Implementation of the Renting Homes (Wales) Act Q&A
Fitness for Human Habitation Questions
Will Disrepair Protocol for Housing disrepair still apply?
We believe that it will but likely in a modified form. There’s been no indication yet of any changes which may be made, however when the Homes (Fitness for Human Habitation) Act 2018 came into force in England two separate protocols were provided for each jurisdiction.
We expect the Welsh Protocol to be updated to refer to the new law, but it will likely stay largely the same in terms of the Pre-Action process to be followed when faced with a claim.
Do The Secure Tenants of Local Housing Authorities (Right to Repair) Regulations 1994 remain in place?
Yes, we believe they will though there is no reference to them in the current draft Model Agreements.
Are we considering impact of hazard on the occupier in residence or a ‘typical’ occupier?
Under the Renting Homes (Fitness for Human Habitation)(Wales) Regulations 2022 there is no requirement to consider the Fitness of the property with regard to any particular class of individual as there is under the HHSRS. The focus is on whether the dwelling is fit for habitation generally – ‘hazards’ will still be considered under the existing regime.
That being said, if the accommodation is routinely used to house (for example) older people or disabled people what would make a home ‘unfit’ may be different (consider how space and layout requirements for have a different impact on disabled people for example).
Some of the detail in the guidance is very prescriptive eg outside bin storage areas – to what extent are landlords expected to fulfil these actions another eg spy holes in front doors?
The Guidance is indented to give an indication of what Landlords should consider doing (where necessary) to ensure that their Properties are FFHH and not a definitive list of what must be done. Care should be taken to ensure that the scope of the Guidance is met where possible. The nature of the property will also be a relevant factor.
Would contract holders not using heating in current climate be more prevalent?
So long as you have provided the appropriate means for the property to be heated, whether or not it is used is out of your control as a landlord.
You should consider the general affordability of any installations in the installations (i.e. energy efficient boilers), and to what is possible/reasonable to make your properties energy efficient, but ultimately you cannot control if the heating is used.
Where fuel poverty is likely to be a consideration it would be advisable to make appropriate referrals to money advice services and benefits advice services.
If waiting for parts for e.g a boiler can a contract holder claim compensation /not pay rent for the period while they were waiting under not fit for human habitation?
In such circumstances, the issue which would potentially render the Property unfit would be excess cold. If in such circumstances alternative heating is provided to mitigate the situation (such as temporary heaters) this would hopefully be a practical solution to prevent such a scenario.
Is there any case law which helps define “reasonable expense”?
Not within the FFHH context but and what would be reasonable depends on what the problem is and is a question of degree looking at the cost of the necessary works, the landlord’s financial circumstances and the value of the property
With regards to the mains linked smoke detectors is the grace period would be the same for existing tenants & new tenants?
Where there are existing tenants under a converting contract Smoke Detectors would need to be in place by 15th July 2023
Where there is a new contract holder taking a contract for the premises Smoke Detectors at the commencement of the new agreement where its entered into after 15th July 2022.
How do Landlords/Contract Holders start the process to determine if a Property is FFHH and who should they be signposted them to in the first instance (which court or regulatory body) and where will they be able to pick up forms to begin such processes?
In the first instance a Contract Holder should raise the matter with the Landlord. If the matter is not resolved the Contract Holder can still seek assistance from the Local Authority where they are Standard contract holder, and the Ombudsman where they are a Secure Contract holder.
The appropriate Court to ultimately determine the issue would be the County Court however to date there has been no guidance on which Court forms would need to be used and what fees would be payable for such an application. At present a disrepair claim would be brought in the same way as any other claim.
Withholding Rent
What advice should we be giving contract holders regarding the issue of rent not being payable while home not FFHH, for both secure contracts holders and advice to PR standard contracts holders? Our view is they should not unilaterally decide to withhold rent and they should wait for agreement with LL or court decision.
During any court consideration, would it be acceptable for the tenant NOT to pay the rent? Would they have to keep it in a separate account?
The current model agreement terms state that rent is not payable when the dwelling is unfit for HH. That being the case, the rent is not being ‘withheld’ as such as it is not legally payable for that period and so cannot be demanded.
How that works in practice is likely to depend on a number of things including whether or not the occupier has any control over the rent payments.
Where there is a dispute regarding fitness, and so whether or not rent would be payable, it would be prudent for contract holders to keep the funds to one side to make payment in the event the property is determined as FFHH.
If court deems rent not payable for a period of unfit FFHH – what would happen to rent paid by HB or UC – would it constitute a benefit overpayment?
Strictly speaking there is no rent payable for any period when the dwelling is unfit for HH and this will result in an overpayment.
Access
How would you advise landlords if tenant does not give access for electrical testing to take place?
Right of access – can that be used to gain access to carry out statutory testing – such as annual heating service, or is it still necessary to go through the Courts?
Could the right of entry be used for us to gain access for gas safety inspections – where we have been unable to get the tenant to allow access?
This is a problem we already see very commonly with Electrical testing, gas safety testing and smoke alarm testing.
Where a tenant does not allow access Simon indicated that Landlords would not be at fault in terms of Fitness for Human Habitation but you still have other statutory obligations to meet.
Where such difficulties are met we would suggest that taking a proactive approach and (where necessary) seeking access injunctions through the Courts to enforce your contractual access rights.
ECIR
Electrical testing: if a test was undertaken in, say, Jan 2022 can this be given to a new Contract Holder, or will it need to be re-rested before July 2023?
If you have carried out an EICR for example now. Do you still need to provide the converting tenant with a new one by 15th July 2023 or do the 5 years run from (for example) today’s certificate?
If an electrical test was undertaken in (for example) January 2019 and is still valid this can be given to a new or existing contract holder on or before the 15th July 2022.
With regard the EICR, which needs to be done for each occupation, how will this work in an HMO, will it revert to 5 years only. Was it only the most recent inspection (which could be up to 5 y old) that needs to be provided to each new tenant, or a new test each time?
A valid certificate will need to be provided to the tenant so there is no need to re-test for each incoming tenant only when the existing certificate is coming to an end. They will need to be provided every 5 years for all dwellings to meet the FFHH requirements.
Where testing is recommended in addition to this, for example where Rent Smart Wales recommend testing before each new tenant/contract holder moves in this is unconnected to FFHH.
Does the carbon monoxide detectors also apply to rooms where there are gas cookers?
Yes
Homelessness Questions
For a homeless person in B&B, who is responsible for issuing the contract? The LA is not the landlord.
The Landlord will be responsible for issuing the occupation contact.
Will the contracts be the same for Temporary accommodation?
The type of contract entered into will depend on the duty which is being complied with at the time (where LHA is the Landlord) and whether or not the relevant period has lapsed in relation to other landlords providing accommodation under your homelessness functions.
Would B&B/hotel accommodation used as temporary homeless accommodation come under the exclusion definition of holiday accommodation?
No – there is a specific exclusion for homelessness accommodation and for the holiday lets exclusion to apply the accommodation must be being used solely for the purpose of a holiday.
Hard to see how LAs will be able to ask b&b owners and hotels to provide a standard occupation contract to homeless households.
It will be out of your hands in so far as the provisions are clear when an occupation contract is created. The law says that is what needs to be done in those circumstances.
Can B&B accommodation still be under a license agreement?
Yes, until a Section 75(1) duty is accepted or the relevant period has lapsed.
Supported Accommodation Questions
Does accommodation with dedicated floating support count as supported?
Are sheltered housing schemes for older people classed as supported accommodation?
Would Housing First accommodation be classed as supported accommodation?
Simon White confirmed that accommodation with floating support services would not be considered supported accommodation.
Whether any accommodation is supported accommodation will depend on whether or not the accommodation meets the requirements of the act which are set out in the slides.
Can a general needs accommodation become supported accommodation whereby a support provider provides support and after six months or say 1 year becomes a standard contract with less support going in?
Without more information this arrangement sounds like it would be akin to floating support which would which would not qualify as supported accommodation.
The provision of the accommodation and the support provided need to be sufficiently connected and it sounds as though, in the scenario described, (assuming the contract holder remains the same) the contract holder may need extra help for a short period unconnected to the provision of the accommodation.
Does sheltered accommodation/ age restricted accommodation with a non resident Warden fall under the category of supported accommodation?
Age restricted accommodation is not automatically supported accommodation. Whether or not accommodation can be considered supported accommodation will depend on whether it satisfies the criteria in the Act which are set out in the slides. If it does, where you have a settled population (i.e. where sheltered accommodation meets the supported contract criteria) you can give secure supported agreements. If you do you wouldn’t be able to include a mobility clause or an exclusion clause; in a sheltered housing scenario its unlikely you’d want to in any event.
Exclusions
What happens with exclusions for MAPPA for the 48 hours? is there going to be monitoring for the impact on emergency MAPPA meetings?
It’s not clear in what context this question is being asked. The requirements of the act and the guidance do not address MAPPA cases.
Is the resident liable for rent during the exclusion period?
Yes, they will still be subject to the requirements of the agreement.
Is there a statutory duty – or expectation – on LA homelessness service to provide TA to individuals who are excluded from supported accommodation? if they are in priority need or if the PN suspension put in place during COVID-19 are still in place.
Your homelessness duties will remain unchanged in terms of assisting those who present has homeless.
If TA is provided and rent is liable on supported accommodating can a dual benefit claim be made?
You will need to have recourse to the Housing Benefit provisions to ascertain whether the circumstances will meet the criteria for a dual payment. As the maximum period someone can be excluded is 48 hours, they are only likely to require two nights’ alternative accommodation.
Who should take part in the lessons learned session?
The Guidance (link in the slides) at Paragraph 6.1 suggests that ‘those concerned in the decision to exclude’ should be included in the lessons learned session. This may well differ depending on the decision.
General Questions
Does this mean we need to ensure new contracts are signed by all current tenants who are converting?
This would be best practice
Do you mean that at a new sign up joint contract holders would get a copy of the OC each ie 2 to be issued?
At sign up both CH should sign the same oc. A copy of the signed OC should then be given to each CH.
If a S21 notice is due to expire after the transition date, does the new process need to be followed or will the current notice still stand?
Simon White indicated that the transitional arrangements for Section 21 Notices (and likely other notices) are still being discussed at ministerial level.
What scope will the landlord have with regards to consents to Transfer to potential successor, if there are two or more potential successors, all of the potential successors who wish to be included in the transfer?
Consent generally is dealt with under Schedule 6 of the Act. Specific additional things to consider when deciding to give consent in relation to a transfer to a potential successor are dealt with at Paragraph 10 – 12 of Schedule 6.
You will have a discretion to refuse to consent to a transfer so long as your consent is not reasonably withheld.
Whether consent ought to be given in the circumstances described will depend on a number of factors including the effect of the transfer on future successors, the conduct of the contract holder and proposed successor, how long the transfer would likely cause the contract to continue and the type of property.
Will the new contracts allow us to continue providing rent free weeks i.e. charging rent over a 48 week instead of a 52 week year?
It is for you to determine how and when rent is charged on your properties.
If landlords need to take action for nuisance under the Renting Homes Act does the secure occupation contract cover shared/communal areas as well as the actual dwelling?
When you say ‘nuisance’ we assume you mean Anti Social Behaviour/prohibited conduct. The prohibited conduct provisions include the dwelling and ‘the locality’ of the dwelling and mirror Section 2 of the Antisocial Behaviour Crime and Policing Act 2014.
What notice are contract holders required to give?
A contract holder can end a contract without notice if they do so before the earlier of a) a written statement being provided; or b) the occupation date.
Sole contract holders are required to give four weeks’ notice to end a periodic standard occupation contract.
Download the WLGA Training slides here.
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