You think you’ve got it tough!
In a recent Blog comment by a reader it was suggested that social landlords are fortunate in being exempt from the main legislative changes of recent times.
This is only true in part and as Possession Proceedings are one of the training courses I have delivered most regularly over the past 10 years or so for staff working in councils and housing associations I thought I would take the opportunity to illuminate Landlord Law Blog’s PRS readers on the hoops that housing management staff in the public sector have to jump through to get their tenants out.
This is an article of interest only. It isn’t an analysis. For those wanting more meat on the bones read the discussion comments beneath this article on Nearly Legal
The Rent Arrears Pre-Action Protocol
The restrictions are far worse than they are for the PRS in the form of a required court procedure known as the ‘Rent Arrears Pre-Action Protocol’, a procedural minefield that PRS landlords don’t have to follow.
They have been about for some years now and finally updated in April 5th this year, so public sector readers here take note.
If a PRS tenant gets into arrears then the landlords don’t have all these actions and timescales to adhere to and I could imagine ARLA, the RLA, NLA etc kicking off big time if their members were required to comply.
Failure to tick one of the boxes on the long walk to a possession order are fatal. As the protocol states in paragraph 1.6:
“Courts should take into account whether this protocol has been followed when considering what orders to make. Social Landlords and private registered providers of social housing should also comply with guidance”
Southwark Council fell afoul of the rules in 2007 (Southwark v. Augustus) when the courts found that although they had followed the court’s pre-action protocol they had failed to have regard to their own rent arrears policy in only using possession as a last resort.
So what hurdles face the public sector housing officer when taking things to court?
The protocol in action
“2.1: The landlord should contact the tenant as soon as reasonably possible if the tenant falls into arrears to discuss the cause of the arrears, the tenant’s financial circumstances, the tenant’s entitlement to benefits and repayment of the arrears. Where contact is by letter, the landlord should write separately to each named tenant.”
No ‘straight to section 8 or 21’ with this baby, if the housing officer misses this step its snakes and ladders time and back to the drawing board.
“2.2 The landlord and tenant should try to agree affordable sums for the tenant to pay towards arrears, – The landlord should clearly set out in pre-action correspondence any time limits with which the tenant should comply.”
So basically you have to agree a payment plan first.
“2.3 The landlord should provide, on a quarterly basis, rent statements in a comprehensible format showing rent due and sums received for the past 13 weeks.”
Yet another point to fail at.
“2.5 The landlord should offer to assist the tenant in any claim the tenant may have for housing benefit, discretionary housing benefit or universal credit”.
So the housing officers (landlord) has to roll up their sleeves and help the tenants sort their own crap out.
“2.6 Possession proceedings for rent arrears should not be started against a tenant who can demonstrate that
– the local authority or Department for Work and Pensions have been provided with all the evidence required to process a claim
-a reasonable expectation of eligibility for housing benefit”
Yes. Read that bit again. Even if the tenant is in arrears the landlord “Should not start” possession proceedings if the tenant has a reasonable chance of being eligible for HB or simply has not been given enough information to help them make a claim.
“2.7 Bearing in mind that rent arrears may be part of a general debt problem, the landlord should advise the tenant to seek assistance from CAB, debt advice agencies or other appropriate agencies as soon as possible. “
About 3 years ago I was training some housing officers near Norwich on possession proceedings. All three of them told me that their claims had been dismissed by the judge because although they gave them 4 weeks to seek advice from the CAB the CAB advised the courts when called in by the same judge, that the quickest they could arrange to see someone was 6 weeks.
The judge decided that the housing association had not allowed enough time to help the tenant.
“2.8 After service of a statutory notice but before the issue of proceedings, the landlord should make reasonable attempts to contact the tenant, to discuss the amount of the arrears, the cause of the arrears, repayment of the arrears”
The starting gun has fired but you’re still on the blocks.
“2.9 If the tenant complies with an agreement to pay the current rent and a reasonable amount towards arrears, the landlord should agree to postpone issuing court proceedings”
Another ‘Get out of jail free card’
“2.11 Not later than ten days before the date set for the hearing, the landlord should– (a) provide the tenant with up to date rent statements; and (b) disclose what knowledge it possesses of the tenant’s housing benefit or universal credit (housing element) position to the tenant.”
Yet more faff to comply with and meanwhile the arrears are going up by the day, and you’ll love the next one
“2.12 (b) If the tenant complies with an agreement made after the issue of proceedings to pay the current rent and a reasonable amount towards arrears, the landlord should agree to postpone court proceedings.”
Off the hook again and even at this late stage the hapless housing officer has to hang back because 2.12 (c) states
“If the tenant ceases to comply with such agreement, the landlord should warn the tenant of the intention to restore the proceedings and give the tenant clear time limits within which to comply.”
So if the tenant breaks their agreement made under 2.12 (b) you still have to simply warn them.
Paragraph 2.13 delivers the coup de grace in saying
“If the landlord unreasonably fails to comply with the terms of the protocol, the court may impose one or more of the following sanctions– (a) an order for costs; and (b) in cases other than those brought solely on mandatory grounds, adjourn, strike out or dismiss claims.”
And that is just the rough guide version. There is a lot more.
It is common practice to ridicule and criticise public sector housing management teams but the PRS community should bear in mind these insanely prohibitive procedures that are foisted onto councils and housing associations are mercifully not the lot of the PRS landlord.
Can you imagine the average amateur landlord or agent having to abide by these rules to regain possession against a nightmare tenant?
Thank your lucky stars folks.