Social Housing monthly law update - August 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.

Quick links:

• Charities
• Energy
• Employment
• Governance
• Health and safety
• Housing
• Insolvency
• Landlord and tenant
• Planning and environment
• Real estate
• Tax

Charities

Fresh regulations adapt Part A1 moratorium to charitable incorporated organisations

Legislation.gov.uk | 13 August 2020

The Charitable Incorporated Organisations (Insolvency and Dissolution) (Amendment) (No.2) Regulations 2020 (SI 2020/856) came into force on 13 August 2020. They revoke and supersede previous 2020 regulations, which contained drafting errors and omissions, and ensure that the moratorium in Part 1A of the Insolvency Act 1986 applies to CIOs.

The Charitable Incorporated Organisations (Insolvency and Dissolution) (Amendment) Regulations 2020

Legislation.gov.uk | 6 July 2020

The Charitable Incorporated Organisations (Insolvency and Dissolution) (Amendment) Regulations 2020 (SI 2020/710) came into force on 7 July 2020. They make necessary amendments and modifications as a result of the application of the moratorium in Part A1 of the Insolvency Act 1986 to CIOs. A moratorium under Part A1 of the Insolvency Act 1986 is an insolvency process introduced by the Corporate Insolvency and Governance Act 2020 (CIGA 2020), effective from 26 June 2020. CIGA 2020 amended the CIO Insolvency and Dissolution Regulations to apply Part A1 moratoriums to CIOs, except for CIOs that are either private registered providers of social housing in England or registered as social landlords in Wales under Part 1 of the Housing Act 1996.

Coronavirus (COVID-19) guidance for the charity sector

The Charity Commission | 26 June 2020

Updated information for charitable companies and CIOs on new laws affecting members’ meetings and insolvency. These provisions are set out in the Corporate Insolvency and Governance Act 2020 and came into effect on 26 June.

Energy

Quality assurance at heart of new £2 billion green homes grants

BEIS | 4 August 2020

Builders, plumbers, and other tradespeople across England will need a government-backed seal of approval to provide their services as part of the new £2 billion Green Homes Grant going live at the end of September.

The new scheme will see the government fund up to two-thirds of the cost of home improvements of over 600,000 homes, supporting over 100,000 jobs in green construction.

Boost for renewable heat projects as government confirms tariff extension

Department for Business, Energy & Industrial Strategy | 30 June 2020

Companies that applied to the government’s tariff guarantee scheme before June 29 will have an extra 14 months to get their low-carbon heat generators up and running.

• Non-domestic Renewable Heat Incentive scheme applicants to get extra 14 months to complete projects delayed by coronavirus outbreak
• government extends the tariff window to provide large-scale projects with vital breathing space
• 12-month extension to domestic Renewable Heat Incentive scheme also confirmed

Employment

COVID-19: Northern Ireland Regulations require employers to use furloughed employees' normal pay to calculate statutory payments including redundancy and notice pay

Legislation.gov.uk | 14 August 2020

On 14 August 2020, the Employment Rights Act 1996 (Northern Ireland) Order 1996 (Coronavirus, Calculation of a Week's Pay) Regulations (Northern Ireland) 2020 (NISR 2020/178) came into force, requiring employers to calculate various statutory payments, including redundancy and notice pay, with reference to a furloughed employee's normal pay.

COVID-19: Government publishes policy paper on Job Retention Bonus scheme and details of Job Retention Bonus Scheme

Gov.uk | 31 July 2020

On 31 July 2020, HM Revenue & Customs (HMRC) published a policy paper and further details on the Job Retention Bonus (JRB), originally announced by the Chancellor on 8 July 2020

Full guidance is expected in September.

Furloughed employees redundancy pay protected

TLT Legal Insight | July 2020

The government has introduced new legislation which requires that redundancy pay for employees on furlough leave is based on their normal rate of pay. 

The government has said that it hoped employers would pay employees’ redundancy pay based on their normal wages (rather than any reduced rate during furlough leave). However, the government’s view is that many employers are not doing this and has, therefore, introduced legislation to remedy the situation.

All employees with at least two years’ continuous service are entitled to redundancy pay if dismissed because their role has been made redundant. 

The new legislation also applies to the calculation of a ‘week’s pay’ for the purposes of other statutory payments, such as statutory notice pay and the calculation of compensation for unfair dismissal for furloughed employees. These payments will also be based on normal wages rather than furlough pay.

The new rules are not retrospective and apply from 31 July 2020.  

Employment Law Focus: Flexible and agile working

TLT Employment Podcast | 15 July 2020

The Covid-19 pandemic will undoubtedly trigger an increase in the use of flexible and agile working. HR teams must quickly grapple with the risks and act accordingly. 

In this episode, we look at:

• The right to request flexible working, and whether this goes far enough (compared to countries like Finland);
• The grounds for refusing a request, and whether this will be harder moving forwards;
• The risk of claims relating to indirect sex discrimination, health and safety (both mental and physical) and protected characteristics;
• Whether remote surveillance of employees is legal, and how to manage the risks; and
• The need for a robust approach to data protection and information security.

How to make sure remote working doesn’t discriminate against disabled employees 

TLT Legal Insight | July 2020

Businesses across the nation have seen a dramatic change in methods of working due to the impact of the coronavirus. To continue operating effectively, many companies have allowed the majority of their employees to work from home.

But remote working raises issues that now need to be considered more closely. This includes ensuring that this method of working does not discriminate against disabled employees.

BAME staff and the return to work

TLT Legal Insight | 15 July 2020

As the Coronavirus continues to disrupt the international economy, employers are now seeking ways in which employees can safely return to work.

However, evidence suggests that the virus does not affect the population equally; there are pockets of society who suffer exacerbated ill effects due to belonging to specific ethnic and racial groups.

Governance

Modern Slavery Act Policy and Statement

Gov.uk | 13 August 2020

Updated Homes England MSA policy statement 2020 to 2021.

Regulator of Social Housing Accessible documents policy

Regulator of Social Housing | 4 August 2020

This accessibility statement applies to the pages of the gov.uk website that are ‘owned and managed’ by the Regulator of Social Housing.

They want as many people as possible to be able to use this website.

Draft Code of Practice: RICS and TPO's Regulation of Property Agents

International Standards Consultations | 20 July 2020

In December 2019 the RoPA Code Steering Group was set up for the purpose of developing an overarching code of conduct for Property Agents, following on from the recommendations made by Lord Best in the ‘Regulation of Property Agents Working Group, Final Report, July 2019’. The Steering Group have produced a new overarching draft code to the standards envisaged by the RoPA Working Group. Comment is invited on this draft overarching code. The consultation is open until 4 September 2020.

Health and safety

Policy paper: Draft Building Safety Bill

Gov.uk | 20 July 2020

The government published its draft Building Safety Bill on 20 July – the second of two pieces of legislation on building safety expected this year, following the Fire Safety Bill in March.

The draft bill sets out how the government will bring forward its proposals to reform the building safety regulatory system. This follows the government’s response to the Building a Safer Future consultation on 6 June, in which it set out these proposals in detail.

Building regulations and fire safety procedural guidance: circular letter 15 July 2020

Ministry of Housing, Communities & Local Government | 15 July 2020

This circular letter draws attention to the publication of revised Building Regulations and Fire Safety Procedural Guidance. The purpose of this circular letter is to draw attention to revised procedural guidance published by Local Authority Building Control (LABC) with the National Fire Chiefs Council (NFCC) and the Association of Consultant Approved Inspectors (ACAI) and in conjunction with the Joint Regulators’ Group of the Building Safety Programme.  This guidance sets out how building control bodies should consult with fire and rescue services on plans for building work.

Housing

Possession claims 

Civil Procedure (Amendment No. 3) Rules 2020
These rules amend the Civil Procedure Rules 1998 (CPR). Of particular note to housing professionals are rule 6 which amends Part 30 of the CPR to make provision in relation to the transfer of proceedings for the enforcement of a judgment or order for possession of land by the county court to the High Court; and rule 16 which amends Part 83 to make provision about writs and warrants of possession, including provision requiring a notice of eviction to be delivered before a writ or warrant of possession can be executed. The amendments come into force on 23 August 2020. For the Amendment No. 3 Rules, click here. For the CPR, click here.

Civil Procedure (Amendment No. 4) (Coronavirus) Rules 2020
These rules, which come into force on 23 August 2020, amend the Civil Procedure Rules 1998 (CPR) to insert a new, temporary rule which provides for how possession proceedings and enforcement proceedings by way of writ and warrant for possession, which were stayed until 23 August 2020, are to proceed after that stay expires. The new rule provides (in exercise of the power given in paragraph 6 of Schedule 1 to the Civil Procedure Act 1997) that proceedings are to proceed as provided for by a new, temporary practice direction, Practice Direction 55C, which is added to the practice directions supporting the CPR. For the Amendment No. 4 Rules, click here. For the CPR, click here. For PD 55C, click here.

Intermediate housing consultation

London.gov.uk | 4 August 2020

Intermediate housing is one of the main forms of affordable homes built in London. The Mayor of London is consulting on a broad range of proposals in relation to intermediate homes, including how to address concerns with the affordability of shared ownership homes, what more can be done to support delivery of these homes and how allocations for intermediate homes can be made more transparent and consistent. The consultation also provides an opportunity to think about whether more can be done to help key workers access and benefit from these homes in London. This is particularly important in the context of the current health crisis which has highlighted the key role many occupations play in supporting the capital’s resilience during times of crisis. The consultation closes on 11 October 2020.

Regulator of Social Housing – Equality and diversity

Regulator of Social Housing | July 2020

The Regulator of Social Housing's first set of Equality objectives

Millions of leaseholders to benefit from Law Commission reforms

The Law Commission | 21 July 2020

The Law Commission of England and Wales has published recommendations to transform home ownership for millions of people in England and Wales. It has been estimated there are at least 4.3 million leasehold homes in England alone. If enacted our reforms would help those owners and pave the way for a system where flats are sold with freehold title (as part of a commonhold).

These reforms – laid out in three reports – work in tandem with planned changes from the Government to create fit-for-purpose home ownership across England and Wales. The Commission’s reforms will lay the foundations for future home ownership to be freehold and tackle some key issues that existing leaseholders currently face.

Statement on proposals to remove the democratic filter

Housing Ombudsman | 20 July 2020

The Housing Ombudsman welcomes the Draft Building Safety Bill proposing the removal of the democratic filter to allow direct access to its service and support faster redress

Guidance on best practice for landlords during Covid-19 – Updated

Housing Ombudsman | 14 July 2020

Guidance sets out best practice on engaging with the Ombudsman along with guidance on dealing with complaints raised by residents during this time

A new era of social rented housing in England?

House of Commons Briefing Paper | 13 July 2020

A key focus of housing policy in recent years has been on the overall supply of housing. There is broad consensus on the need to address the long-term under-supply of housing and various measures have been introduced to stimulate housebuilding. While supporting increases in supply, commentators highlight the need to deliver housing that is genuinely affordable to improve living standards and “loosen the grip of poverty.” This paper considers the case for social rented housing; barriers to its development; and prospects for a step-change in supply. It also provides a statistical picture of trends in social housing supply over time and geographically (including total stock, new supply, and sales and demolitions).

Stable service delivery for tenants continues in social housing sector

Regulator of Social Housing | 9 July 2020

RSH publishes results from its latest Coronavirus Operational Responses Survey.

Chancellor of the Exchequer’s financial statement

HM Treasury | 8 July 2020

The Chancellor of the Exchequer delivered a summer financial statement – titled ‘A Plan for Jobs’ – to Parliament. Of particular interest to housing professionals were the announcement of:

• A ‘Green Homes Grant’ which is intended to provide two-thirds of the expenditure of homeowners and landlords to make their homes more energy efficient, up to £5,000 per household.
• A ‘Social Housing Decarbonisation Fund’ to help social landlords improve the least energy-efficient social rented homes, starting with a £50 million demonstrator project in 2020-21 to decarbonise social housing.
• A temporary Stamp Duty Land Tax (SDLT) cut: the government will temporarily increase the nil rate band of residential SDLT, in England and Northern Ireland, from £125,000 to £500,000. This will apply from 8 July 2020 until 31 March 2021.

Anti-social Behaviour, Crime and Policing Act: anti-social behaviour

Home Office | 7 July 2020

These documents form the anti-social behaviour section of the Anti-social Behaviour, Crime and Policing Act.  Guidance updated with link to new guidance on the Community Trigger.  The bodies involved may include registered providers of social housing, if co-opted.

Letter to large registered providers

Regulator of Social Housing | 1 July 2020

RSH has written to all providers with more than 1,000 units with a regulatory update and information about the submission of regulatory returns.  The letter is the latest information on changes to regulation due to the impact of the coronovirus pandemic.

Insolvency

Corporate Insolvency and Governance Act 2020 gains Royal Assent, commencing Friday 26 June 2020

Legislation.gov.uk | 26 June 2020

The Corporate Insolvency and Governance Act 2020 has obtained Royal Assent. It commenced on Friday 26 June 2020. The overarching objective of this Act is to provide businesses with the flexibility and breathing space they need to continue trading during this difficult time. The measures are designed to help UK companies and other similar entities by easing the burden on businesses and helping them avoid insolvency during this period of economic uncertainty

The Insolvency Act 1986 Part A1 Moratorium (Eligibility of Private Registered Providers) Regulations 2020

Legislation.gov.uk | 29 June 2020

These Regulations amend the Insolvency Act 1986 (c. 45) in order to ensure that Part A1 (Moratorium) of that Act does not apply in relation to companies which are private registered providers of social housing. They also make a consequential amendment to the Charitable Incorporated Organisations (Insolvency and Dissolution) Regulations 2012 (S.I. 2012/3013).

The Corporate Insolvency and Governance Act 2020 (c. 12) inserted a new Part A1 and Schedule ZA1 into the Insolvency Act 1986. Part A1 provides for a freestanding moratorium for eligible companies to facilitate their rescue from financial difficulty. Schedule ZA1 specifies which companies are eligible for the moratorium under Part A1. These regulations mean that private registered providers are excluded from being eligible for the moratorium but private registered providers of social housing may be subject to a separate moratorium under Chapter 4 of Part 2 of the Housing and Regeneration Act 2008 (c. 17).

Landlord and tenant

Court of Appeal rules in favour of landlords: Trecarrell House Limited v Rouncefield [2020] EWCA Civ 760

TLT Legal Insight | July 2020

The Deregulation Act 2015 (the DA) and its Regulations significantly extended the obligations of landlords in the residential rental sector. The Act was of equal significance to fixed charge receivers who automatically assume the landlord's legal duties to the tenant upon appointment.

Third Insight report highlights Covid-19 impact on complaints

Housing Ombudsman Service | 30 July 2020

Our latest Insight report published today looks at complaints data and case studies from April to June 2020, together with some key lessons to share with landlords. It shows the impact of the Covid-19 lockdown on the volume and nature of complaints we received over this period.

Can private landlords refuse to let to Housing Benefit claimants?

House of Commons Library | 14 July 2020

This briefing paper considers evidence of private landlords' reluctance to let to prospective tenants in receipt of Housing Benefit/Universal Credit. The paper looks at the reasons behind this reluctance and action being taken to challenge landlords/agents who operate a "no DSS" policy.  The paper includes reference to the recent judgment of District Judge Mark sitting in York County Court, in which she considered the case of a disabled single parent who had an application for private rented housing refused by a letting agent based on her receipt of Housing Benefit.

Planning and environment

Launch of Planning for the future consultation to reform the planning system

MHCLG | 6 Aug 2020

Planning for the future: landmark reforms to speed up and modernise the planning system and get the country building.

Reform of local plans and automatic planning permissions for schemes in line with local plans

TLT Legal Insight | 6 August 2020

Today the Government published its long-awaited white paper on planning reform, which seeks views on 24 proposals. In this legal insight we look at the key areas that have been targeted for reform.

Recent changes to planning: an overview

TLT Legal Insight | August 2020

There have been several changes to the planning system in recent months, reflecting the response to Covid-19 and most recently in support of the Prime Minister’s evocation to ‘build, build, build’.

These changes take the form of new acts of parliament, new statutory instruments and changes to planning guidance.

Natural England 2020-21 action plan highlights reform of its licensing, planning and SSSI work

Natural England | 3 August 2020

Natural England (NE) published its Action Plan for 2020-21, on 3 August 2020. It indicates that NE will reform how Sites of Special Scientific Interest (SSSIs) are managed as well as its licensing and planning work.

European Commission publishes notice on guarantees of origin of electricity from renewables after post-Brexit transition period

23 July 2020

The European Commission published a notice to stakeholders on guarantees of origin of electricity from renewable energy sources after the post-Brexit transition period, on 23 July 2020.

Business and Planning Act 2020

Royal Assent | 22 July 2020

The Business and Planning Act received Royal Assent on 22 July 2020. See related TLT legal insight.

New laws to extend homes upwards and revitalise town centres

Ministry of Housing, Communities & Local Government | 21 July 2020

Full planning applications will not be required to demolish and rebuild unused buildings as homes. The new rules, which will come into effect by September, will mean full planning applications will not be required to demolish and rebuild unused buildings as homes and commercial and retail properties can be quickly repurposed to help revive our high streets and town centres.

The Information Commissioner v (1) Poplar Housing Association and Regeneration Community Association (2) People's Information Centre: [2020] UKUT 182 (AAC)

HM Courts & Tribunals Service and Upper Tribunal (Administrative Appeals Chamber) | 9 July 2020

The Upper Tribunal has held in Information Commissioner v Poplar Housing Association and another [2020] UKUT 182 (AAC) that a housing association was not a public authority under the Environmental Information Regulations 2004 (SI 2004/3391) (EIR).

Amendments to permitted development rights for new homes: Upwards extensions and sufficiency of natural light

TLT Legal Insight | 30 June 2020

On 1 August changes to the current permitted development regime will be introduced. These will assist in meeting housing demand, whilst ensuring that conversions to residential use provide adequate natural light.

The Permitted Development Rights (England) Order 2015 describes what permitted rights are available in England, how a person may avail themselves of those rights, and what planning conditions are imposed when they do. As such they offer a great deal of flexibility, avoiding the cost, delay and uncertainty of submitting planning applications for approval by the local planning authority.

‘Build build build’: How will the Business and Planning Bill help developers?

TLT Legal Insight | 6 July 2020

Boris Johnson announced his ‘new deal’, the central point of which is to build back better, greener and faster. The focus of his announcement was on future construction. What will happen to those planning permissions that have already been secured but which are due to expire in coming months? Do you need to take action to extend the life of your planning permission?

PM: Build, Build, Build

Prime Minister's Office | 30 June 2020

PM Boris Johnson has announced the most radical reforms to our planning system since the Second World War, making it easier to build better homes where people want to live. Under the new rules, existing commercial properties, including newly vacant shops, can be converted into residential housing more easily, in a move to kick start the construction industry and speed up rebuilding

Real estate

Homes England to build more inclusive industry that meets the needs of diverse communities

Homes England | 29 July 2020

Homes England has put communities at the heart of its work to improve diversity and inclusion in the housing sector as it launches its first annual Equality, Diversity and Inclusion report.

Help to Buy equity loan participation and registration pack

Homes England | 29 July 2020

Information for developers and house builders wishing to register to participate in the Help to Buy scheme, including guidance video on how to apply. (Guidance updated 29 July 2020 with information on closing date for new registrations)

RICS consultation on new code of practice for property agents

The Law Society | 27 July 2020

The Royal Institution of Chartered Surveyors (RICS) and the Property Ombudsman (TPO) are consulting on a new Draft Code of Practice for Residential Property Agents.

How will the office of the future work?

TLT Publications | 21 July 2020

As part of our How will the office of the future work? series, this report looks at some of the immediate issues businesses are facing as they return to the office, from social distancing to letting arrangements and employee testing.

Changing Places toilets for severely disabled people to be compulsory in new public buildings

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

Changes to building rules in England to help add larger accessible toilets to more than 150 buildings a year.

• Compulsory inclusion of Changing Places Toilets in new public buildings to help 250,000 people
• Shopping centres, sports stadiums and arts venues among buildings listed
• Changes will help ensure everyone in society benefits from lockdown easing

The proposed approach is to introduce a mandatory requirement for Changing Places toilets in Building Regulations.

Tax

Revenue & Customs Brief 11 (2020) on VAT and SDLT treatment of lease variations due to COVID-19

HM Revenue & Customs | 29 July 2020

On 29 July 2020, HMRC published Revenue & Customs Brief 11 (2020): VAT and Stamp Duty Land Tax when existing leases between landlords and tenants are varied, setting out the VAT and SDLT implications of lease variations brought about due to the COVID-19 pandemic.

Draft Finance Bill 2021 legislation: key business tax measures

Parliament.uk | 21 July 2020

On 21 July 2020, HM Treasury and HMRC published draft legislation for the Finance Bill 2021, together with explanatory notes, tax information and impact notes and consultation responses.

Stamp Duty Land Tax (Temporary Relief) Act 2020

The Stamp Duty Land Tax (Temporary Relief) Bill 2019-21 received Royal Assent on 22 July 2020 and became the Stamp Duty Land Tax (Temporary Relief) Act 2020.

Stamp Duty Land Tax (Temporary Relief) Bill 2019-21

Parliament UK | 13 July 2020

The Stamp Duty Land Tax (Temporary Relief) Bill 2019-21 was introduced to, and passed all of its stages in, the House of Commons. The Bill implements the temporary increase in the SDLT threshold for residential property announced, on 8 July 2020, in the Summer 2020 Economic Update.

Stamp Duty Land Tax: temporary reduced rates

HM Revenue & Customs | 8 July 2020

Reduced rates of Stamp Duty Land Tax (SDLT) will apply for residential properties purchased from 8 July 2020 until 31 March 2021 inclusive.

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.