Legally Homeless, Out of Contract or Squatting?

by Readers Question

9:49 AM, 4th September 2019
About 2 weeks ago

Legally Homeless, Out of Contract or Squatting?

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Legally Homeless, Out of Contract or Squatting?

I have a tenant in rent arrears. He didn’t apply properly for Housing benefit at the point of moving in, so the Council have decided to only pay from when he did actually apply and have granted his rent benefit. £1300 owing here. Once the benefit was assessed he was then told top ups were due not only going forward, but would have been from the moment he moved in. Top up arrears now circa £450.

All the way though this nightmare, I have kept the Council informed that I have been having problems with tenant not bothering to get this sorted out. They refuse to pay the two months of rent between when me moved in and his application was eventually granted. Council now decided all the rent arrears are his in totality.

I get a letter from the Council that his housing benefit will be stopped in entirety on 1st Sept – the day the S 21 denoted as D Day.

The tenant is now in situ as told by the Council that if he leaves he is making himself voluntarily homeless and therefore they have no duty of care to provide him with anything.

He is unable to pay any of the arrears himself – he has no means of support whatsoever and he is himself of ‘vulnerable’ status.

Is he actually ‘legally homeless’? The Council are in the position of directly putting this tenant into the position of further financial distress and difficulty by the nature of its (in) action, knowing he has no way of paying for where he is. I thought It is the duty of the Council to prevent homelessness so it is legally ‘unreasonable’ for a tenant to continue to occupy my property in this way, even though it is legally viable for occupation surely?

This ‘unreasonableness’ to occupy a property in this instance, is on the basis of affordability. The tenants have no visible means in which to pay rent. The Department for Communities & Local Government’s Homelessness Code of Guidance when making decisions on homeless applications. Section 8.29 of this guidance states that when assessing reasonableness “One factor that must be considered in all cases is affordability.”

The Housing Act 1985 clearly states in Section 60(1) provides: ‘A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.

In this case, surely the Council are making it ‘unreasonable’ for him to stay?

Do I need to apply for a N5A to complete the Possession Order if he is already legally homeless, as he is breaking his TA by staying when he knows he can’t afford to do so?? If I have to apply for a Judge to back up the Eviction, who will be liable for the rent paying in between this time and the date decreed when he has to leave? Who will be liable to pick up the £355 it costs me to progress?

ANY answers or thoughts welcome! *sighs*

AB



Comments

Prakash Tanna

16:11 PM, 4th September 2019
About 2 weeks ago

Reply to the comment left by JJ at 04/09/2019 - 15:26
"So you have had to challenge it in the past. "

Over the past 10 or so years, i've had this issue once or twice and it hasn't been difficult to challenge. I'm geared 99.% to housing tenants on LHA/HB so have templates and processes in place to avoid most situations before they crop up.

There are many pros & cons for either tenants on benefits or those without. I'd had many years of a relatively peaceful experience and am committed to continue this model for now as it works for me, but appreciate it's not for everyone.

... and you're welcome. Us Landlords need to stick together and help each other out while the government and some Councils are working against us!

WP

16:22 PM, 4th September 2019
About 2 weeks ago

Reply to the comment left by JJ at 04/09/2019 - 10:57
At the point he moved in he has a deposit bond secured with the Council and they had paid the first months rent in advance. His Housing officer said he had applied as necessary for HB.

WP

16:32 PM, 4th September 2019
About 2 weeks ago

Reply to the comment left by Prakash Tanna at 04/09/2019 - 11:01
1.Have asked him by letter/text/email and by phone four times (and copied in the Council) to ask him to apply for a DHP to cover the two months missing. He has been negligent in doing anything about it. They refuse to help now as they have said they have also tried to contact him direct to ask him to come into their office to complete one.
2. I have explained this. They refuse to reinstate. I have just had the HB last payment today from them up to 31 Aug.
3. Did this - he should have had all the rent paid in total considering his issues, this was confirmed by the officer at the time before he moved in. I have no idea why he doesn't get full rent paid, but as you know they wont tell me.
4 Possession Order to court posted yesterday to progress to next stage...

My question still remains...if the Council are now refusing to pay his rent while he is still here, which is AFTER the S21 listed date, and he has no means to pay himself, then surely he is 'legally homeless' ?? I cannot be expected to house him at zero rent going forward until the judge gives him a definitive leave date?

Tim Rogers

17:18 PM, 4th September 2019
About 2 weeks ago

Reply to the comment left by Prakash Tanna at 04/09/2019 - 12:51
Having recently had a tenant shoot himself in the foot over council tax, I have been pleasantly surprised at how constructive the DHP system is.

The only fly in the ointment is that I am having issues trying to get the council to allow the council tax reduction retrospectively for the previous year. I wondered Prakash, if you might have any guidance on this?

JJ

17:26 PM, 4th September 2019
About 2 weeks ago

Reply to the comment left by WP at 04/09/2019 - 16:32
I am afraid my contributions may be inadequate because others will have greater experience of this area than I do. But if you want a legal definition of 'homeless' then you could try this link...from Shelter..

https://england.shelter.org.uk/housing_advice/homelessness/rules/what_is_homelessness

Apparently Shelter say that you are homeless if you are squatting because you have no legal right to stay.

Maybe you could write to the Council confirming that your tenant is homeless because he is squatting as he has no legal right to stay and quote Shelter's definition of homelessness.

If that helps you that might well be one of the few occasions where Shelter actually helps a landlord 😉

Prakash Tanna

17:28 PM, 4th September 2019
About 2 weeks ago

Reply to the comment left by WP at 04/09/2019 - 16:32
Which Council are you dealing with here?

1. Do you know why he is refusing to co-operate and not willing to assist in his HB claim? Are you sure he's still there and alive and has not abandoned the property and moved on or gone into hospital or something ? Can you make the appt with the Council, pick him up and physically take him there?
2. They cannot not refuse to continue paying unless his HB claim has been cancelled and the claimant (tenant) is refusing to complete the forms to re-apply OR the tenant has told them he moved out OR they have asked him for some documents and he failed to provide them within 30 days of the request.
3. It's worth insisting they tick the box on the HB claim form allowing consent for them to discuss the claim with the Landlord but all in all, it requires a compliant tenant for things to run smoothly.
4. Try PCOL (https://www.possessionclaim.gov.uk/pcol/) next time. It's super quick and easy to use and cheaper court fees (use to be when I last used it a long time ago).

In answer to your question, in my opinion, I don't think he is legally homeless as he still has a roof over his head irregardless of whether he is paying rent or not OR in receipt of state support so I think you're stuck with him until he either moves on (offer him an incentive?) or he is evicted. Sorry as that is not what you wanted to hear BUT it's just my opinion. Others will think differently.

Prakash Tanna

17:39 PM, 4th September 2019
About 2 weeks ago

Reply to the comment left by Tim Rogers at 04/09/2019 - 17:18
Hi, I seldom get involved with the tenant and their CT exemption/reduction claim. Am sorry to hear he had to go to extreme measures to get 'heard'.

CT is governed by the Local Government Finance Act 1992 (http://www.legislation.gov.uk/ukpga/1992/14/contents) and there should be guidance there of how far back one can claim discounts ?

My personal experience of CT departments is that they are bullies and they think they are a law upon themselves. I have often challenged CT bills where the property was empty and could not legally be occupied and should be granted exemption. One went to court and I won and together with costs (despite the CT Officer lying in court) and the other, the Council backed down 48 hours before the hearing. Sadly you have to fight all the way to get justice!

Well done for assisting your tenant, and good-luck with it.

Smithy @hotmail

18:42 PM, 8th September 2019
About A week ago

I have had two (reasonably ok) tenants who are struggling with their rent. One was advised by her Housing Officer to apply for a DHP but her application was refused. I'm not clear why, but they did stress to her that it's 'discretionary'. The second tenant applied a couple of months ago and has not had any response - I have asked her to chase them. I have previously had good results from these applications. An officer at the council told me (off the record) that the council are overwhelmed with DHP applications and approval is not automatic - there is a pot of money and when it's gone - it's gone.

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