Social housing monthly law update - May 2021

The main legislative and case law developments and statutory guidance affecting the Social Housing sector from the last month (month year) together with links to the relevant sources where you can obtain further information.

• Events and webinars
• Consultations
• Legislation
• Commercial
• Construction
• Data, Privacy and Cyber Security
• Employment
• Health and Safety
• Insolvency
• Planning and environment
• Procurement
• Property
• Regulatory
• Technology

Events and webinars

Social Value in Public Procurement TLT Webinar | 11 May 2021

A Q&A session on the developments in social value requirements in public procurement.

• What is social value in public procurement and why is it important?
• What is the Social Value Model?
• What do contracting authorities need to do?
• Putting it into practice

Consultations

HM Treasury consultation on new ten-year residential property developer tax to fund replacement of unsafe cladding HM Treasury | 29 April 2021

On 29 April 2021, HM Treasury published a consultation paper on a new tax, payable from 1 April 2022 by residential property developers with annual profits over £25 million and designed to fund the replacement of unsafe cladding over a period of ten years. Consultation closes on 22 July 2021.

COVID-19: government publishes call for evidence on impact on commercial property rents due to pandemic MHCLG | 6 April 2021

On 6 April 2021, the government published Commercial rents and COVID-19: call for evidence to ascertain the impact of the pandemic on commercial property rents in England, particularly the arrears that have accrued due to the trading restrictions. The consultation ends 4 May 2021

Renting Homes (Wales) Act 2016 Draft Regulations Gov.wales | 24 March 2021 The Welsh Government is consulting on:

• draft model written statements regulations, including the design, structure and order of the model written statements
• draft explanatory information regulations for written statements.

The consultation ends on 16 June 2021

Legislation

The Magistrates’ Courts (Amendment) Rules 2021 – in force 4 May 2021

Future relationship agreements: final texts published on 30 April 2021:

UK/EU and EAEC: Trade and Cooperation Agreement

UK/EU: Agreement concerning Security Procedures for Exchanging and Protecting Classified Information

UK/EAEC: Agreement for Cooperation on the Safe and Peaceful uses of Nuclear Energy

Commercial

Restraint of trade doctrine: when does it apply to commercial contracts? TLT Insight | 15 April 2021

In the case of Quantum Actuarial LLP v Quantum Advisory Ltd [2021] EWCA Civ 227, the Court of Appeal upheld a decision that certain covenants in a Services Agreement with a 99 year term did not engage the doctrine of restraint of trade.

High Court considers losses excluded under a limitation of liability clause TLT Insight | 15 April 2021

The case of CIS General Insurance Ltd v IBM United Kingdom Ltd dealt with a claim for wasted costs and damages resulting from the termination of a contract for a new IT system. The Court found in favour of the claimant but the defendant’s limitation of liability clauses successfully excluded the majority of the value of the claim.

Construction

CMA case studies on two cartels in the construction sector 26 April 2021

Lessons learned from the CMA’s investigation into 2 of the UK’s largest suppliers of rolled lead, who broke competition law by taking part in a business cartel.

Over £150 million funding to kickstart self building revolution MHCLG | 24 April 2021

• New £150 million ‘Help to Build’ scheme to make it easier and more affordable for people to build their own homes
• New homes can be made to order or built from scratch, and will benefit small building firms as part of the government’s Plan for Jobs
• £2.1 million additional funding to help communities decide where they want new homes, shops and offices to be built and what they should look like

Data, Privacy and Cyber Security

Personal data transfers to US-hosted CRM tools could be unlawful Post Schrems II TLT Insight | 14 April 2021

Users of Mailchimp in both the UK and the EU have been left concerned over recent developments in EU data protection law. The state Data Protection Authority of Bavaria, on 15 March 2021, issued a statement which effectively prevents the use of Mailchimp without further protections being put in place. This has wide reaching implications for businesses and the tools they use to process personal data, especially where those tools are hosted outside the UK/EU.

Employment

Automatically unfair dismissal and Covid safety concerns TLT Insight | 27 April 2021

Employees will be automatically unfairly dismissed if their dismissal is because they raised health and safety concerns.

From 31 May 2021 workers will also be protected from being subjected to a detriment linked to health and safety, which could include their engagement being terminated. An employment tribunal has, for the first time, considered whether health and safety protections covered a dismissal related to alleged Coronavirus risk.

Failure to enhance Adoption Leave Pay not discriminatory TLT Insight | 20 April 2021

Back in 2019, we updated you on the Court of Appeal’s decision in Capita & Hextall which held that employers were not required to equalise enhanced maternity pay with parental leave pay.

A similar question has recently been considered by the Employment Appeal Tribunal (EAT), in a case called Price v Powys County Council.  However, in this case, the question related to an employer’s policy of enhancing adoption leave pay, but not shared parental leave pay. Would a failure to equalise these benefits amount to sex discrimination?

Employment Law Focus: Technology TLT Podcast | 19 April 2021

The pandemic has driven a rapid increase in the use of technology at work, and visionaries say technologies like AR and VR are going to become increasingly pervasive. In this podcast, we discuss how the role of HR will evolve and interact with new technology, and what impact technology might have on the shape and design of the workplace in future. We also look at a key case on the importance of keeping equalities training up to date.

Guidance on calculating the minimum wage, to help employers meet National Minimum Wage legislation BEIS | updated 23 April 2021

Following on from the Supreme Court's decision in Royal Mencap Society v Tomlinson-Blake [see TLT Insight here], the Department for Business, Energy and Industrial Strategy has updated its guidance on calculating the national minimum wage (NMW) for workers undertaking ‘sleep-in’ shifts. The guidance provides some practical examples of how to apply the NMW for sleep-in shifts.  It also confirms that, in light of the Mencap case, sleep-in workers are only entitled to the NMW when they are awake and working; not when they are asleep. The guidance also confirms that the NMW will be payable for time spent asleep if employers do not provide suitable sleeping facilities for workers.

Health and Safety

New approach for achieving consensus between building control bodies and Fire and Rescue Authorities in building works MHCLG | 22 April 2021

A new sector-led approach to achieving consensus in building works has been developed by a taskforce of the Joint Regulators Group led by Local Authority Building Control (LABC), National Fire Chiefs Council (NFCC) and Association of Consultant Approved Inspectors (ACAI).

Electrical Safety Review underway ARCH | 15 April 2021

On 15 April 2021 Arch (the Association of Retained Council Housing) reported that officials from the MHCLG have established an Electrical Safety Working Group to provide a forum to discuss the best way to ensure social homes are safe in respect of electrical safety.

Insolvency

Understanding the possession action process: guidance for landlords and tenants MHCLG | 30 April 2021

Guidance for landlords and tenants in the private and social rented sectors to explain the possession action process in the county courts in England and Wales. This guidance has been updated to reflect new processes for landlords to reactivate a possession claim after 30 April.

Planning and environment

Members of the public must be admitted in person to the place where the local authority meeting is held (High Court) 5 May 2021

The High Court has confirmed, in Hertfordshire County Council and others v Secretary of State for Housing, Communities and Local Government [2021] EWHC 1145 (Admin), that members of the public must be admitted in person to the place where a local authority meeting is taking place and that the mode of access for the public is by physical attendance.

FCA information on climate change and sustainable finance FCA | 23 April 2021

The FCA has published a webpage about climate change and sustainable finance. The FCA explains it is working to broaden and deepen its sustainable finance strategy, which is based on the themes of transparency, trust, and tools, as set out in an October 218 feedback statement.

Sixth UK carbon budget: Draft Carbon Budget Order 2021 laid before Parliament to cut GHG emissions by 78% by 2035 BEIS | 21 April 2021

The government laid the Draft Carbon Budget Order 2021 before Parliament to cut greenhouse gas (GHG) emissions by 78% by 2035 compared to 1990 levels, on 21 April 2021.

Proposed changes to permitted development rights for electronic communications infrastructure TLT Insight | 26 April 2021

The Town and Country Planning (Consultation) (England) Direction 2021 MHCLG | 21 April 2021

This Direction is made under the Town and Country Planning (Development Management Procedure) (England) Order 2015 (Statutory Instrument 2015 No 595) and came into force on 21 April 2021.

It requires local planning authorities in England to consult the Secretary of State before granting planning permission for certain types of development.

The Town and Country Planning (Demolition – Description of Buildings) Direction 2021 MHCLG | 21 April 2021

The Town and Country Planning (Demolition – Description of Buildings) Direction 2021 (“the 2021 Direction”) replaces The Town and Country Planning (Demolition – Description of Buildings) Direction 2014 (“the 2014 Direction”) to ensure the demolition of statues, memorials and monuments in England requires permission pursuant to s.57(1) Town and Country Planning Act 1990.

Arrangements for handling heritage applications Direction 2021 MHCLG | 21 April 2021

This Direction is made by the Secretary of State and sets out the requirements to notify Historic England (the new name for English Heritage from 1 April 2015), the National Amenity Societies and the Secretary of State of certain listed building consent applications and the circumstances in which Historic England’s own applications for listed building consent should be referred to the Secretary of State for determination.

Green light for wide Class E to residential PD right  TLT Insight | 6 April 2021

A new permitted development (PD) right, from Class E (commercial business and service uses) to residential will be introduced, the government has confirmed.

Procurement

Housing Infrastructure Fund Homes England | 21 April 2021

Updated with Forward Fund impact evaluation scoping report, and Forward Fund process evaluation scoping report.

Procurement at RSH Regulator of Social Housing Regulator of Social Housing | updated 19 April 2021

Information on how the Regulator of Social Housing undertakes procurement activities in accordance with the public sector procurement regime.

Transforming Public Procurement: Response from the Competition and Markets Authority CMA | 31 April 2021

The CMA’s response to the Cabinet Office’s green paper consultation which outlines proposed reforms to the UK’s public procurement regime.

Property

Research Briefing – What is affordable housing? UK Parliament | 19 April 2021

On 19 April 2021 the House of Commons Library published a briefing paper considering how affordable housing is defined in England and looking at key trends in the affordability of different tenure types.

New 95% mortgage scheme launches MHCLG | 19 April 2021

• 95% mortgage guarantee launches today, available on high streets across the country
• Scheme part of a range of ownership options to help make home ownership a reality
• New figures show demand for home ownership has soared during lockdown, with nearly 80% of private renters now saving for a deposit
• Today’s launch further strengthens government commitment to supporting the housing sector

COVID 19: landlord obtained summary judgment for non-payment of rent and service charge (High Court)  BAILII | 16 April 2021In Commerz Real Investmentgesellschaft MBH v TFS Stores Ltd [2021] EWHC 863 (Ch), the High Court held that a shopping centre landlord was entitled to summary judgment against its retailer tenant for non-payment of rent and service charges, where the arrears were incurred since April 2020 while the government's COVID-19 measures restricted trading.

Government advice on home moving during the coronavirus (COVID-19) outbreak MHCLG | Updated 12 April 2021

This guidance applies to people moving into homes in England, whether as owner-occupiers, private or social renters.

Housing Possession Mediation Service MHCLG | 7 April 2021

Guidance published on a new mediation pilot introduced as part of the current court process for housing possession cases.

Private rented sector: Commons Select Committee report Parliament.uk | 31 March 2021

On 31 March 2021 the Commons Housing Communities and Local Government Committee published a report finding that repeated, last minute extensions to the ban on evictions must be replaced by a coherent exit plan to help the private rented sector emerge from lockdown

Regulatory

Institute for Government recommends improving use of legal advice in policy making before limiting scope of judicial review Institute for Government | 15 April 2021

The Institute for Government has published a report, Judicial review and policy making: The role of legal advice in government, which calls on ministers and officials to review their own policy making processes before trying to limit judicial scrutiny of ministers' decisions.

Technology

The 'Legal Front Door' and the digital transformation of law services TLT Insight | 19 April 2021

Digital solutions are upending established processes and strengthening commercial relationships across nearly all sectors and industries in the global economy.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at May 2021. Specific advice should be sought for specific cases. For more information see our terms & conditions.