Don’t Shoot the Messenger # 8

by Ben Reeve-Lewis

19:35 PM, 30th December 2011
About 9 years ago

Don’t Shoot the Messenger # 8

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Don’t Shoot the Messenger # 8

Don't shoot the messengerWhen a tenant has a beef with their landlord, I’m the guy they go to. My job is to either negotiate or prosecute, depending on the circumstances. This occasional and random series aims to let landlords know the common complaints that are made about them, the laws that cover them and how to deal with it.

“I have served my tenant with a section 21, I sent her to the homelessness unit but they have told her to wait for a possession order”

Oh my word I cant tell you how many times I get complaints from landlords on this one.

As we all know there is no defence to a section 21 claim. Once the fixed term of the Assured Shorthold Tenancy runs out and a section 21 notice has been served a possession order is guaranteed (presuming the paperwork is in order) and comes out in the post without a court hearing.

If the tenant cant defend it what is the point of going the full distance right? And if the tenant is also eligible to be rehoused by the council’s homelessness team (kids, pregnancy, physical or mental health problems usually) then why is a landlord forced through the hoops when the council has to pick her up in the end anyway? Surely they are just being difficult for the sake of it.

Sorry but no they aren’t. the law on homelessness applications is huge and tortuous….I know…..I have it teach it to councils. It is dominated by an ever changing raft of complex case laws and, increasingly these days, human rights challenges to homelessness decisions.

You also need to factor in that the department for Communities and Local Government and the relevant audit teams monitor statistics that are sent to the CLG every single week for scrutiny. They are called ‘P1E’s and are the bane of the homelessness unit manager’s life.

I spent some time as the head of homelessness for West Wiltshire District Council and I had to fill these bloody things in weekly, fortnightly, monthly and quarterly, showing how many people we had picked up, how many we had placed in temporary accommodation and what ethnic background, family status, health problems each of them came with.

All of these results are scrutinized by civil servants looking to jump on your back when you do something you shouldn’t.

The legal bit.

Apart from the very cautious attitude to picking people up there are some very specific laws that the homelessness units use to determine whether someone is legally ‘Homeless’.

If the aren’t legally homeless the council cannot pick them up.

I wont bore you with the full definition, because there are many categories of legal homelessness, not just sleeping on the street, I’ll just examine the ones that relate to our context here.

  • A person is homeless if they have no legal right to occupy a property
  • A person is homeless if they are threatened with homelessness within the next 28 days.

No legal right to occupy

Serving a section 21 notice does not end a tenant’s legal right to occupy. A notice of any kind, and there are many notices for different types of tenancy, not just section 21, is simply the first stage of an eviction process. If a tenant moves out when the notice expires everything is hunky dory but if they don’t, or simply cant for a variety of reasons, then the landlord is obliged by law to get a possession order.

And there is the sticking point for councils, until the possession order is issued the tenant still has a legal right to occupy, therefore they aren’t homeless within the definition of Part VII of the Housing Act 1996, so the council cannot treat them as a homeless case. If they did it would be picked up on the P1Es and the government would jump on the council’s back.

Threatened homeless in the next 28 days.

A notice on it’s own doesn’t make a person threatened with homelessness, a possession order or a warrant of eviction performs that legal function.

If there is a court hearing coming up, then the date of the hearing is not the date a person becomes threatened with homelessness because court cases can be adjourned for a variety of reasons and a tenant could defeat a landlord’s claim in any number of ways, even section 21 claims are not done-deals until possession is granted by the judge.

If a judge issues a possession order they will usually put a date of possession on it, often 28 days, and that is what the council is looking for to fulfill this requirement. Similarly if a landlord already has possession and has gone back for a warrant the council would have to open a case.

Note that they aren’t required by law necessarily to provide temporary accommodation while they are investigating, so for instance if a tenant is threatened homeless within the next 28 days, in other words the landlord has a possession order, the council will open a case and carry out investigations but still leave the tenant in the property while they do so, because, as you should all know, a landlord cant just evict a tenant on a possession order alone, they must first obtain a warrant of eviction.

Temporary accommodation.

Putting people in Bed & Breakfast hotels, hostels or other temporary accommodation, or ‘T.A’ as it is known, costs a fortune and there are obviously limited spaces, so council’s will only do this when absolutely necessary.

My unit in inner London has around 100 homeless applicants every single day through it’s doors on average, they all come with tragic stories and they all want to be re-housed. If we ignored the rules and picked up every case that came through the door we literally wouldn’t last to the end of the week.

We have to say ‘No’ more than we say ‘Yes’, and to do this we need to nit-pick on legal issues and this results in sit-ins and visits from the police. Our security staff wear stab vests, feelings run high in homelessness.

Me being contentious again

Also, forgetting the law for a minute and lets look at what the annoyed landlord is asking a homelessness unit to do.

A landlord lets a property to a tenant, it is a both a business and legal arrangement for which the landlord (in theory) makes a profit, that is why they do it.

If that business arrangement goes wrong, through a nightmare tenant, or the landlord simply has other plans, such as selling the property then why should the council be expected to use public money to bail them out of their problem?

And yet these expectations get thrown at us all the time. When we send the tenants back with the bad news we get angry phone calls from landlords and even illegal evictions.

You will get different approaches in certain cases based on their specific circumstances and the resources available. Rural homelessness units differ from inner city ones, but having said that, although a rural unit will see far fewer people in a week they also have less places to put them so it usually balances out in terms of pressure on the service.

So next time you feel that the council are being obstructive and difficult just for the sake of it, bear in mind that they are trapped between a very strict set of laws and the number of people making homelessness applications.

In an ideal world homelessness units would be able to work more closely with landlords to find common sense solutions, in fact many are but there is a limit to what can be done, for all of the reasons I mention above and with homelessness on the increase (Leeds City Council recently reported a 200% increase in the past 2 years) things will only get worse.


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Comments

20:48 PM, 31st December 2011
About 9 years ago

So Ben accepting all your contentions.
ANY landlord who takes on a tenant who does not qualify for Rent Guarantee Insurance essentially is being used by the govt to provide free accommodation whilst the tortuous eviction process grinds it's way on in the useless county courts.
The eviction process will take many months to eventually occur.
Who is going to pay mortgage payments for the 2 months that potentially the claimant will probably refuse to pass on LHA claimants.
Who is going to restore the landlord's damaged credit rating due to 2 missed mortgage payments.
How is the 2 months of missed LHA payments going to be recovered from a benefit claimant.
Whilst the council is going through verification paperwork that the LHA has not been paid who is going to pay the 3rd mortgage payment?
Who is going to pay the court fees that need to be paid as tenants are advised by council housing oficers such as you to return to the property. 
It is legally indefensible that govt conspires in causing private landlords financial detriment.
Is it any wonder, therefore that increasingly landlords are reusing to take on any LHA claimant or their guarantor that FAILS an RGI check.
This will through the process of unintended consequences cost the councils more as they will have to use expensive B & B as normal tenancies won't be offered by landlords.
Clearly you have to work with the stupid govt figures and regs but I am afraid the councils will be hoisted by their own petards as landlords refuse to take on LHA claimants due to all the difficulties outlined.
I personally have suffered financial loss caused by LHA cliamants to the tune of over £110000.00 plus future capital gains.
Is it any wonder why landlords will not wish to take on such LHA claimants due to the massive financial losses that LHA claimants can cause or even non-LHA claimants working the system to be housed by the council beacuse they would be 'homeless'.
Until the govt wakes up and starts to protect landlords from this homelessness legislation then councils are going to have increasing costs for 'homeless' claimants.

Ben Reeve-Lewis

10:21 AM, 1st January 2012
About 9 years ago

Hi Paul - Happy New Year first of all

3 points jump out at me here.
 
Firstly I wasn’t simply referring to LHA tenants, you don’t need to be on benefits to find yourself homeless, half the people who approach us are working.

 Secondly; it isn’t the law on homelessness that is stupid at all, quite the reverse in fact. The law ensures that people have to qualify for homelessness assistance, not for it to be handed it out as a free gift. I said in my article that if we didn’t filter people in this way and simply picked up everyone who claimed they needed sheltering we ‘Literally’ (and I used that word in the definitive sense) wouldn’t last to the end of the week, not a single week!
 
What is stupid and even mendacious are government policies that drive up homelessness and the steadfast refusal to exercise any joined up thinking in the housing world and just obsess about home ownership whilst denuding the rental sector of affordable homes.
 
Real homelessness is on a massive rise but people outside of housing tend to think of homelessness as street sleeping only which is a tiny proportion of actual homelessness, which provokes an emotional response way beyond the size of the problem. Shapps can spend a night out to show his support but if he really wanted to do it he would do better spending 6 months on a friends settee or having to split his family between friends and relatives for 9 months, or cut back on food and clothing in order to meet scandalous rents. That’s real homelessness and it has been climbing exponentially since this government got into power.
 
The government cut HB with, as the stated the intent, to drive PRS rent levels down to an affordable level but in truth they didn’t really care, they knew that PRS landlords would simply move away from HB tenants, the true aim being cutting the expense, while landlords and tenants picked up the bill.
 
Thirdly; I couldn’t let your comment go about landlords “being used by the govt to provide free accommodation whilst the tortuous eviction process grinds its way on in the useless county courts”.
 
The whole point of my article was to address this common complaint and it just doesn’t wash Paul. Nobody twists a landlords arm when taking on a tenant. If all goes well then it is a mutually reciprocal arrangement, the tenant gets a home the landlord makes a profit from the rent. It is an on-going business contract between 2 parties, just like the one you have with your electricity supplier, your internet provider or your mortgage company.
 
When that relationship sours in some way how does that suddenly become the council’s problem?
 
LHA tenants don’t belong to the council; they aren’t sponsored by the council. LHA is a benefit payment that it is the council’s job to simply assess and pay out.
 
When mortgage companies lend to borrowers who then default on the contract they don’t call the council up and insist that the homelessness unit take the borrower out of the property and solve their problem and yet this is what you are suggesting.
 
I have every sympathy with your complaints about the financial fallout and the effect on your credit rating, I really do but at the bottom line. I have said this so often and really don’t intend to sound dismissive or facetious, this is simply the risks, the headaches and annoyances of being a landlord.
 
I spent 8 years as self-employed freelance trainer of housing law. It pays well and I love doing it but the dangers and annoyances are clients not paying on time and losing your invoices, which gave me 8 years of a financial rollercoaster that culminated in bankruptcy and a broken relationship. A personal tragedy but I accept that those were the risks and conditions of my chosen area of work I don’t think that this should be someone else’s problem.

18:55 PM, 1st January 2012
About 9 years ago

Yes Ben I do agree with your contentions.
Yes in particular taking on a tenant is a commercial decision.
Because of the severe  detriment that may occur to a landlord;  the landlord is left with the only pragmatic choice NOT to take on any tenant or guarantor that fails a RGI check.
Surley if every landlord took this astute and pragmatic choice you would not have anywhere to place your homeless clients.
These are some of the unintended consequences of landlords not being protected from wrongun tenants,  essentially caused by failings in the county court system and the problems you face with DP and your clients.
These are presently intractable problems.
Unfortunately whilst there is a dearth of social housing for all the reasons we have discussed,  we as landlords are not and will not wish to risk their livelihood on tenants who fail to qualify for RGI.
I absolutely agree these are all the 'joys' of being a landlord.
I have been forced into not accepting any tenant who fails a RGI check.
That is my business choice as to how to manage my business risk.
If more landlords behave similarly there will be a clear knock on effect on availability of property available to councils to meet their housing requirements.
As I said this will end up costing the councils more for TA rather than if landlords were protected from the vagaries of these council claimants.
Social landlords are protected from tenants not paying as they receive LHA  directly, though I appreciate this may change with the advent of UC.
Why should social landlords receive more protection than a PRS landlord when they are housing the same type of person?
Until landlords are protected from tenants and their criminal actions you will find landlords less willing to rent to these type of tenants which WILL put an increasing burden on council finance depts.
Govt action does not look like it will be forthcoming to protect landlords anytime soon, so I am afraid my propereties WILL BE not available to any tenant or guarantor who fails a RGI check.
This is something I am forced to do as I do not have resources to cover non-payment of rent.
For £99.00 per year I am covered and have no shortage of tenants etc who pass the RGI checks.
This will meanyour clients will unforunately be left with the property dregs, if at all.
This however will be as a result of the landlord being forced to take that business decision.

Ben Reeve-Lewis

20:32 PM, 1st January 2012
About 9 years ago

Paul I have no problem with you position on this. It is a business decision that people make. This is why I think the government’s cuts and adjustments to LHA are disingenuous to say the least. I do not believe the aim of these cuts was ever to force down PRS rents, they knew exactly what they were doing from the start. PRS landlords are not social workers and I don’t intend them to be. My criticisms in this aren’t aimed at PRS landlords; I don’t expect them to run charity cases, never have.
 
Do you remember that leaked document from about 6 months back that showed they knew homelessness would increase by around 40,000 when the cuts came in? They aren’t naïve, they actually don’t care, which is why I am so scathing of Shapps’s sleep-out PR stunt, it’s an insult.
 
Sticking to the point of my article (this is a new year’s resolution for me, to try and keep things on track…..I am one of the worst offenders for going off at tangents haha) My argument is that PRS landlords shouldn’t expect councils to bail them out of the crapper when they get a nightmare tenant. To expect them to do that is to grossly misunderstand their legal role.
 
But you are spot on when you describe this problem as ‘Presently intractable’, it certainly is. The government have made it quite clear that they don’t have any interest in making the problems “Tractable”…..(Is that a word???) so it is up to the ground troops to do this, despite the government, not because of them.
 
The solution is going to come from advisers like me, proactive and innovative homelessness units, flexible housing benefit programmes (They do have the discretion you know…it’s called Discretionary Housing Payment- DHP) and PRS landlords willing to take a punt within a supportive framework.
 
The laws that tell a council who they can and can’t pick up are simply that – LAWS. Us lot who work with them have no choice about changing them and PRS landlords shouldn’t be taking the view that in sticking to those laws, that many of us in the front think are daft too, is simply the council giving landlords a hard time.
 
It isn’t about landlords at all, it is only about homeless applicants, which of them are eligible for assistance and which of them aren’t. We get spat at, threatened, sworn at and abused on a daily basis but it’s our job, and if you find one of us on your case and forcing you to jump hoops you don’t want to, it doesn’t mean that we don’t understand your plight and have every sympathy with you and your nightmare tenant.
 
The job of the homelessness worker is simply to make those assessments and provide accommodation when people get through the net, even though we may have little sympathy for their situation or their conduct within it.

18:55 PM, 2nd January 2012
About 9 years ago

No I appreciate the pressures you are under and after all you are only doing your job.
It is just extremely galling that being a landlord if you don't make the 'right' decisions, even though ALL you are doing is renting your property out to a benefit claimant you can be royally s-----d!!!
Essentially made possibly homeless yourself in extremis.
Madness.
It just means as I have said before I won't take these people on.
This as you have intimated would be extremely unfair but what choice do I have when the system is so rigged against the landlord.
I don't wish to gamble my livelihood on some LHA claimant and yet defacto that seems to be the case.
Surely no normal business would set up with such a potentially vulnerable business model!!?

Ben Reeve-Lewis

9:32 AM, 3rd January 2012
About 9 years ago

I dont intimate that not renting to benefit claimanats is unfair at all, I perfectly understand why a landlord would choose not to. We need them to do it but that is up to us council lot to do what we can to make it an attractive proposition and to do that we cant do what we have traditionally always done, namely set a letting up with a landlord and then wash our hands of it.
 
There are lots of policies and procedures passed down to us by central government that actually get in the way of helping tenants and landlords. The laws have grown bit by over the years in response to social situations of the time, some are outmoded. A private/public partnership way of working is the way forward but isnt going to be easy to achieve

14:32 PM, 3rd January 2012
About 9 years ago

What we seem to have here is social policy/engineering versus private business/risk.I provide management support to the Directors of the Resident Management company that owns the freehold to our block of 22 flats, most of which are sublet. Currently we have a tenant on site who is nothing short of a
sociopath. Subletting covents contained within the lease were ignored, even when we took the block over, so we didn't even get the opportunity to grant subletting permission, which our lease requires us to do. A combination
of her agressive and malicious behaviour and her landlords total
failure to either serve an eviction notice for arrears (which he
confirms she is in) or to control the number of people she appears to have
living in her flat (who are as obnoxious as she is) has resulted in an absolute nightmare for the
owner-occupiers in the flat below (who are a couple of pensioners in
their eighties).

We now have to go for forfeiture of the lease, which is not an overnight process.

I have asked my local authority why they keep pushing benefit tenants into the private sector with no attempt to
check on either the suitability of the landlord to be operating as such, let
alone whether such a tenant is fit to be left to her own devices. This
particular tenant alleges she had no choice but to take the property
when she was offered it. She came from a refuge straight to here. She needs help. I am not a social worker. Additionally, when
tenants are placed here on Private Sector Leasing, the local authorities
rely on private sector agents to ensure that firstly the landlord has
the correct mortgage to sublet and also has the permission of the
freeholder. I don't now about the former but I can certainly state that
the latter is ignored, leaving us with the ludicrous situation of
landlords who don't have freeholder permission to sublet handing over
their properties to the council (who have full nomination rights and the
property for a three to five year period) who also don't check whether
freeholder permission has been granted.

I've already had to use legislation to get one serious anti-social tenant
under a licence removed and whilst I was researching how to do this, I
also found that not only did the council not need to know about our
management structure, but there could be more than one authority involved
in this particular scheme due to the reciprocal arrangements for
sharing properties when a borough runs out.

Add to this the fact that a tenant will not voluntary remove
themselves if they want the local authority to re-house them because if
they do they will be deemed to have made themselves deliberately
homeless, then our neighbours nightmare is set to continue, whilst I try
to wrest the lease away from a landlord who, had the subletting covenants
not been ignored, would not have been given permission to sublet
in the first place, at least not without a fight!When a flat is purchased as a rental, the buyer effectively takes on two roles: as a leaseholder who agrees to abide by his contract with the freeholder in the form of the lease (with the freeholder ensuring there are no breaches) and as a landlord, who provides housing for both private and social tenants. In turn, the tenants are bound by their own contract with the leaseholder landlord in the form of a tenancy agreement. This creates the leaseholder landlord and effectively links the PRS to the leasehold sector.I was asked recently by an owner-occupier in our (private)  block as to why they should have to put up
with the anti-social behaviour of tenants being dumped in
their surroundings? Good question. I have a question too.
As freeholders we don't have a contract with such tenants, the individual landlord does. If they and the local authorites can't/won't deal with them, why should I have to? I just want them out of here, taking their aggressive and potentially violent friends with them!

16:34 PM, 3rd January 2012
About 9 years ago

It just seems that no matter how willing you or I are to maybe take on 'difficult' homeless tenants the system conspires against all of us.
I can't take the risk on losing my property for ALL the reasons you have mentioned.
It therefore seems that the most vulnerable are not being best served by govt depite all the platitudes they give out.
You do not presently it seems have enough weapons in your armoury to convince me to take on some of your clients.
It is not their fault or mine or yours.
When the think of the millions thay have handed out to the bankers; you would have thought some sort of bonding scheme for landlords who take on LHA claimants covering LHA not being paid and damage and thefts would persuade more landlords back into the LHA market.
No monies need to change hands unless a claim needs to be made.
Also a govt insurance scheme to deal with ROOA individuals; including those wrongun's convicted years ago of handing out leaflets;ha ha!,
It would cost very little but save a fortune in TA costs; or am I being a little naive here in thinking the govt wants to provide accommodation for everyone!?

16:43 PM, 3rd January 2012
About 9 years ago

I think there would definitely be scope for landlords in exchange for certain guarantees re insurance, bonding  and LHA payments to accept some oversight/contol from councils as to the service the landlord delivered.
I would accept such a situation from a council if I knew my a--e was going to be covered.
The council would win as aprt of the deal would be the landlord has to supply the services the rent is paying for.
Good landlords would do this anyway; which is what you want as this would save you a load of work.
Unfortunately this is not the case;  which is why you are probably having to waste inordinate amounts of time on these issues.
If it was good enough for the banks why can't the govt help itself out with probably the 2 nd biggest expenditure in welfare payments with HB!?? 

17:05 PM, 3rd January 2012
About 9 years ago

I agree with all your contentions.
It hasn't happened yet but in my block we could face exactly the same situation as you.
I think to protect private blocks as opposed to social housing blocks; often on the same site, there should be some sort of stricture that only tenants who pass a RGI check will be allowed to rent from a flat owner.
That should keep away most of the riff-raff!!.
I was most annoyed to discover years later that the developer had sold flats to a HA for a knock down price.
This means that we are now having to ive in a flat block with LHA claimants.
Nothing personal against them; but I would not have spent fortunes in buying in a non-social housing block to find those same people opposite me.
The detriment that could cause on resale values could be enormous.
The developer I am sure has done something wrong; potentially under trading descriptions for saying my block was all private.
This was years ago; do the chances of redress are pretty small.
But your experiences just highlight the problems that perfectly innocent private owners can face, with redress very difficult to come by.

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