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.

The proposed Defend Council Homes policy creates a series of obligations on the council that are supported by three important legal safeguards.  We refer to these as the ‘triple-lock’ and you can find details about them on this website.  Together, these measures give residents real comfort that in the future, the council will do what the policy requires.  If the council wants to change the policy, it can only do so after full consultation with residents.

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 issued our report and recommendations on the way forward to H&F council in 2018.  The council agreed our proposals, and this led to the process of development of the Defend Council Homes policy including its legal safeguards.

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

We have reviewed a wide range of options to safeguard residents’ homes, including a community-based housing company, a community land trust, changes to the tenancy agreement and a new local housing policy: some of these ideas have been tried elsewhere, others have not been tried before.

Having reviewed all the options we believe that the Defend Council Homes policy with its ‘triple-lock’ is the best way forward in protecting residents’ interests.

The policy goes out to consultation with residents in September 2020 and, subject to the response from residents, will be adopted by the council early in 2021.  Residents will benefit from the provisions of the policy immediately after its adoption by the council.

We have worked with small groups of residents, attended neighbourhood roadshows, and provided updates to residents’ representatives at their regular meetings with the council.

All housing residents have the opportunity to review and comment on the draft policy before their responses are considered by the council in early 2021.

Once implemented by the council, the provisions of the Defend Council Homes Policy will give residents that assurance. The policy has three main aims:

• To make sure residents are fully involved from the outset in any redevelopment proposals that are likely to affect their homes.
• To commit the council to meet the most up-to-date standards of good practice when consulting residents about any redevelopment proposals and when carrying out any redevelopment that affects residents.
• To give residents effective protection against the council failing to meet its commitments and obligations.

The council’s obligations under the policy will be to:

• Fully involve residents in any redevelopment proposal using the most up-to date standards of good practice.
• Ensure that a residents’ steering group is set up for each redevelopment proposal.
• Provide each resident affected with full information at every stage if a redevelopment proposal goes ahead, explaining what they can expect from the council.
• Provide residents with a formal procedure for complaining to the council if they believe that the policy is not being or has not been complied with; or that the policy should be brought into operation with respect to a redevelopment proposal significantly affecting their home.

The policy is underpinned by a ‘triple-lock’ of legal safeguards:

• The first is that the council will make binding commitments to residents under the terms of the policy through a legal principle known as legitimate expectation.  Residents can rely on this principle and take action against the council in the courts where the council is not following its own policy.
• The second is that the policy will require the council to register a restriction on title at the land registry.  This means it has to prove it has complied fully with the policy before any of its freehold housing and property can be sold as part of any redevelopment.
• The third lock is an appeal mechanism built in for residents where they think either the council hasn’t triggered the policy when it should have done; or hasn’t fully complied with the policy.  If residents are not happy with the council’s first response, they will be able to make a compliance referral to the council’s monitoring officer.

Once the policy is in force, these obligations on the council and the legal safeguards for residents will continue into the future and the policy can only be altered or withdrawn after a full consultation with residents under relevant housing law.

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 monitoring officer would have to approve the issuing of a certificate that states that the council has complied with its policy — meaning it had followed approved good practice.

Every local authority is required by law to appoint a monitoring officer.  This is a senior post whose job it is, among other things, to report when the council is in danger of acting illegally.  For the Defend Council Homes policy – and in addition to their role described in the answer above – the monitoring officer will have to consider compliance appeals and warn the council if it is in danger of not complying with its obligations under the policy.

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.