Cobb Warren Updates
Cobb Warren Updates
The Chambers UK Legal Guide 2024 was released today – with a familiar name making its debut appearance.
What does the Renters (Reform) Bill mean for the social housing sector? In this article, we look at the key changes that, if enacted, will affect housing associations and their tenants.
Noise is a significant driver of complaints to housing associations. In this article, we look at 3 key themes from the Housing Ombudsman’s Spotlight report.
What's best practice when it comes to applying for an anti-social behaviour injunction? In support of Resolve's ASB Awareness Week, we share our 5 top tips for social housing officers.
Occupancy agreements in Wales are changing. We discuss the key changes and what they mean for landlords. Find out what you need to do to comply with the new law.
The Public Sector Equality Duty is a continuing duty. But can it be reassessed by a witness giving evidence at trial? That was the question for the Court of Appeal in this housing case.
ASB Awareness week is a good time for a reminder of where we currently are with notice periods and the use of notices relating to anti-social behaviour for possession proceedings in the ever changing legal landscape. We set out below 5 key facts to know. #1 Prescribed format of notices Until 30 September 2021, the Form 3 (Section 8 Notice Seeking Possession or NOSP) and Form 6A (Section 21 notice) are in an amended format. The current versions are on the gov.uk website. Given the changing landscape, it is safest to use the notices published on this website rather than relying on saved templates on your systems. Assured tenancy forms - GOV.UK (www.gov.uk) #2 Notices served using Ground 14 of Schedule 2 of the Housing Act 1988 (discretionary ASB ground) The notice period can be immediate (subject to your tenancy agreement promising a longer period) where you are using Ground 14. This is even the case when it is combined with other grounds. The one exception to this rule is when using Ground 7A in addition to Ground 14 (see #3 below). #3 Notice served using Ground 7A of Schedule 2 of the Housing Act 1988 (mandatory ASB ground) The notice period has to be 28 days or a month (depending on whether the tenancy term is periodic or fixed). This is even the case where it is combined with any other grounds. #4 Notice served using Ground 14A of Schedule 2 of the Housing Act 1988 (discretionary Domestic Violence ground) Where you are not using Ground 14A, the notice period has to be 2 weeks. However, if used alongside Ground 14 and/or Ground 7A the rules around notice periods using those grounds apply (see #2 and #3). #5 Section 21 notices Until 30 September 2021 a Section 21 Notice needs to be 4 months in length and cannot be enforced 8 months after it is served. **It should be noted that this guide states the law as it currently stands, and it could be subject to further change or extension by the Government. Legal advice should be sought for each case dependent on the date you take action.
On 1 October 2020, Civil Procedure Rule 81 was completely replaced with new rules covering all contempt applications and proceedings. The aim of the Civil Procedure Rules Committee was to streamline the existing rules and make them more straightforward. That does have some consequences for applications for breach of Injunction. Some key point to note are: CPR 81 now sets out clearly what is needed in a contempt application in all circumstances. Any reference to ‘applicants’ and ‘respondents’ is replaced with ‘claimant’ and ‘defendant’. A Circuit Judge is to hear all applications. This is a change from the previous position where District Judges could hear contempt applications for breach of injunction for anti-social behaviour. We do not know if this is intentional. It could be subject to change when the full consequences are considered further and the amount of work this creates for Circuit Judges is considered. *[Please see update below in relation to element]* Several warnings/statements informing the defendant of their rights have to be included in the application for contempt, this includes (but is not limited to): A statement that the defendant has the right to be legally represented; A statement that the defendant is entitled to a reasonable time to obtain legal representation and apply for legal aid which may be available without any means test; A statement that the defendant may be entitled to the services of an interpreter; A statement that the defendant has the right to remain silent and to decline to answer any question where the answer to it may incriminate them; A statement that the court may proceed in the defendant’s absence if they do not attend. A statement that if the defendant admits the contempt and wishes to apologise to the court, that is likely to reduce the seriousness of any punishment by the court A statement that the court will sit in public, unless and to the extent the court orders otherwise, and that its findings will be made public. The rules also confirm that the Court has the power to issue a bench warrant to produce the defendant at any directions or substantive hearing. Evidence still needs to be by way of Affidavit, unless the Court rules otherwise. The new rule 81.4 does say the Court can order otherwise which is progress from the previous provision but a party will have to apply for permission for this. All advocates and Judges have to appear robed. It should be noted there are no transitional arrangements between the old rules and these new rules. Accordingly, any on-going contempt proceedings need to be considered in light of the new rules and compliance with the new rules may now be needed. New forms There are also new Court forms to support these changes. In particular, there is a specific Contempt Application form (N600). This already includes all of the warnings/statements that have to be given to a defendant on making the application. *UPDATE NOVEMBER 2020* The issue regarding District Judges being unable to deal with breaches of Anti-Social Behaviour Inunctions by way of committal applications has now been addressed. When the Civil Procedure (Amendment No. 6) Rules 2020 come into force on 27 November 2020 it will allow District Judges to deal with such applications.
Issues with access are not new for housing providers. However, the pandemic, and resultant lock-down, have increased the amount of instances of access not being granted for essential appointments; sometimes where they involve serious health and safety concerns. Below are our top tips for access injunctions and how to present the best evidence to show you need access even during the pandemic: • Include details in your witness evidence on the age of the occupants, details of dependants and any known vulnerabilities or illnesses. • Confirm whether you know anything about how Coronavirus may have impacted on the tenant's decision not to allow access. • Describe what protection your contractors are putting in place (PPE etc) and how this has been communicated to the tenant. • Include details of all of your contact with the tenant and how alternative arrangements have been attempted. • Emphasise why this property/occupant is at especially high risk without access being given. • Make reference to the Health and Safety Executive/Gas Safe Guidance that essential works and servicing in tenanted property should still go ahead at the moment, subject to a risk assessment. • Where the tenant or occupants are vulnerable but access is still required, discuss with a manager whether to proceed and evidence any note of your discussion to show why proceeding to court is justified and proportionate in all of the circumstances of the case. At the moment, any template witness statements you may have used prior to the pandemic may accordingly need updating. They will need more detail than they previously did in order to satisfy a Judge why access is needed and that the occupants are sufficiently protected during any appointment.
1. What repairs should be carried out? Following the Coronavirus crisis, the government has issued guidance to Landlords on what works should be carried out and which should be avoided. This guidance is accessible here . The guidance encourages that both the landlord and tenant take a common-sense approach and agree to delay non-urgent works. The list of works the government consider urgent, which should still be addressed, are: An issue with the structure of the building, such as a roof leaking; The breakdown of a boiler, Where there are plumbing issues, meaning there are no washing or toilet facilities; If the landlord is responsible for white goods (such as a fridge or washing machine) and these have broken down; If there is a broken window or door which impacts on the security of the property; If equipment relied on by a disabled person (and supplied by the landlord) requires installation or repair. Where repairs are carried out in this period, the landlord should ensure that contractors work in a way to reduce virus spread by: avoiding contact with the tenant, working in a separate room if possible and cleaning after their visit. 2. Gas safety checks In relation to gas safety checks, both the Health and Safety Executive and the Government have given guidance on what a landlord should do. The Health and Safety Executive and Gas Safe’s guidance is that there is a balance to be had in relation to ensuring that tenants are protected from possible fatal risks (such exposure to carbon monoxide or due to a gas explosion) whilst also protecting people from the spread of the virus. Where it is not possible to carry out a gas safety check, the landlord should show that they have taken all reasonable steps to carry out the service. It further says that all gas safety checks should not be delayed as that increases the risks to tenants. The guidance concludes that each property/tenant should be considered on a case by case basis taking into account risk factors. These risk factors include the age of the appliance, where Carbon Monoxide detectors are present and whether there is a history of breakdowns. Gas Safe provide example scenarios to cover whether tenants or their households are self-isolating, shielding or social distancing. The Gas Safe guidance can be found here . The Government’s guidance can be found here and is on similar lines to that of the HSE/Gas Safe. It does suggest that if someone is socially distancing then a gas safety check can still be carried out by that person shutting themselves in a different room until the engineer has gone and for the engineer to wipe down all areas where they have been working. What is important for Registered Providers of Social Housing is to ensure the Regulator of Social Housing is kept informed of any non-compliance due to non-access. The Regulator has stated that it will be flexible in their approach to non-compliance – it is important that a Provider can evidence the steps they have taken to try and comply. Should you have any queries please drop us an email or give us a call on 0117 287 0181 .