Lime Legal

Just another statistic?

Published 01 September 2023

The number of possession orders obtained by social landlords has doubled in the last six years. Are they justifiably cracking down on rent arrears and anti-social behaviour - or evading their social responsibilities in the pursuit of financial targets? Melanie Delargy reports

Investigations by ROOF suggest that the use of mandatory grounds for eviction by housing associations and introductory tenancies by local authorities could be behind a sharp rise in the number of possession orders obtained by social landlords. Figures from the Lord Chancellor’s Department show a 10 per cent rise in eviction orders obtained by social landlords from 24,184 in 1999 to 26,677 in 2000. The total has doubled in the last six years from 13,499 orders in 1994.

No government agency has conducted research into the reasons behind the increase and the courts do not split between the orders between local authorities and housing associations but housing advisors believe it to be the case.

There are no figures on how many orders lead to actual evictions. However, it is possible that social landlords could be evicting more households than they are building new homes. Housing associations and local authorities only completed 18,500 homes last year between them.

Mandatory grounds for possession ground eight was introduced in the 1988 Housing Act. In keeping with the political climate of the time, it was part of the provisions introduced by the Conservative government for deregulating the private rented sector. However, it also applied to the assured tenancies used by housing associations.

Ground eight is particularly draconian because the court merely rubber stamps the order. The judge has no power to take into account whether the possession action is fair or if there are any mitigating circumstances. ‘It is arguable that it was never parliament’s intention that it should be used by social landlords,’ says National Association of Citizens Advice Bureaux (NACAB) social policy officer Liz Phelps.

The use of ground eight prevents the district judge from assessing the particulars of the case and what is reasonable, as an independent third party who can balance the relative interests of the landlord and the tenant.’

ROOF contacted the seven largest housing associations, National Housing Federation (NHF) members with more than 20,000 units in management, to find out their policy on the use of ground eight. Places for People, London and Quadrant (L&Q) and Hyde all use it. Sanctuary’s press office was not sure but suspected they might use it occasionally.

Rent arrears is the reason behind the move. L&Q has used ground eight since 1998 when it was approved in full consultation with the regional committees and residents associations. The association says that in practice only four out of ten cases lead to a court hearing, and that it has been able to reduce rent arrears to below five per cent of the annual debit during the last financial year with this ‘firm but fair’ approach. Places for People group director of operations Hilary Keenan says: ‘There might be isolated instances where it’s a valuable tool. We would only use it after due care that it is the only option open to us.’

Hyde has used ground eight since 1999 in cases where there is a history of persistent defaulting on arrears payments. The association says it does not use it where the tenant has housing benefit problems, is elderly, has mental health problems or is a family with young children. It had two cases in 2000 but has not used it this year.

Home and Riverside out of the big seven have not adopted the procedure. Anchor Trust did not respond. Riverside housing association said it did not use ground eight despite a temptation to do so following protracted rent arrears problems and possession orders that are continually suspended. The landlord says it prefers close liaison with tenant advisors, housing benefit providers and debt counsellors. Home also refuses to use the mandatory eviction procedure. A spokesperson says: ‘Home housing board felt a mandatory grounds for rent arrears is not sufficient and we prefer discretionary grounds and leave it up to the judge.’

Sanctuary does not keep centralised figures so could not comment on the number of cases.

Impatience with the district judges for granting too many stays of eviction and suspended orders was cited by a number of other associations as a reason for adopting mandatory grounds for eviction. Yorkshire Metropolitan started to use ground eight two years ago because the courts in Bradford and Sheffield were not granting possessions.

Policy information officer Sally Kendrick says it tends to use both ground eight and ten, which is not mandatory, and then on the day of the court hearing make a decision depending on efforts by the tenant to clear the debt. The housing association served 91 notices on ground 8 and 10 from April 2011 until the end of July, out of 268 notices served overall. It does not keep figures on which ground was used in court or what happened after.

‘We wrote to the courts a while ago moaning about stay of eviction orders. The response from the courts was if you don’t want this to happen use ground eight,’ says Mike O’Sullivan, regional director of Bedfordshire Pilgrims. The association will start piloting ground eight in the autumn following an internal consultation that agreed the move to combat the increasing level of arrears. The association is currently consulting with the local CAB and Housing Advice Centre for their views.

If the courts cannot take into consideration extenuating circumstances such as housing benefit delays or problems in the family do the associations ensure that they are? London and Quadrant director of corporate strategy and communications Mike Donaldson says: ‘We do not believe that our use of ground eight has resulted in any more evictions than before. Our firm but fair approach to arrears recovery emphasises early contact with tenants to seek repayment, and we can bring in a specialist benefit advisor to help in cases of real hardship. We have to balance our responsibilities as a social landlord by ensuring that we can collect our rent income in order to provide the service to everyone.’

Mike O’Sullivan at Bedfordshire Pilgrims says they would not use it with the mentally ill or elderly, but he was less sure about families with children . ‘On children we haven’t dotted all the ‘i’s,’ he says.

But evidence on the ground from tenants seeking housing advice raises suspicions that this is not always the case. A snapshot of Citizens Advice Bureaux clients shows a lack of concern by housing associations for family problems and even housing benefit delays. Take the case in the south of a woman on heavy medication with severe mental health problems being served with a possession notice on ground eight. Another example is a single parent who approached a CAB office in the South East when the family received a notice seeking possession under ground eight.

The arrears had built up partly because of housing benefit delays and partly because the family had to borrow money to pay for a funeral.

But there are no regulations or guidelines to discourage the use of mandatory evictions by associations.

Neither the National Housing Federation (NHF) nor the Housing Corporation advise against the use of ground eight because it is within the law, and both organisations say it is up to the individual landlords to make decisions on housing management. However, the NHF’s John Bryant said associations should not evict tenants unless they are satisfied that there is no reasonable alternative. ‘Our focus is on avoiding evictions rather than focusing on the mechanism that may be used to do it,’ he says.

This might be the intention but evidence from CAB offices does not back it up. And excuses that judges are becoming more lenient do not wash with Liz Phelps. If this is the problem she advises housing associations to raise the issue at county court user group meetings. ‘If landlords are dissatisfied with the district judges’ decisions, the appropriate action is to appeal at circuit court level, not to seek to circumvent the district judges’ role in the process. I am not aware of any research or data indicating that district judges have become more lenient, or any arguments as to why they should do so. The recent figures on possession orders certainly do not support this argument,’ she says.

There is also evidence that ground eight could be challenged under the Human Rights Act. Keith Lomax, a solicitor at Leeds-based practice Davies Gore Lomax, says using a mandatory form of eviction could mean the social landlord is interfering with the right to a home and family as outlined in the European law. He is also concerned recently by the number of ground eight cases in the area. ‘I was surprised to be acting in a string of possession cases brought by social landlords; far more than usual. I wondered what the reason was and pondered whether there had been any change in the way housing associations were financed. I then had word unofficially that one of associations was going for zero tolerance on non-payment of rent,’ he says.

With local authorities, moves to tackle rent arrears and anti-social behaviour are thought to be behind the increase. In Wales, which has seen a 66 per cent rise in possession orders from 1182 in 1999 to 1957 in 2000, Shelter Cymru director John Puzey thinks the councils’ financial interests might be a pertinent reason. ‘It is difficult to generalise but it could be a reflection of ‘get tough’ policies by a number of local authorities. The overall level of arrears has concerned councils and one of the responses has been to take earlier and tougher action,’ he says.

Moves to tackle anti-social behaviour have also contributed to the rise. Wrexham county borough council is one of 13 authorities in Wales to adopt what some see as the local authority equivalent of ground eight introductory tenancies. Since October 1998 all new tenants have been given a twelve- month trial period and if they break the tenancy agreement in that period they are taken to court and as with ground eight the judge has no discretion in the case he or she can only grant an order. At the same time the council opened a hotline for tenants to make anonymous complaints about nuisance neighbours. The Tenancy Enforcement Unit deals with severe breaches of tenancy such as drug dealing and other anti-social behaviour.

The increasing use of introductory tenancies in England and Wales is of concern to housing advice workers. They were originally intended to prevent nuisance neighbours getting a secure tenancy but tenants are also facing possession proceedings for rent arrears. Puzey is concerned that tenants are not seeking advice early in these cases because they assume they will lose their home anyway. ‘We have found a lot of people abandoning tenancies knowing they have no defence,’ he says.

NACAB echoes Puzey’s point. Individual bureaux have found clients with relatively small arrears who have lost their home as a result. ‘Although the intention was that the introductory tenancy would help landlords deal with anti-social behaviour rather that arrears, it can also prove to be a fast track to homelessness as soon as a tenant falls into arrears,’ says Liz Phelps.

The reason behind the increase in rent arrears also needs investigating. Although it is difficult to make causal links, housing advice workers are constantly seeing clients with possession orders who are waiting for housing benefit payments.

John Puzey says there is evidence in Wales of housing benefit delays being overlooked by tenant management. ‘Often we pick up a housing benefit issue that would reduce arrears. We would be concerned at how many others are going to court and perhaps losing their home when housing benefit is the problem,’ he says.

There are also concerns that housing associations are using court action when they know there are housing benefit delays to force the benefit department to cough up, something admitted by one source at the NHF.

A snapshot of tenants seeking advice from CABs stands this up. There is the widow living, with her son, in a South East housing association property, who had a suspended possession order granted against her for rent arrears. The arrears started when she started working part time and the housing benefit department failed to decide on the claim.

A single mother in London, also in a housing association home, took a temporary job and claimed working families tax credit. The housing benefit office had not assessed her claim when the job ended three months later nor restored full payment. Meanwhile, arrears accrued and the possession procedure began. A snapshot of people attending Clerkenwell court in a single day also backs up the distress caused by housing benefit delays.

Liz Phelps says CAB evidence shows housing benefit is a major factor in rent arrears and court action. ‘The local government ombudsman has stressed that local authority good practice should be that it always checks whether there is an outstanding housing benefit problem before it initiates possession action. RSLs should set up procedures with housing benefit departments to do similar checks. It is unreasonable to use the tenant’s security as a pawn in the struggle to get housing benefit paid,’ she says.

There is no denying rent arrears are a problem. Sheffield council launched its own crackdown in August on tenants who do not pay their rent. The council has approved a new policy that aims at a quicker course of action through the legal process if tenants break their agreements to pay off debts. The council’s current arrears stand at £13.29 million with former tenants arrears totalling £5.25 million.

Group policy and information manager at Yorkshire Metropolitan housing association Sally Kendrick says tenants in arrears of £1,000 or more is an increasing problem and legal action is sometimes the only way to deal with it. ‘We can’t have people building up £1,000 without comeback. We don’t like evicting people but there are those who won’t pay.’

But is legal action really the answer in so many cases? Liz Phelps calls for local authorities and housing associations to ensure tenants in arrears are given advice at an early stage and if necessary pointed in the direction of independent advisers as soon as possible. Once a tenant is evicted the association or local authority will never see the rent owed. The former tenant often ends up at the door of the local authority claiming housing benefit in the more expensive and insecure private rented sector. ‘It is absurd,’ says Puzey. ‘In terms of public cost you are actually paying more and the accommodation is likely to be less suitable. Because of get tough policies there is the potential for large numbers of people to be evicted and get lost in the private rented sector. Those people might be vulnerable and have fallen outside the tenure where they could get that support.’

Ground eight removes the power of the judiciary from the legal process so it is as if the tenant has not been to court at all. Under these circumstances do associations really need such a draconian measure? Associations say it is not draconian, because they have a responsibility to their tenants who are paying the rent. But the Chartered Institute of Housing believes there is no need for a mandatory possession order. Policy officer Sam Lister says: ‘If you’ve got the eight weeks of arrears and there are no extenuating circumstances then the case should speak for itself and you should be able to use normal procedures. Normally once you get a possession order and get rid of the tenant that’s the end of any hope of recovering the arrears.’

What is clear is the lack of information about possessions by social landlords. Just how many housing associations are using ground eight? Are they all diligent in ensuring it is a last resort? Why are possession actions by social landlords on the rise while repossessions by mortgage lenders has been on a steady decline? As Liz Phelps says: ‘There is a clear need for research on why possession orders have rocketed and also on best practice in managing arrears without using the courts. Social landlords are, after all, surely in the business of preventing homelessness, not causing it.’

The Clerkenwell conveyor belt

It is a sultry Tuesday morning in July but Nursret Bilgin has too much to worry about to enjoy the heatwave. He is sitting quietly in the busy lobby of Clerkenwell county court in north London anxiously waiting to hear if he, his wife and 18-year-old son will lose their home. Bilgin is in arrears to his housing association because he is owed more than six months housing benefit from last year. He has worked for six months of this year and paid full rent in that time. Since the job finished three weeks ago he still has not heard about the new claim.

The benefits office told the association earlier in the year it had everything it needed. The day before the possession hearing it said the file was now lost. Meanwhile a distressed Bilgin awaits the judge’s verdict. ‘It is a very difficult problem and my son starts college this year,’ he says.

Bilgin’s case is typical of the cases at Clerkenwell, says duty solicitor Ben Chataway. ‘I haven’t ever counted but I reckon at least half the cases involve a housing benefit delay of some kind. Sometimes it is the only reason people are here and sometimes it is only a part of a big problem,’ he says.

His observation was reflected the day ROOF visited the court. Chataway comments that it was quieter than usual but there were still over 30 cases to be heard between 10.00 and 1.00. Many tenants do not turn up but the three duty solicitors still had enough tenants in need of help to have their work cut out. According to the Lord Chancellor’s Department figures Clerkenwell is seeing a steady rise in orders. There was a 37 per cent increase from 444 orders made in 1999 to 607 in 2000.

Standing anxiously on the other side of the lobby to Bilgin is an anxious single mother who has been defeated by the confusing system of housing benefit. Franka Ndoh, a tenant with Islington council, is on a grant training to be a nurse but her benefit has not materialised. Standing with a file of documents, receipts and letters she cannot fathom how much she owes in arrears,how much housing benefit she is owed or even entitled to.

‘It comes down to that little pink form for housing benefit,’ says Tania Grayson Coleman. The single mother and tenant with Islington council has built up arrears through delays in housing benefit over the last two years. The problems began when she started working full time. ‘I was going full time to part time and every time I sent them the form they didn’t receive it,’ she explains.

But housing benefit is not the only reason tenants end up in court. There were two cases where the tenant was holding back rent because their association was not carrying out arrears. In both cases the tenants could afford to pay the arrears off but it was the only weapon against a landlord that wasn’t carrying out its side of the bargain.

By the end of the morning Grayson Coleman was ordered to pay £5 a week on top of her rent towards arrears. Ndoh had arranged with the council to pay £50 a week in total for rent and arrears. Bilgin’s case was adjourned for the third time to give him time to sort out the housing benefit but the threat of losing the family home still hangs heavy.