'Crisis, what crisis?'

"Thank you to HLPA for inviting me to give this address. I’ve been attending HLPA for many years and I’m used to hearing the great and the good speaking from here. Lord Justice Rabinder Singh QC sticks in the mind, along with Baroness Hale. So thank you for inviting a coalface legal aid practitioner – one of your own.

I’m going to say something about the housing crisis, which is something that is very familiar to housing lawyers, and about the main political responses to it. I should make it clear that this is not a political speech – some of you know that on occasion I can do a political speech – but rather an objective look as a housing lawyer at where we are, and what the two main political parties plans are to tackle the crisis. I’m concentrating on the Conservative Party and the Labour Party, because one is in government and the other hopes to be in government. Just to complete the disclaimer: as many of you know I am an active member of the Labour Party, it won’t surprise you that I’m more enthused by their proposals but my view is that there is still work for the Labour Party to do and I repeat that politics is not my function today.

So, the housing crisis. The first point to note, which is something amazing for those of us who have been banging on about a housing crisis,  is that finally the government has accepted that there is such a thing. Theresa May – who last time I checked my phone was still Prime Minister – used those words in her speech to the Conservative Party conference in October. That’s quite a development from just 23 months earlier, in January 2017,  when the Government’s White Paper was called Fixing Britain’s Broken Housing Market. It’s a big leap from broken market, where the government envisaged solutions to fix the market, to admitting that there is a crisis.

As housing law practitioners, we know from our daily working lives that the Prime Minister’s description accords with reality.

Shelter figures from two weeks ago: 320,000 people were recorded as homeless in Great Britain. An increase of 13,000 from last year. They derive that figure from a combination of statutory homeless – people applying as homeless to local authorities in first quarter of 2018 who were provided with temporary accommodation – and the rough sleeping figures from last year which are that 5,000 people are sleeping rough on any given night. That 5,000 figure is thought to be an underestimate: Crisis says local agencies report 8,000 sleeping rough. Shelter’s figure also includes those given temporary accommodation from social services. Shelter also tells us that 130,000 children will celebrate Christmas in temporary accommodation this year, last year it was 120,000. 10,000 of those will be sleeping in a bed and breakfast or similar hostel accommodation, which we know has been outlawed as suitable accommodation for families since 2003.

Those are figures from the first quarter of 2018 and they are likely to increase when the next quarter’s figures come out, from April 2018, because the Homelessness Reduction Act (the HRA) came into force in April. The HRA is a substantial achievement because it requires that no one should be turned away and prevented from making an application for homelessness assistance because they do not have a priority need or might be found to have become homeless intentionally. With new figures after the HRA came into force, we are likely to see how many hidden homeless there are: people who are not accommodated by local authorities, are not sleeping rough, but are sofa surfing, staying with friends or relative on very insecure basis and are homeless – living out of suitcases, no fixed address, no place to call home. Crisis have estimated over 2 million households contain concealed homeless adults.

I’ve been working full-time on the Grenfell Inquiry so I’ve not seen homelessness cases since April 2018. I hope some of you can describe whether or not the HRA has made a difference. It should certainly have stopped people being turned away, even if it has not led to an increase in people being accommodated under homeless duties.

Homelessness is just the sharp end of the housing crisis. What is also true is that more and more people are living in insecure accommodation – by which I mean private rented accommodation where they could be required to leave after the first six months by a two month s.21 notice. And they are paying high rents: the median monthly rent between April 17 – March 18 in England was £675, in London it was £1,400. Shelter estimates half of all private renters struggle to pay rent.

1.6 million households are on council waiting lists – waiting for social housing. That figure has barely changed in last few years.

The proportion of people owning their own home has declined from 71% in 2003 to 63%. Why does that matter? One of the causes of the housing crisis has been ideology since the early 1980s that ownership was the ambition and that renting – either in the social or private sector – was the second-rate option. The reason why the decline in owner occupation is an indicator of a housing crisis is that many people simply cannot afford to buy. Reason owner-occupation is still so high in this age. Older people own their own homes but the proportion of people aged 25 – 34 who own their own home decreased from 57% 12 years ago to 37%. The Office of National Statistics Housing affordability survey found that the average house price in 1996 was 3.6 times average annual earnings, in 2016, it was 7.59 times average earnings. Young people simply cannot get into the housing market. So they rent, which pushes up private rents.

It would be wrong not to mention welfare cuts: benefit cap, cuts to local housing allowance which make it more and more difficult for those on benefit to find affordable accommodation. Crisis said in early 2018 relying on figures from 2017 that 61,000 households in England were impacted by the benefit cap and 9,000 subject to deduction of over £100 PW from housing benefit/housing element of universal credit. Money that they had to find, in order to pay their rent, from the other elements of their benefits, intended to pay for food, fuel etc.

So what is to be done? What solutions have been offered?

I start with David Cameron’s government between 2015 and 2016, because it contains a rare example of victory. A victory which received very little publicity and which we ought to be shouting about.

Cameron introduced the Housing and Planning Act 2016.  HLPA was amongst a number of campaigners who lobbied against it. It contained proposals that would have decimated social housing, all emanating from the Tory Party’s manifesto promise in May 2015 to introduce Right to Buy for housing association tenants.

The question arose how the discounts were to be funded. Housing associations weren’t going to pay for the discounts. And they had to be brought on board – because the government realised perhaps belatedly that they couldn’t actually force housing associations to sell. They had to get housing associations to sign up to a voluntary deal whereby they agreed to give tenants that right. But not at the housing associations’ own expense.

So – to fund the discounts – the Housing and Planning Act would have required local authorities to sell empty so-called high value properties when they became empty, because the tenant had died, or moved, rather than put those houses back onto the waiting list so that families could bid for them. The proceeds of sale would then be remitted to the Treasury, which in turn would pass that money to housing associations to fund the RTB discount.

The second hugely controversial proposal was mandatory fixed term tenancies for council tenants, to replace periodic tenancies after the 1^st year introductory tenancy. Tenancy would be for a period of between 2 – 10 years (slightly longer if the child is in full time education) and it would be up to council whether the tenancy was renewed at the end of the period. This was essentially envisaging council housing as housing of last resort, a bit like homelessness emergency accommodation. We’ll accommodate you but for a fixed period, during which you should get a job, or a better job, and at end of tenancy we’ll expect you to fend for yourself, either in the private rented market or by buying your own home.

The Housing and Planning Act also brought in help to buy, which has now been abandoned because of course the problem with stimulating demand if you don’t also increase supply is that prices go up.

Fascinatingly, the two flagship proposals - selling off high-value council properties and mandatory fixed-term tenancies - were never brought into force. And the Government’s Green Paper in August this year announced, quietly, that they would not be brought into force. That was a barely noticed victory for housing campaigners and local authorities who had been arguing that it would be unworkable.

What about Theresa May’s government?

It started with White Paper in January 2017: Fixing Britain’s Broken Housing Market.

That was mainly about changes to the planning system to increase incentives for developers to build houses, or as the White Paper put it, removing disincentives. It included plans to consult on banning agents from charging tenants letting fees, which are now going through Parliament as the Tenants Fees Bill. It also included tougher penalties including banning orders against rogue landlords (not “landlords” as it says on the slide, but “rogue” landlords). And it lauded the measures in the HRA, which was a private members’ bill championed by Crisis and introduced by Bob Blackman MP making its way through Parliament at the time with cross-party support.

Come 2018, we embarked on a year of housing initiatives. The government is committed to building 300,000 homes by end of Parliamentary term or 60,000 a year. That’s still too few: Shelter and Crisis say 300,000 need to be built each year.

In July 2018, the government published Revisions to the National Planning Policy Framework. That’s not my area but my understanding is that there is less discretion to local authorities to remove permission, which creates some tension about the Green Belt.

The government consulted on introducing three year fixed term tenancies in the private rented sector, which is a good thing, and was first proposed, initially by an obscure Labour backbench MP for Islington North about 10 years ago, one Jeremy Corbyn, and subsequently was in the Labour Party manifesto in 2015. The idea would be a 6 month introductory period, so either landlord or tenant could end the tenancy at the end of 6 months. After that fixed term would continue for 2 and a half years, subject to usual fault-based grounds for possession.

Tenants Fees Bill is now in the House of Lords. It has been strengthened since its first draft to exclude various loopholes.

In August 2018, the government published its Green Paper New Deal for Social Housing. That contained a big step forward: lifting local authority borrowing caps to allow councils to borrow in order to build more properties. But still there is emphasis on home ownership, particularly on encouraging RTB in the housing association sector. The problem with that is that for each new property built, how many publicly built homes will end up in private sector? Last year 13,000 properties were sold under RTB. Roughly about a third of those properties – over the years – end up being sold to private owners who then rent them out – either on private rented market or – outrageously - to councils to house homeless families in. So there is a diminution of publicly owned stock. The Green Paper also contains a weird premise, that “many people living in England’s four million social homes feel ignored and stigmatised” which is a quote from the Prime Minister and repeated by James Brokenshire Secretary of State: “the stigma associated with social housing”.

I have to say that, in all the years I’ve been doing housing law, I’ve heard complaints from council tenants about repairs, not being able to move, their families not being able to get accommodation. I’ve never heard complaints about stigma. I don’t think stigma is the major problem, resources are.

Finally, the government have committed to halve rough sleeping by 2022 and end it completely by 2027. The question is how? On Monday the Government published its Rough Sleeping Strategy which contains some useful pots of money: Rough Sleeping Initiative, Cold Weather Fund and Housing Fund.

What about Labour’s proposals? And I promise you I will be almost as tough on Labour.

Labour’s proposals are usefully contained in their own Green Paper on Housing for the Many, published in May 2018.

On social housing, they are on the same page as the government because Labour was already saying that it would lift the borrowing cap for local authorities. Labour is committed to building 1 million homes over 10 years – 100,000 a year – which is still not enough. Half of them will be affordable.

Labour will suspend RTB in England, rather than abolish it, which has happened in Wales and Scotland and the world has not stopped turning.

In the private rented sector, Labour will bring mandatory three year fixed term tenancies. They have said separately that they will abolish s.21, so that there is an end to no fault evictions. I don’t know how Labour intend to marry up the abolition of s.21 with fixed term tenancies, because as we know, when a fixed term tenancy comes to an end, a periodic tenancy arises. Let’s watch this space.

There is a very useful definition of living rent at no more than a third of average local household income. That’s enforced through the planning system, providing a presumption of no development without affordable housing within it.

Labour is committed to abolishing homelessness. Which must be applauded. It will do so by increasing supply of accommodation. And Jeremy Corbyn committed to abolishing the concept of “becoming homeless intentionally” when he addressed the Crisis Conference in May.

Labour will abolish bedroom tax. And - cheery news for us and more importantly for our clients - will restore legal aid for housing cases and welfare benefits cases.

The last thing to mention, which comes from neither Tory or Labour parties but is supported by both. The Homes (Fitness for Habitation) Bill 2018 is today at Committee stage in the House of Lords and will soon to become the Homes (Fitness for Habitation) Act 2019. It is a massively important piece of legislation, providing that all tenancies, initially new tenancies and then rolling out to existing tenancies, have to be fit for habitation. You might have thought that such a piece of legislation would be unnecessary. Surely, in the 21^st century, all tenancies are fit for human habitation? The answer to that is 2-fold:

• Far too many homes are still damp, cold, contain trip hazards, electrical wiring hazards etc. A CAB survey of private tenants found that 70% of them had issues with health and safety in their current tenancies, not over their renting history, but in their current accommodation.
• Second, as we know from the discussions after the Grenfell fire, there are a myriad of different laws that govern housing conditions:
  1. From is the property in disrepair: if there was never any heating, then it isn’t;
  2. To there may be mice but where did they come from? If they just came off the street or from the nearest railway line or fast food shop, it is not the landlord’s responsibility.
  3. Are those panels on the outside of my tower blocks flammable, and if they are, what can I do about it? As we know, there was much debate and learned legal arguments about what Grenfell residents could have done had legal aid been available, but the essential point is that tenants don’t want interesting legal arguments. They want quick, effective, accessible and affordable legal remedies.
  4. Why is it that if I am a private tenant, the council can do something about my trip hazard or my lack of heating and excessive cold, but not if I am a council tenant?
  5. Finally, I do have rights, I could sue my landlord, but where do I find a lawyer prepared to take the case on legal aid? Maybe in London, none in Cornwall or Suffolk.

Now it wouldn’t be right to say that the Bill – the new Act – will solve all these problems. It took Grenfell to shock the government into supporting the Bill – there had been 2 earlier failed attempts when it was talked out – but at least we can now see the prospect of tenants having a right to a decent, safe, warm home. And the possibility of litigating in a relatively straightforward manner if they don’t. Big big shout out to Giles Peaker, Justin Bates and the HLPA executive for all their work in drafting the Bill, and supporting Karen Buck in steering it through Parliament.

Let me finish on what else could be achieved given the right political will. My wish-list, if you like. It’s just the beginning and no doubt all of you will add to it.

• Reintroduce security of tenure in private rented sector. Happened in Scotland since December 2017. Results have yet to be seen.
• Should we abolish or suspend RTB in England? It has been abolished in both Scotland and Wales.
• Homelessness: Scotland has already abolished the priority need test and Wales is abolishing the becoming homeless intentionally test. England could be the first to offer emergency accommodation and help with finding own accommodation without tests that some might call unnecessarily judgemental.
• I would deal with eligibility so that there are clear rules, because it is fair to say that eligibility is not clear at moment. And with right to rent, I don’t see why housing system should act as immigration enforcer.
• I would abolish not just bedroom tax, but other punitive welfare measures: benefit cap, council tax reduction scheme, local housing allowance rates, universal credit and would start to tackle poverty;
• Finally, a culture change. It’s very hard to ask a political party to spearhead that, but we should make a start. We need to cherish all 3 sectors of housing, that means restoring both private rented and social housing to decent, safe, warm and affordable housing. It also means no longer regarding home ownership as means of wealth creation. It’s a big task, which I will leave to economists and to those more ideologically savvy than me to work out how. But it’s a necessary task if we are to achieve a right to a home, rather than a right to respect for a home which we all know is different thing. And surely a right to a home is something that we all strive for in our daily working lives?

Thank you for your patience over this whistle-stop tour."

Liz Davies is a member of the Garden Court Chambers Housing Team.