In this ebriefing, we will give a short summary of the principal differences from the first lockdown in key areas for the housing sector. As you will see from our note this is a fast-changing area so keep in touch with us by:
Employment
Lockdown #2 brings us an extended Coronavirus Job Retention Scheme (CJRS) and potentially shielding by the back door but with some differences. As expected, inconsistencies between announcements and guidance persist and it is our job to help you navigate through them. The position is changing on a daily basis so the following summary reflects the position at 17:00 on 5 November 2020.
Regulatory
It is clear that providers will be permitted to complete repairs and safety-related compliance checks and should take a risk-based approach to balance any competing Covid-19 and safety risks. In all cases, providers will need to ensure that they comply with the most recent Government guidance, conduct a careful risk assessment taking into account the lessons learned earlier in the pandemic and keep careful records of the decisions made and the actions taken to ensure compliance.
Providers of supported housing will need to consider whether to restrict access, close communal areas and how they would respond in the event of a major outbreak.
Providers should also anticipate and be ready to address a reduced level of cooperation from tenants, both in relation to those who refuse access for safety checks and those who refuse to comply with Covid-19 restrictions and safety measures. One key response will be to ensure that all measures taken are clearly and effectively communicated.
There is also likely to be an increased risk of employee fatigue and stress which, combined with absence due to Covid-19, may also impact in terms of service delivery.
Housing litigation
A letter sent by the Lord Chancellor to bailiffs on 5 November 2020 makes clear that bailiffs cannot proceed with any residential property evictions during lockdown 2 for public safety reasons save where they fall into a list of exclusions which include:
There is also an intention to introduce an exemption for cases with “extreme pre-covid rent arrears”.
We presume the “Christmas truce” dates 11 December to 11 January still apply to all cases.
Property
For RP’s development and sales teams, there is welcome confirmation from Robert Jenrick that house moves can still take place and removals firms and estate agents can operate.
Funding
We have recently seen that Moody’s, the credit rating agency, has opted to affirm all ratings for housing association issuers despite downgrading its ratings in other sectors. This is due to the sector benefitting from expenditure flexibility allowing for reductions in costs to respond to poorer economic and financial conditions. This, along with the low gilt rates, may provide an opportunity for housing associations to borrow from the bond markets securing low rate borrowings whether via own name issuances, retained bond issuances, private placements or via aggregators such as bLEND Funding Plc. It is worth remembering that even if the cash is not required now, deferred deals are possible, allowing housing associations to take advantage of the low rates but avoid the carry costs.
Construction
Government is still encouraging construction to continue, including work in people’s homes. This approach is likely to impact any claims for force majeure or extensions of time, although these will clearly depend on the terms of the contract. Employers and contractors need to be aware of and working to the latest version of the CLC Site Operating Procedures, which is now on version 6.
Procurement
There is no equivalent (yet) for this lockdown of Procurement Policy Note 02/20 encouraging contracting authorities to provide support to their suppliers and contractors. Instead, all such support should have been phased out by the end of October, in line with PPN 04/20. However, the speed at which the country moved into this lockdown may have taken the Crown Commercial Service by surprise so this may be “in the pipeline”. This will come as little comfort to those suppliers who relied on support from their public sector customers to get them through the previous lockdown. Despite this lack of guidance, contracting authorities should still be approaching their suppliers and discussing their financial position and ability to continue to deliver under their contracts. These discussions should include what support, if any, the supplier may need (eg. shorter payment cycles) and which contracting authority may be prepared to provide.
Governance
Flexibility over annual returns and accounts - The FCA had previously explained that, while they ask societies to take steps to submit their returns to them as soon as reasonably practicable, it has confirmed that it would not take any action before 31 October 2020 to follow-up on any delayed submission where the delay is of 3 months or less. The FCA has recently issued further guidance that, for annual returns and accounts due for submission by 30 April 2021, they will not take any action to follow-up on delayed submissions, where the delay is 3 months or less.
Savings provisions for General Meetings – The measures allowing General Meetings to be held on a virtual basis have been extended until 30 December 2020. Sadly, they do not extend the deadlines where AGMs must be held by 30 September but they do enable those organisations who have not changed their rules to incorporate the use of virtual meetings until the end of the calendar year. More information can be found here.
For more information
For further help contact your usual Anthony Collins Solicitors contact or Jonathan Cox.
On 1 December 2020 the Court of Appeal handed down judgment in Pimlett v Curo Places Limited EWCA Civ 1621 where prior judgments in the First-tier Tribunal and the Upper Tribunal were overturned.
For part 3 in this series of short podcasts, Chris Lloyd-Smith interviews senior associate Madhur Sharma on how she has been coping during these unprecedented times.
On 26 November 2020 further changes to the 'Building Regulations: Fire safety - Approved Document B' will take effect.
Last week, the NHF published its final version of its new Code of Governance and made some important changes from the previous draft that will impact on those housing associations looking to adopt it.
As the end of 2020 beckons, we take a look at what progress the Sterling market has made in its preparations for the end of the London Interbank Offered Rate (LIBOR) on 31 December 2021.
Finally, there is a glimmer of hope that perhaps the Covid-19 pandemic could be reaching its end.
For part 2 in this series of short podcasts, Chris Lloyd-Smith interviews senior associate Lisa Whitehouse on how she has been coping during these unprecedented times.
Delayed since Spring 2020 as the Government tackled the Covid-19 crisis, Tuesday 17 November saw the publication of the Social Housing White Paper, setting out the future regulation of the sector
In this ebriefing, we examine how the duty holder regime will apply to social housing providers with existing HRRBs in their housing stock.
Following Katherine's "heads up" last week, the Government has now confirmed that for claim periods post 1 December, employers will not be able to claim for employees who are serving their notice
To receive invitations to our events, as well as information and articles on legal issues and sector developments that are of interest to you, please sign up to Newsroom.