Housing, Homelessness, Use of Land and Social Care Paper

In this piece, Liz Davies considers a number of proposals, both in the party’s recent manifesto and from across the left, for law reform of housing, land law and social care. She weaves what may be considered distinct areas of law into an all encompassing petition for ambitious action. This action not only restricts the worst excesses of the current government inaction in each of these areas but looks to build more solid foundations through the establishment of institutions such as a National Care Service.

Housing

Labour Party’s 2019 manifesto proposals[i] and Plan for Housing[ii] require a mix of legislative action and economic measures in order to build 150,000 new council and housing association homes per year, with 100,000 of those each year being new council homes for social rent. Economic activity is the key to resolving the housing crisis. Legislative reform is an essential back-up. All measures should be undertaken in conjunction with plans to combat the climate emergency.

Labour’s ambitious plans, particularly in the private rented sector, could be carried out by piecemeal legislative reform. Indefinite tenancies can be simply achieved by abolishing ss 20 -21C of the Housing Act 1988. The same Act could be amended to cap private rents at inflation levels, and give cities the power to cap rents further, implemented through detailed secondary legislation.

However, these bold commitments cry out for bolder legislation. Labour promises to legislate for a Charter of Renters’ Right, which could be included in a new Housing Rights Bill, along with indefinite private rented sector tenancies, rent capping provisions, abolition of the right to rent (requiring landlords to check on potential residents’ immigration status) and prohibitions on landlords refusing to let to prospective tenants in receipt of benefit. The latter provision sits more comfortably in a new Housing Rights Bill than in attempts to amend the Equality Act 2010. The Bill can also contain expanded powers for councils to regulate short-term lets, operate mandatory licensing schemes for private landlords and enforce housing standards, with the details in secondary legislation.

Labour promises to require owners of high-rise buildings to replace “dangerous Grenfell-style cladding”. This requires primary legislation, firstly to clarify that the responsibility lies with the freeholder (the current position depends on obligations under each individual lease) and secondly, to prohibit the cost from being passed on to leaseholders through service charges. The Grenfell tragedy also highlighted that the Freedom of Information Act 2000 does not apply to housing association or to tenant management organisations (such as that operated in Kensington and Chelsea). The Scottish government has consulted on an extension. In England, Andy Slaughter MP introduced a Freedom of Information (Extension) Bill, which would have extended freedom of information to those organisations. The Tories filibustered it in June 2018.[iii]

The promise to end Right to Buy in England requires repeal of Part 5 Housing Act 1985. Thought will have to be given to transitional provisions.

Abolishing the bedroom tax requires a simple amendment to Housing Benefit Regulations 2006, as does removal of the local housing allowance. If Labour commits to abolishing the benefit cap, Welfare Reform Act 2012, ss 96 – 97 and the Benefit Cap (Housing Benefit) Regulations 2012 must be repealed.

In the next five years, Labour in opposition can scrutinise the, as yet unpublished, Renters Reform Bill to ensure that it delivers on the abolition of no fault evictions, as promised by the previous government.[iv] It can also press for the repeal of ss 80 – 91 and 118 – 121 of the Housing and Planning Act 2016, which provide for higher rents for council tenancies (“pay to stay”) and the end of lifetime tenancies. The May government committed not to implement those sections.[v] To achieve certainty, and peace of mind for council tenants, they should be repealed.

Homelessness

Labour’s promise is to “end rough sleeping”.[vi] It promises a new duty on councils to deliver shelter and support in all areas. As with housing policy generally, abolishing rough sleeping and tackling homelessness is principally economic, requiring a ready supply of council homes for rent, affordable private rented sector tenancies and security of tenure.

Tackling homelessness requires early intervention; ideally no one should actually be homeless. They should be helped to find new accommodation in advance of becoming homeless.

Crisis has published a Plan to End Homelessness.[vii] It envisages new legislation creating a complete statutory safety net. Everyone who is homeless would receive emergency accommodation and be helped to find longer-term accommodation (which might be social or private rented). The priority need test would be abolished (as it has been in Scotland). Crisis proposes to replace the test of “becoming homeless intentionally” with a much stricter test of “deliberate manipulation”. Even then, for those few cases where someone is found to have deliberately manipulated the system, the penalty would be a lower priority for social housing, rather than loss of safety-net accommodation. There would be duties on other public authorities to assist local housing authorities in helping the potentially homeless find accommodation. Crisis’ Plan could easily be enacted in an End Homelessness Bill.

Labour also promises to repeal the Vagrancy Act 1824 and to stop anti-social behaviour laws being used against people who are homeless, thus restricting the scope of Public Space Protection Orders in the Anti-Social Behaviour, Crime and Policing Act 2014.[viii]

Whilst in opposition, Labour can press the government on the reintroduced Domestic Abuse Bill which contains a new duty on councils to provide support for victims and children in safe accommodation.[ix] Labour should press for this to amount to a statutory duty on each local council to provide appropriate refuge provision. Labour can also push for people (usually women) who leave their homes due to domestic abuse to be treated as having a priority need for homelessness accommodation, without the additional hurdle of the “vulnerable” test.[x]

Compulsory Purchase Orders and Use of Land

Labour should reform the Land Compensation Act 1961 to support the delivery of its ambitious house building proposals. Currently LCA 1961 entitles landowners to receive “hope value” on any land acquired through a compulsory purchase order (“CPO”).[xi] Consequently, local authorities seeking to acquire land for strategic development are required to pay a price which reflects the value of the land if residential planning permission were granted, rather than the current value of the land.[xii] The majority “uplift” in land value resulting from the strategic development is captured by the landowner.[xiii] Given the significant difference between actual and expected land values, the current legal framework can make it prohibitively expensive for local authorities to build low-cost housing. Sections 14-16 LCA 1961 should be amended to remove the requirement that any prospective planning permissions be taken into account when compensating landowners under a CPO purchase,[xiv] bringing the U.K.’s approach to land valuation in line with several other European countries.[xv]

While there is a concern that any reforms which lead to land being valued at existing use value would breach the right to peaceful enjoyment of possessions in Article 1 of Protocol 1 of the Human Rights Act 1998 , the substantial public benefit arising from such changes would likely satisfy the public interest exception in Article 1.[xvi] The ability of European countries to maintain systems in line with this proposal supports the point. Although this reform relates most directly to CPOs, the recommendation here is not to adopt widespread use of CPOs. Instead, a change in land valuation is expected to rebalance incentives in the land market. As landowners become aware that land can be purchased compulsorily, they would be more willing to accept lower prices.[xvii]

An ”Abolishing Empty Homes Bill” could consider a variety of ways of bringing empty residential properties into public ownership, such as deliberately high rates of council tax (to discourage the practice of leaving properties empty, rather than to raise revenue), developing compulsory sale orders for empty properties, and/or giving councils the power to make empty dwelling management orders (EDMOs) without first having to apply to a tribunal (Housing Act 2004, ss 132 – 138). Once an empty building has been subject to an EDMO, legislation could provide that it falls into public ownership (not just management) after a specified period if no owner has taken steps for it to be occupied.

While in opposition, Labour can push the government to move the reform of land valuation further up the legislative agenda. In 2018, the Housing, Communities and Local Government Select Committee published a report on land value capture, calling for reform to ensure that local authorities have the power to compulsorily acquire land at fairer prices.[xviii] As these proposals have received backing from members on both sides of the house, Labour should consider using them as a starting point for its reform efforts. Although at the time of the report’s publication, the government’s response did not indicate a willingness to seriously engage in reform, comments by Conservative MP’s have made clear that appetite for reform cuts across the party-political spectrum.[xix]

Social Care

Labour’s commitment is to repeal the Health and Social Care Act 2012 and introduce a National Care Service for England.[xx] There will be free personal care available for people aged 65 or over who require it, with national eligibility criteria. The intention is to expand free personal care to include working age adults. This is an ambitious programme, requiring new primary legislation. The Care Act 2014 will either be repealed or very substantially amended. The National Health Service Act 1946, establishing the NHS, stated that it shall be the duty of the Minister of Health to promote the establishment of a health service to secure improvement in the physical and mental health of the people and the prevention, diagnosis and treatment of illness and that the services shall be free of charge.[xxi] A new National Care Service Act for the 21st century could contain similarly bold commitments. The statutory duty to deliver care could fall on a National Care Service, or on local authorities whilst regulated by a National Care Service.

In addition to creating a National Care Service, legislation will also be required to provide for regulation of providers, particularly those not in the public sector. Providers should maintain minimum (but high) standards of transparency, tax compliance, profit capping, and employment conditions. This would be part of a legislative programme changing the rules for public procurement and lifting up standards across the whole of the private sector.

A green paper on social care is long awaited, having first been described as “urgently needed” in the Dilnot report in 2011,[xxii] more recently promised in March 2017. The latest position, in September 2019, is that proposals will be published “in due course”[xxiii]. The Care Act 2014 contains provisions for a lifetime cap on care costs, but those sections have not been brought into force.[xxiv] Government should urgently review funding for social care, and introduce a lifetime cap, in order to reduce what have been described as the “extreme costs” of care incurred by those needing it.[xxv]

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[i] It’s Time for Real Change, Labour Party Manifesto 2019, Housing, pp. 77 -81, November 2019.

[ii] Labour’s Plan for Housing, Labour Party, November 2019.

[iii] Andy Slaughter MP, Freedom of Information Bill, 18 June 2018: https://www.andyslaughter.co.uk/legacy/2018/06/18/foi_bill-2/[accessed 21 February 2020].

[iv] Government announces end to unfair evictions, 15 April 2019. https://www.gov.uk/government/news/government-announces-end-to-unfair-evictions [accessed 21 February 2020] & MHCLG consultation August – October 2019. Renters Reform Bill announced in Queen’s Speech 19 December 2019.

[v] “Pay to Stay Dropped”, BBC 21 November 2016 https://www.bbc.co.uk/news/uk-politics-38058402 [accessed 21 February 2020]. A New Deal for Social Housing, Green Paper, DCLG, August 2018.

[vi] It’s Time for Real Change, Labour Party Manifesto 2019, p. 80, November 2019.

[vii] Everybody in: How to end homelessness in Great Britain, Crisis, June 2018 https://www.crisis.org.uk/ending-homelessness/plan-to-end-homelessness/ [accessed 21 February 2020].

[viii] Anti-Social Behaviour Crime and Policing Act 2014, ss 59 - 75.

[ix] Domestic Abuse Bill 2020, clause 53. Support for Victims of Domestic Abuse in Safe Accommodation, MHCLG, 13 May 2019, https://www.gov.uk/government/consultations/support-for-victims-of-domestic-abuse-in-safe-accommodation [accessed 21 February 2020].

[x] Currently, victims of domestic abuse in England who do not have dependent children will only have a priority need if they are also vulnerable: Art. 6 Homelessness (Priority Need for Accommodation) (England) Order 2002, SI 20022015.

[xi] See Land Compensation Act 1961 ss 5 and 14.

[xii] Daniel Bentley, Civitas, The Land Question: Fixing the dysfunction at the root of the housing crisis, p. 46, December 2017.

[xiii] Shelter, Financing the Infrastructure and New Homes of the Future, p. 1, May 2017.

[xiv] Monbiot, G. and Grey R., et. al. Land for the Many, p. 49, June 2019.

[xv] Royal Town Planning Institute, Response to Land Value Capture Inquiry (LVC 055), para 38, 17 April 2018.

[xvi] Housing, Communities and Local Government Committee: Land Value Capture Inquiry, 13 September 2018. https://publications.parliament.uk/pa/cm201719/cmselect/cmcomloc/766/76607.htm.

[xvii] Monbiot, G. and Grey R., et. al. Land for the Many, p. 49, June 2019.

[xviii] Housing, Communities and Local Government Committee: Land Value Capture Inquiry, 13 September 2018. https://publications.parliament.uk/pa/cm201719/cmselect/cmcomloc/766/76607.htm.

[xix] Government’s response to: https://www.gov.uk/government/publications/land-value-capture-government-response-to-the-select-committee-inquiry. See also comments by Nick Boles MP, House of Commons Debate on ‘Housing, Planning and Green Belt’, February 2018).

[xx] It’s Time for Real Change, Labour Party Manifesto 2019, NHS and Social Care, pp. 31 - 36, November 2019; Towards the National Care Service: Labour’s Vision, Labour Party, November 2019. Social care is a devolved power for the Scottish and Welsh Governments. Scotland has introduced free personal care.

[xxi] National Health Service Act 1946, s 1.

[xxii] Fairer Care Funding, Commission on Funding of Care and Support, July 2011.

[xxiii] Spending Round 2019, HM Treasury, September 2019, para 2.3.

[xxiv] Care Act 2014, ss 15 - 16.

[xxv] Fairer Care Funding, Commission on Funding of Care and Support, foreword, p. 2, July 2011.

©2020 by Society of Labour Lawyers.