Local Authority advising tenants to stay beyond Section 21 notice period – what to do!

Filed in Landlords by on 30th March, 2016 0 Comments

eviction-notice-978x400The Association of Local Landlords (Wessex) has received a number of complaints from Landlords where tenants have been advised by Local Authorities to stay in occupation after the expiry period of a Section 21 until evicted by Court bailiffs. These same concerns were voiced by Landlords attending the last Bristol City Council (BCC) Landlord Meeting earlier in the year.

Landlords are concerned that these occurrences are likely to increase as the availability of houses reduce and tenants are less able to afford rising rents, a result of new tax changes. With increased Court costs and protracted eviction process is an unwelcome issue.

Local Authorities’ appear to have adopted a general policy where a tenant is not considered as homeless until the bailiffs have physically evicted them. Until the tenant is considered as homeless, the Local Authority will not consider that they are obliged to find the tenant new accommodation.

Where this is the case that Local Authority is acting outside of Government guidelines.

The Association of Local Landlords (Wessex) highlighted this issue during a recent West of England Landlord Panel (WOELP) that is Chaired by BCC and we understand that they are seeking further advice.

All Local Authorities are bound by guidance provided by the Department of Communities and Local Government’s “Homelessness Code of Guidance for Local Authorities”.

Section 8.32 of the guide is very specific on how a Local Authority should act once a tenant has been served a valid Section 21, as follows:

8.32. Each case must be decided on its facts, so housing authorities should not adopt a general policy of accepting – or refusing to accept – applicants as homeless or threatened with homelessness when they are threatened with eviction but a court has not yet made an order for possession or issued a warrant of execution.

In any case where a housing authority decides that it would be reasonable for an applicant to continue to occupy their accommodation after a valid notice has expired – and therefore decides that he or she is not yet homeless or threatened with homelessness – that decision will need to be based on sound reasons which should be made clear to the applicant in writing (see Chapter 6 for guidance on housing authorities’ duties to inform applicants of their decisions). The Secretary of State considers that where a person applies for accommodation or assistance in obtaining accommodation, and:

(a) the person is an assured shorthold tenant who has received proper notice in accordance with s.21 of the Housing Act 1988;

(b) the housing authority is satisfied that the landlord intends to seek possession; and

(c) there would be no defence to an application for a possession order;

then it is unlikely to be reasonable for the applicant to continue to occupy the accommodation beyond the date given in the s.21 notice, unless the housing authority is taking steps to persuade the landlord to withdraw the notice or allow the tenant to continue to occupy the accommodation for a reasonable period to provide an opportunity for alternative accommodation to be found.

73 Homelessness Code of Guidance for Local Authorities

Homelessness Code of Guidance for Local Authorities 74

8.32a. Authorities are reminded that an applicant cannot be treated as intentionally homeless unless it would have been reasonable for him or her to have continued to occupy the accommodation. Guidance on ‘intentional homelessness’ is provided in Chapter 11.

It should be noted that this Homelessness Code of Guidance for Local Authorities provides a summary of the homelessness legislation and the duties, powers and obligations on housing authorities and others towards people who are homeless or at risk of homelessness. It does not form part of the statutory code of guidance and is not a legal commentary.

However, the guidance is a summary of relevant parts of the Homelessness Act 2002 and the Homelessness (Priority Need for Accommodation) (England) Order 2002, these are statutory documents and hence further reading of these Acts are likely to substantiate the following steps specific to each case. Landlords are advised to seek their own legal advice in this respect.

The Guidance provides some key points that should be complied with by the Local Authority, we suggest the following steps:

  1. Landlords should encourage their tenant to apply for new accommodation as early as possible after the section 21 is served. Whilst this is not a Landlord responsibility it makes sense to ensure the Local Authority (Housing) are made aware that a Notice Seeking Possession has been served to ensure time is available to affect the Government’s guidelines.
  1. If the Local Authority advises the tenant to remain in the property it must be based on sound reasoning and communicated to the tenant in writing. The three points provided by the Secretary of State should be noted as a basis for the Local Authority’s “sound reasoning”.
  1. Assuming there is no sound reason for the tenant to stay in occupancy beyond the expiry of the Section 21 then the Local Authority is bound to consider the tenant as homeless at that point and identify new accommodation before the end of the Section 21 notice period.
  1. Where a decision is made by the Local Authority to advise the tenant to stay in occupation until the bailiffs evict them and where this advice is given without good reason then a letter should be written to the Local Authority that challenges their decision buy reference to the above guidelines.
  1. A further letter should be written to the tenant by the Landlord that advises the tenant to seek professional legal advice. The letter should advise that tenant that the Local Authority does not appear to be in compliance with the guidelines provided. The letter should also relate to the potential consequences associated with a Court eviction. This may include the difficulty in finding future accommodation is court costs cannot be covered, where a County Court Judgement is issued, where references may be sought from the landlord, where the tenant maybe listed as rogue on databases (such as those maintained by Tenant ID or Landlord Referencing Services).

If the above has little impact, a formal complaint should be made to the Local Authority concerned as failing to comply with Government guidelines.  Further complaints could also be made to the Mayor, your MP and the Housing Minister Brandon Lewis.

Note: The Housing Minister, Brandon Lewis has recently sent a letter to all Local Authorities stating that they must comply with the Homelessness Code of Guidance for Local Authorities – click here for reference to the letter.

Until we have received a guarantee that the Government’s guidelines will be adhered we can only advise that Landlords do not let properties to Local Authority funded tenants.

Please keep us informed so that we can represent you at the next WOELP meeting.

About the Author ()

Rob Crawford is the chairman of the Association of Local Landlords (Wessex). Rob is a practicing landlord with a property portfolio that includes small private residential properties and HMO's. Rob is a qualified letting agent and former owner of Kingfisher Lettings & Management. He is now a share holder of the successful online lettings company Lettingsupermarket.com.

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