Fixing England’s housing crisis
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Louise Heath
Description: Housing1
Liz Davies and Nick Bano discuss the detailed housing proposals set out in a recent think piece by the Society of Labour Lawyers, in the context of Labour’s housing policy announcements at its conference.
Both major political parties went into the 2019 general election promising an end to ‘no fault’ evictions, and greater house building. Nearly two years on, the Conservative government has yet to deliver the abolition of ‘no fault’ evictions. A white paper containing a Renters’ Reform Bill was promised in the Queen’s speech in December 2019, and then again in May 2021, but the timescale for publication is not known.
Housing campaigns, Crisis and Shelter, and the Affordable Housing Commission have called for between 90,000 and 150,000 social rented homes to be built each year in order to solve England’s housing crisis. In 2019/2020, only 5,716 new social rented homes were built.1Affordable housing supply: April 2019 to March 2020, England, Ministry of Housing, Communities & Local Government (MHCLG), December 2020.
Labour’s new housing policy
At the Labour party conference in September 2021, the shadow secretary of state for housing, Lucy Powell MP, set out aspects of a new housing policy for Labour. In addition, two Labour Party groups, the Labour Housing Group (LHG) and the Society of Labour Lawyers (SLL), have published think pieces, containing personal views, as contributions to a debate on housing policy and in the hope of influencing Labour’s manifesto for the next general election.
Powell’s speech emphasised Labour’s commitment to building safety following the Grenfell fire and the hundreds of high-rise residential blocks with potential fire risks that have not yet been remedied. Labour’s policy is that leaseholders should not pay for remedial works. Instead, a Labour government would pay money upfront through a Building Works Agency and then pursue developers or contractors who were originally responsible for those costs. Powell said that Labour would build more homes at genuinely affordable rents, with a new definition of ‘affordable’ linked to local wages rather than the government’s definition of 80 per cent of market rents.2National Planning Policy Framework, Annex 2, MHCLG, July 2021. Labour would give first-time buyers first options on houses in new developments and end foreign hedge funds purchasing swathes of new homes. She restated Labour’s existing policy to end ‘no fault’ evictions and to tackle rough sleeping. Local authorities would have new powers to buy and develop land for housing. A Labour government would aim to build up to 100,000 new homes each year, much of which would be for social rent at an affordable cost. She said that housing as a human right is a concept that would be at the heart of Labour’s housing policy.
The LHG’s September 2021 publication, The missing solution: council homebuilding for the 21st century, is, as the title states, about the need for a massive increase in council house building, how to do it and how to fund it. It recommends that Labour should retain its strong 2019 commitment to building 150,000 new social rented homes a year. It calls for a new Decent Homes Standard to improve standards of existing council homes and for imaginative designs for new properties. It argues that a large-scale council housing building programme, building homes to decent standards at genuinely affordable rents, would house many millions of people currently on council waiting lists and also have a deflationary effect on the cost of private housing.
Society of Labour Lawyers: proposals for housing law reform
We are two of the contributors to the SLL’s Proposals for housing law reform, also published in September 2021, which contains ideas from the SLL’s housing law sub-group. Our focus is on detailed proposals for legal reform.
In order to help councils purchase land, the Land Compensation Act (LCA) 1961 should be amended, so that land is bought at current value without additional ‘hope value’ (the ‘hope’ of estimated increased value if residential planning permission were to be granted to the landowner: LCA 1961 s14). The current empty dwelling management orders powers should be strengthened, so that empty properties in private ownership would be transferred to public ownership after they had stood empty for a certain number of years (one or two) (see Housing Act (HA) 2004 ss132–138). Council tenancies should always be granted for life, so the power to grant flexible tenancies (fixed-term tenancies for a minimum period of two years) in the Localism Act 2011 should be repealed (Localism Act 2011 ss154–155).3A duty to grant flexible tenancies is also contained in Housing and Planning Act 2016 ss118–121; these provisions have not been brought into force and, in August 2018, the then government announced that it did not intend to implement the provisions ‘at this time’: A new deal for social housing, Cm 9671, MHCLG, August 2018, para 186. Right to buy should be abolished in England, as it has been in Scotland and Wales, or at least very severely restricted. We call for substantial benefit reform by repealing the bedroom tax and benefit cap, linking local housing allowance to the retail price index, discretionary housing payments funded in full by central government, and ending the two-child limit (the child allowance element in housing benefit is reduced if there are more than two children in the family).
The SLL has been working with Labour’s front bench on building safety proposals. We propose that a Labour government should follow Australia’s lead on fire safety. That would involve conducting a full audit of all residential multi-occupancy buildings regarding fire safety, assessing which buildings are the highest risk and need to be prioritised for remediation without delay, and funding remediation works in full, without reclaiming the costs from leaseholders. Leaseholders would assign the right to sue those responsible for the defects to government. The Limitation Act 1980 needs amendment to allow for an extended limitation period, longer than the currently proposed 15 years (see Building Safety Bill clause 126). We call for legislation so that those responsible for installing defective products can be traced, through a sometimes complex network of dissolved companies. Some costs could also be recouped by a levy on developers and product manufacturers.
We call for reforms in the area of home ownership, including a holistic review of housing costs so that home ownership becomes more affordable. The contributors support the Law Commission’s proposals to reform leasehold and make commonhold much more widely available.4Reinvigorating commonhold: the alternative to leasehold ownership, HC 586, Law Com No 394, Law Commission, July 2020. Specifically, planning legislation should provide that consent for new flat building would carry a legal presumption that units (including communal facilities and shops in the residential development) are held under a commonhold agreement, not leasehold. We also call for wealth-based property taxation, through progressive council tax, and penalising owners of vacant properties (with the aim of those properties either being transferred to the public sector or available for private letting). We support London mayor Sadiq Khan’s call for councils to buy back homes that were bought under right to buy.
In relation to the private rented sector, the SLL supports the commitment to abolishing ‘no fault’ evictions under HA 1988 s21. Once section 21 possession claims are abolished, then private residential tenants will be assured tenants and possession claims would be brought using the grounds at HA 1988 Sch 2. In effect, therefore, there would be security of tenure in the private rented sector. We propose that existing defences to section 21 possession claims should apply to possession claims brought under HA 1988 Sch 2. If the landlord failed to comply with tenancy deposit regulations or gas safety or energy performance certificate requirements, or where possession proceedings are in response to a complaint about the condition of the property, possession cannot be ordered (see HA 1988 ss21–21B; HA 2004 s215; Deregulation Act 2015 ss33–34).
We also propose repealing the mandatory ground for possession for assured tenants who have accrued eight weeks’ rent arrears (HA 1988 Sch 2 Ground 8). All grounds for possession concerning rent arrears should be discretionary, so that courts can consider the reasons for the arrears and the personal circumstances of the tenant. Along with security of tenure, Labour should introduce rent controls, with rents set by a locally-based expert tribunal, taking into account the condition of the property as well as market scarcity. Labour should take steps to abolish all aspects of the ‘hostile environment’ discriminatory measures against migrants, including right to rent provisions (Immigration Act 2014 ss20–37).
The best way to reduce homelessness is to increase the supply of affordable houses, delivered through the social rented sector, and to invest in genuine homelessness prevention. With more affordable homes, the numbers of people sleeping rough or seeking homelessness help from local authorities should diminish. For those who do face the catastrophe of homelessness, the SLL proposals are that emergency accommodation should be provided to everyone who is homeless, and the tests of eligibility, priority need and ‘becoming homeless intentionally’ should be abolished (HA 1996 ss185, 189 and 191). Local authorities would be encouraged to use a 'Housing First' model of providing emergency accommodation to everyone who is homeless while the council looks for longer-term accommodation for them. These proposals are derived from Crisis’s Plan to End Homelessness. We also propose amendments to the HA 1996 so that courts have a wide power to order that accommodation must be provided to someone who is pursuing a homelessness appeal.5At present, courts do have such a power prior to the hearing, but its exercise is restricted to those cases where the court is satisfied that failure to order accommodation would substantially prejudice the applicant’s ability to pursue the main appeal: HA 1996 s204A(5) and (6). The punitive Vagrancy Act 1824 should be repealed and public spaces protection orders should not be used to prevent rough sleeping or begging.
Legal remedies must underpin reform
None of these proposals for legal reform will work without effective, accessible legal remedies. SLL argues that dismantling the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is necessary, and that Labour’s future policy on legal services should be to restore and enhance a comprehensive system of advice and legal representation. The courts themselves have been beset by cuts, closures and fee increases, delaying justice and placing it further out of reach. Labour will have to rebuild a well-functioning judicial system and effective methods of alternative dispute resolution. Finally, we note the current debate about a single-access housing court or tribunal. The authors of the SLL proposals prefer a reinvigorated county court system to a specialist housing tribunal. We emphasise that, whatever reforms are undertaken, civil justice must function as a level playing field and legal advice, and representation must be adequately funded.
The proposals from both the LHG and the SLL are put forward as personal contributions by their authors, for discussion and consideration by the Labour party but also all those who are campaigning for better housing and a fairer justice system.
The authors were contributors to the Society of Labour Lawyers' Proposals for housing law reform.
 
1     Affordable housing supply: April 2019 to March 2020, England, Ministry of Housing, Communities & Local Government (MHCLG), December 2020. »
2     National Planning Policy Framework, Annex 2, MHCLG, July 2021. »
3     A duty to grant flexible tenancies is also contained in Housing and Planning Act 2016 ss118–121; these provisions have not been brought into force and, in August 2018, the then government announced that it did not intend to implement the provisions ‘at this time’: A new deal for social housing, Cm 9671, MHCLG, August 2018, para 186.  »
4     Reinvigorating commonhold: the alternative to leasehold ownership, HC 586, Law Com No 394, Law Commission, July 2020. »
5     At present, courts do have such a power prior to the hearing, but its exercise is restricted to those cases where the court is satisfied that failure to order accommodation would substantially prejudice the applicant’s ability to pursue the main appeal: HA 1996 s204A(5) and (6). »

About the author(s)

Description: Liz Davies - author
Liz Davies is a barrister specialising in housing law at Garden Court Chambers.
Description: Nick Bano - author
Nick Bano is a barrister at Garden Court Chambers specialising in housing law.