Can I make this Order?

It not infrequently happens that a District Judge, when being asked to approve a Consent Order in financial remedy proceedings involving the transfer of property, questions the jurisdictional basis for an order that one party releases the other from the mortgage on the property and indemnifies the other party thereto.

The recent decision of Mr Justice Mostyn CH v WH [2017] EWHC 2379 (Fam) confirms that such an order is permissible and explains why.

The previous practice (and, perhaps for some, a continuing practice) was to include the release and indemnification provisions by way of an undertaking.

No doubt that practice arose from Livesey v Jenkins [1985] AC 424 at 444G, where Lord Brandon stated that there was nothing in section 23 or 24 of the Matrimonial Causes Act 1973 which directly empowered the court to make an order requiring (in that case) the wife, following the transfer of the matrimonial home to her by the husband, to be solely responsible for the mortgage and all other outgoings on it. Lord Brandon said this should have been incorporated in undertakings.

However, in the case of CH v WH [2017] EWHC 2379 (Fam), Mr Justice Mostyn has sent a clear message that “sterile, technical objections to orders in these terms must cease”.

The case before him concerned a draft final consent order which had been rejected by a Deputy District Judge and District Judge on the ground that the Family Court lacked the power to order that “each party must use his or her best endeavours to procure the release of the other party from the mortgage on the property that he or she received and, in any event, must indemnify that other party against liability thereunder”. Both Judges it would appear decided that such an order fell outside the ambit of the Matrimonial Causes Act.

The order under scrutiny had been drafted in accordance with the Financial Remedies Omnibus which can be found here.

Mostyn J accepted that the wording of sections 23 and 24 taken literally does not make provision for the court to make orders of this nature. However, he referred to section 30, which gives the court power when making a property adjustment order to direct that the matter be referred to conveyancing counsel to settle a proper instrument to be executed by all necessary parties. Mostyn J observed that such an instrument could “contain terms which furnish all necessary indemnities and the obligations to pay instalments in relation to a mortgage secured on the property”. He therefore did not accept that such an order was outside the Matrimonial Causes Act.

However, his main reason for disagreeing with the approach taken by the District Judges can be found in the rationale explained at paragraph 84 of the Financial Remedies Working Group’s first report dated 31st July 2014 where it was stated:

‘A number of those responding to the consultation process queried whether, in relation to mortgage payments and other household outgoings, the court had power to direct one party to make such payments and/or indemnify the other against non-payment. Such obligations have traditionally been included as undertakings, but their inclusion as directions in the draft standard orders implied that the court had such powers when undertakings were not offered. Mostyn J has expressed the following view in justification of this inclusion:-

“Under the new s31E(1)(a) MFPA 1984 in any proceedings in the family court, the court may make any order which could be made by the High Court if the proceedings were in the High Court. The High Court has power to order or decree an indemnity. This is an equitable remedy originally vested in the Court of Chancery which was subsumed into the High Court by the Supreme Court of Judicature Act 1873. It was the very relief initially ordered in Salomon v A Salomon and Co Ltd [1897] AC 22 (but which was later set aside by the House of Lords as offending the rule about the separate legal personality of companies). As to mortgage and other outgoings in my view the power to order A to make payment to B plainly includes the power to order A to make payments on behalf of B.  The greater includes the lesser. It was necessary to spell out the power to order the payment of mortgage and other outgoings in Part IV FLA 1996 proceedings (see s40(1)(a)) because the wider direct power does not exist in those proceedings. It would be anomalous if the power to order payment of outgoings only existed in Part 4 but not FR proceedings. It is necessary in my view for the court to have these powers if only to cover the position if someone is not prepared to give the necessary undertakings or is not participating in the proceedings.”‘

Moreover, Mostyn J stated that the Family Court has all the powers of the High Court, which includes the equitable power to order an indemnity and an injunction in support of a legal right. An order to indemnify the other party in respect of a mortgage to use his or her best endeavours to keep up the payments on that mortgage is of the nature of an injunction in support of a legal right. Mostyn J stated that this provision is squarely within the power of the High Court to order and is therefore within the power of the Family Court.

This Judgment is a very useful resource to financial remedy practitioners to reassure the Family Court of its power to make an order requiring release from a mortgage and indemnification thereto.

Veterans, treatment, support, the military charities, and how they can help us

Following the welcome withdrawal of British Combat troops from Afghanistan it is tempting to think that the problems faced by our servicemen and women are coming to an end.  In fact, the opposite seems to be the case.

This article is designed to help practitioners in the Family Court identify sources of help for ex or serving servicemen and women and to help you navigate through the bewildering array of choice.

As this is an article about servicemen and for servicemen I’m afraid that it will be full of acronyms, as the services love a SLAMOA (a stupid, long and meaningless abbreviation). I apologise in advance.

It’s not just acronyms that require explanation.  The service charities have their own terms of art for describing those that they help.  Servicemen and women are those currently in uniform.  They describe everyone else as a “Veteran” so it’s generally, although not exclusively, going to be Veterans that we come across in the Family Court.

This article was inspired the problems encountered whilst representing a veteran who was in a marriage of long standing and to which he and his wife were committed.  He suffered from Post-Traumatic Stress Disorder as a result of his service and he needed effective help.  His psychiatric report read as follows:

“He informed me that he had seen a counsellor for his symptoms, but recalled that she had found his account of his battlefield experiences to be distressing and had missed a number of appointments with him before eventually terminating the therapy” [altered a little to preserve confidentiality!]

As the friend to whom I refer below observed, “What your client needs is a therapist with some spine!”

The hunt for a therapist who was a bit more use was on, but where to start?

The military charities

These seemed the obvious place to look for help; but the first thing that was apparent was that are a bewildering number of Military Charities, some well-known, some terribly obscure.
Perhaps the best known is the Royal British Legion (The Legion)1 famous for the annual poppy appeal.  Equally well known is Help for Heroes a charity which has risen from a standing start to do a fantastic job of fundraising and supporting those very seriously wounded.  A close third in a tight race for public profile is SSAFA3, (which stands for Soldiers, Sailors and Airmens Families Association).  Then come the three Services own charities – The Soldier’s Charity (formerly The Army Benevolent fund/ABF), the Royal Navy and Royal Marines Charity (RNRMC) and the Royal Air Force Benevolent Fund  (RAFBF).  In addition to these well-known charities there are many, many others such as Combat Stress, the War Widow’s Association and BLESMA which have all been created to help specific, often ‘niche’ veteran issues.  There’s even the Forces Children’s Trust which is a charity devoted to helping children whose father or mother has died or has sustained life threatening injuries whilst serving as a member of the British Armed Forces.  There is then a bewildering array of smaller (and sometimes dubious) others.

Fortunately it’s not necessary to list all or even most of the specialist charities nor to remember their names as they have an umbrella organisation known as which shelters under the bewilderingly obscure SLAMOA of COBSEO which presumably tells you all you need to know about it!

The point to note is that when it comes to delivering support where it’s needed the main Service charities work very closely together – we just need to tap into the right place.

So how do your client access the help that’s available?

After a frustrating hour or two of research I phoned a friend.  In this case a regional director for the Soldier’s Charity.  He explained that to make things simple for the veterans, the Legion and SSAFA are usually the first port-of-call.  A case worker will be appointed.  They will contact the veteran, often within a few hours and arrange to assess their needs.  They will then point them in the right direction and will remain on hand to guide them throughout.  Contact details are all below.  I saw this done by a colleague at Court.  They phoned just before going into a directions hearing.  By the time it was finished their client had a case worker, an appointment and a telephone number to call.  By the next hearing a couple of days later there had been an initial assessment and their client was waiting for the support which was expected imminently.  It really can be that quick.

At that point it’s job done for the busy family practitioner not least because once Service Charities have identified relevant need they will fund therapy or support in a way that seems quite miraculous to those of us used to battering our heads against the social services and the health service to try to get much needed help.

Who pays for it?

Once need is confirmed and a solution identified, one of the Service charities will step in.  For example Combat Stressx, a very useful charity in our line of work, have funding streams in place to enable them to move at short notice.  It’s all a very different experience to making part 25 compliant applications late on a Friday at the end of a busy list in front of a Judge who finds the difference between “necessary” and “overwhelmingly desirable” an irresistible opportunity to waste a few more hours of our time.

What about support for families?
It’s not just veterans who need support.  The stresses and strains on the families of those Serving and veterans can also be acute, although hopefully less so now that the endless cycle of combat tours has ended, at least until Latvia kicks off.  The Services charities are also set up to fund help for families where it’s needed.  Again this is best accessed through SSAFA or the Legion.

And finally is he a veteran or delusional?
It’s a sad reflection on society that many seek to blame active service for their problems when the nearest that they’ve actually been to serving their country has been spending their dole cheque in the Docker’s fists.

Those of us who practice in areas where there is a high concentration of veterans will all have our own techniques for separating those who have really served from those who just think that it sounds like a good excuse to beat their wives or abuse their children.

Here are a few of them.  Every veteran will know their number; ask her what it was.  If she says she can’t remember, alarm bells should ring loudly.  Every veteran will have kept their discharge papers (unless they were dishonourably discharged) ask to see them.  If they can’t produce them alarm bells should ring although perhaps a bit less loudly than if they don’t know their number.  Every veteran will be able to tell you what their last unit was, if it’s an unintelligible string of letters and numbers pronounced individually it’s probably true.  If they refuse to tell you because it’s a secret, it’s Walter Mitty time as even the most secret organisation has a plausible cover story.

The Armed Forces are keen to stress the moral obligation between the nation, the government and the Armed Forces; they call it the Armed Forces Covenant.  This has nothing to do with that.  The resources that identified in this article are the Services and the Service ‘family’ (i.e. charities) looking after their own.  They are there to help, know what they are doing and can make our (legal) lives easier; use them.

With my thanks to Charles Dunphie, DL, of the Soldiers’ Charity for his help.

Footnotes and useful websites

  1. The Royal British Legion.

http://www.britishlegion.org.uk/can-we-help/financial-assistance/grants-and-loans

Helpline: 0808 802 8080,

  1. SSAFA

https://www.ssafa.org.uk/help-you

Helpline: 0800 731 4880

First published in Family Affairs in 2015

Early Neutral Evaluation: An Alternative Approach to the Resolution of Financial Remedy Cases

Paul Waterworth writes

One of the fascinations of the practice of family law is the way in which the law itself and the procedures involved in its application, evolve to suit changing social needs and the constant search for more (cost) effective processes. On some issues, it is clear that parliament has been ahead of general public sentiment and on others, the  ever flexible common law has often found ways of finding solutions outside legislation. The adoption of marriage for same sex couples is one example of the former. The latter is exemplified by the partial relief of the plight of unmarried couples in the resolution of property disputes by constructive use of the law of trusts, such as was seen in the case of Stack v Dowden [2007] UKHL 17 in which Lady Hale found that “many factors other than financial contributions may be relevant to divining the parties’ true intentions”.

In the practice of financial remedy applications (still then called applications for “ancillary relief” – even the nomenclature evolves), it is now nearly twenty years since the introduction of Financial Dispute Resolution (FDR) hearings as part of the formal court process. It is easy to forget how revolutionary such a development appeared at the time. By and large, FDR’s have been successful with many cases settling at or soon after such hearings.

It has to be accepted, however, that formal court FDR’s are not without their problems. There is generally acknowledged to be a lack of adequate court time for each hearing. The number of cases listed and the late production by practitioners of case summaries and copies of offers usually means that there is insufficient time for adequate preparation and consideration by the judge. The inappropriate listing of some cases before part time judges with little or no experience of this area of the law renders some FDR’s of little value, at least in court (although at least the parties are brought together which makes discussions more likely). Experience shows that  there is virtually no prospect of finding a solution at a FDR where neither party is legally represented.

FDR’s come at a relatively advanced stage of the formal court process. By then, even in the simplest of cases, much work will have been undertaken, at no little expense to the parties. Hopefully, there will have been an exchange of financial information and “full and frank” disclosure; documents will have been examined in detail; consideration will have been given to the issues, such as whether the case is one in which a departure from equality can and should be argued; pension information will have been obtained and often, expert advice on the possible ways of sharing the benefits. In many cases, valuations of property and other assets will have been prepared and agreed or the cause of disagreement identified; statements will have been drafted and served. Advice will have been tendered by solicitors and sometimes also by counsel and offers and counter-offers made and considered.

One of the great strengths of our system is that the majority of practitioners, seeking to achieve the most suitable result available for their clients, form a view, as a case progresses, as to the likely outcome. Genuine attempts are usually made to find a solution by negotiated agreement between the parties. Even, however, where there is goodwill between the parties (not always obvious)  and their lawyers (usually, but not inevitably present), there can be genuine differences of opinion as to what amounts to the fair solution, which, of course, is the goal of the process.

When Baroness Deech was introducing to parliament her bill seeking to amend the basis upon which financial disputes on divorce were resolved and to replace it with a formulaic approach, she commented that it was recognised that judicial intervention was an excellent method of resolution under the present system. She argued, however, that that intervention came “late” in the process. She also said that the current law in this area, with its wide discretion for judges, was too unpredictable, even though, in her proposed replacement, discretion would be retained where required.

It is clear that there are many cases where lawyers are able to give their clients sound advice as to the likely outcome. There are also many examples where, for whatever reason, such advice is not accepted and the case ploughs on, with ever increasing costs and often growing inflexibility by and rancour between the parties.

It is for some of these reasons that practitioners are increasingly turning to other methods of resolving financial (and other) disputes arising on divorce. One such method which is rapidly gaining traction is the obtaining an early evaluation of the case from a neutral expert, frequently an experienced practitioner not involved in the case or a retired judge. Practitioners are recognising that such a system provides an independent and reliable additional resource which they can utilise for the benefit of  clients and which is cost effective and quick.

Early neutral evaluation has sometimes been described as “private judging”. Technically, the system is evaluation or assessment at any stage of the process, not merely towards the end which, typically, is the case at FDR’s in the court process. Evaluation is  usually undertaken on the joint instructions of the parties but can be undertaken at the instance of only one party. The evaluation can relate to a case as a whole or only part of it, perhaps to a particular asset or issue, even one that is temporary, pending a final settlement.

One of the significant advantages of early neutral evaluation is that it can be take place very much more quickly than can a hearing in court, for it is now commonplace for there to be very considerable delays between the first court appointment and the later FDR hearing. At evaluation meetings, more time, often very much more (a whole day is not uncommon), can be given to the parties than can be accommodated in a busy court list. The process can also be shaped to allow time for the parties, together or separately, if necessary with their legal advisors, to consider privately what has been said at the end or even part way through the process.

The meetings take place in the presence of lawyers and their informal nature means that they are likely also to be useful to those who are not represented and therefore without legal advice.

Early neutral evaluation meetings can be tailored to the needs of the individuals and the case. Assessment can be given in simple cases as well as those which are more complex and can even take place before proceedings have begun. The more information and material the consultant has, the more likely that a clear view can be expressed. The process is confidential and there can be no publicity unless agreed between the parties (which is rare). The parties can decide the extent to which, if at all, what has been discussed at early neutral evaluation meetings can be referred to if the case proceeds to court. The date of the evaluation meeting can be fixed to suit the availability of the parties and the consultant.

The purpose of the evaluation is for the consultant to make an assessment of the case, or part of it and to express a view of the likely outcome. It is only if the parties specifically agree that this should be the case that they would be bound by the assessment: otherwise the consultant has no legal power to decide facts, let alone a case as a whole. The process is advisory to the parties. If an agreement is reached, it will be for the parties to draft a document recording that agreement, normally   followed by an application for a court order (usually but not invariably, with the help of lawyers because of the need to ensure that such documents are legally sound).

Disputes relating to finance, indeed any issues arising on separation and divorce can be painful and bitter. In the traditional court process, it is often only when the parties arrive at court that constructive discussions take place. However, it is inevitable that  parties, when at court, usually feel under extreme pressure: it is undesirable, if there is a viable alternative, that they should be asked to make immediate decisions on very important decisions, frequently involving lasting consequences.  

All the evidence shows that parties find the process of resolving disputes in court perplexing, stressful, protracted, worrying, long and expensive. The rationale of early neutral evaluation is to remove some if not all of these disadvantages. The benefits to each party and any children in finding a fair and satisfactory solution are clear and settlements reached by agreement are very much more likely to be adhered to.

Early neutral evaluation will not suit every case and solutions will not always be found or accepted by the parties. It is, however, an additional resource which practitioners will find provides extra scope towards the settlement of disputes, with the resultant increase in satisfied clients

Paul Waterworth is a retired District Judge and a consultant with the Financial Resolution Consultancy

at Magdalen Chambers in Exeter where he is an associate.

The Homelessness Reduction Act 2017, initial thoughts

Last week, the Department for Communities and Local Government reported an increase of 33,000 children being housed by councils in temporary accommodation since mid-2014, representing a rise of 37%.  This equates to an average of 900 extra children each month.  In the circumstances, it is easy to appreciate why the department has described the situation as ‘unsustainable’.

Without wishing to add further to the concern, it is difficult at this juncture not to reflect upon the 2017 Homelessness Monitor, which suggested that 50% of councils and, alarmingly, 95% of London boroughs reported that it was ‘very difficult’ to assist homelessness applicants to secure self-contained accommodation.  In this vein, 65% of boroughs cited a near-crippling shortage of available housing stock, although it is apparent that surging rental prices and the current state of the welfare benefits system have played their role, also.

In the circumstances, it seems like a good time to reflect upon the “impending” Homelessness Reduction Act 2017 (“HRA”).  The statute, which received assent in April 2017 and expects commencement at some (currently unspecified) point during 2018, started life as a private members’ bill catalysed out of campaigning by Crisis with support from Shelter.  As a Bill, its explanatory notes cited as a policy background that [t]he number of homeless households in England is increasing.  57, 750 households were accepted as statutory homeless and in priority need in 2015/16, up 6% on a year earlier.  The total numbers in temporary accommodation are also rising.  Local housing authorities took action to prevent homelessness for 50,990 households in April to June 2016, up 4% from 48,820 in April to June 2015.’  The guidance further acknowledged the limitations presented by restricting duties owed to applicants assessed as being in ‘priority need’, with the inevitable corollary that ‘those who do not meet the threshold for ‘priority need’ often receive little support.

Heralded by Shelter as ‘the first major piece of homelessness legislation for 15 years’, the main thrust of the Act will be to amend Part 7 of the Housing Act 1996, whilst also amending the Homelessness (Suitability of Accommodation) (England) Order 2012, by imposing duties on local housing authorities to ‘intervene earlier and take steps to prevent homelessness in their areas’, regardless of priority need or intentional homelessness.  The hope is that this will lead to a reduction in homelessness, whilst achieving financial savings for local authorities.

The statute’s starting point in this respect is to amend section 175 of the 1996 Act.  The amended s. 175(4) and (5) provide that a person will be threatened with homelessness if it is likely that (s)he will become homeless within 56 days, doubling the previous 28 day period and meaning that local authorities must work with people to prevent homelessness at an earlier stage.  Notably, the provision makes clear that the service of a section 21 notice, which expires within 56 days, will engage the duty.

The amended section 179 of the 1996 Act remodels local authorities’ “advisory services”, stipulating that each authority must provide or secure the provision of a freely available service, to advise upon preventing homelessness; securing accommodation when homeless; the rights of persons who are homeless or threatened with homelessness, and the duties of the authority; any help that is available from the authority or anyone else, for persons in the authority’s district who are homeless or may become homeless (whether or not they are threatened with homelessness); and how to access that help.  Subsection (2) et seq provides far more detail, which will add focus and scope to the advisory process.

As above, a core feature of the HRA is to improve the support that is available to applicants who have either made themselves intentionally homeless, or are not considered to be in priority need.  This is addressed by the newly imposed section 189A, which requires an authority to carry out an assessment and produce a personalised plan in respect of all applicants who are homeless or threatened with homelessness, and are eligible for assistance.

The new section 195 imposes a “prevention duty”, which will apply to all eligible applicants threatened with homelessness and will require that an authority ‘must take reasonable steps to help the applicant to secure that accommodation does not cease to be available for the applicant’s occupation’.  Notably, the duty is ‘to take reasonable steps… to secure’.

The duty will typically run for 56 days and may end in accordance with subsection (8): suitable accommodation has been provided and there is a reasonable prospect of continued occupation for a period of 6-12 months; 56 days have passed, regardless of the applicant’s circumstances (but subject to a section 21 notice being served); the applicant has become homeless (in which case, move on to the new section 189B duty); the applicant has refused an offer of suitable accommodation; the applicant has become homeless intentionally from accommodation that was made available pursuant to the exercise by the authority of its section 195(2) function; eligibility has otherwise ceased; or the applicant has withdrawn the application.  A failure to cooperate will also terminate the duty.

Section 189B applies to applicants who are already homeless and provides that an authority, having regard to its section 189A assessment, must ‘take reasonable steps to help the applicant to secure that suitable accommodation becomes available for the applicant’s occupation for at least… 6 months, or… such longer period not exceeding 12 months as may be prescribed.’  This will, therefore, push back the section 193 duty by 56 days.  As with section 195, there are circumstances in which the duty might be ended, as to which sections 189B(7) and (9) should be consulted (n.b. that such a decision would be susceptible to challenge by section 202).

Whilst statutory guidance is yet to be published, as is the code of practice that is referred to within the amended section 214A, it nevertheless seems that both sides of the housing law table anticipate positives arising out of the legislation.  Indeed, any sensible measures taken to reduce the number of people living without a home can only ever be a cause for celebration.  However, a considerable concern amongst local authorities faced with the prospect of implementation, aside from the obvious transitional and interpretative hurdles, will clearly pertain to funding.  It is axiomatic that for the aims of the statute to be realised to full effect, there must be sufficient funding in place.

For instance, the Local Government Association anticipates that the imposition of the prevention duty, alone, will increase the workloads of London boroughs by circa 270%.  The Association of Housing Advice Services has suggested that the financial burden to the boroughs will rest in the region of £160m.  Palpably, neither concern is likely to be dampened by the government’s promise of an additional £48m in funding (available only for the first two years following implementation), or the hope that savings might adequately offset costs before the two-year period expires.  Whilst the additional funding may well hep authorities to “hit the ground running”, they will surely be hoping that the short-term cash boost will be followed by an effective post-implementation review of funding, resources and stock, as promised by communities’ secretary Sajid Javid.

As for the costs that are likely to arise out of issues of construction and initial implementation, authorities might expect a surge in challenges to their interpretation of eligibility, “reasonable steps” and “help to secure”; and in cases of refusals to accept offers of accommodation and alleged non-cooperation.  Again, it is hoped that the anticipated explanatory notes and code of practice should help to iron out at least some of those potential areas for conflict.

Jonathan O’Neill

July 2017

Jonathan is a barrister who specialises in housing law, with particular expertise in disputes concerning possession, demotion, public law principles, human rights, equality, antisocial behaviour, injunctions, tenancy deposits, disrepair, breach of tenancy agreement and unlawful eviction.  He can be contacted via his clerk, on 01392 20 84 84.

This article has been prepared and published as a discussion document and is not to be relied upon as a source of legal advice.

 

 

Working: employed or gigging? 

We lawyers have been arguing about the status of ‘employees’ since the dawn of the first codified employment legislation in this country and the advent of the industrial tribunals. Cases such as Ready-Mixed Concrete v Minister of Pensions & National Insurance [1968] QB 497 and Carmichael v National Power Plc [2000] IRLR 43 gave us the irreducible minimum of obligations without which no contract of employment can exist.’ Factors such as the mutuality of obligations between the company and the individual, the control exercised by the ‘employer’ over the individual on a day-to-day basis, the individual’s level of integration within the company, and the economic reality of the situation. This is so vitally important because not all those ‘employed’ are in fact ‘employees’ and therefore do not have access to the same rights, such as the national minimum wage, paid holiday, sick leave, etc.

The statutory definition is set out in section 230(1) Employment Rights Act 1996 (‘ERA’). This section states: an ‘employee’ is: ‘an individual who has entered into, or works under, a contract of employment’. Section 230(2) defines a contract of employment as a contract of service.  For comparison a self-employed person may refer to themselves as working under a Contract for Service.

The Court of Appeal held in Protectacoat Firthglow Ltd v Milkos Szilagyi [2009] EWCA Civ 98 and the Supreme Court affirmed in the case of Autoclenz Ltd v Belcher and Others [2011] UKSC 41, that despite any label given to a relationship by the parties, the Court should look behind that agreement and examine the actual nature of the working relationship.

That was all well and good but in more recent years we have seen an explosion in a new type of ‘employment’, with the advent of the zero hours contract and the ‘gig economy’. According to one definition, the ‘gig economy’ is: ‘a labour market characterised by the prevalence of short-term contracts or freelance work, as opposed to permanent jobs’. Taking opposing partisan viewpoints- it is either a working environment that offers flexibility with regard to employment hours, or a form of exploitation with very little workplace protection.

Recent caselaw includes Dewhurst v CitySprint UK Ltd ET 22025/2016, a first instance tribunal decision which held that Ms. Dewhurst was a worker not self-employed, and Aslam, Farrar & Others v Uber & Others ET 2202551/2015, another first instance decision which is awaiting the appeal hearing listed in the EAT in September 2017, where the tribunal determined that:

The notion that Uber is a mosaic of 30,000 small businesses linked by a common platform is to our minds faintly ridiculous… simple common sense argues to the contrary.’

The Court of Appeal handed down judgment in Pimlico Plumbers Ltd & Another v Smith [2017] IRLR 323 earlier this year stating that Mr. Smith was a worker qualifying for sick pay rather than a self employed contractor.

At the time of writing Deliveroo’s case is being assessed by the Central Arbitration Committee with regard to the national minimum wage and holiday pay.

Yesterday, the ‘Taylor Review of Modern Working Practices’ entitled ‘Good Work’ was published. It is an extensive document that includes proposals some of which will be able to be rolled out easily and quickly, others will require extensive drafting and Parliamentary process, but it is at least perhaps an indicator of the direction of travel. Some of the key proposals in my view are:

  • Keeping the distinction between employees and workers, but renaming workers who are not employees ‘dependant contractors’ page 35;
  • Amending the legislation cited above to include the case law principles;
  • Placing more emphasis on control within the definition of worker- page 36;
  • Amending the NMW to make it clear that gig-economy workers allocated work through an app are undertaking a form of output work and will not have to be paid the NMW for each hour logged on when there is no work available- page 38;
  • Extending the right to a written statement of terms and conditions to workers as well as employees- page 39;
  • Requiring written statements to be given on day one of employment;
  • Extending written statements to include a description of statutory rights;
  • Giving agency workers the right to request a direct contract with the end user after 12 months on an assignment- page 48;
  • Giving those on zero-hours contracts the right to request guaranteed hours after 12 months;
  • Giving HMRC enforcement powers for sick and holiday pay- page 59;
  • Allowing Claimants to bring a claim to the tribunal (without an issue fee) to determine employment status as a preliminary issue prior to any substantive claim- page 62;
  • Placing the burden on the employer in the tribunal to prove that the Claimant is not an employee or worker- it is currently the other way round.

We will have to see how much of this becomes law and what the appellate courts make of the cases before them in the mean time, but it seems that there is still no clear definition of ‘an employee’ thanks to both social and technological advances.

Any one wishing to find out more about their potential employment rights, should contact Sarah Hornblower in Chambers.

Rupert Chapman

Conduct in Needs-Based Financial Remedy Cases

The issue of conduct is one often raised by litigants in financial remedy cases. The court’s treatment of it, however, is often not what the parties would wish it to be, often because the court considers the parties’ needs to be the guiding principle for consideration – one that is thought to ‘trump’ all other issues. In the recent case of R v B and Capita Trustees [2017] EWFC 33 Moor J took issue with this approach.

The case involved a 15-year relationship where all the assets (around £3.5 million) were in the wife’s name. The wife was an artist and had an interest in various dynastic trusts, on which the court did not place a value. The parties had separated in 2005 and the wife petitioned for divorce in 2010. The wife’s assets largely derived from a share in a family business set up by her father in the 1950s. The husband, however, had become involved in the running of the business during the relationship and had spearheaded a restructuring that involved the creation of various trusts in Jersey, one of which was for the sole use of the wide and the children and was a post-nuptial settlement within the terms of the Act. He continued in this role after separation.

That role came to an end when the CEO of the company discovered that H had incurred liabilities of £22 million in the business. There was a further dispute over the funding of the purchase of a property in France, intended as a hotel development, and over monies provided by the wife to her new partner. The litigation was extensive, drawing in the parties’ adult children and including a lengthy trial on the preliminary issue of the ownership of various assets.

It was agreed by all parties that this was a needs case given the source of the assets, but each party made allegations against the other; the husband alleged a wanton dissipation of assets to her partner, while the wife alleged that the husband had incurred huge liabilities either by fraudulent or incompetent mismanagement of the business, as well as litigation misconduct.

Moor J, in a lengthy judgment handed down after hearing the parties’ evidence, considered the role of conduct in general, and particularly in needs cases. He held that;

  • As had been established in previous cases, including Miller/McFarlane [2006] UKHL 24, conduct would be relevant in only a few cases, and only where it was both obvious and gross.
  • The burden of proof is on the party seeking to allege conduct, and the standard of proof is the usual civil standard. The seriousness of the allegation makes no difference to the standard of proof, and the inherent probabilities are merely something to be taken into account.
  • The wanton dissipation of assets by one party, however, would not be ignored. Applying Martin v Martin [ [1976] Fam 335 ‘A spouse cannot be allowed to fritter away the assets by extravagant living or reckless speculation and then to claim as great a share of what was left as he would have been entitled to if he had behaved reasonably.’ The Judge held that ‘if a spouse has created unnecessary debt or incurred unnecessary liabilities, this detracts from his or her contributions as well as meaning that the assets have been reduced. Moreover, provision needs to be made for liabilities that have not yet been discharged’ (citing Charman v Charman [2006] EWHC 1879).
  • Conduct was not only an issue for sharing cases, but was relevant to needs cases as well. For example, the conduct might be such as to prevent the court from satisfying the needs of both parties. In such a case, the court ‘must be entitled to prioritise the party who has not been guilty of such conduct’ (para 85).
  • In doing so, the court might reduce the award to the offending party from the standard provision of meeting their reasonable requirements generously assessed to ‘something less’. While the issue should not reduce a party to a position of real need (unless there is no alternative), it could be relevant to the level of need to be met. By implication, needs would be assessed in a more parsimonious way where that party is guilty of conduct which could not be ignored.
  • Where a party adopts a litigation strategy ‘so extreme that it would be inequitable to disregard it’ the way he had conducted proceedings could be reflected in the award made to him even in a needs case (applying M v M (Financial Provision: Party Incurring Excessive Costs) [1995] 3 FCR 321). In most cases this should be reflected in a costs order, but in an exceptional case the award itself could be effected.

The Judge found that the husband was a liar in several respects. While he had made contributions to the marriage that were significant, including through his work in the business, he had engaged in deliberate and fraudulent deception in hiding two loans of more than £7 million from the wife and her family, through his general management of the business and of his own finances. He had failed ever to declare any income tax to HMRC, but rather he had used the family business to fund his lifestyle, taking whatever he needed from wherever he could get it ‘regardless of the ownership structure’. His conduct was clearly so severe that it would be inequitable to disregard it. The wife, on the other hand, had been reckless in her dissipation of assets to her partner, which was not conduct, but rather a significant liability set off against her significant contributions through family money. The result was a potential liability to the business and trusts of between £9 million and £12 million, largely in tax liabilities incurred because of the parties’ (mostly the husband’s) cavalier treatment of the assets.

The husband was given a capitalised maintenance fund of £839,000, based on half the income that the wife would receive each year from the family business (she received around £100,000 net pa). There was to be no pension provision even though the husband had no state pension, having never had a national insurance number or paid any tax – the wife should not fund his misconduct. He would receive £411,000 to pay some of his personal debts of £1.35 million (excluding £950,000 in costs), and no other capital for his housing needs – the judge considering that because of his conduct there was insufficient to meet both parties’ reasonable needs. The wife retained the balance and all of her interests in the various trusts.

The judge considered the costs to be completely out of control and the litigation to be ‘financial suicide’. The preliminary issue hearing itself had ‘achieved nothing apart from the waste of over £2 million in costs’, caused entirely because of the husband’s irresponsible conduct of the family finances. The husband’s overall legal costs were £3 million.

The lesson of this case is principally that where a party is guilty of gross and obvious conduct, particularly where it substantially reduces the available assets they can expect either to have their reasonable needs assessed at the lowest end of the spectrum, or to have them unmet where the other party’s needs can only be met in this way. In exceptional cases, this will extend to litigation conduct as well as more general financial conduct.

Rupert Chapman

Financial Remedies update: Short Marriage cases – a departure from the principle of equal sharing

In White v White [2001] 1 AC 596 the House of Lords established what has become a principle that the matrimonial assets of a divorcing couple should normally be shared between them on an equal basis. The Court of Appeal delivered judgement this week in the case of Sharp v Sharp [2017] EWCA Civ 408 in which they determined that this is not inevitably the case where the marriage has been short, there are no children, the couple have both worked and maintained separate finances, and where one of them has been paid very substantial bonuses during their time together. This is the first time since the joint appeal of Miller & Mcfarlane in 2006 that the Court has directly considered this issue.

In Sharp v Sharp each party came to the marriage from a relatively modest financial background. Each of them worked hard to achieve the qualifications and experience which each of them brought to their relationship at the start of the six years for which their cohabitation and marriage lasted. The wife worked continuously as a fuel trader whilst the husband work until 2012 in IT. Both had basic salaries or around £100,000 p/a however the significant difference between them was that wife received a discretionary annual bonus which in the central five years of their relationship totalled £10.5 million. Any bonuses the husband’s employment brought were comparatively trivial. At the time of the hearing the total assets held by either party amounted to £6.9 million. The figure for “matrimonial assets” was £5.45 million.

At first instance, the parties adopted polarised positions, the wife offering a lump sum and a transfer to the husband of one of their two properties, together with a contribution towards his legal fees (representing a total value of £1.23 million). In contrast, the husband sought a total package of £3 million.

After reviewing the relevant authorities, the trial judge concluded that no sufficient reason had been identified to depart from equality of division. The fact that this was in effect a husband’s claim against a wife rather than the more conventional claim of wife against husband empathetically did not call for a discount. The principled outcome was half of the matrimonial assets, a final total payment to the husband of £2.725 million.

Noting that this appeal focuses on a fringe of cases that may lie outside the equal sharing principle, and in a lengthy judgement where he considers in detail the principles as set out in White, Miller and Charman. McFarland LJ, finds that the wife’s bonuses were not “family assets”, and observes that the court is obliged to take account of the duration of the marriage with a view to considering reducing the husband’s share to reflect the period of his domestic contribution. McFarlane LJ sets out that in a case where, in contrast to the more traditional ‘bread-winner’ / ‘home-maker’ model, each partner worked full time for most of the marriage, and where there are no children, it must be necessary for the court also to evaluate the extent, if any, by which the husband’s domestic contribution exceeded that of the wife. He concludes on the facts of this case, the combination of potentially relevant factors (short marriage, no children, dual incomes and separate finances) was sufficient to justify a departure from the equal sharing principle in order to achieve overall fairness between these parties.

The husband was subsequently awarded a total sum of £2 million (a property transfer valued at £1.1 million plus a lump sum of £900,000). He was awarded half of the capital value of their two properties and an additional sum to reflect a combination of: (a) the standard of living enjoyed during the marriage; (b) the need for a modest capital fund in order to live in the property that he is to retain; and (c) some share in the assets held by the wife.

William Hillier
Magdalen Chambers

Magdalen Chambers supports fundraising tribute to the Catherdral Yard Fire

Unique Exeter Painting Sold for Fire Fundraising

Bought for policeman who helped in the response to the blaze 

A painting depicting everyday life in Exeter’s Southernhay district has been auctioned to raise funds for a new cultural tribute after the Cathedral Yard fire. 

Property Search Group wanted to bring together the city’s law firms to raise money by commissioning and auctioning the painting, created by Devon artist and illustrator Sara Nunan.

Solicitors and colleagues gathered at the Mercure Exeter Southgate on Thursday (March 30) for the auction, conducted by TV’s Homes under the Hammer auctioneer Scott Gray.

The painting was won by 24-year-old Tom Backhouse, of TerraFirma, whose father Inspector Mark Backhouse, was involved in the emergency response to the blaze.

He said: “It’s an original piece of artwork and the money is going to a good cause which is the most important thing. I’ve never owned a piece of original art so that’s definitely a first. I was born in Exeter, my parents have lived in Exeter most of their lives, my dad works in the police force and was involved in the fire so it has a personal tie.”

The original was sold for £310, with an accompanying painting by Sara of Cathedral Yard selling for £320. Combined with donations from the 13 law firms for involvement in the painting, and the sale of limited edition prints, £2,620 was raised.

The money will go to the Devon Community Foundation for the cultural tribute, following the fire that destroyed the Royal Clarence Hotel last October.

Andy Towers of PSG, which provides conveyancing search services to legal firms across the region, said: “We’re thrilled that so many of Exeter’s legal firms have helped support a lasting legacy following the terrible fire in Cathedral Yard.

“I’m sure the cultural tribute will be a fitting tribute to remember what happened but also a positive statement about the future of the wonderful city of Exeter.”

The painting depicts a ‘day in the life’ of the area, traditionally the city’s legal hub adjoining Cathedral Yard. It features individual solicitors and colleagues from legal firms who have donated money – Browne Jacobson, Crosse and Crosse, Dunn and Baker, Everys, Foot Anstey, Ford Simey, Gilbert Stephens, Kitsons, Magdalen Chambers, Michelmores, Morgan and Pope, Stephens Scown and WBW Solicitors.

The solicitors and barristers are shown enjoying their hobbles and interests like surfing, playing golf, supporting Exeter Chiefs, horse riding, running and singing.

Scott Walker, of Devon Community Foundation, said: “The generosity of the Exeter community continues and this event was a very fitting way to draw to a close the Exeter Historic Fire Appeal.

“I would like to thank PSG, the Exeter Legal community and the winning auction bidders for their generosity. The money raised will enable us to carry out the community’s wishes, to use the remaining money to creating a culture tribute that recognises the historical importance of the buildings lost.”

The Fire Fund, administrated by Devon Community Foundation, has already raised over £20,000 and given grants to staff and small businesses affected by the fire. With the Fire Fund now coming to a close, money raised by the Southernhay Life campaign will go towards the creation of a cultural tribute, after a public vote run by the Foundation.

Fixing or Failing

A Review of the key points in the Government’s White Paper:
“Fixing our broken housing market.”

In the UK today there is a growing disparity between house prices and income.  This disparity has in turn to a doubling of the population living in the private rented sector since 2000. Teresa May’s Government signposted the solution as providing more homes which in turn it was said will lead to a reduction in the cost of renting. In February 2017 the Government issued a white paper with the intention of addressing the increasing disparity.

The main question to be addressed is what is causing the lack of new housing being brought forward in the UK today.  Government figures show that over 40% of local planning authorities (LPA’s) do not have a plan to provide sufficient housing that meets the projected growth in number of households within their area.  Developers claim that they cannot build these homes because LPA’s have restrictive planning policies that inhibit development.  Both sides of the argument blame the other but is it that simple?  Probably not.

Since March 2012 when the bombshell that was the National Planning Policy Framework (NPPF) was dropped developers have been able to point to paragraph 49 of the NPPF which states that:

“49. Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.”

So where an LPA cannot demonstrate an up to date five-year housing land supply, policies intended to control such development can be said to be out of date, even if that particular local policy has only been implemented in the very recent past.  As the developers state, without conflict with policy development should be permitted “unless other material considerations” dictate otherwise.  This has lead to a number of planning applications in areas defined in Local Plans as unsuitable but which represent prime locations for development.  So why have the floodgates not opened and a plethora of new houses been provided?  Perhaps, because the problem is not that simple.

Even if permission is granted it does not ensure that the development will then come forward promptly or even at all.  The annual completions versus permissions graph found on page 13 of the White Paper shows the increasing gap between permissions granted and those actually completed from a low in 2009-10 growing year on year from just over 150,000 to over 250,000 in 2015-16.  Comparatively, completions have only risen from just over 100,000 to just over 150,000 in that same period.  This is echoed in the July 2016 Government figures, which showed that while there were 684,000 homes with detailed planning permission granted, building work had started on just 349,000 homes.

Many reasons are put forward by all sides for this; developers point to onerous pre-conditions while LPA’s point to “land banking” of such permissions by developers while the market is stagnant.  The simple truth is probably that a number of reasons exist for the failure to bring forward and develop sites.  There are probably almost as many reasons for the failure of current housing policies as there are sites!

Something had to be done, on that almost all sides were agreed and so the Government having consulted has now brought forward the White Paper, “Fixing the broken Housing Market, February 2017, which contains a number of proposals to ‘fix’ the problem.  These proposals have been grouped into four headings or ‘steps’:

Step 1: Planning for the right homes in the right places.

Step 2: Building homes faster.

Step 3: Diversifying the market.

Step 4: Helping people now.

[Below I have raised some of the topics covered by each of these ‘steps’ but these notes reflect only a selection of the issues raised and are not intended to be exhaustive.]

 

Step 1: Planning for the right homes in the right places.

The Government has realised that as a result of paragraph 49 (see above) development in many areas is coming forward in locations that are not desirable to, either LPA’s, or the local population or ‘neighbourhood’.  This has to be tempered by the undeniable argument that more housing is required in most areas.  It is often said that the age of “N.I.M.B.Y.” (Not in my back yard), has been replaced by “B.A.N.A.N.A.” (Build absolutely nothing, anywhere, near anyone).  This stance of no development simply does not provide the homes the Nation requires for the future.

Since the 1970’s there have been on average 160,000 new homes per year but the consensus now is that we need between 225,000 and 275,000 new homes per year to keep up with population growth and to start to tackle the deficit created by years of under supply.

The argument that there is no space or that the country is “full” is simply not true. It is estimated that only 11% of England has been built on.

So we need new homes but we need them in the right places.  The White Paper attempts to tackle this issue in the following ways.

Plans & Neighbourhoods

In the White Paper the Government proposes to ensure that all LPA’s have up to date plans by enacting a requirement that all Local Plans be reviewed “at least once every five years.” Now this seems sensible but what will constitute a “review”? Does this mean an in depth review of all policies within a Local Plan or only those that have been called into question.  In the White Paper it states:

An authority will need to update their plan if their existing housing target can no longer be justified against their objectively assessed housing requirement, unless they have agreed a departure from the standard methodology with the Planning Inspectorate.”

However further on in the document it states that:

“1.13 The Government will, therefore, consult on options for introducing a standardised approach to assessing housing requirements. We will publish this consultation at the earliest opportunity this year, with the outcome reflected in changes to the National Planning Policy Framework.”

So any LPA currently under achieving in this area would be well advised to await developments as the goal posts in this area are clearly under review if not actually moving.

The White Paper also intends to make Local Plans easier to produce.  What the text actually says is that while LPA’s should ensure that all of their area is covered by a plan, Government intends to remove the requirement that this should be under a single plan.  Following the proposals in the Neighbourhood Planning Bill it would seem that the intention is that a single LPA could have a series of Local Plans covering different areas.

How this will work in practice remains to be seen.  Clearly areas set within the open countryside and those with limited Urban development may find it easier to “go it alone” than await input from the towns and cities where development issues maybe more pronounced.  Will that mean that there will be a race to produce such plans and thereby not be left with the burden of undesirable development? Time will tell.

Under the heading “Making enough land available in the right places” the White Paper attempts to deal with the biggest planning issue in modern times.  However the proposals contained within it are somewhat vague. They expect LPA’s to have a strategy to maximise the use of suitable land including re-utilising brownfield land placing more homes on public sector land, but these aims seem merely to reflect that which is already largely contained within the NPPF.  It continues with a stated aim of supporting small and medium sized sites especially within the rural community but again this merely echoes the main thrust of the NPPF for sustainable development.  Green belt protection is echoed and so is the requirement for neighbourhoods to have a greater say through neighbourhood plans.  Since over 270 neighbourhood plans have come into force since 2012 this is hardly ‘news’ or indeed a new solution to the existing problem.

Perhaps the only real development seems to be a wish to use land more efficiently.  As the White Paper states:

“1.51 Not all development makes good use of land, especially in areas where demand is high and available land is limited. London, for example, is a relatively low-density city especially in its suburbs. When people picture high-density housing, they tend to think of unattractive tower blocks, but some of the most desirable places to live in the capital are in areas of higher density mansion blocks, mews houses and terraced streets.” 

Whether this will represent an appropriate approach in more rural and regional centres is unclear.

In dealing with the possible biggest issue contained within the White Paper it appears that at present the issue is neither dealt with nor ignored.  The identification of the problem has occurred sometime ago the issue has always been ‘what is the solution’.

[The White Paper also states under this section that the Land Registry also intends to achieve comprehensive land registration by 2030.  One suspects that the Lands Tribunal will be busy for some years to come.]

 

Step 2: Building homes faster.

Under this section the White Paper does contain some distinct proposals.

Firstly it is proposed that the Government will amend the NPPF to give local authorities the opportunity to have their housing land supply (HLS) agreed on an annual basis, and then fixed for a one-year period. This is a positive and useful step for all concerned in housing supply.  Too often the failure of one scheme or a large windfall of housing can wrong foot either a developer or LPA at the last moment.  This leads to considerable indecision and a waste of costs on all sides.  Fixing the HLS for the year will at least provide all parties with a degree of certainty that can enable proper consideration of emerging sites.

Also where the White Paper clarifies and endorses the Written Ministerial Statement of 12th December 2016, that “where communities plan for housing through a neighbourhood plan, these plans should not be deemed out-of-date unless there is a significant lack of land supply for housing in the wider local authority area.”  Thus those areas that provide more than their fair share of new homes should not be penalised for failures of neighbouring areas.

In terms of the costs of planning there is definitely a sting in the new White Paper.  LPA’s will now be able to increase their fees by 20% from July 2017 if they commit to invest the additional fee income in their planning departments. The Government may also allow an increase of a further 20% for those authorities who are delivering the homes their communities need.  By which it is assumed that those LPA’s that have a 5 year HLS may be allowed to increase their charges by 40%!  Certainly the White Paper is welcome news for many beleaguered LPA planning departments.

Also the hitherto free access to planning appeals may be removed. The Government intends to consult on introducing a fee for making a planning appeal. One option being proposed would be for the fee to be capped, for example at a maximum of £2,000 for the most expensive route (full inquiry). All fees could be refunded in certain circumstances, such as when an appeal is successful, and there could be lower fees for less complex cases.

The White Paper also seeks to tackle the delay in planning permissions being implemented due to onerous pre-commencement conditions.  It suggests that in future pre-commencement conditions can only be used with the agreement of the applicant.  This seems to suggest that unless such a condition is being proffered by the developer such conditions are unlikely to be able to be applied by LPA’s.

The Government through the White Paper will also seek to simplify obligations under the Community Infrastructure Levy (or CIL as it is more commonly known).  What these ‘reforms’ are to be we are not told but apparently an announcement will be made in the Autumn Budget 2017.

Perhaps the biggest change to the forward delivery of housing is contained within the sections on “Sharpening local authority tools to speed up the building of homes” (para.s 2.39-2.46) and the ‘Housing delivery test’ (para.s 2.47-2.51).

Under the first of these, (the LPA’s tools), the Government intends to amend national planning policy to encourage LPA’s to consider how realistic it is that a site will be developed, when actually deciding whether to grant planning permission for housing development. This will include whether an applicant’s track record of delivering previous, similar housing schemes and can be taken into account by LPA’s when determining future planning applications.

Perhaps more importantly to developers is the intention contained in para. 2.41 which states:

“We are considering the implications of amending national planning policy to encourage local authorities to shorten the timescales for developers to implement a permission for housing development from the default period of three years to two years, except where a shorter timescale could hinder the viability or deliverability of a scheme.”

Clearly in this case the devil will be in the detail.  What would constitute ‘implementation’ would have to be considered.  At present very little is required to ‘implement’ a planning permission but should such ‘implementation’ be taken to include the required infrastructure for example, this will undoubtedly cause a rethink on certain projects.  It may well be that the get out clause of avoiding such shortened timescales under the heading of ‘viability’ may be a well trodden path.

The White Paper also proposes a “Housing delivery test.” This will be the developers response to the ‘improved’ powers of the LPA detailed above.  The test is intended to assess whether the number of homes being built in any particular area is below target.  If the numbers do fall below such a target the test will aim to establish the reasons why, and where necessary trigger policy responses that will ensure that further land comes forward.

Where under-delivery has been identified, the Government proposes a tiered approach to addressing the situation that would be set out in national policy and guidance, starting with an analysis of the causes for the delivery failure so that targeted action can be taken.  The proposed test is as follows:

 

  • “From November 2017, if delivery of housing falls below 95% of the authority’s annual housing requirement, we propose that the local authority should publish an action plan, setting out its understanding of the key reasons for the situation and the actions that it and other parties need to take to get home-building back on track. 
  • From November 2017, if delivery of housing falls below 85% of the housing requirement, authorities would in addition be expected to plan for a 20% buffer on their five-year land supply, if they have not already done so.
  • From November 2018, if delivery of housing falls below 25% of the housing requirement, the presumption in favour of sustainable development in the National Planning Policy Framework would apply automatically (by virtue of relevant planning policies being deemed out of date), which places additional emphasis on the need for planning permission to be granted unless there are strong reasons not to.
  • From November 2019, if delivery falls below 45% the presumption would apply.
  • From November 2020, if delivery falls below 65% the presumption would apply.”

The effect of this ‘test’ would be to require the 20% buffer only where the level provided falls below 85% of the requirement by 2017 so only those with less than 4 years and 3 months housing land supply would be caught.

Further the provision of section 49 of the NPPF (see above) would only apply to those who have less than 15 months supply from November 2018 rising to 27 months, (2 years 3 months), in 2019 and 39 months (3 years 3 months) in 2020.  It would seem that only those LPA’s who are seriously underachieving will be caught out.  Undoubtedly the reason for this approach is to ensure that development comes forward in line with agreed Local Policy unless there is a considerable local shortfall in housing land supply.

Overall the proposed changes seem to be a mix of developing sustainable targets supported by local policy and then supporting those policies through the planning system.  Where LPA’s are falling woefully short of housing supply the proposed changes will promote almost any development, anywhere.  Therefore it is beholdent to LPA’s to ensure robust housing land supply numbers supported by up to date policies.  In return the Government will then seek to ensure that those policies are respected and prevent the current ebb and flow of unsupported sites as developments come forward or are discarded.

 

Step 3: Diversifying the market.

The main thrust of this section of the White Paper is to encourage a greater diversity of house builders.  The Government is concerned that small builders have been declining and were hit hard by the recent recession, (the number of homes registered by small builders is down from 44,000 in 2007 to 18,000 in 2015).  To facilitate this diversity the Government launched the £3 billion Home Building Fund on 3rd October 2016, and continues the Housing Growth Partnership with Lloyds Banking Group. Other intentions are to support custom-build homes and bringing in new contractors through the Accelerated Construction programme.

The White Paper also seeks to support housing associations and local authorities to build more homes while also ensuring that the public sector plays its part. This will include changing the NPPF so that LPAs know they should plan proactively for Build to Rent where there is a need, and to make it easier for Build to Rent developers to offer affordable private rental homes instead of other types of affordable housing.

The Government also wishes to provide family-friendly tenancies of three or more years are available for those tenants that want them.

In recent times Housing Associations have achieved considerable success with 193,000 homes being built between 2011-15 under the ‘Affordable Homes Programme’.  This represented 23,000 homes above target.  To support housing associations to build more, the Government are planning to set out a rent policy for social housing landlords (housing associations and local authority landlords) for the period beyond 2020 to help them to borrow against their future income.  The Government also has confirmed that the 1% rent reduction will remain in place in the period up to 2020.

The White Paper also seeks to put social housing regulation on a more independent footing. The intention is to make the Social Housing Regulator a standalone body, (as recommended by the Tailored Review of the Homes and Communities Agency).  They, the Government, have also reiterated their position that housing associations belong in the private sector and they will be bringing the necessary deregulatory measures to allow them to be classified as private sector bodies.

LPA’s will also be encouraged to build on their own land.  The White Paper states that tailored support packages will be offered to Councils who want to build on their own land, through the new Accelerated Construction programme. They have also announced a new £45m Local Authority Land Release fund for land remediation and small-scale infrastructure, with priority given to innovative delivery models as well as areas of high housing need.

Whether these plans to diversify the type of house builder will correlate to an actual increase in the number of houses being built will be the acid test.

[One final point under this section is that the Homes and Communities Agency will be relaunched as Homes England with a clear, unifying purpose: ‘To make a home within reach for everyone’. What effect this change of name will achieve remains to be seen].

 

Step 4: Helping people now.

The Government and indeed everyone is aware that stepping onto the home ownership ladder is becoming increasingly difficult with the gap between the average wage and the average house price ever increasing.  Within the White Paper a number of measures are set out to address this issue and some of these are highlighted below:

Saving for a deposit 

In 2015 the Government introduced the Help to Buy ISA to boost the savings of prospective first-time buyers. It offers a 25% savings bonus, up to a maximum of £3,000, towards the purchase of a first home. More than 720,000 accounts have been opened to date and over 38,000 bonuses worth £20.5 million have been paid to September 2016, supporting over 27,000 home purchases. In April 2017, the Government intends to introduce the Lifetime ISA. This will support younger adults to save flexibly for the long term, giving them a 25% bonus on up to £4,000 of savings a year. Savings and the bonus can be put towards the purchase of a first home, or withdrawn once they reach the age of 60.

Help to Buy: Equity Loan 

The help to Buy Equity Loan was originally established in 2013 to support homebuyers and boost housing supply after the recession. Government has committed a further £8.6 billion for the scheme to 2021. 

Starter Homes

Starter homes will be targeted at first time buyers who would otherwise be priced out of the market. The NPPF will make it clear that starter homes, like shared ownership homes, should only be available to households that need them most, (i.e. those with an income of less than £80,000 (£90,000 for London)). Eligible first time buyers will also be required to have a mortgage in order to buy a starter home which is intended to stop cash buyers.  It is also intended that there will be a 15 year repayment period for a starter home so if the property is sold on to a new owner within this period, some, or all, of the discount will be repaid. This, along with the mortgage requirement, will reduce the risk of speculative investors buying into the market and thus ensure there will be more affordable homes available to those that need them whilst allowing home owners to move onwards when the time is right

There is also a stated intention to amend the NPPF to introduce a clear policy expectation that housing sites should deliver a minimum of 10% affordable home ownership units. It will be for local areas to work with developers to agree an appropriate level of delivery of starter homes, alongside other affordable home ownership and rented tenures.

The White Paper also seeks to change the NPPF so as to allow more brownfield land to be released for developments especially those with a higher proportion of starter homes by:

“a) bringing forward more vacant, unviable and unused employment land by introducing new rules for retaining employment land. We will make it clear that any proposal on employment land that has been vacant, unused or unviable for a period of five years, and is not a strategic employment site, should be considered favourably for starter home-led development.

b) extending the current starter home exception site policy to include other forms of underused brownfield land – such as leisure centres and retail uses – while retaining limited grounds for refusal;

c) allowing development on brownfield land in the Green Belt, but only where it contributes to the delivery of starter homes and there is no substantial harm to the openness of the Green Belt.”

The White Paper also seeks to clarify that starter homes, with appropriate local connection tests, can be acceptable on rural exception sites. This will be seen as a welcome exception in many rural areas where the lack of low cost and affordable housing is altering the demographic of rural inhabitants so that the available work force in some areas is critically low.

Other measures proposed will include:

  • Extending Right to Buy discounts to housing association tenants.
  • New homes for Shared Ownership, Affordable Rent and Rent to Buy
  • A fairer deal for renters and leaseholders
  • Reviewing Leasehold.

Finally the White Paper supports the Local authorities through the existing powers and incentives to tackle empty homes. Through the New Homes Bonus Councils can earn the same financial reward for bringing an empty home back into use as building a new one. They also have flexibility to impose a council tax premium of up to 50% (on top of the council tax bill), on properties that have been empty and substantially unfurnished for more than two years.

 

Conclusion

The contents of the White Paper, if brought into legislation will have some profound effects on the way both developers and LPA’s view the future provision of housing.  While undoubtedly the current system was failing in some regards many of the proposed changes are bold new initiatives that have yet to be tested in reality.  Perhaps the ‘hydra’ or many headed, approach to tackling this issue was always going to be complex to reflect the numerous problems facing both industry and local government.

Is the White Paper a fix or a fail? The truth is probably a bit of both.  Some of the steps to release land and to simplify development will work but whether the intended flood of new homes will be facilitated by these measures only time will tell.  Certainly some of the proposed changes within the White Paper will highlight where the failure to provide new homes is occurring.  However just as some problems will be solved by these initiatives others will arise.  Overall the White Paper does address some of the issues but whether those solutions prove to be anything more than a sticking plaster will have to be reviewed through hindsight. Perhaps the truth is that we simply cannot fail to fix this increasing problem.

[Any errors factual, grammatical or typographical remain the fault of the author)]

Gavin Collett

Magdalen Chambers

3rd April 2017

[Any issues or question arising please do not hesitate to contact the author through his Chambers (01392) 208484].