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Housing and Regeneration

The Regulation of Social Housing (Influence of Local Authorities) (England) Regulations 2017
Thursday 16th November 2017

These Regulations were enacted on 15 November 2017 and come into effect on 15 May 2018. They will have a profound impact upon stock transfer associations (though not ALMOs). They have come about as a result of the Government’s general drive towards deregulation and their specific desire to remove RP borrowing from its balance sheet.

In brief, the effect of the Regulations will be to:

  1. Limit the number of Local Authority nominee board members to 24% of the total number of board members.
  2. Remove any requirement that a Local Authority board member be present at a meeting of the board for that meeting to be quorate.
  3. Remove any Local Authority voting rights in its capacity as a shareholding member of the RP (their votes will be allocated pro rata amongst the remaining voting membership).

Whilst the Regulations themselves are refreshingly short and simple, their very brevity does perhaps give rise to certain questions:

  • What impact will these have on stock transfer agreements? The Regulations are stated to override any conflicting contractual requirements but presumably controls within a stock transfer agreement that a Local Authority may have which are not in its capacity as a shareholding member (e.g. consent over the sale of a property) will remain.
  • What about the situation where the Local Authority is not a shareholding member but its nominee board members are? The Regulations only refer to the Local Authority losing its voting rights. There is nothing within the Regulations about the nominee board member losing his or her voting rights. However, it seems a little odd that the nominee does not lose his or her rights but the Local Authority does.
  • The Regulations state that the Local Authority cannot continue to hold any voting rights in its capacity as a shareholding member. However, presumably that does not necessarily mean that it cannot remain as a non-voting shareholder of the RP.

We had hoped that these issues would have been addressed but they haven’t been. The Regulations will require stock transfer associations to review and in all likelihood make amendments to their constitutions to reflect these changes prior to 15 May 2018. Whilst the Regulations will automatically override contradictory constitutions, as a matter of best practice the constitutions ought to be changed themselves to avoid any uncertainty.

Should you have any queries concerning these Regulations or any other governance issues please contact Rupert Gill


Access for repairs
Thursday 31st August 2017

We have successfully obtained an access injunction at trial over two days on 30th and 31st August 2017 in the County Court at Liverpool on behalf of Liverpool Mutual Homes (“LMH”) against a tenant pursuing a housing disrepair claim but failing to allow access for repairs to be completed.

LMH have been trying to complete repairs since February 2017 and have persistently been refused access by the tenant.

Prior to proceedings being issued:

  • LMH had sent four separate appointment letters, each with a revised timetable of works;
  • LMH’s contractors had attended at the property in accordance with pre-arranged appointments on five separate occasions, only to be denied access each time; and
  • The tenant’s solicitors had failed to respond to correspondence requesting access on six separate occasions.

The denial of access appeared to be based on legal advice that it was not necessary for the tenant to provide access unless and until all works of repair were agreed.

In his judgment, His Honour Judge Gregory rejected an argument advanced by the tenant’s Counsel that where there is any ‘tension’ between a landlord’s statutory and contractual right of access and the Housing Disrepair Pre-action Protocol (“PAP”) or Government Guidance on housing disrepair claims from 2002 (“Guidance”), that the PAP and Guidance took precedence.

The Judge did not accept that a tenant only had a right to provide access where all works of repair were agreed and commented that the PAP envisages situations where the full extent of work would not always be agreed.

The Judge also stated that:

  • LMH had, on numerous occasions, provided a clear and detailed schedule of works that was entirely consistent with the requirements of the PAP, despite the tenant arguing otherwise.
  • So desperate was LMH to have the tenant engage with them that photographs were taken hand delivering letters through the tenant’s door.
  • LMH, who is a social landlord, had acted in a “patient, proportionate and reasonable manner”, such that injunction proceedings were clearly issued as a last resort.

On this basis His Honour Judge Gregory granted a 12 month access injunction against the tenant and ordered her to pay £5,500 to LMH by way of costs.

This is the second injunction with a costs order that we have obtained on behalf of LMH in just over two weeks on similar facts. The tenant in each case was represented by Driscoll Kingston Solicitors and Counsel, David Bennett.


Disrepair costs: Time for change?
Wednesday 16th August 2017

Anyone involved with housing disrepair claims will be interested in Lord Justice Jackson’s further review of civil litigation costs, published in his recent report of July 2017 (“the Report”).

The Report marks LJ Jackson’s second review of civil litigation costs, the first of which was published in January 2010.

These earlier Jackson reforms impacted quite significantly on personal injury litigation, which has resulted, in part, in an increase in housing disrepair claims where there are currently no fixed costs.

Litigated cases, including housing disrepair cases, are allocated to “tracks” and each track has its own costs rules.

On the fast track or multi track, the general rule is that the loser pays the winners’ costs.

LJ Jackson states in the Report that this traditional approach of the winner recovering costs from the losing party “is a recipe for runaway costs”. He therefore recommends that all recoverable costs in fast track cases be fixed and that the figures be reviewed every 3 years.

The allocation limit for damages claims has increased over the years but the allocation limits for disrepair claims has repeatedly been missed off the agenda.

LJ Jackson proposes a matrix of fixed costs for all fast track cases and proposes that cases be placed into 4 bands of complexity. The fixed costs are higher the greater the band.

It is proposed that standard housing disrepair claims will fall within band 3 and that “complex” claims, which will be not be common, will fall within band 4.  

The Report proposes that each party will state their proposals for the appropriate banding in the protocol correspondence and that ultimately it will be for the District Judge on allocation to decide the band if it is in dispute.

What will it cost?
Using LJ Jackson’s proposed matrix of fixed costs for housing disrepair claims, the following are examples of the costs that would be recoverable in certain types of cases;

(A) Standard disrepair claim assigned to band 3, where the Claimant obtains an order for specific performance of works and damages of £5,000.00 at one day trial. Recoverable costs will be £10,021.00.

(B) Standard disrepair claim assigned to band 3, where work was completed pre-issue but claimant obtains damages of £5,000.00 at a 1 day trial. Recoverable costs will be £6,661.00.

(C) As in (B) above, but claim settles pre issue. Recoverable costs will be £1,863.00.

The Report recommends that some band 4 cases will allow recovery of counsel’s fees in addition to the matrix of fixed costs, namely for settling a defence or defence and counterclaim (£500.00) and for post issue advice or conference (£1,000.00).

However, if solicitors choose to instruct counsel in respect of other matters (e.g. allocation hearing or pre-issue conference), these fees should not be recoverable in addition to the matrix of fixed costs.

Welcome change?
There will always need to be a balancing exercise between access to justice and proportionality of costs.

The Report comments how housing disrepair cases “seldom qualify for legal aid”. That may be so, but there is currently a surge of claims being brought under conditional fee agreements and the costs of dealing with these is having a significant financial impact on landlords, particularly Registered Providers of social housing (RPs).

I act for many RPs across the Northwest and beyond and in my experience, the current costs of housing disrepair claims are grossly disproportionate. The legal costs being claimed by tenants at the conclusion of a case settled pre-issue is often 3 or 4 times the RPs own legal costs and usually 3 or 4 times the cost of works. Once proceedings are issued the costs inflate even more.

If LJ Jackson’s proposals are implemented by the Government, landlords can expect for cases to be dealt with in a more proportionate manner.

The limit on counsel’s fees would be a welcome change for landlords and will help to put an end to counsel being instructed pre-issue on straightforward cases and seeking to recover the costs from landlords.

The assessment of costs at the conclusion of a housing disrepair claim ought to be a more straightforward task for costs lawyers and the costs associated with the assessment of costs ought therefore to be reduced.

There is of course the worry that claims will be issued prematurely in an attempt to achieve the greatest cost recovery, or that claims will be exaggerated in order to achieve a higher banding on allocation, resulting in higher fixed costs.

There is of course still no provision in the pre-action protocol, or otherwise, for landlords to recover their own costs in cases brought where there is no merit in the case and the matter is disposed of pre-issue.

The changes, if implemented, will at the very least result in cost certainty.

Unanswered questions
There are some unanswered questions in the Report and landlords ought to take the opportunity of responding to any Government consultation in due course.

For instance, it is not clear whether the costs of repairs will be considered when assessing the appropriate banding of the claim.  If so, how will the costs be calculated? For instance, will it be the claimant’s or defendant’s estimate?

The report proposes that where there is a claim for specific performance, that element of the claim should be treated as the equivalent of a claim for £10,000.00 by way of damages.  What if the work is completed mid-litigation? Or what if the damages and specific performance claim are less than the fast track limit?

What next?
It will now fall to the Government to consider the Report and to thereafter set out their own proposals for reform to go to public consultation.

This will enable landlords to have a say in these important changes.

Housing disrepair has not been on the Government agenda for quite some time so I would urge all landlords to take any opportunity that comes to be heard.

To see a copy of the Report click here:


Data Protection Act: Subject access requests
Monday 3rd July 2017

Take note that the Information Commissioner’s Office (ICO) has published an updated code of practice on subject access requests (SARs).

The update comes following recent Court of Appeal judgments in the cases of Dawson-Damer and others v Taylor Wessing LLP [2017] EWCA Civ 74 and Ittihadieh v 5-11 Cheyne Gardens RTM Company Ltd and Others [2017] EWCA Civ 121.

The main update relates to the obligations on data controllers in responding to SARs in relation to the "disproportionate effort" exception and SARs made for collateral purposes.

The code can be found on the ICO’s website at:


The Housing White Paper 2017 – Build, Build, Build!!
Friday 17th February 2017

What does it say?

  • The Government wants to plan for the right homes in the right places: In the past, Local Authorities have been allowed to calculate where housing needs are highest often resulting in difficult decisions being avoided.  Now the government will aim for a new standard methodology as to where demand is greatest to build.
  • Housing Associations have a vital role in plugging the housing deficit.  “In due course” a rent policy for social housing landlords will be announced.  This new rent policy should allow social landlords to borrow against future income.  The 1% rent reduction is in place until 2020. 
  • Housing Associations “belong in the private sector”.  Encouraging private sector borrowing, more risk, more joint ventures, more commercial thinking.  And if you don’t start thinking this way, you may find that you are pressurised to merge with another organisation that will.
  • There is an expectation that Housing Associations will “make the best use of whatever development capacity they have to meet social need”.  But make sure that your organisation doesn’t over-stretch its resources and find itself in dire straits.    Consider: what will happen in 2020? Would a new government perform a U-Turn on rent policy, with another rent reduction or a rent freeze?  Landlords need to be prudent and weigh up the risk.  Development work needs to be robustly stress tested to ensure your organisation knows its breaking point and allows some financial headroom.
  • There is also a microscope on Housing Associations’ efficiency and the need to improve performance.  This, the White Paper states, may be through merger.  The Government has made clear that its preference is to have a far reduced number of Housing Associations.  If you decide to build, you better be ready for the challenge both financially and in governance terms.
  • April 2017: the Government will introduce lifetime ISAs to allow people to save.  This will allow a 25% bonus on up to £4,000 saving per year.  These savings can be put towards a house or withdrawn at the age of 60.  Housing Associations should be looking at various tenures and target those who take advantage of this scheme. 
  • Help to Buy: a further £8.6 billion for the scheme to 2021
  • Starter Homes: for those with an income of under £80,000 (£90,000 in London). Previous larger schemes requiring 20% of new developments over a certain size to be starter homes have been shelved and will be replaced by an “expectation” in the National Planning Policy Framework that housing sites will deliver a minimum of 10% affordable home ownership units.
  • Extension of Right to Buy Discounts: the pilot with five housing associations was, according to the White Paper, a success and will now be expanded to a regional pilot and it is estimated this will allow a further 3,000 tenants to exercise their RTB.  Depending on the geographical area, this may have a negative impact on Housing Associations.  Again, we recommend stress testing. 
  • An additional £1.4 Billion for the Affordable Homes Programme.  The restrictions on funding have been relaxed so builders can build a range of properties including affordable rent. 


The White Paper doesn’t set out many ‘new’ ideas, but I can’t help thinking that this is an exciting time.  There is a lot of grant available, especially if you have land and are willing and able to develop.  And as long as you have a robust financial plan in place and the headroom to develop now seems to be the time to do this. 

The health warning is the same as ever, don’t over stretch, have a plan, have exit strategies in place, stress test your business model and ensure this is right for your organisation. 

The consultation on this paper is open until 23:45 on 2nd May 2017.  


Court’s permission now required prior to seeking a warrant
Tuesday 25th October 2016

Stop Press:  This warrants further reading!

The Court of Appeal has handed down a significant judgment in the case of Cardiff City Council –v- Lee [2016] EWC Civ 1034.

The Court was tasked with determining whether Civil Procedure Rule 83.2 requires a landlord to first of all seek the court’s permission before applying for a warrant of possession upon a breach of a suspended possession order.

The common position until now appears to have been that permission was not required and upon breach of a suspended possession order (unlike breach of a postponed possession order), landlords simply needed to seek an eviction by way of application for bailiff’s warrant on court form N325. 

In this case the tenant had breached a Suspended Possession Order relating to anti-social behaviour.  The landlord applied for a warrant using the standard form N325 and the tenant applied for a stay of the warrant.

The relevant parts of CPR 83.2 that the Court considered are as follows:

83.2(3) a relevant writ or warrant must not be issued without the permission of the court where –

(e) under the judgment or order, any person is entitled to a remedy subject to the fulfilment of any condition, and it is alleged that the condition has been fulfilled;

(4) An application for permission may be made in accordance with part 23 and must –

(a) identify the judgment or order to which the application relates;

(b) if the judgment or order is for the payment of money, state the amount originally due and, if different, the amount due at the date the application notice is filed.

The court decided the rules do apply when obtaining a warrant for breach of a Suspended Possession Order.

The Court said that the purpose of CPR 83.2 was “to provide a layer of judicial protection for a tenant whom the landlord wants to evict” and constituted an important protection for tenants, such that “It is not to be taken lightly. Social landlords must ensure that from now on their systems are such that [mistakes] will not be made in future”.

This rule was only inserted into the Civil Procedure Rules in 2014 and the Court of Appeal commented that the insertion of it “addresses what might reasonably have been considered to be a weakness of the system, namely that there was no judicial scrutiny of the landlord's case that the conditions had been breached”.

The Court commented that the Civil Procedure Rule committee may need to consider whether an amendment should be made to form N325 to refer to the need to seek permission in cases of Suspended Possession Orders.

What does this mean for landlords?

This decision has the following consequences for landlords:

  • It is now necessary to seek the court’s permission prior to seeking a warrant.
  • This applies to all breaches of Suspended Possession Orders (including in relation to rent and anti-social behaviour).  It does not however apply to an outright possession order.
  • The court has made it clear that landlords should ensure that their systems are such as to avoid procedural mistakes moving forward. The judgment is clear that an application is necessary so a misunderstanding or ignorance of the procedure is not now likely to be deemed a genuine mistake. 
  • It is possible for applications to be made without notice but only time will tell whether the court expects this to be the norm or not.
  • There may now be little difference between a postponed possession order (which has always required an application back to court prior to the execution of a warrant) and a suspended possession order.
  • Applying for a warrant by using form N325 and not seeking the court’s permission will result in an invalid warrant and could result in a tenant applying to have the warrant set aside.
  • There could be cost sanctions for a landlord who applies for a warrant without first of all seeking the court’s permission.
  • The cost of seeking a warrant in these circumstances is now going to increase as landlords will have to prepare an application notice and pay the fee (currently £255.00) and potentially attend a hearing to have the application heard (although a request can be made for the matter to be dealt with on paper).
  • It is likely to take even longer to obtain a warrant and the waiting times are already in the region of six weeks.

Please contact us if you have any questions or would like to see a copy of the judgment. 


Join the Housing and Regeneration team for the Wirral Coastal Walk
Friday 20th May 2016

The Housing and Regeneration team at Brabners are taking part in the Wirral Coastal Walk on Sunday 12 June in aid of our 2016 chosen charity Crisis.
Crisis is a national charity that works to end homelessness by delivering life-changing services and campaigning for change. Homelessness is devastating, leaving people vulnerable and isolated. We believe everyone deserves a place to call home and the chance to live a fulfilled and active life.
“As we are dealing with housing matters in our daily job it’s valuable to be able to take part in an event like this and give something back in return” says Alistair Fletcher, head of the Housing and Regeneration team. 
Why not join us in this worthy cause?
Along with friends and family taking part with the team, why not join us for a fun day out whilst supporting this worthy cause at the same time? 
The walk is a total of 15 miles from Seacombe Ferry to the Wirral Country Park with great views and 4 and 10 mile completion points for those that want to do a shorter route.
If would like to join us, or indeed bring along a team from your organisation, please contact:
Natalya Killen on 0151 600 3052 or by email to
Donations to Crisis, can be made by visiting our JustGiving page.


Liverpool City Council v (1) NM, (2) WD (HB) [2015] UKUT 0532 (AAC)
Tuesday 29th December 2015

We represented the Respondents (NM and WD), who were Riverside tenants, in this case. It was heard in the Upper Tribunal Administrative Appeals Tribunal (UT). The UT gave judgment on 24th September 2015.

The UT’s decision and its findings in this case are binding on all Local Authorities administering housing benefit and on First Tier Tribunals (FTT) dealing with housing benefit cases.

This case clarified the law with regard to the eligibility for housing benefit of service charges relating to the supply of water in communal areas in sheltered and supported housing schemes.


NM lived in supported accommodation and WD lived in sheltered accommodation. Both were claiming communal water charges through Housing Benefit. Liverpool City Council disallowed these claims and NM and WD appealed to the FTT. The FTT allowed their claims and Liverpool City Council appealed this decision to the UT.   

The UT decision and the law as it now stands

  1. Subject to 4 below, communal water charges are eligible for housing benefit for residents of sheltered or supported housing.
  2. For the purpose of the Housing Benefits Regulations 2006 (the Regulations), ‘sheltered’ and ‘supported’ accommodation have the same meaning.
  3. In the absence of water meters, water charges are to be apportioned between communal and personal use by floor area. In a dwelling forming part of a larger self-contained unit (or scheme) where the tenant has use of communal areas in addition to their own room or flat, service charges in respect of personal water use (which are ineligible for housing benefit) will be calculated in accordance with Regulation 12B(5)(b) of the Regulations.
  4. Water charges relating to the provision of services that are ineligible for housing benefit are themselves ineligible for housing benefit.  The only ineligible service involving water use identified by the UT in this case was for the communal laundry. Service charges relating to other communal water usage for communal cleaning, toilets and gardening were held to be eligible for housing benefit. 

 Considerations for Landlords

Where the water use in properties is not metered Landlords must use the approach set out in Regulation 12B(5)(b)that is summarised above. This requires careful and detailed calculation in line with the specifics of the Regulations and this case. 

Brabners successfully represented the Respondents/Claimants in this case. If you are interested in finding out more about the approach to take when calculating the  percentage of water charges that are housing benefit eligible please do not hesitate to contact Ian Alderson.


The NHF Merger Code – What are the Key Principles?
Monday 30th November 2015

We note and welcome the impending publication of the NHF’s Merger Code and the first indications of the content of the same. The Code gives 10 key principles for Registered Provider (RP) boards to have regard to when considering a merger proposal. The principles focus on what is in the best interests of the RP, early and regular consideration of the proposals by the Board as a whole and ensuring that the Board has or has access to appropriate skills and experience. None of these principles should be a surprise to well-run Boards but they are a useful point of reference.

We would draw your attention to two of the tenets which merit further consideration:

  1. The fact that the Board as a whole should be aware of the proposals from the very start. We are aware of situations where proposed mergers have been rejected by certain board members on behalf of the RP without reference or reporting back to the Board and others where negotiations have been significantly advanced by certain board members before the remainder of the Board being aware of the proposals. Whilst we acknowledge that there is a need to maintain confidentiality, particular in early stages of the process, the starting point should be that this is a decision for the Board as a whole, not some only (or indeed the chief executive only).
  2. The focus on ensuring that the merger is in the best interests of the RP. There has been a fear within the sector that some mergers have been driven by personal agendas (such as the impending retirement of a chief executive) rather than what was in the best interests of the RP. We would also add that this focus should be applied at all stages throughout the process; just because the merger made sense at the start does not mean that it still is in the best interests of the RP later in the process, right up to the point of completion. Regard should be had to the results of due diligence, changes in or to do with the sector or specific issues concerning either of the proposed merger partners at all times and the Board should be prepared to decide against proceeding with the merger right up to the point of signature.

Publication of the Merger Code is expected over the coming weeks and we will report further once we have reviewed it.

If you have any queries concerning this article or the surrounding issues then please contact Ruper Gill.


S.21 Notices – Don’t get caught out
Friday 30th October 2015

The Deregulation Act 2015 makes important changes to Notices Requiring Possession (“S.21 Notices”).

Tenancies commencing on or after 1st October 2015

There is now a new prescribed form for all S.21 Notices for assured shorthold tenancies (including starter tenancies) which commenced on or after 1st October 2015. A failure to use this prescribed form will render the notice invalid.

The notice can no longer be served within the first four months of the tenancy.

There is no longer a requirement for the notice to expire on the last day of the tenancy.

Registered Provider’s have to comply with additional requirements, including providing the tenant with energy performance and gas safety certificates.

Make sure you are familiar with the new rules to prevent claims for possession failing.

Tenancies commencing before 1st October 2015

The position on ‘old’ tenancies (i.e. tenancies which commenced before 1st October 2015) is less clear. The indication seems to be that the new rules do not apply but the new S.21 Housing Act 1988 doesn’t say this. However, the Regulations say that the new notice must be used for post-01.10.15 tenancies and can be used for pre-01.10.15 tenancies.

It will become compulsory after 1st October 2018 to use the new prescribed form for all assured shorthold tenancies.

It would therefore be a good idea to start using the new prescribed form for all tenancies now, to avoid using the wrong form in the future.

Good advice for pre-01.10.15 tenancies is to comply with both sets of rules (new and old S21) by:

  • Not serving s21 Notices during the first 4 months of the tenancy;
  • Ensuring that the expiry date is the last day of a period of a tenancy;
  • Complying with the new time limits for starting proceedings; and
  • Making sure that gas safety and energy efficiency certificates have been given to the tenant before the notice is served.

This is the safest option and avoids all possible challenges on pre-01.10.15 tenancies based on complying with the new or the old rules.