Legislating for adequacy? The WG White Paper Consultation

I need to say upfront that I’m not a fan of high level thinking about rights and adequacy.  It’s often pretty banal stuff and leads you into over-promising.  The controversy which has arisen over the WG consultation on the White Paper on “securing a path towards adequate housing, including fair rents and affordability” – and, to be frank, the contortions that the WG have to go through to get anything sensible out of the concept of “adequate housing” – tend to validate my preconception.  That is probably unfair, but the “Back the Bill” team issued a press release following its publication on 24th October which pithily summarises their position:

The publication of today’s White Paper on securing a path towards adequate housing contains some positive steps forward. However, it falls short of fundamental change and ambition which can only be delivered through hard-wiring a legal commitment to providing housing as a human right.  

The current housing emergency – with record numbers in temporary accommodation, on social housing waiting lists and in poor quality housing – necessitates a radical solution. We believe that a rights-based approach, underpinned by legislation, would act as a catalyst for positive change, bringing about additional resource and greater accountability. 

Legislating for vague commitments tends to be symbolic in-name-only legislation; and rights based legislation creates expectations which are unlikely to be satisfied (or downgraded, as so often happens in the face of housing crisis/emergency [I’m working on a paper on this at the moment]).

But, the WG have started on this path and they need to work it through.  To my mind, the most important stuff is hidden away at the back about barriers to accessing the PRS and the discussion about rent controls but there is no doubting the serious thought that has gone into adequacy.

Adequate housing

The WG has taken the not unreasonable view that the UN agencies have a workable definition of adequate housing (see para 8) as being seven factors: legal security of tenure; availability of services, materials, facilities and infrastructure; affordability; habitability; accessibility; location; cultural adequacy.  The UN recognises that meeting these factors takes time and they suggest a classic UN formulation of “progressive realisation” of these goals.  All of this is great but, as the WG recognise, these are pretty high level and the individual definitions are themselves pretty vague and require further definition in order to be enforced/enforceable.  That bleeds into a mediation about how they could be monitored in the absence of a robust method of data collection.  In particular in the private rented sector, there is so much that we simply don’t know (more on that below) – as the National Audit Office put it in 2019, interventions are “constrained by a lack of data”.  Where (for me) the discussion comes alive is around the context of Welsh language communities  and differences across Wales.

The controversy comes from the approach at pp 29-37 about whether to legislate for the right to adequate housing.  In a sense, who could be against such legislation? (other than me).  But I have quite a lot of empathy with the rather honest view of the WG that it is “… mindful of the fact that considerable resource would be required to make such legislation, and this could lead to the focus being taken away from the core task of delivering more adequate housing and increasing capacity within the housing sector” (p33).  Further, as they point out, the international evidence does not necessarily suggest that a legislative right has much effect: “These findings serve as a reminder that legislation guaranteeing a right to adequate housing is not a silver bullet” (p37; although they do what I would advise my students not to do and seem to rely on one data source only for this evidence).

The proposal is to use legislation to create a “framework that will drive forward action for delivering adequate housing” (p41); which sounds like more symbolic legislation.  The outcome would be for the WG to publish a housing strategy to support the progressive realisation of the housing adequacy.  The more interesting thing (for lawyers) is the suggestion that there might be a duty on public bodies to have regard to the housing strategy in discharging their housing functions (giving rise to Elkundi-type challenges – links to Nearly Legal).  There is also discussion about information and consultation requirements.

Fair rents

The WG have considered moving towards fair rents or rent control.  There is outstanding work that has been done by the UK Collaborative Centre for Housing Evidence on rent control by fantastic scholars (not referenced by the WG) – see here and here – and they have discussed the current Scottish government proposals here.  The WG regard the first step, however, as being obtaining better data about existing actual (as opposed to advertised) rents, which can then be used to facilitate Rent Officers’ rent determinations and a wider right to challenge rents with final review by the Tribunal (subject to agreement with the LCJ). The idea is for Rent Smart Wales to collect this data and for it to be shared with rent officers, subject to a suitable data sharing agreement.  This isn’t really a half way house to rent control/regulation, but it will provide a pretty valuable data resource for everybody – the WG are alive to the fact that one issue might be that it allows for rent increases as landlords understand that they are undervaluing their properties.

Annual Property Condition Record

There is a proposal for landlords to provide Rent Smart Wales with an annual property condition record about all their rented properties which is effectively a self-certification by way of update on the landlord’s online record.  I suspect that this might be taken as another sign of increased bureaucracy about renting, but I cannot think that it is asking that much.

Barriers to renting

Where the paper is good is in thinking through barriers to renting.  It discusses three issues: rent guarantors; pets; tax advantages to landlords.  The WG recognises that some people with poor credit records have difficulties getting access to private rental properties without onerous conditions.  They suggest that they develop national guidance for rent guarantors to enable a range of people to access a guarantor scheme (including, interestingly, people who are homeless, victims of global conflict, care leavers, and international/domestic students).  In relation to pets, the WG is considering allowing occupiers to cover the cost of an additional insurance premium.  And, on taxation, the WG is considering allowing landlords who buy a property which is then leased to local authorities for people in housing need to be rent at LHA rents to have a refund of their Land Transaction Tax.

Conclusions

You may not agree with the WG’s approach about “adequate housing” – and I suspect few will – but this consultation is further evidence that the WG is establishing itself as a leader among devolved governments in thinking relatively seriously about housing.  In particular, they are thinking seriously about how to bridge the data deficits which exist about private renting and using existing systems to offer some remediation.  It may well be that those existing systems simply don’t have the resources to meet the challenges and one can feel for Rent Smart Wales and local authorities whose pockets are so often picked for these purposes and found to be bare.  The WG seems to recognise that but still relies on them.