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.
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” 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.