Section 21 and conflicting Government policies

by Readers Question

11:51 AM, 2nd May 2017
About 2 years ago

Section 21 and conflicting Government policies

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Section 21 and conflicting Government policies

I have served a section 21 notice to tenants giving 3 months notice. Reason for doing is B2L mortgage term ending soon.

The tenants have made an application to the LA (South Devon) showing them our letter of explanation which complies with s21 requirements. The Council have now advised them that their application has been placed in band E meaning ‘No housing need’.

The council have cited ‘The Localism Act 2011’ which they say provides them with the power to determine for themselves what class of persons qualify for social housing in the area.

Meanwhile I read that, apart from the fact that a ‘Homeless reduction Bill’ has just been passed, the previous Minister of State for Housing and Planning issued (last year) a directive to ‘All Local Authority CEOs’ which seems contrary to the Council’s decision.

The following quoted on a number of websites with headlines like this ;

Local authorities must stop routinely advising tenants to stay put until the bailiff arrives before they can be accepted as homeless.

Housing minister Brandon Lewis has written to all chief executives of local councils saying that households should not be put in this position, and clarifying the guidance about homelessness.

In his letter he says: “Authorities should not routinely be advising tenants to stay until the bailiffs arrive; there is no barrier to them assisting the tenant before this. By doing this, local authorities miss a valuable opportunity to prevent homelessness.”

The letter follows pressure from ARLA, whose managing director David Cox has repeatedly raised the issue of local authorities advising tenants to stay in their property beyond the notice period, compelling the landlord to go to court to gain possession, running up considerable costs.

In his letter, Lewis says: “Landlords and tenants continue to raise concerns about local authorities advising tenants to stay when issued with a Notice seeking possession of a property let on an Assured Shorthold Tenancy under Section 21 (1) or (4) of the Housing Act 1988.

“I receive a large amount of correspondence on this.”

He continues: “The statutory Homelessness Code of Guidance, which local authorities are required by law to have regard to, is clear on this matter.

“It contains guidance on how authorities should treat homelessness applications in circumstances where a tenant has received a valid S21 notice.

“It says that housing authorities should not, in every case, insist upon a court order for possession and that no local authority should adopt a blanket policy in this respect.

“The Guidance states that if the landlord intends to seek possession and there would be no defense to an application for a possession order, then it is unlikely that it would be reasonable for the applicant to continue to occupy the accommodation.

“Unless a local authority has very good reason to depart from the statutory guidance, then they should not be placing households in this position.”

Lewis says that he will specifically be looking at the way local authorities deal with S21 notices.

My s21 is a valid one and with no defense will lead to a possession order followed by an eviction notice which will see the family put on the street without a roof over their heads before the LA will lift a finger to help them. It is just not right that a family should have to go through this. The Minister of Housing realizes this hence his directive. Can the local authority be held to account or challenged by myself or by the tenants ?

I welcome your views and suggestion.

Mike

PS. I have not named the LA, but will be prepared to do so.



Comments

Neil Patterson

11:54 AM, 2nd May 2017
About 2 years ago

There may also be an element in Councils that assesses how many problems go away of their own accord if nothing is done!

Mark Prichard

12:06 PM, 2nd May 2017
About 2 years ago

The Council may lawfully decide that your tenant is not yet homeless or threatened with homelessness.

However, they DO have to have regard to statutory guidance which states, essentially, that if there's no defence and you intend to apply for possession they should treat the applicant as homeless when the notice expires (on the basis that it's not reasonable for them to continue to occupy).

And yes, it's correct that they CANNOT adopt a blanket policy of requiring all tenants in this situation to remain in occupation until they're evicted.

What this means in practice is that the Council must consider the applicant's specific circumstances and give reasons for deviating from the recommendation in the guidance.

It would be the applicant that challenges their decision (rather than you) by requesting a review of the decision that it's reasonable in their particular circumstances to remain in occupation until the tenancy ends. They have 21 days from the date of the written decision to request a review.

In summary, providing the Council give reasons for their decision, have regard to the guidance and take the tenant's particular circumstances into account it's entirely lawful to take the approach they have.

A fundamental reason for this being the legal position is that an assured shorthold tenancy does not end (in the absence of notice from the tenant or surrender) until you obtain a possession order and a bailiff's warrant.

If it's more than 28 days from the date on which the notice expires the tenant will not - absent some other reason why it's not reasonable to remain, e.g. domestic abuse - yet be 'threatened with homelessness' in any event and the council will owe them no duty.

One would however expect them to help the tenant as a 'non-statutory' case, i.e. by advising them and helping them find alternative housing, so they don't end up having to assist them as a homeless applicant.

Old Mrs Landlord

16:00 PM, 2nd May 2017
About 2 years ago

The Homelessness Reduction Bill received Royal Assent on 27th April but no date has yet been published for it to come into force. The Bill's requirements place on LAs an obligation to treat tenants as homeless at an earlier stage in the eviction process and rehouse them prior to the instruction of bailiffs. LAs are to be allocated an additional £61m to assist with the implementation of this legislation. Hope for the future perhaps, but not much help to your tenants currently facing this situation unfortunately.

Robert Mellors

18:45 PM, 2nd May 2017
About 2 years ago

This is the LA doing a "gatekeeping" exercise. Basically there are two ways of getting council housing (or council nomination to housing association housing), with the main route being the council's waiting list, and the other route being via a homelessness application. The council does not want to accept a homelessness application, as that may impose statutory duties on them to rehouse the person, so what happens is that the person goes to the council with their s21 notice and the council officer gives them a housing waiting list application and some "advice" about private renting. The person thinks they have applied as homeless (and in law the Council should have taken a proper homelessness application), but the council have NOT taken a homelessness application they treat the approach as being merely an approach for housing advice, and they have given housing advice and homelessness prevention advice. - This is how they justify NOT taking a homelessness application. Another dirty trick they use is to say that they do not have "reason to believe" that the person will be made homeless, and if they do not have "reason to believe" then the statutory duty to take a homelessness application does not kick in. This is of course total BS, and is just a way of avoiding taking the homelessness application.

The guidance from Brandon Lewis (which is basically a re-iteration of what was already in the Homelessness Code of Guidance) only relates to homelessness applications. The Localism Act allows Councils to set their own priorities for who goes on their waiting list. The waiting list (housing register) and the duties under the homelessness legislation are completely separate, so the freedoms afforded to councils under the Localism Act have nothing to do with their legal duties under the homelessness legislation (Housing Act 1996, Part VII, as amended).

Your tenant needs to make a formal application as a homeless person when they are 28 days or less away from the end of the s21 Notice period (they should put this in writing to the council and insist on it being treated as a formal homelessness application, and get proof of handing this in, e.g. witnesses, and/or a receipt). If the Council tries to fob them off with "housing advice" they should insist that it is a homelessness application and that they want a formal decision in writing as is their right under s184 Housing Act 1996. The "s184 decision letter" should give full reasons for any decision and also give the applicant details of how to appeal.

The above homelessness process does not of course stop the council ALSO giving homelessness prevention or housing advice, or your tenants acting upon such advice.

Chris Daniel

10:57 AM, 1st August 2017
About A year ago

Look at the 2011 Local Govt Ombudsman's report on Homelessness. Interestingly, since 2015, a complaint does Not have to exhausted via the council for the LGO to consider a complaint against a Homelessness application.
In other words, a Tenant can make a complaint against a councils handling of a Homelessness application within 28 days of being threatened with homelessness.
" In December 2015, following a change in LGO process the
last paragraph on page 3 was deleted. This paragraph read 'The Ombudsmen regard complaints from
homeless people as urgent. We generally waive our requirement that councils should first consider a
complaint through their complaints procedure before we investigate".

I have asked for further information from LGO - they apparently investigate around 300 homelessness complaints / year and have been instrumental in securing financial compensation.


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