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TAI Preview 3: Renting Homes Bill – for and against Ground 8

The case for REMOVING Ground 8: Ceri Dunstan

SHELTER CYMRU UNRESERVEDLY SUPPORTS the removal of Ground 8. We have campaigned against the use of this draconian measure and were delighted to see its removal proposed in the Renting Homes Bill. Our view is that Ground 8 has no place in social housing, and this is a view that has been shared within the social rented sector, with many RSLs having a voluntary agreement not to resort to it.

Our main concern with Ground 8 is the complete lack of judicial discretion, even in cases where the circumstances are entirely outside the household’s control such as serious illness, bereavement, or administrative mistakes such as Housing Benefit forms being lost.

No matter how the tenant found themselves in the situation of owing rent, if the landlord invokes Ground 8 the judge has no choice but to make an Outright Order for Possession. We have seen too many clients in this kind of situation for us to be under any illusion regarding the devastating impact it has on families.

The only defences available to the client are either extremely limited in nature (such as technical faults with the Notice) or are highly complex areas of law (such as Human Rights Act defences).

There is also the issue of the Rent Arrears Pre-Action Protocol, which is designed to protect tenants’ rights by ensuring that landlords pursue arrears in a fair way. Under Ground 8 the judge has no power to refuse the Order if the landlord hasn’t followed the Protocol.

The potential consequences of this for tenants are highly worrying. The use of Ground 8 reduces their rights and leaves them extremely vulnerable to substandard rent collection practices.

In addition, it exposes them to the risk of being evicted for reasons other than just the rent arrears – in our experience
with clients facing Ground 8 claims, there is usually some other underlying reason why the landlord wants rid of the tenant, such as alleged anti-social behaviour. While these reasons might be valid, using Ground 8 to address them is not.

Besides the reasons outlined above, we question the need for the existence of Ground 8 when so many landlords have for so long taken a strong ethical stance against its use.

Even in cases of extreme arrears, and with the added pressures imposed by the bedroom tax and other welfare changes, these RSLs have maintained their commitment to ensuring that tenants have the benefit of judicial discretion. If someone stands to lose their home, they have the right to ensure that every avenue has been explored to prevent this.

Retaining Ground 8 would mean retaining the risk of arbitrary evictions without the chance of judicial intervention. The number of instances of Ground 8 evictions might be small, but their
impact on the households affected is huge and we believe this measure has no place in a housing system that we want to be fair, transparent, and citizen-centred.

Ceri Dunstan is communications manager at Shelter Cymru

The case for KEEPING Ground 8: Amanda Oliver

Ground 8 has been the source of much debate and controversy since the Law Commission proposed its removal as part of the Renting Homes Bill.  There has been a deep divide over its purpose, potency and value amongst policy makers and practitioners. Some have even argued it is an infringement of tenant’s human rights.    

CHC believes this couldn’t be further from the truth and would argue that the retention of Ground 8 protects tenants, underlines the importance of rent payment and reinforces the  value of social housing is a scare commodity. 

The rationale for the removal of Ground 8 centres on:

  • its use has been limited to date.  CHC agrees this is true but it is only ever intended be used as a last resort.   
  •  The mandatory nature of Ground 8 means courts are not able to take into consideration factors that may have contributed to any rent arrears. Non-payment of housing benefit due to an error or lengthy processing time is something housing associations will be aware of and would not use Ground 8 in these circumstances.
  • There have been developments in human rights and equality law and these should be considered when landlords are considering using Ground 8. Housing asociations will do this but where district judges are unwilling generally to accept the mandatory nature of Ground 8 this is an issue with the district judge not the mandatory ground.  

There is a body of evidence that illustrates that welfare reforms exacerbate arrears despite the eight-week trigger. Of particular concern are tenants affected by the ‘bedroom tax’, who are unwilling to move and are likely to very quickly accrue high arrears levels.

For housing associations with large numbers of tenants on benefits, high levels of arrears combined with excessive court costs are a serious financial concern and a business risk. While Ground 8 has only ever been used as a last resort, more housing associations have said welfare reforms could mean they will be forced to use Ground 8 more often to protect their financial stability.

Lenders have been clear that if rent arrears continue to rise they will review borrowing costs to reflect higher levels of risk. Higher borrowing costs and large rises in arrears will be unsustainable for some housing associations in the long-term – which puts all tenants at risk!  .  

CHC strongly disagrees that abolishing Ground 8 is the only viable option for establishing a single secure contract. Local authorities are not subject to the same lending constraints as housing associations and therefore it is reasonable to argue for its retention.   

We believe and make a plea for Ground 8 to be retained as an option for serious arrears at least until the full impact of universal credit is known…    

Amanda Oliver is head of policy and research at Community Housing Cymru


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