Taking legal advice

Lawyers work behind the scenes - and in doing so, get a unique perspective across the social housing stage. They see the immediate consequences of new legislation and are often first to spot trends. Even so, they usually prefer to remain out of the limelight.

While collecting information from the main social housing legal practices across the country, Inside Housing decided to tap into lawyers’ knowledge by asking them to reveal their honest opinions on key questions.

With the promise of total anonymity for those who wanted it (and even then, some needed reassuring twice), 72 responded across the 24 social housing practices. So here is what lawyers really think.

Has the Tenant Services Authority had a successful first year?

The Tenant Services Authority has many fans in the legal world. There are some misgivings from those who think that the regulator hasn’t done enough. ‘I can’t say that it has had a sufficient impact at this stage to be considered successful,’ says one doubter. Others are more willing to put a positive interpretation on their cautious start, saying that it is ‘too early to tell but their proposed light touch seems positive’.

Even so, 64 per cent say the TSA is doing a good job. Ian Graham, a partner at Trowers & Hamlins, thinks it should be given credit for doing a lot in a short period of time. ‘There is a tendency to bash central bodies. They have done a lot in a short space and I’m not sure what people were expecting,’ says Mr Graham.

‘They have a very tough challenge and they are on course,’ he adds.

Are you worried, following L&Q v Weaver, that housing associations will eventually be defined as public bodies across the board?

The hot topic of social housing law over the past year split our respondents: 58 per cent think it will lead to housing associations being defined as wholly public bodies.

Many are unhappy that there is still a lack of certainty around the issue: ‘This is a real mess,’ says one.

Not all of those who think this are worried about that outcome - a number feel that this is where the sector belongs. ‘I believe they will ultimately be defined as public bodies but I am not worried; they are, in the main, paid from the public purse with the whole host of advantages and they should be answerable on that basis,’ says one partner.

That still leaves a substantial chunk, 39 per cent, who are not worried that the road leads inevitably to public status. ‘Many people do not appreciate the Weaver decision is based on a number of factors that can easily vary from one provider to the next,’ says Peter Hubbard of Anthony Collins.

He also can’t see the Treasury agreeing to millions being added to the public balance sheet.

‘It is difficult to see any situation where providers’ private finance will be treated as public funding,’ he says.

Is the Housing and Regeneration Act 2008 working well?

Despite grumbles about the quality of the drafting, the Housing and Regeneration Act 2008 seems to be settling down, with 78 per cent saying that it is functioning well. The Act set up two new agencies, the TSA and the Homes and Communities Agency and the success of the HCA in the face of recession seems to account for a lot here.

Even so, more than one lawyer laments that the opportunity has been missed to tidy up some messy bits of law, especially on tolerated trespassers, who are those tenants who have technically lost their secure tenancy but are allowed to stay in their homes under the same circumstances by the housing associations. Others point out that not all the act has been fully tested yet, so more may unfold. Ask again in a year.

Are family intervention tenancies working well?

Only about half the respondents had personal experience of family intervention tenancies - of those who had, only a third think they are a success. FITs were introduced with the Housing and Regeneration Act on 1 January 2009. They are designed to support families who are in danger of being evicted because of anti-social behaviour, and who have been moved to purpose-built units for intensive support. It seems that they are a good idea but lack the necessary cash to get them off the ground.

Scott Greenwood, partner at Coffin Mew, sums up many reactions: ‘They are very rarely used. The difficulty with these is funding, [as well as] finding a family intervention project local enough to the family that needs assistance, particularly in rural areas.’

Will the personalisation agenda in social care work in practice?

Of those lawyers that had the experience to answer this, their predictions are damning: three-quarters do not think that the government’s new approach to social care, which puts the control of budgets and service choice on the individual, will work in practice.

Respondents say it is ‘too complicated’ and that it will ‘conflict with existing practices’.

‘As far as the housing sector is concerned, it has introduced significant risk in extra care schemes,’ adds Jonathan Cox, partner at Anthony Collins.

Does the prospect of a Conservative government make you pleased or nervous for the social housing sector?

It might be thought that all lawyers would welcome uncertainty, as it can only add to the need for their services. Not so social housing lawyers, 61 per cent of whom are nervous about the prospect of a change of administration next year. Ian Graham of Trowers & Hamlins can understand why. ‘It’s not about Labour or Conservative, it is about a lack of clarity,’ he says.

However, others are clearly worried that the Conservatives will be a little quicker to cut funding than the incumbent government. ‘The real question is whether they would turn the tap off before the economy can handle it,’ says one.

Despite the uncertainty, 29 per cent are pleased at the prospect of a new broom - but, worryingly, 10 per cent don’t know how they feel.

Will the recession end next year?

Optimists and pessimists seem evenly split on whether the recession will finish in 2010. Half think it will but many still warn of tough times ahead.

Technically yes, but there is more pain to be felt across all sectors before we are out of this one,’ thinks Mr Hubbard.

Others think that the social housing sector will continue to feel the squeeze as a second wave of recession hits. ‘Social housing will not be given priority, and so will lose funding in real terms. Social housing tenants may be particularly exposed to redundancy and medium-term worklessness, which will affect rent receipts over the medium term,’ points out one respondent.

Will the Housing Revenue Account system be successfully dismantled next year?

There’s little confidence in the HRA finally being dismantled, especially among those lawyers who have seen it all before. One even expressed doubt that it would happen in his lifetime. The obstacle of convincing some councils to take on extra debt is judged too difficult to surmount any time soon.

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