Social housing law and practice

Social housing law post-Grenfell

The Grenfell Tower fire put a spotlight on social housing. Caroline Hunter and Jed Meers explain who social landlords are, and the security and repair rights of their tenants.

About the authors
Professor Caroline Hunter is a barrister and head of York Law School, and Jed Meers is a lecturer at the School.

The disaster at Grenfell Tower – in which at least 80 people lost their lives – will be etched in the minds of the public for years and decades to come. As argued in a dedicated edition of the Journal of Housing Law, it serves as a microcosm for a coterie of failures: of regulation, governance and resource allocation.¹ As the task of relocating the survivors and those displaced continues, this dreadful event continues to set deficiencies into sharp relief, including shining a spotlight on the fragmented nature of social housing and social landlords.

In this article, we first provide an overview of the different landlords and managers of social housing today. We then turn to the security of tenure that the tenants have, and finally to the rights around repair and conditions in the home.

Landlords

It is still widespread to use the terms ‘council estates’ and ‘council tenants’ to refer to social housing. Forty years ago, that was largely true: in the 1980s, the overwhelming majority of social tenancies were provided by local authorities under Housing Act (HA) 1980 ‘secure’ tenancies. There was also a small non-pro fit sector (generally referred to as ‘housing associations’) whose tenants were also covered under the HA 1980.

However, government policy since the 1980’s has been to move ownership or management of ‘council houses’ to other social landlords. This has been achieved in a number of ways. Some councils have used large-scale voluntary transfer (LSVT) to move their stock to specifically newly set up housing associations covering all or a large part of their stock. Others transferred smaller areas, such as particular housing estates, to existing housing associations. Some councils kept the ownership of the housing but set up arms-length management organisations (ALMOs) or used private finance initiatives to fund major works, using housing associations as contractors to manage the homes after the works are completed. Grenfell Tower was an example of an alternative arrangement, where council housing was put under the management of a tenant management organisation.

This process of moving the provision of social housing from councils to housing associations was accompanied by government funding for new building also being channelled through associations, not councils. So, while in England, in 1980, local authorities dominated the provision of social housing – accounting for 6.7m units and 94% of social rented stock – in 2015, this has shrunk to 1.7m dwellings, comprising 41% of social rented stock.² Some of this 41% are managed by other organisations: the National Federation of ALMOs represents 33 ALMOs managing 452,275 properties across 36 local authorities.³

Security of tenure

The fragmentation of landlords has been mirrored by a split in the legal position of tenants. The main protection for social tenants arrived with the HA 1980 and is now found in the HA 1985 – the secure tenancy. However, this beguiling simplicity was short-lived. First, from 1989 any new housing association tenancy was an assured tenancy under the HA 1988. Second, over the past 20 years, two intertwined policy agendas have fragmented the protections in the HA 1985: controlling anti-social behaviour; and a ‘welfarist’ model of social housing moving from life-time tenancies to more shorter periods using more flexible tenancies. This has led to a plethora of new tenancy types with less security. Both the secure and the assured tenancy operate in similar ways, namely, the tenancy cannot be terminated without a court order. Furthermore, the court cannot make an order unless, first, a notice has been properly served by the landlord on the tenant and, second, a ground for eviction has been proven. The main differences then arise between the grounds:

For secure tenancies, the grounds are split into those where the court may order possession, for rent arrears or anti-social behaviour for example, and those it may only make if suitable alternative accommodation is provided. There are no mandatory grounds.

For assured tenancies, as well as similar discretionary grounds where they may order possession, there are also a further set of grounds where the court must order possession. Although some of these mandatory grounds do not apply to social landlords, some do, for example, Ground 6 eviction for major works. The most controversial is Ground 8 mandatory eviction for eight weeks’ rent arrears. In a study from 2010, one-quarter of associations reported recently having sought possession under Ground 8^.4 The use of Ground 8 was much less common among LSVT housing associations and much more common in London.

For both secure and assured tenants, eviction is most usually sought for rent arrears. There is also a pre-action protocol that places an expectation on social landlords not to take repossessions for rent arrears to court, where this is possible. This provides for a range of managed repayment options to avoid eviction for rent arrears. But, as noted above, for many social tenants their tenancy will be some other form. We will discuss three here: introductory tenancies; demoted tenancies (both of which are designed to manage anti-social behaviour); and flexible tenancies (time-limited tenancies for new tenants).

Introductory tenancies are a form of probationary tenancy for new tenants, and for the first 12 months the landlord can evict without reasons. For local authorities with an introductory tenancy scheme under the HA 1996, there must be an internal review before seeking eviction. If possession is not sought in the introductory period, the tenancy automatically becomes secure. There is no exact equivalent for housing associations, but many use assured shortholds (under HA 1988 s21) as probationary tenancies.

Demoted tenancies arise on the making of an order by the court demoting a secure or assured tenancy because of antisocial behaviour. It lasts for 12 months. If the landlord is a local authority, before seeking possession of a demoted tenancy the landlord must give a notice to the tenant and offer the tenant the opportunity of an internal review, but possession must be granted by the court if the necessary procedures have been complied with.

For housing associations, the demoted tenancy again operates as an assured shorthold.

Finally, flexible tenancies: in England, this is a fixed-term tenancy of at least two years that landlords can renew if they choose. For housing associations, they operate as an assured shorthold tenancy. For local authorities, they are a form of secure tenancy that, provided the necessary notices have been given, gives the landlord the right to mandatory possession at the end of the fixed term.

When the Housing and Planning Act 2016 comes fully into force, all new secure tenancies in England will have to be fixed flexible tenancies of between two to ten years.

In a number of cases, tenants have sought to challenge the enhanced power of local authorities to evict in these new tenancy types, through article 8 of the European Convention on Human Rights (see Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104, Corby BC v Scott; West Kent Housing Association Ltd v Haycraft [2012] EWCA Civ 276; [2012] HLR 23, and Southend-on-Sea BC v Armour [2014] EWCA Civ 231; [2014] HLR 23).

In order to comply with article 8, the Supreme Court decided that: 'where a court is asked to make an order for possession of a person's home at the suit of a local authority, the court must have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact’ (Manchester City Council v Pinnock para 49).

On the face of it, this seems to reinstate discretion for the court. In practice, this discretion has been very limited in its application. All the cases have been against councils. The position of housing associations under the Human Rights Act (HRA) 1998 is less clear, although in the case of London & Quadrant Housing Trust v R (Weaver) and Equality and Human Rights Commission (intervener) [2009] EWCA Civ 587; [2010] 1 WLR 363, the Court of Appeal held that a housing association, provided it does have some public funding, is a public authority for the purpose of HRA s6.

Repairs

The conditions in the social rented sector are not as bad as in the private sector; however, the same law applies in both. All tenants have the rights in Landlord and Tenant Act (LTA) 1985 s11. This implies a term into all short-term tenancy agreements that the landlord is responsible for repairs to the structure, exterior and utilities serving a property.

Landlords cannot contract out of the term (LTA s 12), and a breach of the term can sound in damages. A mandatory injunction can be awarded to require a landlord to effect the repair (LTA s17).

However, the implied term is limited to ‘repairing’ the home, and landlords are not required to improve the home, either by providing utilities that were not present in the dwelling when it was let or to correct an inherent design fault which does not create a disrepair. This was illustrated in the case of Quick v Taff-Ely BC [1986] QB 809 CA, where condensation caused by design faults (single-glazed, metal-framed windows, with no insulating material) and inadequate heating was found not to breach section 11.

There is also a structure of public law responses providing local authorities duties and powers to take action to tackle poor standards in housing. The Housing Health and Safety Rating System (HHSRS) in the HA 2004 is a ‘risk-based assessment tool which is used by environmental health officers [in local authorities] to assess the risk (the likelihood and severity) of a hazard in residential housing to the health and safety of occupants or visitors’.⁵

The HA 2004 provides a number of notices and orders that officers must enforce against landlords if there are Category 1 hazards and may enforce if the hazard is less serious. Despite the intention of tenure neutrality in the Act, in fact local authorities cannot take action against themselves because of the decision in R v Cardiff CC ex p Cross (1982) 6 HLR 1, CA. Accordingly, their tenants cannot use this method to complain about their homes. This has led to complaints that council tenants have less protection than other tenants.

It is not clear that the fire at Grenfell Tower would have been prevented by inspection under the HA 2004; however, a simple way to level the playing field would be to enact Karen Buck MP’s Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill, which is currently before parliament.⁶ This would require that all residential rented accommodation is provided and maintained in a state of fitness for human habitation. 

Conclusion

In this short article, we have just started to scratch at the surface of social housing law. The complexity is immense.

Nearly 100 years ago, a judge made the same point about the private rented sector. In Parry v Harding [1925], 1 KB 111 Lord Hewart CJ observed:

It is deplorable that in dealing with such a matter as this, a [c]ourt, and still more a private individual, and most of all a private individual who lives in a small tenement, should have to make some sort of path through the labyrinth and jungle of these sections and Schedules. One would have thought that this was a matter above all others which the [l]egislature would take pains to make abundantly clear (p114)

. However, can anything be done about it? In the authors’ opinion, it would be difficult while housing remains such a political issue. But the Law Commission’s project on renting homes in 2003 showed a way forward.⁷ This was shelved in England, but Wales has recently embraced its proposals. The Renting Homes (Wales) Act 2016, when brought into force, will radically change the position in Wales. We wait to see if this Act makes life for tenants, landlords, lawyers and judges any easier. However, seems unlikely that it would have protected the residents of Grenfell Tower. Hopefully the Grenfell Tower Inquiry may eventually provide some answers on this.⁸

1 Andrew Arden, ‘Grenfell Tower: the greatest failure’, (2017) 20 Journal of Housing Law 97
2 English Housing Survey: headline report, 2015-16, available at: http://tinyurl.com/jf8dsgk
3 See: www.almos.org.uk/almos
4 Hal Pawson, Filip Sosenko, Dave Cowan, Jacqui Croft, Matthew Cole and Caroline Hunter, Rent arrears management practices in the housing association sector, Tenant Services Authority, March 2010, available at: http://tinyurl.com/y9ukqe75
5 Alex Adcock and Wendy Wilson, Housing Health and Safety Rating System (HHSRS) Brieÿng Paper SN 01917, May 2016, House of Commons Library, available at: http://tinyurl.com/yb52h4go
6 Available at: http://tinyurl.com/y8j96z5e
7 Available at: https://www.lawcom.gov.uk/project/renting-homes
8 Visit: www.grenfelltowerinquiry.org.uk