The Communities and Local Government Select Committee, who published a report on Homelessness recently were horrified, we are told, by the attitude of many Councils towards homeless people and people threatened with homelessness.
Apparently, many of them were just sent away with a list of local letting agents.
The recently published Homelessness Reduction Bill aims to force Councils to give people a bit more help.
One way of doing this is by changing the rules regarding section 21 notices and homelessness.
Section 21 and evidence of homelessness
For decades Councils have been telling tenants who have been served section 21 notices to stay put and have only treated them as homeless once a possession order has been made. Or in some cases, once a bailiffs appointment has been made.
But is service of a section 21 notice really evidence of homelessness? Up until recently I would have said no.
Until the rules were changed on 15 October 2015, section 21 notices effectively had an unlimited life during a tenancy. Indeed it was the practice of many landlords and letting agents to serve a section 21 notice, simply as a precautionary measure, at the start of the tenancy, with no intention of actually relying on it.
Although many section 21 notices were served by landlords who did wish to evict tenants, these were probably in the minority. So service of a section 21 notice in itself could not really be used as evidence of homelessness. How could Councils tell which notices were genuine and which had been served ‘just in case’.
However last year the law changed. Now, for tenancies which started or were renewed on or after 1 October 2015, a section 21 notice has a limited life and must generally be used within six months or so (the precise period varies according to the tenancy concerned).
So for those tenancies, service of a section 21 notice really is evidence that the landlord is going to seek possession.
A commencement date in 2018?
The problem at the moment is that there are still many assured shorthold tenancies where these new rules do not apply. For those tenancies, section 21 notices will still have an unlimited life, during the tenancy.
Indeed there must be thousands of cases where tenants have been served a section 21 notice months or even years ago where those notices are still valid.
Are all those tenants to be treated as homeless?
However, on 1 October 2018 the new rules will apply to all ASTs, not just those which started or were renewed on 1 October 2015. Which will presumably at a stroke invalidate all the older notices.
I would suggest therefore that the new definition of homelessness commence at that time and not before.
In conclusion
Thousands of possession cases go through the Courts every year which are solely brought to force Local Authorities to assist tenants in priority need.
The Courts are under pressure and could do without this unnecessary work.
Court proceedings are also stressful for both parties and expensive for both landlords and tenants (although in fact, many landlords do not expect tenants to pay the costs order).
So in that respect, the change will be a beneficial one.
The big problem though, is the massive shortage of accommodation in many areas of the country. This means that in reality Councils often have nowhere to put tenants threatened with homelessness. Which is the real reason for the insistence on a Court order and (in some cases) bailiff’s appointment.
This will have to be resolved somehow – as you cannot whistle up suitable accommodation for homeless families just by wishing for it.
In this context, it is to be hoped that the May government takes up the recommendations made recently by the House of Lords in their recent report on housing. Which you can read about here.
Note by the way that Ben has already written about different aspects of the Homelessness Reduction Bill here.
Perhaps Councils should simply do what they have been told twice in recent years by DCLG and accept that as a s21 is mandatory possession assume the Landlord’s paperwork is all legally in order, proceed to assist tenants at that stage and relieve them of unnecessary stress and possible additional costs and adverse credit rating impact.
Iinstead of simply picking them up a few months later.
“For decades Councils have been telling tenants who have been served section 21 notices to stay put”. That’s the sort of language that really gets landlords wound up. Do Councils want tenants to stay put? No they don’t! What does that achieve? Council’s would be ecstatic if every tenant that was served a S21 left and found somewhere else to go. Council’s give tenants advice about all options to find alternative housing and plead with them to go and find somewhere else. In many cases Council give tenants money to go and find somewhere else. They pay for deposits, guarantee deposits, pay rent in advance etc. Council’s don’t want tenants to ‘stay put’.
Now put yourself in the tenant’s shoes. Would you like to move to another town with your children, away from your family and job etc, to a cramped hostel room and share facilities with other homeless families? Or would you like to pay a £350 court fee and stay in your home for the next X number of months? I know what I’d choose.
I could go on. Sorry for the rant.
When I did eviction work, a SUBSTANTIAL proportion of my eviction work was simply done to force the Council to re-house the tenant. For example this case http://www.landlordlawblog.co.uk/2012/10/09/evicting-housing-benefit-tenants-kates-story/
You may not do this at your Council but many councils do. I know because I was the one, in many cases, doing the eviction work. I am sure that others who do eviction work will agree.
In fact, the policy has contributed significantly to my income in the past! Although I no longer do eviction work now.
Hi Tessa,
Clause 1(2) of the bill is probably not well thought through. The sort of perennial homelessness of the just-in-case tenants doesn’t sit with any reasonable definition of homelessness and seems likely to throw up problems – especially if we end up with some sort of deregulation act tenancy “just-in-case” 2.0 catching on of just serving a fresh notice every 6 months.
I think it should be a two stage test – (1) has valid notice been served etc and (2) is the landlord reasonably likely to act on that notice within the 28/56 day period.
To my mind, the question of whether a s21 notice is going to be acted on is a question of fact which is pretty easy to sort out in the context of enquiries into a homelessness application . 1- When was the notice served?, 2 – Ask the tenant if/why the landlord wants him out, 3 – Ask the landlord whether he wants the tenant gone (if he acts with confusion and surprise you have found a just-in-case tenant chancing it).
I agree with your comments there Jim. On that note of a 2 stage test; it’s often the case that a landlords find it very easy to serve a s.21 but when it comes to it, if possession proceedings are necessary the same landlord will be willing to negotiate and work out any smaller problems with the tenant, rather than go through the trouble and expense of regaining possession. Such tenants to my mind should not be treated as homeless but that’s difficult to establish at the early stage of a s.21 being served.
Incidentally, I had cause to be going through the oft-forgotten “Homelessness Code of Guidance” which puts forward almost exactly the same approach as I suggested above at 8.32. As the guidance on that point is so brazenly ignored by councils, perhaps it would be a good idea to put it on the statute books.
Interesting article and points raised by fellow posters. For a number of reasons councils just don’t seem to do enough at the ‘prevention/enquiries’ stage. It’s unrealistic to expect every s21 to result in a lovely gift-wrapped tenancy. But it’s not enough to give a list of agents (at least in anything other than the very first instance)
As an adviser in Wales I’m not entirely conversant other the Bill but would be inclined that the point raised about the clause not being thought through is an important one. I’d hope that codes of guidance would be very clear useful and binding as much as possible.
Anyway call me a dreamer but I think the only solution is funding 3rd party organisations with the expertise of people to enable PRSaccess and part of that picture is driving up standards in the market.
Unfortunate I don’t have time to expand work is calling!!