John Drysdale argues for reasonable and proportionate treatment for tenants
Most people would agree that social landlords should advise and assist tenants who fall into rent arrears to sort out their finances and maintain their tenancy. Evicting a tenant is distressing and damaging for the tenant, and costly for the landlord in terms of lost rent and legal costs. It follows that courts being asked to grant possession of a tenant’s home should take into account whether the landlord has made reasonable efforts to assist the tenant and considered any circumstances causing arrears.
Ground 8 is the ‘mandatory ground for possession’ of a home simply on the basis that arrears of eight weeks rent or more have accumulated. Eight weeks is too short a timescale for landlords to be able to support tenants effectively who are faced with possession under Ground 8. A court has no discretion to consider whether proper assistance has been provided or there are exceptional circumstances contributing to the arrears. As a procedure, use of Ground 8 cuts across the reasonable and proportionate basis for seeking eviction for rent arrears set out above.
The forthcoming Renting Homes Bill has the core aim of simplifying and standardising tenancy agreement terms across rented sectors of council housing, housing associations and private rented sector. The standardisation of tenancy agreements will increase understanding of tenancy terms by tenants and landlords, and make transfer between types of landlord easier. Ground 8 only applies to housing association tenants with assured tenancies after 1989 so the choice is: either to abolish Ground 8 and ‘level up’ to the security of council tenants; or to introduce Ground 8 into all the new tenancy agreements; or to continue to have different tenancy agreements for different types of landlord. Ground 8 has to go or the core aim of Renting Homes is lost, or council tenants suffer a reduction in security.
Tenants will be rightly cautious and possibly alarmed by changes to their tenancy agreements which are going to be imposed at a point in time without their signed agreement. If the Renting Homes Bill levelled down to assured tenancies including Ground 8 this would very likely create wide opposition to the Bill from council tenants, losing the cross-sector support which has been a feature to date of development of the Renting Homes Bill.
The Renting Homes Bill is closely modelled on the recommendations of the Law Commission, which points out that developing jurisprudence in connection with the European Convention on Human Rights requires that courts have scope for judicial oversight of evictions. The mandatory possession of Ground 8 is at odds with this developing area of law.
Statistics show that Ground 8 is rarely used, and that applications for possession on discretionary grounds are the vast majority of applications and provide landlords with an effective way to gain possession if needed. Council landlord rent arrears are not significantly different from housing associations despite having no access to Ground 8. Ground 8 is not necessary to obtain possession effectively. The Law Commission concluded that using Ground 8 as a tool to tackle rent arrears and prevent tenants getting into excessive debt is ‘disproportionate and potentially counter- productive, as tenants will also have to bear the costs of court proceedings’.
It is appreciated that so-called welfare reform has increased problems of rent arrears for landlords but this is not a justification for abandoning the reasonable and proportionate approach to rent arrears, and the discretion of courts to ensure this approach has been taken before taking away someone’s home; a basic human right.
John Drysdale, director, TPAS Cymru, john@tpascymru.org.uk, tel: 02920 237303