Recently Tessa ran a blog clinic question on a homelessness unit waiting for a landlord to evict under a warrant [no it wasn’t actually, but never mind – Ed*].
Whenever this issue comes up on the blog it causes a furore. One commentator on the previous article hyperlinked to a (nine-year-old) piece in the Guardian titled:-
“Councils tell tenants to ignore notices to quit”
and I thought this lazy piece of reportage needed picking through.
A bit of history first
For the record, my role as a TRO even to this day, has always seen me placed in homelessness units as part of a general strategy of preventing homelessness, so I see every day what advice they are giving out and I’ve also conducted around 150 homelessness reviews of decisions that have been made.
In addition to this
For 20 years now I have also been a trainer of homelessness legislation for caseworkers spread between Cornwall to Newcastle and all points in between, so I am further exposed to the issues they face and the things they say.
As with any branch of law people often misunderstand the actual import of what is being said or simply misquote, particularly when case studies are used by the media.
The Guardian’s article
Let me start with the title of the Guardian piece that tenants are told to ignore notices to quit.
No homelessness adviser or caseworker with even a modicum of experience would say such a thing. Notices are tremendously important because of their impact on the investigative process.
For a start, a high proportion of them are invalid for a variety of reasons.
Some actual facts
40% of the cases referred to me these days are initiated when notice has been served, to see what I can do to challenge it.
In advice terms, there is a world of difference between saying ‘ignore the notice’ and advising that a tenant has a right to ‘due process’ by which I mean:-
“It shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises.” (Section 3 (1) Protection from Eviction Act 1977)
A tenant has the right to be evicted by court order if they do not move of their own accord. As unpalatable as it may seem to a landlord wanting their property back, this is the law – and as I always remind landlords, this same type of protection is what stops a bank repossessing their home if they run into difficulties.
Back to the Guardian article
You have to read the edit where the piece quotes Barrister Mark Loveday when he starts by saying:-
“This is a very, very common practice employed by local authorities across the country”
Yes, it is but don’t get fooled into thinking that Mr Loveday is highlighting a scam because he goes on to elaborate:-
“A Section 21 should be enough notice for most tenants to move out, but councils have the discretion to advise them to stay for longer and many are doing so”.
Councils have the discretion
The exercise of that discretion can be challenged in court but consideration must be given to the circumstances in the particular district that the local authority covers. Not least of which is the amount of people being picked up by the homelessness unit and the accommodation available to house them that is suitable and reasonable, i.e. affordable.
Actual statistics
Whilst a local authority may well exercise their discretion to rehouse a tenant before the execution of a warrant in say leafy Mendip, Somerset where the statistics for the last 3 yearly quarters going back to end of 2016 showed a total of 12 homelessness cases accepted – in the London Borough of Hackney the number was 902.
Which has a serious impact on the council’s exercise of discretion.
Added to that….
Then there is the vexed issue of the rise in homelessness applications driven by the ending of tenancies under s21 notices.
Over the past 5 years, the numbers of people claiming homelessness assistance because of the bringing to an end of an Assured Shorthold Tenancy has quadrupled from 4,600 to 16,000. As a proportion of all statutory homelessness acceptances, loss of a private tenancy, therefore, increased from 11 percent in 2009/10 to 29 percent in 2014/15.
London shows harsher statistics
In London, the upward trend was even starker, homelessness consequent on the ending of a private tenancy accounting for 39 per cent of all acceptances by 2014/15 and its rising.
So where to put all these homeless families?
Back to the Guardian article where assistant director of housing Sally McTiernan said:-
“We will work with the household concerned to avoid eviction,’ she says. ‘What we will advise them, however, is that there is a legal process to go through and if they walk away from the property they have a legal right to stay in, we will not have an obligation to find them housing. The local authority has a duty to rehouse them in emergency circumstances – and that is only when the bailiffs are at the door.”
The National Landlords Association spat back with:-
“This whole practice is absolutely abhorrent”
I completely agree, homelessness is abhorrent…..or is that not what you meant?
The bottom line is….
Homelessness units don’t tell people to wait until the warrant just for the fun of it, believe me working in frontline homelessness services is not fun and they don’t do it just to annoy the landlords.
It’s a simple equation, in the big cities there are, by the year, more people claiming homelessness and nowhere to put them that they can afford. This is what drives it all.
Gatekeeping
“Gatekeeping” is the practice of making unlawful decisions to reduce homelessness figures.
Do councils gatekeep?
Yeah sometimes and some more than others. Often it’s simply a misunderstanding of the law, occasionally it’s a chancing of an arm – but does advising a tenant of their legal rights to remain constitute gatekeeping?
Not necessarily. It depends on a range of more complex factors.
In an ideal world
A local authority would do as paragraph 8.32 of the Homelessness Code of Guidance recommends and pick a family up when the s21 expires – but we don’t occupy that world.
We occupy a world where the housing crisis is at breaking point and the government lacks the breadth of vision to see all the components of it. Landlords being caught up in expensive possession proceedings that can’t be defended is but one of the fallouts.
Instead of railing against homelessness units, rail instead about the fact that in London alone as of July 2017 councils had 54,280 homeless families sitting in temporary accommodation, and that doesn’t include those who went through the homelessness unit and were rehoused by other means.
In the 5th largest economy in the world that truly is abhorrent.
—//—
* It was actually this post which is about whether it is worthwhile using the High Court Enforcement Officers to evict tenants rather than the County Court Bailiffs, but inevitably people wanted to discuss different things in the comments.
The Guardian post was written nine years ago.
At that time the service of a section 21 notice did not necessarily mean that the landlord actually wanted the tenant to leave – in fact in the vast majority of cases it didn’t. Often a s21 notice was served as a precautionary measure, sometimes right at the start of a long fixed term.
So it is arguable that the service of a s21 notice was not of itself evidence that homelessness threatened the tenant. So Councils were probably quite right to wait and see what actually happened.
However, this is now changed since the Deregulation Act introduced ‘use it or lose it’ rules. Under these rules (where they apply – which will be for ALL ASTs after 1 October 2018) a landlord is only likely to serve the notice when he (or she) really is contemplating eviction.
The same problem remains though – where are Local Authorities to put all these people? To which, in many boroughs, there isn’t really a proper answer.
I will be considering this issue and looking for some solutions in my new ‘Housing Crisis’ series. https://landlordlawblog.co.uk/2017/10/18/fighting-housing-crisis-introduction/
Yes, the Guardian piece was written nine years ago. That was the point. I referenced it to indicated that the practice had being going on a long time.
Yes , homelessness is a problem and tenants have rights, but so should landlords.
I understand the need for courts to make the decision, and that tenants are entitled to stay until a court rules against them and any notice given by the court expires, but beyond that they do not have a right to remain. Rather the landlord has a right to get his property back, but is retricted in how he enforces that right. Councils who effectively force tenants to stay beyond the date given by the court are denying landlords their rights.
If it were possible to get baliffs to do an eviction reasonably quickly (max 2 weeks) this would not be a problem.
It doesn’t help with homelessness in the long run. The landlord is very likely to get another family in the property as soon as possible, though having been screwed by the council once they are much less likely to want to cooperate with the council in the future, even to the extent of being less likely to want to take tenants on benefits.
Of course part of the problem is S8 not being fit for purposse so S21 is used for tenants who are not paying their rent. This benefits the tenants as they can pretend to the council that they are not responsible for their own homelessness, but puts a greater burden on the councils.
I know that in London it is claimed that a lot of them are so the landlords can raise rents. If that is the case then the number should drop as rents in London stop rising.
“Rather the landlord has a right to get his property back, but is restricted in how he enforces that right. Councils who effectively force tenants to stay beyond the date given by the court are denying landlords their rights”
Peter this is a fundamental misunderstanding of the law, as I mentioned above, a twisting of the very logic of it..
Councils are not denying landlords their rights, due process means that if a tenant does not leave after the effective date of the possession order the landlord is required, by law to obtain a warrant of eviction, only then is the landlord entitled to full, vacant possession. The process doesnt simply stop when the courts issue a possession order, there is a final stage.
I don’t think I am misunderstanding.. According to the government web site once a landlord gets a possession order the tenants “must leave your property before the date given in the order”. But if the tenants obey the court the council will treat them as voluntarily homeless and not houses them, or at least that is what they threaten amd are legally entitled to do. I don’t think that is just,
It isn’t just landlords who think this is wrong – http://blog.shelter.org.uk/2014/01/the-tenants-trap/
Even by your logic, shouldn’t councils take the issuing of a warrent as the triggering event, not the arrival of baliffs.
By the way, as I understand it, “due process” is part of the constitution of the USA but not really part of English law.
Peter Jackson says:-
“It doesn’t help with homelessness in the long run. The landlord is very likely to get another family in the property as soon as possible, though having been screwed by the council once they are much less likely to want to cooperate with the council in the future, even to the extent of being less likely to want to take tenants on benefits.”
Peter is spot on – for years I housed people from the councils waiting list and had a good relationship with all the councils private sector liaison officers. But when they advised a tenant to stay until the bailiffs arrived despite knowing she owed six months rent and knowing that her LHA had been suspended months earlier because she refused to provide them with receipts for childcare costs I said never again.
The consequence of this is that their waiting list now has an extra 4 families on it as I will now never knowingly rent any of my properties to a person from the councils waiting list. Ironically had they backed me they could have reduced their waiting list by 1 family because after a few weeks of providing the evicted tenant with temporary accommodation they found her to have to have made herself intentionally homeless.
Ben – if you think treating private landlords in this way is a good idea I am afraid you are part of the problem.
Dave you have seriously lost me with your argument there.
How does advising tenants of their legal rights make that person part of the problem?
If there is a problem then it is a legislative one, not a personal one.
Do you think that if you don’t agree with a particular law, and god knows there are loads I don’t agree with, that informing people of their legal rights is making the person doing it part of the problem?
On your logic then forget TROs like me, any judge, solicitor or barrister working within the law and doing their job is part of the problem because it doesn’t fit what you would prefer the law to say.
For what its worth I have always stated that the eviction procedure is far too long and needs addressing when landlords get ripped off by nightmare tenants but I have to work within the law as it stands and it is what it is and I don’t write the legislation.
I think I get the gist. Society is not managing but landlords with non paying social tenants should be grateful for the opportunity to shoulder the burden whilst everyone else flounces about virtue signalling.
“Homelessness units don’t tell people to wait until the warrant just for the fun of it, believe me working in frontline homelessness services is not fun and they don’t do it just to annoy the landlords.”
The anti-private landlord culture is endemic within many councils, stemming from political ideologies.
Councils are now reaping what they’ve sown.
Unfortunately, they are not the poor souls ultimately paying the price.
I understand (sorry Ben) that in some Councils there is an anti-landlord attitude which is perhaps unfortunate. As of course, it has resulted in many landlords taking the decision to refuse benefit tenants in future to limit their problems.
We have had many landlords elsewhere on this blog say specifically that the main reason why they no longer take benefit tenants is because of the problems they experience with the Councils.
This is not a criticism of YOU Ben but not all council offers are like you. It is a great shame.
I agree, it makes no logical sense. Councils and landlords should be working as ‘partners’. The provision of private sector housing to HB tenants is the best possible option for councils as it must save them a fortune. How much must it cost to have capital tied up in properties, and the administrative responsibility to manage them and maintain them etc. all of which will be done free of charge by a private landlord.
I always try to help my tenants to stay put and work out a repayment plan with them. I wait patiently for the council when they suspend benefits which sometimes happens and when we have had a tenant with high rent arrears who’s had his benefits stopped and we had no choice but to evict we actively assisted him in bidding for properties and waited until he had something else to go to. Unfortunately though our local council treats me like something they’ve stepped in every time I need to phone them; even if I’m patently trying to help my tenant. It’s disgraceful! I was really quite shocked by it at first, now I’m just really depressed… It screams of cutting off one’s nose to spite ones face.
In reference to the above arguments, legal process of course is an essential and can’t be got round, neither should it be; but I personally feel that it’s clearly not so much that the tenant has a RIGHT to stay, merely that the landlord does not have the RIGHT to personally enforce the court order, meaning that if the tenant chooses to remain, they can by default. In my eyes at least there is a difference.
Obviously if a council truly cannot rehouse the individual and they have been genuinely unable to find suitable accommodation and have nowhere else to go, then staying till the point of bailiffs really isn’t a choice for them, but landlords resent being treated as free emergency accommodation I guess. Go figure…
Just to be clear I meant the ‘above arguments’ made in other comments and I was obviously only referring to the tenant’s ‘right’ to remain after a court has ordered them to leave by a specific date.
“Obviously if a council truly cannot rehouse the individual and they have been genuinely unable to find suitable accommodation and have nowhere else to go, then staying till the point of bailiffs really isn’t a choice for them, but landlords resent being treated as free emergency accommodation I guess. Go figure”
Kate as I stated above, in London 39% of all homelessness cases are owed a homelessness duty under s193 of the Housing Act 96 and are in temporary accommodation because of an eviction under s21 procedures, that doesnt include the people who didnt end up being owed a homelessness duty for one reason or another. The 39% stats only relate to accepted cases. If a person is single or a couple without children then they dont show up on the figures.
Its a homelessness tidal wave and as you rightly point out the problem is exacerbated if the council cant find anywhere for them and as I state in the article in West Somerset the situation is different to Lambeth. Thats is what drives these decisions.
On your point about councils using landlords for free temporary accommodation this is simply not true. A tenant is obliged to pay their rent to a landlord up until the day they leave. Its not free accommodation. Not being able to collect that rent is a separate issue, the landlord does have a right to it.
Conversely, once the council provides temporary accommodation it is far from free and is paid for by all of us, including you, through taxes. Croydon council carried out an extensive research into the costs of re-housing a homelessness family outside of costs that are covered in other ways, that figure is £6,700 on average, and as I set out above, last year Croydon dealt with over 6,000 cases, which calculates up at £39m, which is just one out of 333 councils nationwide or 32 councils on London alone and we all pay for that
“A tenant is obliged to pay their rent to a landlord up until the day they leave. Its not free accommodation. Not being able to collect that rent is a separate issue, the landlord does have a right to it.”
Ben in 30 years and some 1000 tenancies I have never collected the arrears from a DSS tenant.
Actually redress that, its 39% of 39 miliion
Lets be very clear;
Nearly 90% of so called ‘no fault’ section 21 evictions are for rent arrears.
(The next biggest reason is anti-social behaviour, followed by the landlord selling up. Way down the list is revenge evictions and landlords evicting so they can increase the rent.)
“Conversely, once the council provides temporary accommodation it is far from free and is paid for by all of us, including you, through taxes. Croydon council carried out an extensive research into the costs of re-housing a homelessness family outside of costs that are covered in other ways, that figure is £6,700 on average, and as I set out above, last year Croydon dealt with over 6,000 cases, which calculates up at £39m, which is just one out of 333 councils nationwide or 32 councils on London alone and we all pay for that.”
Yep, disgusting isn’t it?
The large majority of it avoidable.
And as you rightly point out, that doesn’t include the hidden costs of homelessness.
Avoidable by who? The tenant would avoid it if they paid their rent on time so their landlord did not want to evict them.
So far as the Council are concerned, I agree that many individual officers have (according to reports I have heard) a negative attitude towards landlords which does not help, but the problem remains that in many areas there is simply no-where to put these people.
The real culprit, in my view, is the right to buy legislation which has forced Councils to sell off so much of their housing stock making them reliant on the private sector.
I only know one area from before and after right to buy, and it seems to have worked well. The houses sold to tenants have been maintained much better and often improved, and the large amount that was sold to a housing association also seems much better maintained.
That housing association has just been given a new 5 year contract from the council to continue “to deliver its statutory homelessness duties and supported temporary accommodation”. They claim “in the past 12 months the service has prevented 900 people from becoming homeless”.
The housing association owns a building company and has just completed a development of 55 affordable homes, whilst the building of around the same number of luxury flats is in progress.
I think this system is working well.
I should point out that the statistics are compiled from documents called P1Es that are submitted by all local authority homelessness units monthly and compiled by the DCLG quarterly.
The way of recording the information on the forms is very basic and simply notes how many accepted cases were triggered by service of an s21. The figures DONT go into why the s21 was issued in the first place and as we all know there are loads of reasons why a landlord may choose to do it. Rent increases, selling up, rent arrears, damage. These sub-reasons arent recorded anywhere on any system and any expressed views are merely conjecture, which I have stayed away from.
In that sense P1Es are very, very blunt tools in fact many of the homelessness statistics were declared by the Statistics Authority in 2015 to not be fit to be considered statistics. The rough sleeper count was completely rubbished and a new system put in place and the P1Es were borderline cases in their view.
And lets be clear, the P1Es arent invented by councils, they are given to them by government going back many years. Until we have a method of recording why a s21 is issued we will only be guessing..
Sometimes tenants ask landlords to issue a section 21 in the belief that it will help them get rehoused by the council. I doubt either the tenant or landlord would want to give that as a reason to the council. (I do know that for some councils that would be a bad idea.)
Yeah you get that Peter and that would always be considered an intentional homelessness case with the landlord colluding. Just as commonly you get landlords saying they wont evict unless the tenant pays for the process, which in IH terms amounts to the same thing.
You also occasionally get cases where the tenant was in rent arrears but the soft-hearted landlord used s21 so the tenant wont get found IH.
Thats the problem with P1Es, even if you break them down into reasons for seeking possession under s21 you wont always get a genuine reason to record the data. With section 8 notices the reason for eviction is recorded in the paperwork but it isnt with s21 applications, so I doubt any data gathered would be 100% reliable.
I have consistently said that I am not putting forward any theories for why a landlord would use s21s, all we have are the P1E stats that show that homelessness is rising considerably as a result of s21 claims. There is no reliable data beyond that
“You also occasionally get cases where the tenant was in rent arrears but the soft-hearted landlord used s21 so the tenant wont get found IH.”
Ha! Ha! Those soft-hearted landlords bless ’em.
Nothing to do with the useless section 8 being a bad joke that anyone with even a passing interest in the subject is well aware of.
It’s not that bad. In my time I have done many successful evictions using ground 8. As with all claims you need to be careful and do your prep work.
“It’s not that bad. In my time I have done many successful evictions using ground 8.”
I don’t doubt it but when was the last time Tessa? What would you advise if you were practising now?
Although we are straying from the point, the perception and standard industry advice is, wherever possible, to use section 21 rather than section 8 every time.
Suggesting section 21 is the reason for homelessness is as daft as saying dying is the reason for death.
https://landlordnews.co.uk/latest-english-housing-survey-dispels-myths/
“According to the statistics, 73% of tenants in the private rental sector left their last property because they wanted to, with just 11% doing so because they were asked to by their landlord or letting agent.
Just 2% of tenants moved out because of rent increases by their landlord.”
https://www.netrent.co.uk/landlords-evict-for-good-reason/
“90 per cent carried out evictions for rent arrears”
Which makes uncomfortable reading for those deluding themselves that it is all the fault of those nasty landlords evicting to grasp increasing rents or just on a whim.
If there was a will by councils, they could easily find out the largest reason for homelessness (pretending they don’t know already) and prevent it right from the very start.
And to head off the usual bleating about lack of resources, it would work out far cheaper and less labour intensive.
So why don’t they? Cynical answers to the Minister of Housing please.
Landlords go for the chespest, quickest most reliable way to get rid of non-paying tenants. So they normally go for section 21. If that means the tenant will not oppose it then that is a bonus.
Section 8 is used when section 21 is not available.
If section 8 were stronger then landlords could take more risks with new tanants, and could safely give longer tenancies. That would benefit good tenants. Councils would get a bettter picture of why tenants were evicted and could treat them more appropiately.
A Section 21 or Section 8 notice isn’t a ‘Notice to Quit’ though, is it.? Just saying.