Legal: Drafting issues with the Housing (Wales) Act 2014

 

Evans vs Fleri (2019)

Shelter Cymru represented Mr Evans in his appeal against an order of a district judge granting possession to his private landlord, even though the landlord was not licensed by Rent Smart Wales at the time he served Notice Requiring Possession.

This was a surprising decision given that the Housing (Wales) Act 2014 clearly requires a landlord to both register and hold a licence (or use the services of a licensed agent) in order to let a property.  If the decision were correct, even though not binding on other courts, tenants of private landlords would be vulnerable to eviction by unlicensed landlords, a situation which would fly in the face of the whole purpose of the legislation.

The wording of s.44 of the Act, dealing with notices requiring possession under s.21 Housing Act 1988, gave rise to argument in this case before a district judge considering an application for possession by a landlord who was registered but not licensed at the time he served his tenant with a s.21 Notice.

S.44 states that a section 21 Notice may not be given…if a) the landlord is not registered in respect of the dwelling or b) the landlord is not licensed…and the landlord has not appointed a person who is licensed under this Part to carry out all property management work in respect of the dwelling on the landlord’s behalf.

The landlord argued that the correct interpretation of the section was that a landlord must either be registered or licensed, not registered and licensed, in order to serve a s.21 Notice.  The district judge agreed and made a possession order, but acknowledged he might be wrong and gave permission to the tenant to appeal.

On appeal, the Circuit Judge pointed out that the word “or” can either be used to separate two scenarios which are mutually exclusive so that only one can apply – which was the district judge’s interpretation of s.44 – or it can be used to separate two scenarios which are not mutually exclusive and which therefore can apply simultaneously.  It is not the case that a landlord must either be registered or licensed.  A landlord may be registered but not licensed or may be both.  In s.44, due to poor drafting, the word ”or” is capable of having both meanings.

In order to determine the correct meaning, the judge then looked at other sections of the Act itself and at the intention of the Welsh Assembly when enacting the Housing (Wales) Act.  The Act clearly requires landlords to be registered and licensed, or to use the services of an agent who is licensed, in order to carry out property management functions such as serving notice to terminate a tenancy.

The licensing requirements are rigorous, a landlord must show s/he is a fit and proper person to hold a licence, and must go on a course.  Failure to register or hold a licence is a criminal offence punishable by a fine. The Communities, Equality and Local Government Committee of the Welsh Assembly recommended that an unlicensed landlord should be prevented from serving a ‘no-fault’ eviction notice (i.e. a s.21 Notice).  As a result of that recommendation, s.44 was inserted into the Bill and became law.

The judge commented that it would be surprising if the Welsh Assembly’s intention had been to make the serving of a notice to terminate a tenancy by an unlicensed landlord a criminal offence, and yet allow that landlord to obtain a possession order in reliance on such a notice.  Equally, it would be surprising if an unlicensed landlord, (so a landlord who is not a fit and proper person and who has not undergone training,) could serve and rely on such a notice.

The judge therefore concluded that landlords must be both registered and licensed in order to serve a valid s.21 notice, and the possession order made by the district judge was quashed.

Homeless trans people are not getting the help they need

 

 

John* was in the early stages of medical transition. Deciding to live openly as a trans man, after many years of deliberating, had caused his marriage to break down and compromised access to his child. These events led to serious mental health repercussions for him.

When John was interviewed for a new Shelter Cymru research study, he was living primarily in his van in rural Wales. He’d been homeless for nearly two years.

Despite having several decades of employment history he was working casual hours and trying hard to get a better-paid job – but none of his interviews had yet led to a job offer. He hadn’t told his employer about his trans status, believing that it would cost him work.

He had also not approached local authority homelessness services for help. Partly this was because he was under the impression that he wouldn’t be eligible for assistance as he was working a few hours a week.

He also had serious reservations about how he would be treated: like many other trans people, he worried that presenting to services would be an unpleasant experience in which his gender would be scrutinised and questioned.

Shelter Cymru’s new report, authored by PhD researcher Edith England, found that around half of the trans people interviewed had not used homelessness services despite clearly being homeless, sometimes over protracted periods.

The study, believed to be one of the largest datasets of homeless trans people in the UK, found that concerns over safety were a key factor keeping trans people from accessing help.

As well as sharing homelessness risk factors with LGBTQ+ people as a whole, such as family rejection, the study found that two additional factors existed for trans people.

First, relationship breakdown was an issue for trans people of all ages, often compounded by abuse.

Second, trans people often became homeless as a result of economic insecurity, with loss of employment especially associated with coming out as trans.

People who were accessing formal support for transitioning socially, legally and/or medically often found that maintaining access became extremely challenging once they were homeless.

But despite trans people’s fears about using homelessness services, the study found that some people who did use services had positive experiences. The overall picture was of services that want to help trans people, even though staff were not always aware of the best way to do this.

One solution that emerged was the need for specialist training for frontline staff – not just standard equalities training.

Trans people also expressed a strong preference for LGBTQ+ specific – or better yet, trans-specific – accommodation and support services, not only for young people but across the lifespan. Although this was seen as the ideal solution, there’s also a need for mainstream services to be accessible to trans people. Local authority service commissioners need to consider how this can be achieved in a way that is flexible and person-centred, rather than a generic one-size-fits-all approach.

John saw employment as his route out of homelessness. But repeated knockbacks from job interviews were taking a toll on his confidence: ‘Obviously I look good on paper because I’m getting interviews but I’m just not getting the work,’ he said. ‘And it’s quite gutting really, and I don’t know whether it’s because there’s something about me personally.

‘It could be because I’m trans, it could be because when they get my CV and they see a man’s name and they think this is going to be a man and then I turn up and they look at me and they think this isn’t a man.

‘It could be that it isn’t discrimination, it could be that there’s always a better candidate. But it starts to feel like, when you’re not ever getting a job, it starts to feel like it’s something personal. Especially when you’re always getting interviews and then you’re not getting a job.’

 

* Name changed to protect anonymity

Grenfell Tower – Two years on, how should Wales respond?

By Paul Bevan

Today marks two years since the shocking and tragic fire at Grenfell Tower in North Kensington, in which 72 people died and more than 70 others were injured. The impact of the tragedy became even more alarming as, very quickly, we learnt that the fire’s colossal impact was largely avoidable, had different cladding and fire measures been in place.

The sense of despair and anger reminded us so vividly of the Aberfan disaster in 1966 in which 116 children and 28 adults died – a tragedy which, like Grenfell Tower, could have been avoided.

In Wales, following the events of two years ago, social housing providers instigated work to assess the fire resistance of their properties. On a wider scale, Welsh Government established a Building Safety Expert Group which reported on improving the safety of residential buildings across Wales in the report, ‘A Road Map to Safer Buildings in Wales’.

We welcomed the immediate response to the report by Julie James AM, Housing and Local Government Minister, when, in April this year, she announced, ‘I will reflect on the group’s recommendations but one recommendation I will accept here and now is that we promote the retro-fitting of sprinklers. Hard evidence supports sprinklers’ effectiveness in preventing fatalities so I am committed to looking at how we can further promote retro-fitting in high-rise buildings across sectors.’

Although this is a welcomed step towards improving safety, the Grenfell Tower fire has come to symbolise something much more deep-rooted than questions about fire safety and building regulations. For every high-rise tenant wondering whether a similar tragedy could happen to them, there are many more who simply cannot find a home in their community. There are those who are battling to keep a roof over their heads or are sleeping rough on our streets.

The Grenfell Tower fire has come to represent how we have failed people in most need in our society – those in need of the most basic of human requirements: the need for access to shelter, a place where we feel safe and which we can call home.

This terrible tragedy, if nothing else, should commit us to doing everything we can to ensure it never happens again. A big part of that process should be to embed into Welsh legislation the right to adequate housing.

We would urge the Minister and Welsh Government to be courageous and make a lasting difference for current and future generations. A right to adequate housing can bring safety and security to everyone in Wales – now is the time to ensure that we can all have affordable, good quality and safe housing.