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.
A good point well made Ben. Although I’m interested to hear how these ‘new’ fixed term tenancies (5 year ASTs) that housing associations are regularly offering now affect things? If they are ASTs, can they serve s21 notices towards the end of the fixed term instead of going through this procedure?
I’m aware that many already use s21s to end starter/introductory tenancies during the first year with no real right of appeal(which for me doesn’t seem to be in the ‘spirit’ of social housing?).
Its my understanding that there is no difference for social landlords Paul but I’m prepared to be corrected as there are a lot of changes in the offing at the moment.
You are right, housing associations use ASTs as starter tenancies, later on often extending to 5 years.
The spirit of social housing? something a lot of people are musing on these days. What is social housing and who is it for?
Social landlords also need protections from bad tenants not only to protect the income that keeps them going but also as a form of social responsibility to neighbours and other occupiers on the estate if the tenant turns out to be a nightmare.
To my mind what isnt in the spirit of social housing are the legal provisions where a housing associations is a ‘Fully mutual’ one, then they can evict after 25 years of occupation without the tenant being able to defend themselves. (see Mexfield v. Beresford 2011) THATS a bad situation
http://ukscblog.com/case-comment-berrisford-v-mexfield-housing-co-operative-ltd-2011-uksc-52/
Tried to read that case but it hurt my head!!
With regard to s21 and housing associations, I would say that their use does go against the spirit of social housing. Being able to end a tenancy by s21 without having to give any reasons and without the tenant having any real right of appeal doesn’t seem right(and although the HA may have their own policies they say they follow, if they haven’t I doubt that will help a tenant in court). Sorry I’m going off on a tangent here.
Hurt your head? Welcome to my world haha
But councils too have this power. They are called Introductory tenancies (Eviction assured if you misbehave) and Demoted Tenancies (A sword of Damocles if you were a tenant but misbehave)
Social landlords shouldnt be prey to bad tenants any more than PRS landlords.
I admit to being a tad confused myself these days about who social housing is for but I dont think it should mean tenancies with an immoveable block on possession just because the person is a social tenant.
Its an interesting conundrum that I have been planning on writing something about for ages but cant quite form a clear view.
I’m old enough to remember social housing as an ethos but in the past few years the common perception is that it is solely for for feckless, needy people with a range of social problems, which wasnt my experience growing up on a council estate
The first comment by Paul has me a bit confused – who wrote this? Was it you Ben?
This comment: “So the housing officers (landlord) has to roll up their sleeves and help the tenants sort their own crap out.” was all heart.
The wonderful thing about social tenancies is (was) precisely their humane treatment of tenants, compared to that for private tenants in the PRS. Housing assocs are first and foremost charities; and such compassion is very much in their remit. HAs will, of course, do everything they can to help their tenants keep a tenancy: *in spite of* rent arrears. It’s admirable and fundamentally “in the spirit” of social housing.
We should be championing tenants’ rights of course, and not mocking or admonishing them. Better that than reduce everyone’s rights and security of tenure to that of practically zero, as in the PRS. You seem intent on mocking the protocol Ben? Implying it to be over-the-top and trivialising its efforts. It’s bemusing.
Tenants who have moved from the PRS into the social sector (e.g Scotland) comment that they feel “wonderfully supported” in the social sector, compared with their treatment by private landlords in the PRS.
Such protocols as this one are in marked contrast to the pernicious Section 21 (or 33 in Scotland) which can have tenants evicted with just two months notice for “no fault”. Secure tenancies are something to champion and fight for, obviously. But instead we have councils in England misusing starter tenancies, for an easier life.
“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.”
Answer: no. Thankfully. But..
“Social landlords shouldnt be prey to bad tenants any more than PRS landlords.”
That’s a curious leap you’ve made there – labelling tenants in rent arrears as “nightmare tenants” all of sudden; preying on their landlords. It’s a frankly irresponsible and hateful choice of words to use. Let’s not go muddying the waters here, because we’re too lazy to make the distinction! Anti social behaviour and rent arrears are certainly not one and the same thing.
And let’s not forget the hapless delays caused by housing benefit teams of course; intent on delaying payments for 8 weeks or more when there’s a “change in circumstances”.
Enough of these lazy aspersions.
@rent rebel…..sound of sleeves being rolled up haha
On housing officers dealing with tenants crap – Housing benefit is the responsibility of the tenant. What the PAP does is make the housing officer jump in and sort the problem out. After 25 years of helping tenants what I find is that the more the housing officer or adviser does to sort out the tenants problems the more the tenant relies on that person to do it and in the process abrogates responsibility, which helps nobody.
Sorry to disabuse you of the notion but housing associations are not primarily charities. Some are but not all and even those that are cannot survive on good will they operate in the same harsh environment as PRS landlords.
With a housing stock of 5,000 properties a 1% drop in rental income can mean 4 or 5 million pounds revenue, which hits other tenants and the organisation’s ability to manage and grow.
Housing associations need to keep hold of who they are and what they are about whilst still keeping it real, otherwise they will go bankrupt.
Sorry but there are nightmare tenants in social husing as well as the PRS and rent arrears can be very damaging and judges are less than sympathetic when it comes to social landlords.
My sister became a housing officer a couple of years ago. She inherited a tenant who had a suspended possession order on rent arrears who defaulted 26 times and 26 times the housing officer applied for a warrant only to be refused by the judge.
A few months back I spoke to a housing officer with a tenant in £11,000 arrears who was on a suspended order because the judge refused to grant outright possession.
This kind of stuff creates debt that the social landlord has to work around, meaning the rest of the tenants have to cover the bill eventually.
I dont think that social tenants should be absolved from personal responsibility. I grew up on a council estate in a time when my parents generation were clear on what social housing was about and I would imagine they would agree.
In my opinion the PAP I’ve written about above treats defaulting tenants like pieces of porcelain and encourages more defaulting. It doesnt help them
“No. Thankfully” is meant to say “No. Sadly” of course.
“Can you imagine the average amateur landlord or agent having to abide by these rules to regain possession against a nightmare tenant?”
I reckon a successful private landlord does much of the pre action protocol as a matter of course, not because they have to but because they go under otherwise.
Private landlords don’t need it to be enshrined in law to chase rent, agree arrears schedules or assist with benefit claims.
When it is your own money, the incentive is a lot stronger.
I was shocked and disappointed at the laissez faire attitude to rent arrears by a large ALMO I visited recently. They were boasting of a ‘low’ arrears percentage that would make a private landlord weep. If one of my tenants doesn’t pay I’m on to them the next day, this social landlord left it “about a week or so”. It cultivates an attitude that paying the rent is not a priority and ultimately does the tenant no favours.
Social landlords are going to have to up their game considerably in the coming months when they will no longer get rents paid direct.
As you rightly mention, paying tenants are subsidising the non payers, that can’t be right.
“Social landlords shouldn’t be prey to bad tenants any more than PRS landlords.”
Can’t agree with that Ben, social landlords are the landlord of last resort. I’m all for privatisation but some areas belong firmly with the state.
Rent Rebel I can confirm I’m not Ben in disguise! I’m confused as to why you are confused by my comments? I like your comments though – you should consider writing a blog yourself!
My point was that many HAs can surely push this protocol to one side now they’re giving out 5 year fixed term ASTs and the like and just issue a s21 instead?
HBW and Rent Rebel, you are both making exactly the same point, albeit from different sides of the fence in saying:
“Tenants who have moved from the PRS into the social sector (e.g Scotland) comment that they feel “wonderfully supported” in the social sector, compared with their treatment by private landlords in the PRS.”
And
“social landlords are the landlord of last resort.”
Both are astonishingly patronising views.
Why should social housing tenants feel supported? Why is a social tenancy a last resort?
This buys into the notion that there is the PRS, there is homeownership and there is the rest of the losers who cant cope with real life.
Social housing, community living, housing cooperatives are not only an alternative, they are a fingers up to the straitjacket of either/or thinking that is dominating the debates on the housing narrative.
From the get go social housing was a philosophical standpoint, before Cameron’s generation turned homes into investment opportunities.
I remember when the right to buy was introduced in the 80s many people of my parents generation refusing to do it on principle.
“Supported” as in : I have some real security of tenure and I can’t be evicted on a whim, Ben.
If that’s patronising, I’ll take it. The accommodation might be on the pokey side, but social landlords have probably long been the landlord of first resort in Scotland. People know compassion when they see it.
“Can you imagine the average amateur landlord or agent having to abide by these rules to regain possession against a nightmare tenant?”
Lordy, no. Section 21 is all the legislation they want, thanks very much. Suits them very nicely.
IDS has u-turned on paying the most vulnerable tenants, in social housing, directly. Oh and thanks Paul. I’m not sure explaining my confusion won’t make it worse tho ;)