2009: the verdict

Regulation

A year of consultation rather than regulation. Throughout 2009, the newly formed Tenant Services Authority has regulated using the Housing Corporation’s powers under the Housing Act 1996. The new regulatory regime, including the TSA’s powers of regulation and enforcement, the new register for providers, the statutory replacements for schedule 1 and section 9 consent and the TSA’s new statutory standards for management, financial viability and governance, will not come into force until 1 April 2010. Having completed its non-statutory National Conversation, the TSA has just begun its statutory consultation on the new regulatory framework.

Green issues

The Climate Change Committee published its annual report in October requiring the government to find new ways to reduce carbon emissions from buildings. This will help the government meet its binding commitment to reduce carbon dioxide emissions by 80 per cent by 2050, under the Climate Change Act 2008.

In July, the government published its response to the consultation on the definition of ‘zero carbon’ as part of its commitment to zero carbon dioxide emissions from homes from 2016. The Better Buildings Partnership published the Green Lease Toolkit promoting a model green lease.

The mandatory Carbon Reduction Commitment scheme starts in April 2010 and will penalise organisations that fail to reduce their carbon footprint. The scheme will initially affect the largest 5,000 UK organisations, but will eventually include smaller businesses. We wait to see what green initiatives will come from the UN climate change summit in Copenhagen this week and next.

Care and support

The Vetting and Barring scheme was introduced, following the Safeguarding Vulnerable Groups Act 2006. From October 2009, organisations working with vulnerable adults must register with and comply with the requirements of the Independent Safeguarding Authority.

The Commission for Social Care Inspection ceased to exist on 31 March 2009 and was replaced by the Care Quality Commission and the prospect of a whole new registration system, due to be implemented in 2010.

The Queen’s Speech announced the Personal Care at Home Bill, under which from October 2010 (if Labour is still in power) 280,000 people will be entitled to free personal care in their homes and a further 130,000 people recently in hospital will be able to claim free ‘reablement care’.

Employment

Few mourned the passing, in April, of the complex statutory dismissal and grievance procedures and their replacement with the ACAS Code of Practice, which brings a simplified approach to the resolution of workplace disputes.

European case law threw light on the thorny issue of statutory holiday when an employee is off sick long term, suggesting employers may have to allow employees to carry over large amounts of untaken leave. We received clarification that employers can continue to force employees to retire aged 65 or above, but that the government intends to review the law next year.

The Government hopes 2010 will bring in the Equality Bill as law. This will replace the separate equality duties of race, disability and gender with a single equality duty which will also include gender reassignment, age, sexual orientation and religion and belief. The duty will apply to the public sector, including housing associations.

The government also proposed to introduce regulations that will allow a father to share a mother’s right to 12 months’ maternity leave.

Human Rights Act

In June 2009, the Court of Appeal held in the Weaver vs L&Q case that L&Q Housing Trust acted as a public authority for the purposes of the Human Rights Act 1998, when it served a notice seeking possession of a property. Accordingly, L&Q’s decisions when acting as a public authority were amenable to judicial review. In November, the UK Supreme Court refused L&Q permission to appeal the decision on grounds that the application raised no arguable point of law of general public importance. We are therefore likely to see an increase in challenges to social landlords’ decision making.

During 2009, tenants continued to argue, generally unsuccessfully, that where the making of a possession order is mandatory, it breaches the Human Rights Act 1998. However, there is an application for appeal in the case of Pinnock v Manchester Council concerning the Human Rights Act and demoted tenancies, which has resulted in some cases being adjourned pending a decision.

Anti-social behaviour

Family intervention tenancies (FITs) were introduced by the Housing and Regeneration Act 2008 and were able to be used from 1 January 2009. They are the last chance saloon for social housing tenants before they are evicted for anti-social behaviour.

Local authorities and housing associations can use FITs where an order for possession has been made against a secure or assured tenant or, in the opinion of the landlord, could have been made, and the FIT is for the purposes of the provision of behaviour support services. FITs give no security of tenure and can be terminated on notice without the need to prove any ground for possession. FITs are voluntary - the tenant cannot be compelled to sign one.

EU Procurement

The end of 2009 will see the implementation of the Remedies Directive into UK law. This brings in an additional remedy of the contract being declared ‘ineffective’ if there are problems with it, rather than, as at present, only damages being awarded. This could well trigger an increase in the number of EU procurement challenges.

In October 2009, the Office of Government Commerce published long- awaited guidance on the application of EU procurement rules to development agreements. The guidance still leaves plenty of room for uncertainty but does help to identify the key aspects of a development agreement that may make it more likely that EU procurement rules apply.

The OGC is expected to publish guidance on the application of EU Procurement rules to section 106 agreements during the course of 2010.

Construction

Almost six years since Sir Michael Latham completed his review of how the Construction Act 1996 was working, amendments to the act have finally been agreed. They won’t come into force until the amendments to the current regulations have been consulted on and come into force, which is likely to be late 2010.

The Joint Contracts Tribunal will be updating its contracts to take account of these changes. The JCT was busy in 2009, updating its contracts to include sustainability provisions and an optional statement about collaborative working (good faith and a spirit of trust and respect).

Next year, Lord Justice Jackson will deliver his final report and recommendations in relation to costs in civil litigation cases, which could have a significant impact on the cost of litigation in the UK.

Planning

In July 2009, the Communities and Local Government department published a consultation document (including draft regulations) on the Community Infrastructure Levy. The consultation closed in October. Once approved by parliament, the CIL regulations are due to come into effect in April 2010.

CIL will be a capital cost payable by developers towards the cost of local and sub-regional infrastructure to support development. Local planning authorities will be empowered - but not required - to levy a charge on most types of new development within their area. It is expected that local authorities will continue to secure affordable housing through section 106 agreements.

Against a backdrop of reduced housing completions, the government broadly accepted Killian Pretty’s recommendations to make the planning system more efficient.

Recommendations included reducing the number of small-scale developments that require full planning permission; making the planning application process more efficient; improving local authority capacity and performance and streamlining the national planning policy framework.

The Conservatives have promised a complete overhaul of the planning system, including scrapping house building targets, regional planning authorities and regional housing bodies.

Have your say

You must sign in to make a comment