get the “priority need” status they need to access local housing services much more easily. This is a fully funded commitment which will mean that no victim of domestic violence has to make the unbearable choice between staying somewhere where they know is unsafe or becoming homeless’ (Communities secretary’s statement on coronavirus (COVID-19), MHCLG, 2 May 2020).
Also on 2 May 2020, the UK government announced that a new specialist taskforce has been created to lead the next phase of its support for rough sleepers during the crisis: ‘Dame Louise Casey to spearhead government taskforce on rough sleeping during pandemic’ (MHCLG press release). Headed by Dame Louise Casey, who will report to the prime minister and the housing, communities and local government secretary on this work, a team of experts will advise councils on plans to support rough sleepers into long-term, safe accommodation once the national lockdown is lifted. On 22 April 2020, she wrote to all local authorities about assistance provided to rough sleepers: Dame Louise Casey writes to local authority homelessness managers and rough sleeping coordinators (published 23 April 2020). See generally Rachael Dobson ‘Policy responses to “rough sleepers”: opportunities and barriers for homeless adults in England’, Critical Social Policy vol 39, issue 2, May 2019, page 309.
A new House of Lords Library briefing contains helpful links to all recent developments on homelessness and rough sleeping issues relating to the present national emergency: Homelessness and COVID-19: next steps (Lords Research Briefing LLN-2020-0100, 7 May 2020).
In Wales, the Welsh government has responded to the crisis in respect of homeless rough sleepers by issuing supplementary statutory guidance to local authorities: Guidance for local authorities in supporting people sleeping rough – COVID-19 outbreak (Welsh government, 28 April 2020). The full suite of statutory guidance issued under Housing (Wales) Act 2014 s98 has been updated online in consequence: Allocation of accommodation and homelessness: guidance for local authorities (24 March 2016; last updated 28 April 2020).
Housing law reform
In Wales, the completion of a major programme of housing law reform awaits the commencement of the Renting Homes (Wales) Act 2016. Pending that, the Renting Homes (Amendment) (Wales) Bill is presently before the Welsh Assembly. It will amend the 2016 Act prior to its coming into force to provide greater security for people who rent their homes in Wales, in particular those who live in the private rented sector. On 1 April 2020, the first minister issued a statement on the Welsh government’s approach to legislation in light of COVID-19, in which he confirmed that the bill was not one of the Welsh government’s current priorities and that the legislative programme for it remains under continual review: ‘The government’s approach to legislation in light of COVID-19’.
Possession claims
Arkin v Marshall
[2020] EWCA Civ 620,
11 May 2020
In September 2019, Mr Arkin, as a fixed-charge receiver, brought a claim for possession under Civil Procedure Rules 1998 (CPR) Part 55 against Mr Marshall. On 27 March 2020, the parties agreed directions for trial. The directions were endorsed by an order of the court. On the same day, the claim was stayed for three months by CPR Practice Direction (PD) 51Z. Mr Arkin applied to the court for an order lifting the stay to enable the parties to comply with the directions. HHJ Parfitt dismissed the application. Mr Arkin appealed to the Court of Appeal.
The Court of Appeal dismissed the appeal. PD 51Z was not unlawful. Its purpose was, in accordance with CPR Part 51, to assess modifications to the rules and practice directions that may be necessary during the coronavirus pandemic and the need to ensure that the administration of justice, including the enforcement of orders, is carried out so as not to endanger public health. Although it remained theoretically possible to lift the stay in a particular case under CPR 3.1, it would almost always be wrong in principle to do so. There were not any normal case management reasons that could justify a judge lifting the stay. Only the most exceptional circumstances, such as the endangering of public health, could justify the stay being lifted.
Homelessness
Interim relief in judicial review
R (Escott) v Chichester DC
Administrative Court,
5 May 2020
Mr Escott was a Traveller with mental health and substance abuse issues. He had sepsis and aspirational pneumonia, and required ongoing medication. On his application for homelessness assistance, the council initially offered shared hostel-style interim accommodation: HA 1996 s188. Mr Escott contended that it was unsuitable because his medical history made him extremely vulnerable to coronavirus and other residents were not practising social distancing. The council identified a self-contained unfurnished flat. Mr Escott accepted the offer. The flat did not have a fridge or cooker. A council officer personally provided a microwave. His solicitors requested furniture and white goods on the basis that he could not shield himself indoors if he had no cooking or food storage facilities. When they were not provided, he sought an interim injunction in proceedings for judicial review.
Martin Spencer J refused the application. No precedent had been identified showing that in order to comply with the duty to provide ‘suitable’ accommodation, a council had to provide furnished accommodation. Councils were frequently found to have complied with their duties by providing unfurnished accommodation. The existence of the coronavirus pandemic did not change that; in general terms, the duty was still met if unfurnished accommodation was provided.
As to the specific claimant and his particular vulnerabilities, he needed not just self-isolation, but shielding from all contact to eliminate the risk of infection. His accommodation had to provide sufficient facilities so that he could remain inside at all times. But the council had not acted unlawfully in not providing a fridge and cooker. There was no legal obligation to provide the items requested. It was significant that Mr Escott had originally accepted the unfurnished flat. The microwave allowed him to cook food. It was not arguable that the local authority had acted unlawfully in not providing another cooker. Mr Escott had rejected an offered fridge because he would have had to disinfect it himself, which was a wholly unreasonable attitude given the efforts made by the council.
Custody protocol: COVID-19 response (June 2020) by Ed Cape and Matthew Hardcastle
This article is freely available, please click above.
Immigration: update (June 2020) by Jawaid Luqmani
Developments arising from the COVID-19 crisis
A number of changes were published on the UKVI website of procedures and changes in light of the COVID-19 outbreak.
Persons on short-term visas and those seeking longer-term residence
Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents (Home Office/UKVI, 24 March 2020; last updated 22 May 2020) permitted those whose leave is to expire between 24 January 2020 and 31 May 2020 to update their records with the Coronavirus Immigration Team, with the consequence that their leave would be automatically extended until 31 May 2020.
A press release of 24 March indicated that provided the individual had emailed the Home Office, no enforcement action would be taken during that period of time (‘Visas extended for those currently unable to return home due to COVID-19’, Home Office/UKVI).
The guidance also enabled those seeking to remain in a long-term capacity to make an application online from within the UK up until 31 May 2020, thereby removing the ‘no switching’ requirement during this temporary period. The guidance recognised that the biometric centres are currently closed, though the information (as at the date of writing) was that these centres would reopen from 1 June 2020.
Unsurprisingly, given that international travel was still substantially disrupted due to the pandemic, the extension initially granted to 31 May 2020 was automatically extended to 31 July 2020, for the category of person whose leave was otherwise due to expire on or after 24 January 2020. The updated information issued on 22 May 2020 reminded individuals that they would be expected to return to their home country as soon as it is safe and possible to do so.
Citizenship ceremonies
Individuals are currently being given six months from the date of invitation to book to attend a citizenship ceremony.
Automatic visa extensions for NHS front-line workers
On 31 March 2020, the home secretary confirmed the automatic visa extension of doctors, nurses and paramedics, and their families, as well as their exemption from fees including the immigration health surcharge, where their leave will otherwise expire before 1 October 2020 (‘NHS frontline workers visas extended so they can focus on fighting coronavirus’, Home Office/UKVI). Those affected need not make a formal application and the extension is for one year.
Tribunals
Pilot Practice Direction: Contingency Arrangements in the First-tier Tribunal and the Upper Tribunal was issued on 19 March 2020 by Sir Ernest Ryder, the senior president of tribunals, with the approval of the lord chancellor, and applies to all appeals and applications to the First-tier Tribunal (FtT) and Upper Tribunal (UT) (with some provisions applying only to the FtT (Property Chamber)).
The default position under the practice direction is that where a hearing is necessary (where the parties have not consented to a determination or a paper determination) then a hearing is to proceed remotely (paras 6–7). Additionally, the tribunals are instructed to take account of the impact of the COVID-19 pandemic when considering applications for extensions of time for compliance with directions and the postponement of hearings (para 12).
Presidential Practice Statement Note No 1 2020: Arrangements during the COVID-19 Pandemic, issued by Michael Clements, the president of the FtT (Immigration and Asylum Chamber), on 23 March 2020, required all appeals (from 23 March 2020), with the exception of human rights4It is understood that this is solely in respect of article 8 claims rather than protection claims./EEA appeals, to be commenced using the online procedure, unless it is not possible to do so, in which case there is a requirement to explain why that process cannot be used.
Much confusion abounded with several practice statements issued by the FtT from 21 March 2020 onwards, all of which were superseded by later versions, as regards appeals that were extant as at that date. The effect of these various directions appears to be:
all appeals listed (prior to the issue of the practice statements) were to be adjourned and would be relisted for telephone or Skype case management reviews on a new date;
any applications are to be made by email to ecorrespondence@justice.gov.uk (though it may be sensible to also send to the relevant hearing centre if known);
contact emails, telephone numbers and Skype addresses (and whether Skype for Business is available5Many practitioners attempting to acquire Skype for Business will have been redirected to Microsoft Teams as the former is being phased out. The directions do not presently appear to take account of that technological development.) should be provided for each individual within an organisation;
to provide an appellant skeleton argument and bundle of witness statements (if any) within 15 days of the notice issued by the tribunal, with the bundle consisting of a maximum of 50 pages unless the tribunal consents to a larger bundle;
the respondent must file a response within 10 days of the service of the appellant skeleton argument and, in default, it is to be assumed that no issue is taken with the submissions in the skeleton; and
if the FtT judge is of the view that a hearing is required, then this will be remotely, though there is no detail as regards witnesses and any necessary interpreters.
Also on 23 March 2020, Lane J, president of the UT (Immigration and Asylum Chamber), issued Presidential Guidance Note No 1 2020: Arrangements during the COVID-19 Pandemic, indicating that, for statutory appeals where permission has been granted, the UT judge will consider whether a decision can be made without a hearing (paras 11–12) and that, where hearings are to take place, this may be by audio or video link (para 20). Documents are to be filed electronically but attachments must not exceed 15MB (para 25). Judicial review cases issued in the UT are to be filed by post where not urgent (para 35) and urgent cases that have been refused without a hearing can be reconsidered at a telephone hearing (para 34).
The Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 SI No 416 were laid on 9 April 2020 and came into force on 10 April 2020. They are to cease on the same day as the expiration of Coronavirus Act 2020 s55(b) (r1(2)).
Among the changes are amendments to the Tribunal Procedure (Upper Tribunal) Rules 2008 SI No 2698 to reflect Lane J’s presidential guidance note (r5):
the UT may make a decision without a hearing if satisfied that the matter is urgent, it is not reasonably practicable for a hearing (including remote or telephone hearings) and it is in the interests of justice;
the tribunal may be held in private if it is to be conducted as a video or audio hearing and it is not reasonably practicable for such a hearing to be accessed publicly in a court or tribunal; and
the tribunal may direct that the hearing be recorded in some format.
The amendment rules make similar amendments (at r10) to the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 SI No 2604.
Biometric registration halted
The Immigration (Biometric Registration) Regulations 2008 SI No 3048 and the amendments thereto require all individuals seeking to apply for leave to enter or remain, for indefinite leave or for citizenship to provide their biometric data. Sopra Steria, which runs the biometric enrolment centres, issued a statement on 28 March 2020 to persons with forthcoming appointments announcing their cancellation and indicating that they would be rescheduled approximately six weeks later.
The UK Visa and Citizenship Application Services website has a service statement indicating the suspension, which now says that it remains under review. The consequence of this is that almost any application made where the individual had not yet completed their biometric enrolment will be delayed.
Sentencing: update (June 2020) by Andrew Keogh
Coronavirus: early release of prisoners
The purpose of the Prison and Young Offender Institution (Coronavirus) (Amendment) Rules 2020 SI No 400 and the Offender Management Act 2007 (Coronavirus) (Approved Premises) (Amendment) Regulations 2020 SI No 401 is to allow prison governors, on behalf of the secretary of state, to release certain prisoners temporarily to help manage the incidence or transmission of coronavirus and to facilitate the effective running of prisons and young offender institutions for this purpose. The regulations came in to force on 6 April 2020.
Employment: update (May 2020) by Philip Tsamados
All of the May 2020 employment copy is freely available, please click above.
Housing: recent developments (May 2020) by Sam Madge-Wyld and Jan Luba QC
Housing in the national emergency
1. Guidance
Details of housing-related measures taken in England and Wales arising from the current national emergency are set out at 2–13 below. For a regularly updated overview of those measures, see the House of Commons Library’s briefing paper Coronavirus: housing support (Briefing Paper No 08867, first issued 2 April 2020).
For England, the Ministry of Housing, Communities and Local Government (MHCLG) has issued the following non-statutory guidance:
In Wales, the material issued by the Welsh government (see generally here) includes:
Health guidance for social landlords: coronavirus (COVID-19) (13 March 2020; last updated 31 March 2020).
2. New lettings
The UK government has issued advice for landlords carrying out right to rent checks during the coronavirus pandemic: Coronavirus (COVID-19): landlord right to rent checks (Home Office, 30 March 2020). Although such checks are still required, the new guidance advises that:
checks can now be carried out over video calls;
tenants can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals; and
landlords should use the Landlords’ Checking Service if a prospective or existing tenant cannot provide any of the required documents.
3. Rent and mortgage payments
Contractual obligations to make rent and mortgage payments, and to meet lawful increases in those payments, continue to apply during the current national emergency. The Residential Landlords Association (RLA) reports that landlords are contacting it saying that their tenants are under the impression they no longer have to pay rent and it is now asking the government to clarify its guidance that rents should continue to be paid: ‘Rent payments must be maintained where possible say landlords’ (RLA press release, 6 April 2020)
Tenants in financial difficulty can access help through housing benefit, universal credit, discretionary housing payments and/or from local authority financial support for those in need.
Local housing allowance (LHA) rates on which assistance with rent through benefits is based were frozen in April 2016 for four years. The UK government had announced that the freeze would end in April 2020 with an uprating of 1.7 per cent in line with the consumer price index. However, in a speech on 20 March 2020, the chancellor announced nearly £1bn of support for tenants, by increasing housing benefit and universal credit, so that LHA would cover at least 30 per cent of market rents in each area: The chancellor Rishi Sunak provides an updated statement on coronavirus.
The change was implemented with effect from 1 April 2020 by Social Security (Coronavirus) (Further Measures) Regulations 2020 SI No 371 reg 4. The new rates by area are set out in tables available via Local housing allowance (LHA) rates applicable from April 2020 to March 2021 – amendment as instructed by the Social Security (Coronavirus) (Further Measures) Regulations 2020 (Valuation Office Agency, 30 January 2020; last updated 25 March 2020). (See also the Social Security (Coronavirus) (Further Measures) Amendment Regulations 2020 SI No 397, in force from 6 April 2020.)
Borrowers making mortgage repayments may obtain agreement from their lender to a three-month repayment ‘holiday’ if in financial difficulties. Although the mortgage lending industry has voluntarily agreed to provide such opportunities, formal guidance has been issued by the Financial Conduct Authority (FCA): Mortgages and coronavirus: our guidance for firms (20 March 2020; last updated 25 March 2020) For these purposes, a ‘payment holiday’ means an arrangement under which a lender permits the customer to make no payments under a regulated mortgage contract or a regulated home purchase plan for a specified period without being in payment shortfall. However, the payments will, in due course, need to be made.
4. Tenancy obligations and tenancy conditions
There have been no measures to lift or modify contractual or statutory obligations imposed on landlords and tenants during the present crisis, although the UK government’s non-statutory guidance (see above) contains much useful advice for tenants, landlords and local authority enforcement officers.
In particular, the landlord’s obligations to arrange gas safety inspections and comply with the new requirements in relation to electrical safety (see below) continue to apply, as do the tenant’s obligations to give reasonable access.
In relation to the former, the Coronavirus (COVID-19) guidance for landlords and tenants (above) states:
If a landlord can show they have taken all reasonable steps to comply with their duty under the regulations, they are not in breach of the duty … A landlord could show reasonable steps by keeping copies of all communications they have had with their tenants and with electricians as they tried to arrange the work, including any replies they have had. Landlords may also want to provide other evidence they have that the installation, appliance or flue is in a good condition while they attempt to arrange works (page 19).
In any event, Gas Safe engineers have suspended routine inspections: COVID-19 advice and guidance (Gas Safe Register, last updated 16 April 2020).
It has been suggested that ‘it would appear unreasonable for tenants to seek to claim compensation for any period of delay in completing [remedial] works caused directly as a result of the stay at home policy and the COVID-19 pandemic generally’: ‘Housing disrepair claims and the complications caused by coronavirus’ (Local Government Lawyer, 31 March 2020).
5. Notices seeking possession
Notices given by landlords to tenants for recovery of possession and issued on or before 25 March 2020 will operate unaffected by the current emergency if validly made under normal housing legislation.
By operation of Coronavirus Act 2020 s81 and Sch 29, notices served in England or Wales on or after 26 March 2020 must give a minimum notice period of three months. The three-month minimum requirements apply to notices seeking possession, notices to quit and Housing Act (HA) 1988 s21 notices whether served on assured, secure, protected, flexible, demoted or introductory tenants. These additional requirements will apply until 30 September 2020, although there is power in the Act to extend that period by regulations. They do not apply to service-occupiers (employees who live in accommodation for the better performance of their employment duties) who lose their employment in the current emergency.
The UK government has issued advice for landlords in England about the operation of these enhanced notice provisions: Coronavirus Act 2020 and renting: Annex A – technical guidance for landlords on the provisions of the Coronavirus Act 2020 (v2, MHCLG, April 2020). The online template versions of the prescribed forms of notice have been updated to reflect the new requirements; for example, there is a new Form 6A (notice seeking possession of a property let on an assured shorthold tenancy) (HA 1988 s21 notice). For the updated notices relating to secure tenants see: Secure tenancy forms (MHCLG, 26 March 2020).
6. New possession proceedings
The UK government is working with the master of the rolls to extend the Pre-Action Protocol for Possession Claims by Social Landlords to landlords in the private rented sector: ‘Complete ban on evictions and additional protection for renters’ (MHCLG press release, 18 March 2020). But there is presently no embargo on the issue of new possession claims by landlords. New claims issued under Civil Procedure Rules 1998 (CPR) Part 55 are, however, being stayed (see below).
There is similarly no embargo on the issue of new possession claims by mortgage lenders. However, the FCA’s guidance (see above) is that ‘commencing or continuing repossession proceedings at this time is very likely to contravene Principle 6 and MCOB 2.5A.1R – absent exceptional circumstances (such as a customer requesting that proceedings continue). We will not hesitate to take appropriate action where necessary’. In any event, the Pre-Action Protocol for Possession Claims based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property remains in place.
7. Current possession proceedings
The stay on claims operates until 25 June 2020 but it only applies to claims for possession made under CPR Part 55. Where a possession order is a remedy sought in a different form of claim, PD 51Z has no application to that claim. The new PD operates until 30 October 2020, enabling, if necessary, the current stay until 25 June 2020 to be enlarged, if necessary, by amending the PD rather than making a new one.
That power has already been utilised. On 18 April 2020, PD 51Z was further amended by 120th update – practice direction amendments. The amended version of PD 51Z now reads:
1. This practice direction is made under rule 51.2 of the Civil Procedure Rules (‘CPR’). It is intended to assess modifications to the rules and Practice Directions that may be necessary during the coronavirus pandemic and the need to ensure that the administration of justice, including the enforcement of orders, is carried out so as not to endanger public health. As such it makes provision to stay proceedings for, and to enforce, possession. It ceases to have effect on 30 October 2020.
2. Subject to paragraph 2A, all proceedings for possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession are stayed for a period of 90 days from the date this Direction comes into force.
2A. Paragraph 2 does not apply to –
(a) a claim against trespassers to which rule 55.6 applies;
(b) an application for an interim possession order under Section III of Part 55, including the making of such an order, the hearing required by rule 55.25(4), and any application made under rule 55.28(1); or
(c) an application for case management directions which are agreed by all the parties.
3. For the avoidance of doubt, claims for injunctive relief are not subject to the stay in paragraph 2, and the fact that a claim to which paragraph 2 applies will be stayed does not preclude the issue of such a claim.
The precise impact of PD 51Z on possession claims will be the subject of the appeals in the Arkin case (see below). They were listed to be heard on 30 April 2020 in the Court of Appeal under case numbers B2/2020/0620 and B2/2020/0621.
8. Evictions pursuant to possession orders
Whatever the nature of the proceedings in which a possession order was obtained, all ‘proceedings’ seeking to enforce such an order by a warrant (county court) or writ of possession (High Court) are similarly stayed until 25 June 2020: PD 51Z para 2.
Where a writ or warrant had already been issued on or before 26 March 2020, and there are therefore no ‘proceedings’ to secure the writ or warrant taken after that date, the new PD has no application. Although most county court bailiffs have decided not to carry out evictions until 30 April 2020 at the earliest, there is, of course, no such restriction on the taking of possession by private sector High Court enforcement officers. The onus will be on the occupiers in such circumstances to make any application for a stay or suspension of execution in the usual way.
9. Evictions without possession proceedings
There are no legal restrictions on evictions/exclusions of unprotected tenants or licensees, eg, lodgers, holiday let tenants, those in hostels and those in accommodation provided for asylum-seekers.
On 28 March 2020, the Home Office announced the voluntary suspension of all evictions from asylum-seeker accommodation (sometimes known as NASS accommodation) for three months: ‘Home Office announces it will not evict asylum seekers during coronavirus crisis’ (Inside Housing, 31 March 2020, log-in required).
At the same time, Govan Law Centre has continued its campaign to prevent the eviction without court orders of all asylum-seekers by applying to the UK Supreme Court for permission to appeal from the decision of the Inner House Court of Session in Ali v Serco Ltd, Compass SNI Ltd and Secretary of State for the Home Department [2019] CSIH 54; December 2019/January 2020 Legal Action 29. Court dates for local test case hearings in related claims have also been deferred to await the outcome of the application for permission to appeal: ‘Govan Law Centre secure further 3-month suspension of SERCO asylum seeker lock change evictions’ (press release, 2 March 2020).
10. Legal aid in the national emergency
The Legal Aid Agency has been regularly updating its advice for legal aid providers setting out the arrangements it has put in place to help them continue to provide a service for their clients during the national emergency: Coronavirus (COVID-19): Legal Aid Agency contingency response.
11. Housing complaints
New guidance from the Housing Ombudsman Service sets out best practice for member landlords on how to engage with the ombudsman during the COVID-19 crisis, together with guidance on dealing with complaints raised by residents during that crisis: Guidance on best practice for landlords during Covid-19 (8 April 2020).
12. Assistance for rough sleepers
On 26 March 2020,Luke Hall, minister for local government and homelessness, wrote to all local authorities in England to update them on plans to provide additional protection for rough sleepers during the national emergency. This follows a series of initiatives to support local authorities with assisting rough sleepers through the current emergency, which started with £3.2m emergency support for rough sleepers during the coronavirus outbreak: ‘£3.2 million emergency support for rough sleepers during coronavirus outbreak’ (MHCLG press release, 17 March 2020). See also COVID-19: guidance for hostel or day centre providers of services for people experiencing rough sleeping (MHCLG and Public Health England, 16 March 2020; last updated 25 March 2020).
13. Parliamentary scrutiny
On 17 April 2020, the House of Commons Housing, Communities and Local Government Committee launched an inquiry to examine the impact of the COVID-19 crisis on homelessness, rough sleeping and the private rented sector. The inquiry will examine how effective the government has been in supporting individuals in the private rented sector or who are homeless. It will also look at what strategies will need to be put in place to support both groups in the long term, once current measures expire. Written evidence is invited by 1 May 2020.
Possession claims
University College London Hospitals NHS Foundation Trust v MB
9 April 2020
MB was admitted to a University College London Hospital (UCLH) in February 2019. She had a diagnosis of functional neurological disorder manifesting as variable upper and lower limb weakness, variable and intermittent upper limb tremor and speech disturbance. She had other complex needs and needed help with personal care. In August 2019, it was decided that she could be discharged from hospital provided suitable accommodation with a care package was in place.
In March 2020, Camden granted MB a tenancy of a property that had been adapted to meet her needs and put in place a care package. UCLH notified MB that she was to be discharged to her new property on 23 March 2020. On 23 March 2020, UCLH terminated MB’s licence to remain in the hospital. MB was informed that she was at risk of contracting COVID-19 should she remain in hospital and her bed was required to treat patients who had the virus. MB refused to leave.
On 2 April 2020, UCLH issued a claim for possession in the High Court. On the same day, Chamberlain J notified UCLH that the claim was stayed by CPR PD 51Z, but gave it permission to apply for an interim injunction requiring MB to leave the room she was occupying in the hospital.
Chamberlain J granted an interim injunction. The stay imposed by CPR PD 51Z did not affect claims for injunctions. A property owner is entitled to claim an injunction that requires a trespasser to leave its land. MB’s licence to occupy the hospital room had been terminated and she had no private law defence to the claim for possession. Nor had she asserted a public law defence to the claim; the decision of UCLH to discharge her was clearly rational. Nor would her discharge breach Human Rights Act 1998 Sch 1 article 3: it had been made on the basis of an informed clinical assessment and against the background of a desperate need for beds. In any event, the evidence did not demonstrate that MB would suffer such hardship so as to engage article 3.
Arkin v Marshall
County Court at Central London,
15 April 2020
In September 2019, Mr Arkin brought a claim for possession under CPR Part 55 against Mr Marshall. In March 2020, the parties agreed directions for a trial to take place between October 2020 and January 2021. On 27 March 2020, the claim was stayed by CPR PD 51Z until 25 June 2020. The directions required disclosure to be given during this period. Mr Arkin applied to the court for an order lifting the stay to enable the parties to comply with the directions.
HHJ Parfitt dismissed the application. The court had no jurisdiction to lift the stay. It was bound to apply CPR PD 51Z.
Mental health: update (May 2020) by Alice Livermore, Joanna Dean and Stephen Heath at Mind
Coronavirus Act 2020
Overview and commencement
The Coronavirus Act 2020 received royal assent on 25 March 2020. The explanatory notes to the Act state its purpose as being to ‘enable the government to respond to an emergency situation and manage the effects of the COVID-19 pandemic. A severe pandemic will lead to a reduced workforce, increased pressure on health services and death management processes. The Act contains temporary measures designed to either amend existing legislative provisions or introduce new statutory powers which are designed to mitigate these impacts’ (para 1, page 7). In so far as the Act relates to mental health and social care in England and Wales, it aims to ease the burden on front-line health and social care staff by relieving them of certain existing statutory obligations, outlined below.
The way that the legislation is structured, as regards mental health and social care in England and Wales, is as follows:
The Act itself contains temporary modifications to the Mental Health Act (MHA) 1983 (at s10, and Sch 8 for England and Wales) and provisions modifying powers and duties of local authorities in relation to the provision of care and support (s15 and Sch 12).
Section 87(1) says that the Act comes into force on the day that it is passed, with certain exceptions.
By virtue of s87(2), s10 and Sch 8 (the modifications to the MHA 1983) and s15 and Sch 12 (the modification of local authority social care powers and duties in relation to care and support) are to be brought in by commencement orders at a later date.
The MHA 1983 and social care modifying provisions will come into force either:
‘on such day as a minister of the crown may by regulations appoint’ (s87(2)); or
if it relates to a matter that applies in relation to Wales and on which the Welsh assembly has legislative competence, then either on a day that a minister of the crown appoints by regulations if the Welsh assembly consents, or on a day provided by the Welsh ministers by regulations (s87(4)).
Section 88 gives relevant national authorities (ie, a minister of the crown or the Welsh ministers in matters for which the Welsh assembly has legislative competence) the power to make regulations that:
suspend the operation of any provisions of the Act; or
revive the operation of any provisions of the Act.
The powers to suspend or revive the operation of the provisions of the Act can be exercised more than once and can be used to make different provisions for different areas or purposes and to make transitional, transitory or saving provision (s88(3)–(5)).
Beyond the above, the Act is silent about the circumstances in which the MHA 1983 modification provisions and the social care modification provisions will be switched on or off. This will all be left to regulations passed by Westminster or the Welsh assembly and possibly by guidance. Indeed, regulations have already been passed switching on all social care modifications and limited MHA 1983 modifications relating to the Mental Health Review Tribunal for Wales.
The government clarified in committee stage in the Commons, and in the second reading of the bill in the Lords, that the switching on and off of the Act's provisions could be done in ‘very localised areas’ (Penny Mordaunt MP, Hansard HC Debates vol 674, col 136, 23 March 2020) with decisions taken in response to a very dynamic situation, probably in Cobra and in response to scientific advice.
Mental health
Schedule 8 to the Act has made significant changes to the safeguards in the MHA 1983.
Sections 2 and 3
An application by an approved mental health professional (AMHP) under s2 or s3 may be founded on a recommendation by a single registered medical practitioner, instead of the usual two, if the professional considers that two practitioners would be impractical or would involve undesirable delay. The reasoning will have to be justified on the admission forms. The doctor should be s12 approved, ie, specialise in mental health, but does not have to have previous knowledge of the patient as is the norm.
Section 5 holding powers
Nurses’ holding powers can be extended from six hours to 12 hours. Doctors’ holding powers under s5(2) are extended from 72 hours to 120 hours. Rather than being the registered medical practitioner or approved clinician in charge of the patient’s care providing the s5(2) report, it can be any registered medical practitioner or approved clinician if the former is impractical or would involve undesirable delay.
Section 58: independent approval to administer medication
The approved clinician in charge of treatment may certify under s58(1)(b), which is for the appropriateness of administration of medicine without consent for more than three months, if they consider that getting a second opinion appointed doctor (SOAD) is impractical or would involve undesirable delay.
A registered medical practitioner or an approved clinician may give a certificate under s58(3)(b) having consulted only one other person, if they consider that consulting with two other persons is impractical or would involve undesirable delay.
Sections 135 and 136: place of safety
The powers to remove someone to a place of safety for an assessment under the MHA 1983 have been extended from 24 hours to 36 hours.
Part 3 patients
Sections 35(7) and 36(6) (remand from court to hospital for a report or treatment) are normally for a maximum of 12 weeks but this timescale is being removed.
The Act also allows a reduction in the number of medical recommendations from two to one, if it is impractical or would involve undesirable delay to get two recommendations, in the following circumstances:
s36(1) (power to remand accused person to hospital for treatment);
s37(1) (power to order detention in hospital, or guardianship, of convicted person);
s38(1) (power to order interim detention of convicted person in hospital pending final hospital order or other disposal);
s45A(3) (power to direct that a person sentenced to imprisonment be detained in hospital instead of prison);
s51(5) (power to order detention of a person in hospital in the absence of the person); or
s47(1) or s48(1) (removal of prisoners to hospital).
The timescales for transferring or admitting a person to hospital within a specified period have been amended so that they should be done within that period or as soon as practicable after the end of that period. Those provisions are:
s35(9) (including as applied by s36(8)) (remand in hospital);
s40(1) and (3) (effect of hospital orders and interim hospital orders); and
s45B(1) (effect of hospital directions and limitation directions).
Section 47(2) (period within which a person subject to a transfer direction must be received into hospital) is extended to 28 days from 14 days.
Mental Health Review Tribunal for Wales
This part of the Act, which came into force on 27 March (see the Coronavirus Act 2020 (Commencement No 1) (Wales) Regulations 2020 SI No 366), allows for the composition of the Mental Health Review Tribunal for Wales to be changed to either one or two tribunal members if the president (or someone on her behalf) considers that it is impractical or would involve undesirable delay for the tribunal to be constituted by at least three members. There must always be the legal member who will be the chair.
The tribunal can determine a case without a hearing if it considers that:
holding a hearing is impractical or would involve undesirable delay;
having regard to the nature of the issues raised in the case, sufficient evidence is available to enable it to come to a decision without a hearing; and
to dispense with a hearing would not be detrimental to the health of the patient.
It enables the president of the Welsh tribunals to nominate another legal member of the tribunal to act as the temporary deputy if she is temporarily unable to discharge the functions of the office.
Transition
There are also provisions to allow for a transition once the emergency provisions have been switched off.
Social care
Section 15 of the Act gives effect to Sch 12 and effectively removes the majority of local authority duties in adult social care during the emergency period. These provisions came into force on 31 March 2020 (England) (see the Coronavirus Act 2020 (Commencement No 2) Regulations 2020 SI No 388) and 1 April 2020 (Wales) (see the Coronavirus Act 2020 (Commencement No 1) (Wales) Regulations 2020).
Local authorities now have the power to suspend the following social care duties in the Care Act 2014 (England) and the Social Services and Well-being (Wales) Act 2014:
duty to assess the individual’s needs;
duty to assess a carer’s needs;
duty to assess a child's needs where it appears they will have needs after they turn 18 (England only);
duty to assess a young carer’s needs where it appears they will have needs after they turn 18 (England only);
duty to assess a child’s carer’s needs if it appears the child will have needs after they turn 18 (England only);
duty to determine eligibility;
duty to assess financial resources;
care planning duties; and
duties relating to people moving area and choice of accommodation provisions.
The duty to make provision to meet care needs (for individuals or carers) will now only apply as follows:
in England – meeting needs only to the extent necessary to avoid a breach of rights under the European Convention on Human Rights; and
in Wales – to the extent necessary to protect the adult from abuse or neglect or a risk of abuse or neglect.
The local authority still has a power to assess needs and make eligibility determinations in order to comply with the amended duty to meet needs.
In England, various provisions under the Chronically Sick and Disabled Persons Act 1970 and the Children Act 1989 (duties to make provision to meet the needs of children transitioning to adult services) are also suspended so, even if a local authority hasn’t assessed a child for adult services, social care for a child can be stopped as soon as they turn 18.
If a local authority starts meeting needs during the emergency period, but does not complete a financial assessment, it can carry out a financial assessment at a later period and then impose charges for meeting needs during that period.
Once the emergency period has ended, if an individual wishes to bring a court challenge against a local authority for failure to comply with its duty to assess needs, the court will need to consider how long the emergency period lasted and how many assessments need to be carried out, when determining whether the local authority’s delay is reasonable.
This legislation does not prevent local authorities from complying with their full social care responsibilities and the government has said that the easement of social care should only be applied if necessary (see the explanatory notes to the Coronavirus Bill, para 176, page 29). The health and social care secretary and the Welsh ministers may issue guidance on how the legislation is applied in England and Wales respectively and they can direct local authorities to comply with that guidance. The Department of Health and Social care has published guidance for England (Care Act easements: guidance for local authorities, 1 April 2020), alongside an ethical framework for the provision of social care (Responding to COVID-19: the ethical framework for adult social care, 19 March 2020).
Aside from the exceptions above, these changes do not affect social care duties owed to children. Local authority safeguarding duties also remain unchanged. Section 14 of the Act suspends the duty on clinical commissioning groups (CCGs) in England to assess eligibility for NHS Continuing Healthcare.
Owner-occupiers: review 2020 (May 2020) by Dave Cowan
Mortgage arrears and possession guidance: COVID-19
Although possession proceedings are not mentioned in the Coronavirus Act 2020, various administrative measures have been put in place. In particular, Civil Procedure Rules 1998 (CPR) Practice Direction 51Z provides that all proceedings for possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession are stayed for a period of 90 days from 26 March 2020.
The government is said to have ‘agreed with mortgage lenders that they will offer repayment holidays of three months to households in financial difficulty due to COVID-19’, provided they are up to date with their payments and not in arrears: Support for those affected by COVID-19 (HM Treasury guidance).
On 20 March 2020, the FCA issued guidance to mortgage lenders to enable consumers to take ‘mortgage holidays’ for three months (or less if in the best interests of the consumer – a position that appears to be more nuanced than the government announcement) and provides that the amount should not be capitalised other than when sufficient information has been given to the customer: Mortgages and coronavirus: our guidance for firms. It provides that:
Where a customer is experiencing or reasonably expects to experience payment difficulties as a result of circumstances relating to coronavirus, and wishes to receive a payment holiday, a firm should grant a customer a payment holiday for three monthly payments, unless it can demonstrate it is reasonable and in the customer’s best interest to do otherwise.
A clear steer has also been given about possession proceedings during the COVID-19 outbreak (even were they capable of being brought or continued):
Firms should not commence or continue repossession proceedings against customers at this time, given the unprecedented uncertainty and upheaval they face, and government advice on social distancing and self-isolation. This applies irrespective of the stage that repossession proceedings have reached and to any step taken in pursuit of repossession. Where a possession order has already been obtained, firms should refrain from enforcing it.
We consider that commencing or continuing repossession proceedings at this time is very likely to contravene Principle 6 and MCOB 2.5A.1R – absent exceptional circumstances (such as a customer requesting that proceedings continue). We will not hesitate to take appropriate action where necessary.
Education: recent developments (May 2020) by Angela Jackman and Eleanor Wright
Coronavirus Act 2020
The main provisions in the new Act affecting education are ss37 and 38, together with Schs 16 and 17, which deal with the education secretary’s powers to close all educational institutions (including privately run institutions) and childcare premises temporarily, and to give directions for temporary continuity. Before exercising such powers, the secretary of state must have regard to advice from Department of Health medical officers, and must be satisfied that giving the direction is a necessary and proportionate action in response to the incidence or transmission of coronavirus.
Section 37 and Sch 16 give the secretary of state power to order the closure of educational institutions or to restrict attendance. Closure powers are wide-ranging and may include provisions relating to attendance in general, or to the attendance of specified persons, for specified purposes, or to specified parts of premises.
Sch 16 also covers the effect of closure on related statutory provisions, including:
Education Act (EA) 1996 s19: the duty to arrange for exceptional provision of education, but only to the extent that the failure of a child to receive suitable education is attributable to the closure direction.
Attendance duties, both of parents and local authorities, do not apply insofar as non-attendance results from closure.
Section 38 and Sch 17 give the secretary of state power to require the provision or continuing provision of education, training and childcare. These powers have been used both to close educational institutions to the majority of pupils but provide for some at least to be open to vulnerable pupils (including those with education, health and care plans (EHCPs)) and the children of key workers.
A direction under s38 may require the taking of reasonable steps in general terms, or particular steps in relation to various matters, including:
requiring institutions to open or remain open, including during school holiday periods;
allowing specified persons to attend for education or other purposes including childcare and ancillary services or facilities;
altering term dates;
transport arrangements;
other provision which the secretary of state considers appropriate.
Under Sch 17 para 5, the secretary of state may issue notices disapplying or modifying specified enactments for specified periods, which must not exceed one month, although notices can be renewed. Notices must state why they are considered to be appropriate. Some provisions that can be disapplied are fairly self-evident and uncontroversial, for example, requirements in relation to providing school meals, attendance, and inspections.
The secretary of state can disapply the duty under Children and Families Act (CFA) 2014 s43 for schools and other institutions to admit pupils when named in EHCPs: it is to be hoped that this will not be used in relation to vulnerable pupils who need to be in specialist institutions for safety and other reasons. CFA 2014 s44(1), providing for reviews of EHCPs and reassessments, can also be disapplied, but we would suggest that the secretary of state should hesitate to use the power in relation to reviews in particular as, on the face of it, with some children with EHCPs still attending schools and the availability of arrangements for work from home, video and telephone conferencing and the like, there are no obvious reasons why universal disapplication is essential.
The Act provides for a long list of statutory provisions that may be modified – in the majority of cases on the basis that duties may be treated as discharged if the person with the relevant duty has used reasonable endeavours to discharge the duty. Many provisions listed are fairly obvious corollaries to the need to close schools, for example, local authority functions under EA 1996 s14 for provision of primary and secondary schools, provisions in relation to school admissions and the like.
However, there are considerable concerns about potential use of this power in relation to children with special educational needs (SEN), particularly given the recognition that children with EHCPs are vulnerable. The potential modifications causing most concern are in relation to:
the duty to secure special educational and health provision in EHCPs under CFA 2014 s42;
the duty under EA 1996 s19 to provide education for children out of school due to exclusion, illness or otherwise (ie, not solely because of the closure of schools).
While these powers are subject to the duty to use reasonable endeavours to discharge statutory duties, nevertheless early indications of the response to the legislation and guidance is that some local authorities are in effect treating them as giving them carte blanche to ignore their duties.
Ministers have power under s92 to make consequential modifications to other Acts. An open letter sent on 24 March 2020 indicated an intention to amend regulations on timescales for EHCP processes but, at the time of writing, this has not been progressed.
At the time of writing, the secretary of state has exercised a number of powers, notably in relation to closing schools and other educational institutions, but directing them to stay open for the children of key workers and vulnerable pupils, including those with EHCPs where they cannot safety remain at home. He has also issued several guidance documents, including, in particular, guidance for schools about temporarily closing and SEN and disability risk assessment guidance. The latter helpfully clarifies that the risk to be assessed goes considerably further than the potential risks from COVID-19, and includes matters such as the risk to the individual if some or all elements of an EHCP cannot be delivered, the ability of parents and carers to meet health and care needs safely, and whether the child or young person may benefit more from remaining at school or college. However, no notice has been issued in relation to CFA 2014 ss42 and 43.
The Act has caused some concern in SEN circles, since a number of local authorities have sought to use it to effectively cease most SEN functions even before any notice or regulations have been put in place allowing them to do so. However, the Act emphatically does not authorise such wholesale action, and the recognition in official guidance that children with EHCPs are vulnerable is significant. The secretary of state is required to demonstrate that any notice is reasonable and proportionate, and even when a notice is issued in relation to CFA 2014 s42 or other modification powers, the duty is still to use reasonable endeavours. The requirement for reasonableness implies a duty to think creatively, for example, by close liaison with parents educating their children at home, using remote working and personal budgets to ensure continued special educational provision (SEP). Blanket withdrawal of local authority SEN services will not be lawful and may be challenged by judicial review and otherwise.
 
1     To join, email: Catherine.Kelly@uklgig.org.uk»
2     Rebecca Harrigan, Wilson Solicitors LLP, and Laura Dubinsky and Marisa Cohen, barristers, London. »
3     Simon Cox, barrister, London. »
4     It is understood that this is solely in respect of article 8 claims rather than protection claims. »
5     Many practitioners attempting to acquire Skype for Business will have been redirected to Microsoft Teams as the former is being phased out. The directions do not presently appear to take account of that technological development. »

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