Open season

Housing advisers have often found it hard to stomach the difference between the way council and housing association tenants are sometimes treated. If you are a secure tenant under the Housing Act 1985, the council normally has to show a legal ground for eviction and that it is reasonable for you to be evicted. But most housing association tenants are assured tenants under the 1988 Housing Act – and some associations have exploited this difference by bringing proceedings in such a way that the tenant cannot stop the eviction by arguing about reasonableness.

Possession proceedings based on section 21 notices (where an assured shorthold tenancy is simply being ended on two months’ notice) or where the proceedings are based on ground 8 (two months’ rent arrears) are the prime examples. Housing associations using those grounds may not find it as straightforward in the future.

Part of the reason for Weaver’s importance is that until a couple of years ago a tenant wanting to raise public law arguments would have to raise them in the High Court in judicial review proceedings.

Weaver comes relatively hot (in legal terms anyway) on the heels of the 2006 House of Lords decision in Leeds v Price which gave the green light to public law defences in the county court. The fact that the judges have encouraged all of the issues to be bundled together in the county court means there is a simpler and less convoluted procedure which will encourage more to come forward.

Public law challenges will focus on the decision-making process, its fairness and rationality as well as on proportionality. Although there is no statutory duty on associations to make enquiries or to give reasons, tenant lawyers will, in the right sort of case, seek to persuade a judge that an absence of reasons should lead to a finding of irrationality or a finding that eviction is disproportionate.

Tenant lawyers will seek the housing file – they will want to establish what considerations and information was taken into account in the decision-making process. Housing files will be requested and scrutinised.

If allegations have been made against the tenant, have they been put to the tenant and has a fair procedure been followed? Tenants should have an opportunity to comment on complaints about their behaviour or non-payment of rent before the decision to serve notice or evict is taken.

‘Providing a housing association acts fairly and rationally, a court is unlikely to upset its decision’

Research confirms that in nearly one half of households living in social housing there is at least one person with a disability or serious medical condition. Where there is disability, landlords will need to have considered the disability equality duty under section 49A of the Disability Discrimination Act. That isn’t to say that disability is a defence but equality issues should be taken into account.

Tenant advisers will need to make sure that any new evidence (eg medical) or new issues (eg housing benefit backdate) which might have a bearing on the eviction process are put forward for consideration to the housing association.

Associations will take comfort from the fact that nothing in Weaver outlaws the use of ground 8 or section 21 and the Housing Corporation guidance expressly incorporated by the tenancy agreement was in effect held by the divisional court not to be worth the paper it was written on.

Provided an association acts fairly and rationally, a court is unlikely to upset its decision. But it will now have to make tactical decisions about whether it persists in using mandatory grounds and whether to put in evidence explaining its decisions.

Chris Morris is solicitor at Shelter.