Questions and answers

Safeguarding means finding a way to ensure that council homes can’t be sold or redeveloped — without the residents’ informed consent.  Both in Hammersmith & Fulham and more widely there are examples of schemes where redevelopment has gone ahead without sufficient safeguards for the position of the tenants and leaseholders affected and without proper consultation.

Housing transfer as recommended by the former residents’ housing commission would have put safeguarding in the hands of residents themselves.  But as that’s no longer an option.  The DCHU is reviewing other forms of safeguarding to protect residents’ homes and their interests.

We are three of the original members of the H&F Residents’ Housing Commission.  We also served on the Residents’ Housing Advisory Group, which followed the commission, and were involved in the shadow board of the proposed ‘community gateway’
housing organisation.  In other words, the three of us have been closely involved right from the beginning of this process to protect your homes.

Shirley is a longstanding Hammersmith & Fulham resident, community activist and has a strong interest in this subject.  Peter’s background is in supporting residents affected by major housing programmes, while Anthony has a lifetime of experience around the financial and legal structures that support council housing.  So, we think that between us we have a good grasp of the relevant issues.

We are working independently of the council, but liaise closely with officers and with the council’s legal team on safeguarding issues that date back to the residents’ housing commission.

We have been asked to find a way to safeguard residents’ interests.  But, as the DCHU we have no power to implement anything.  The homes are in the council’s ownership and the council, in consultation with residents, will decide what, if anything, to implement.

Meanwhile, the DCHU has the time, space and expertise to explore the complex issues around safeguarding homes and to make recommendations for the council to pursue.  It might be best to see us as an independent think tank, looking at the implications for residents of different safeguarding options.

We will issue our report to H&F Council — and if we come up with an acceptable safeguarding plan, it would be for the council working with residents to implement it.

Our resident member is not paid (she has worked without pay throughout this process) and the two independent members are paid a retainer/day rate plus travel expenses.

We are looking at a range of options, none of which involve a formal housing transfer.  Some are untried and some may be less effective than others.

All these options involve putting a legal safeguarding mechanism in place that residents can rely on if any transfers of ownership or loss of rights are made in future.  The mechanisms range from giving a resident-controlled body with a legal interest in the land through to contractual safeguards that would put more power in residents’ hands in any discussions, for example, about sale or redevelopment.

The council’s cabinet accepted our proposals in February 2018 and is embarking on a programme of consultation and further development through 2018.  During and after the consultation, some further details of the proposals will be developed.

Yes. By November, you’ll be able to sign up on our website to get regular updates on what we’re doing and we’ll be organising consultation events later in 2017.  In the meantime we’ll report on our progress to resident representatives at their regular housing meetings.

There are four main elements to the model we propose:

i.  The council’s policy

The council will agree and implement a policy based explicitly on the principle that residents of council housing are entitled to live in their homes without fear of unwanted redevelopment.  The policy will commit the council to following best practice in the event of any proposal to regenerate or redevelop any of its housing.

As part of the Council’s general commitment (to all residents), which will cover matters like information, involvement in decisions and consultation, the policy will also require the Council to issue a set of specific commitments to any residents affected by a specific regeneration/redevelopment proposal.  Among other matters, this will detail how those residents’ interests will be protected in the event of implementation.

ii.  A restriction on title

The council will register a restriction on title on all of its housing at the Land Registry, with the effect that none of its housing can be disposed of unless the council’s solicitor certifies that the policy (both general and specific commitments) has been complied with.

iii.  The principle of legitimate expectation

Once the policy is in place, residents will be able to rely on the (legal) principle of legitimate expectation, meaning that they can legitimately expect the council to honour its policy commitments.  Should the council not do so, residents will be able to challenge it in the courts.

iv.  An advisory body

Responsibility for defining best practice will rest with an advisory body.  The advisory body will also have a general remit to oversee and monitor the operation of the policy.

The advisory body’s composition is yet to be agreed, but we think it should include some residents’ representatives and some independents with relevant experience nominated by, for example, the Joseph Rowntree Foundation or the Chartered Institute of Housing.

Further detail on all these matters is available in our report of January 2018.

All the elements of our proposals work together to create a legal framework that will be binding on future administrations at the council.  We have taken advice from a senior barrister on this and have seen relevant case law to reassure us that, done properly, the development and implementation of the council’s policy as described in our report will give rise to a legitimate expectation by residents that the council will keep its promise.  If a future administration wanted to bypass or amend the policy, they could only do so after a full and transparent consultation.  Otherwise they would be acting unreasonably, and the principle of legitimate expectation would make the policy binding.

The legal ownership of land is established through “title” of the land being in the hands of the owner.  Title (ownership) is registered with a government agency called the Land Registry.  A restriction on title is, essentially, a bar on a change in property ownership unless certain conditions are met.

For the purposes of the policy we propose, it is envisaged that a restriction would be registered on the titles of all of the council’s housing estates and potentially of all its street and ‘pepper potted’ properties.  For the restriction to be lifted, the council’s solicitor would have to certify that the council had complied with its policy — meaning it had followed approved best practice.

More detailed proposals for the advisory body through the spring of 2018.  At the moment, we see the body being made responsible for the following types of function:

• Generally, monitoring the operation of the policy having regard to residents’ best interests
• Developing, updating and, as necessary, interpreting ‘best practice’ guidance
• Approving exceptions to ‘best practice’
• Affirming that procedural and substantive commitments by the council have been met

It is important that in the exercise of these functions the advisory body is not granted powers that could fetter the council’s discretion; nonetheless the advisory body’s role needs to be ‘locked in’ to the operation so that it cannot be bypassed.

There may be scope to add to the advisory body’s functions in safeguarding the best interests of residents of council housing, for example as a scrutiny or watchdog body with a wider remit.

DCHU’s role has been to find a way to protect all residents living on an estate or neighbourhood from unwanted redevelopment proposals.  Resident leaseholders are obviously a part of that general group.  While the specific mechanism we have identified focusses on matters connected with the council’s legal ownership of the land, leaseholders surrounding protected tenants would still benefit from our proposals at the practical level.  We would suggest that consultation about any redevelopment proposal will apply to all residents on the estates.

The Mayor of London’s Good Practice Guide to Estate Regeneration has further discussion on the position of leaseholders in regeneration schemes.