Social Housing monthly law update 

June 2020


TLT's update on all issues affecting the social housing sector. 

It includes the main legislative and case law developments and statutory guidance issued in connection with the Social Housing sector from the last month (month year) together with links to the relevant sources where you can obtain further information.

Commercial

Guidance on responsible contractual behaviour in the performance and enforcement of contracts impacted by the COVID-19 emergency

Cabinet Office | 7 May 2020

The guidance in this note is that parties to contracts impacted by the COVID-19 emergency should act responsibly and fairly, support the response to COVID-19 and protect jobs and the economy.

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Construction

Written ministerial statement on planning and construction working hours

Secretary of State for the Ministry of Housing, Communities and Local Government | 13 May 2020

On 13 May 2020, the government published a written ministerial statement on planning and construction working hours. This statement expects local planning authorities to approve requests to extend construction working hours temporarily to ensure safe working in line with social distancing guidelines until 9pm, Monday to Saturday, unless there are very compelling reasons against this.

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VAT reverse charge on construction services has been delayed until March 2021

The Value Added Tax (Section 55A) (Specified Services and Excepted Supplies) (Change of Commencement Day and Amendment) (Coronavirus) Order 2020 (SI 2020/578) was made on the 8th of June. The order delays the introduction of the VAT reverse charge on construction services from 1 October 2020 to 1 March 2021. The order comes into force on the 20th of July 2020.

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Energy

Regulations published in line with the Energy Performance Buildings Directive 2018 requirements

Department for Business, Energy and Industrial Strategy | 2 June 2020

The Energy Efficiency (Building Renovation and Reporting) (Amendment) Regulations 2020 (SI 2020/563) come into force on 24 June 2020 and implement part of the Energy Performance of Buildings Directive 2018 ((EU)2018/844).

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Employment

Updated guidance: Working safely during coronavirus (COVID-19)

Department for Business, Energy & Industrial Strategy | 15 June 2020

Guidance to help employers, employees and the self-employed understand how to work safely during the coronavirus pandemic.

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How to ensure your remote employee surveillance is legal

TLT Insight | 5 June 2020

Employers have been monitoring the activity of their employees where necessary for years – such as internet use and email content and traffic. However, with the rapid roll-out of new technologies in recent months and companies reviewing how they will work moving forwards, employers must ensure their remote monitoring is legally compliant.

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TUPE: advantageous contractual changes void

TLT Insight | 4 June 2020

In the important decision of Ferguson and others v Astrea Asset Management Ltdthe Employment Appeal Tribunal held that changes to terms and conditions that were beneficial to employees were void as they had been made by reason of the TUPE transfer.

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Flexible furloughing – new guidance for employers

TLT Insight | 15 June 2020

Our Briefing on the detailed guidance on how ‘flexible furlough’ works in practice, as the furlough scheme is phased out between 1 July and 31 October 2020.

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Health and safety

Prospectus for the Building Safety Fund published

Ministry of Housing, Communities & Local Government | 26 May 2020

In the March 2020 budget, the government announced that it will provide £1 billion in 2020 to 2021 to support the remediation of unsafe non-ACM cladding system on residential buildings 18 metres and over in both the private and social housing sectors.

The government is now asking potential applicants to register for the fund, in advance of the full application process opening by the end of July 2020.

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Consultation outcome published: Sprinklers and other fire safety measures in new high-rise blocks of flats

Ministry of Housing, Communities & Local Government | 26 May 2020

Government response: sprinklers and other fire safety measures in new high-rise blocks of flats

  • Government response to the consultation on proposed changes to Approved Document B lowering the height threshold for sprinklers in new blocks of flats and introducing new guidance on wayfinding signage and evacuation alert systems.
  • Impact assessment on the amendments to Approved Document B (fire safety) volumes 1 and 2 regarding sprinklers and wayfinding signage in blocks of flats. These amendments reduce the height threshold for sprinklers in blocks of flats from 30 metres to 11 metres and introduce new guidance on consistent wayfinding signage in blocks of flats over 11 metres to assist firefighters.
  • The analysis compares the amendments to a ‘do nothing’ option of no change to the guidance, and another option of setting the sprinkler and wayfinding signage height threshold to 18 metres instead of 11 metres
  • Impact assessment: sprinklers and other fire safety measures in new high-rise blocks of flats

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Gas safety check advice for landlords

National Housing Federation and Health and Safety Executive | 18 May 2020

The Health and Safety Executive have published updated advice for landlords around gas safety checks during the Covid-19 pandemic.

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Housing

Judgment delivered in Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760

Court of Appeal | 18 June 2020

The Court of Appeal ruled that the requirement to provide a gas safety certificate under the Gas Safety (Installation and Use) Regulations 1998 applies to both new and existing tenants for the purposes of the Housing Act 1988. It also ruled that the obligation to provide the gas safety certificate to a new tenant before they moved in would be satisfied by delivering the certificate after the fact.

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Regulator of Social Housing’s Coronavirus Operational Response Survey reports

Regulator of Social Housing | 9 June 2020

The Regulator of Social Housing has published the results of its new monthly survey of housing associations and local authorities about how they are coping with the coronavirus pandemic.

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Coronavirus (COVID-19): letter to social housing residents

Ministry of Housing, Communities & Local Government | 18 May 2020

Letter from Christopher Pincher, Minister of State for Housing, to social housing residents in England setting out all the measures that are in place to support social housing residents during the next phase towards reopening society.

This includes information about maintenance and repairs, gas safety checks, remediation works, home moves, support for domestic abuse victims and anti-social behaviour.

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Insolvency

The Corporate Insolvency and Governance Bill

TLT Insight | 10 June 2020

The Corporate Insolvency and Governance Bill (the “Bill”) is finally out (all 238 pages of it) and had its second reading in Parliament on 3 June. The expectation is that it will come into force by the end of June/early July. As such, we needs to ask ourselves: what does it all mean?

We consider below, at very high level, the key aspects of the current insolvency regime that the Bill seeks to modify. Ultimately, although not entirely in line with certain recent press releases from the Government following the pandemic lockdown, the Bill’s main aim seems to be to provide companies with additional tools and breathing space to see them through their current financial difficulties.

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Draft The Insolvency Act 1986 (HMRC Debts: Priority on Insolvency) Regulations 2020 published

HM Treasury | 4 June 2020

HM Treasury has provided the Public Bill Committee with a draft copy of The Insolvency Act 1986 (HMRC Debts: Priority on Insolvency) Regulations 2020. The draft Regulations have not yet been formally laid before Parliament but are drafted to come into force on 1 December 2020.

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Landlord and tenant

Extension of moratorium on forfeiture for business tenancies

Ministry of Housing, Communities & Local Government | 17 June 2020

Section 82 of the Coronavirus Act 2020 provides that a right of re-entry or forfeiture, under a relevant business tenancy, for non-payment of rent may not be enforced, by action or otherwise, during the relevant period. “Relevant period” is defined in subsection (12) as the period starting with the day after Royal Assent and ending with 30th June 2020 (or such later date as may be specified in regulations).

The Business Tenancies (Protection from Forfeiture: Relevant Period) (Coronavirus) (England) Regulations 2020 have been published and provide that the relevant period is extended to 30th September 2020.

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New code of practice for the commercial property sector

Ministry of Housing, Communities & Local Government | 19 June 2020

Government has published a code of practice to help commercial landlords and tenants map out plans for economic recovery during the coronavirus pandemic.

The code is voluntary in nature and is relevant for all commercial leases held by businesses in any sector which have been impacted by the coronavirus pandemic.

It will apply across the UK and encourages tenants and landlords to be transparent in their discussions and to act reasonably and responsibly whilst recognising the impact that coronavirus has had on businesses’ finances.

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Taking Control of Goods and Certification of Enforcement Agents (Amendment) (No. 2) (Coronavirus) Regulations 2020

Ministry of Justice | 22 June 2020

New enforcement regulations came into force on the 24 June 2020. The Regulations extend the expiry date set out in the principal regulations to the 23 August 2020. This applies to the prevention of enforcement agents seizing goods at residential premises and on highways. It also extends the period for taking control of goods and the certificates of enforcement agents set out in the Principal Regulations.

Secondly the Regulations increase to an amount equivalent to 189 days unpaid rent, the minimum amount of net unpaid rent that must be outstanding before commercial rent arears recovery may take place. This is intended to provide businesses with additional protection and flexibility in managing their finances during the COVID-19 outbreak.

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Civil Procedure Rules updated to extend the stay on possession proceedings and enforcement

Ministry of Justice | 9 June 2020

New legislation has been published to amend Part 55 of the Civil Procedure Rules 1998 (CPR). The rules introduces CPR 55.29 which will come into force on 25 June 2020. Practice Direction 51Z grants a stay of possession proceedings and enforcement action until 25 June. The new provision will have the effect of extending the stay from that date until 23 August 2020.

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Ban on evictions extended by 2 months to further protect renters

Ministry of Housing, Communities & Local Government | 5 June 2020

Renters across England and Wales will receive greater protection after the government extended the suspension of new evictions until 23 August.

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Covid-19 and renting: guidance for landlords, tenants and local authorities updated

Ministry of Housing, Communities & Local Government | 1 June 2020

The non-statutory guidance provides advice to landlords and tenants on the provisions in the Coronavirus Act 2020, and further advice for landlords, tenants and local authorities more broadly about their rights and responsibilities during the COVID-19 outbreak. It has been updated to reflect amended regulations and changes to wider government and public health advice.

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Stay of possession proceedings applies to appeals from possession orders

Court of Appeal | 11 May 2020

In London Borough of Hackney v Okoro [2020] EWCA Civ 681, the Court of Appeal ruled that PD 51Z imposes a stay on appeals from possession orders that existed when the stay began.

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Government advice on home moving during the coronavirus (COVID-19) outbreak

Ministry of Housing, Communities & Local Government | 13 May 2020

The government has amended the coronavirus (COVID-19) regulations to make clear that people who wish to move home can do so. This guidance provides important public health information to ensure that moving home and key activities around this, such as viewing property, can happen safely. This includes specific advice for social landlords.

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Stay of possession proceedings ruled lawful in the Court of Appeal

Court of Appeal | 11 May 2020

In Arkin v Marshall and another [2020] EWCA Civ 620, it was held in the Court of Appeal that Practice Direction 51Z is lawful and the stay it imposes can only be lifted in exceptional circumstances.

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Planning and environment

Managing your judicial review costs

TLT Insight | 16 June 2020

Earlier this month, the High Court handed down judgment in R (on the application of Bertoncini) v London Borough of Hammersmith and Fulham (and the interested party). The decision is worth noting, particularly for developing housing associations and registered providers who may be exposed to the risk of a third party challenging a planning permission under judicial review.

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Real estate

June quarter date: Guarantees - a timely reminder

TLT Insight |17 June 2020

With the June quarter date approaching, landlords of commercial premises are concerned that they are going to be out of pocket as tenants are unable to pay rent and service charge.

If there is a rent deposit, the landlord is likely to be able to draw on that. However, in some cases, that may not be an option. So, what other options are open to a landlord to recover the rent due?

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This publication is intended for general guidance and represents our understanding of the relevant law and practice as at June 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions.


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