At the point a section 21 is served, there is a potential for a tenant to find themselves homeless. People in employment and/or not in receipt of benefits related to housing, usually leave upon or before expiry of the notice as they will have found an alternative property. For people in receipt of benefits, the solution to the problem is far less straightforward as finding accommodation is more difficult. For some, unless they are lucky enough to find a private rented sector landlord happy to accept tenants in receipt of benefits, the process is far more protracted.
As we have seen recently in the unfolding story of the Government pledging to get rid of ‘no-fault evictions’, section 21 is used relatively infrequently (less than 6% of tenancies end using a section 21). It is usually reserved for when the landlord wishes to sell, needs to occupy or the landlord-tenant relationship has broken down. However, it is sometimes used as a less confrontational method of seeking possession where, for instance, rent is unpaid or there has been anti-social behaviour. In the vast majority of tenancies, the tenant in receipt of housing benefits will have looked after the property and paid the rent. They are simply victims of circumstance and are entitled to assistance, and if necessary, accommodation support from the local housing authority.
Historically landlords have faced issues achieving vacant possession following a court granting a possession order. The tenant may have been advised by the local housing authority that to leave a property prior to eviction by the bailiff would amount to making themselves intentionally homeless. As a result, the local authority’s responsibilities would be reduced. Tenants who do not pay the rent and subsequently receive a section 8 notice may find that they could also be deemed to have made themselves intentionally homeless.
If the tenant does not vacate the property by the date stipulated on the court order, the landlord has to go back to court to request the bailiffs. The amount of time it takes for the bailiffs to attend will depend on where in the country the property is located. Typically the delay can be several weeks or even a couple of months for the bailiffs to attend. This inevitably leads to additional expense and time delay for the landlord and is both a demoralising and potentially humiliating experience for tenants. The tenant is legally liable for the court application costs and the additional cost of the bailiffs. Where the local authority have told them to stay put, this is not fair to tenants when they are simply doing what the local authority is telling them to do.
It is not therefore necessarily the fault of the tenants that they remain in the property beyond the notice expiry or court awarded date for possession as they are under the threat of losing local authority help. To a degree, it is not even the fault of the local authority, as they are generally woefully short of both emergency and permanent properties in which to house those people who are evicted by the bailiffs. Councils used to try and delay the point at which someone became “homeless” for as long as possible. They are simply buying themselves time to find a solution.
Over the years, council housing has been sold off under ‘right to buy’ schemes leaving the stock of social or council housing severely depleted. This means that housing authorities need the help of the private sector. As a country, we are not building properties fast enough to meet demand. Many private landlords are reluctant to make properties available to the local authority as they are aware that they may not be able to get them back when they want because the housing authority tells the tenants not to leave until they are evicted. This simply makes the job of the local authority even more difficult.
The Government’s stated intention of repealing section 21 of the Housing Act 1988 and bringing an end to ‘no-fault’ evictions is only likely to make this issue more acute by discouraging landlords from buying more properties. A suitable replacement to section 21 and a dedicated or faster court process may stave off the worst effects. There is likely to be a percentage of landlords who will leave the sector if section 21 is repealed, which is likely to exacerbate shortage of properties.
The Homelessness Reduction Act 2017 now puts a duty on housing authorities to engage with those threatened with homelessness at a much earlier point in the process.
The Homelessness Reduction Act
The Act came into force on 3rd April 2018 and brings in legal duties on English local authorities and some public bodies to prevent and relieve homelessness. Anyone at risk of homelessness is now able to access support regardless of their priority need status.
The original legislation, the Housing (Homeless Persons) Act 1977 applied to households in priority need and gave them a right to statutory assistance and an offer of settled accommodation. This legislation excluded most single people finding themselves homeless as it prioritised people with dependent children or other vulnerable persons residing with them. People ‘threatened with homelessness’, referred to someone who was likely to become homeless within 28 days, and it was only at this point the housing authority would get involved appealing right up to the bailiff simply pushed this date further down the line.
The main features of the new Act include;
- The point at which a person is threatened with homelessness is increased to 56 days before the expiry of a section 21 notice.
- Section 175 of the Housing act 1996 is amended to include that a person is threatened with homelessness if served with a section 21 and that the housing authority believe that the landlord intends to seek possession and efforts to persuade the landlord are unlikely to be successful and there would be no defence to an application for a possession order.
- Homelessness is considered for all eligible applicants regardless of priority need.
- Helps to avoid becoming homeless by arranging to stay in the current accommodation or to find elsewhere help before it becomes a crisis.
- Relieves homelessness for all eligible applicants regardless of priority need and must help an applicant into accommodation or provide a deposit or debt advice.
- A new duty to refer someone to the local authority identified as at risk of homelessness applies to some public services such as probation and youth offending services, hospitals and job centres.
The duty of the local authority to get involved at an earlier stage has inevitably meant that, at least in the short term, the number of tenants presenting as ‘at risk of homelessness’ has increased markedly. One of the results of the duty to prevent homelessness now involves the local authority contacting the landlord either directly or through their agent to assess what chance, if any, there is of the landlord changing their mind or sometimes landlords are being incentivised to reconsider. It is only when this route has been exhausted that the council will assist the applicant to find alternative accommodation or provide other support.
The Government pledged support for English councils to the tune of £73 million over the 3 years until 2020, although there is no word on whether this is to be renewed beyond that date. The issue remains that there is insufficient stock of either council or privately owned property, the result being that the use of temporary and emergency accommodation has seen a significant increase.
The Ministry of Housing Communities and Local Government issued guidance to accompany the Act, which has been updated and to which the local housing and social services authorities must have regard. Part 6.37 of the guidance states that housing authorities should not consider it reasonable for an applicant to remain in occupation up until the point at which a court issues a warrant or writ to enforce an order for possession. This should mean that housing authorities should no longer give advice that the tenant should stay in the property until evicted by the bailiffs, without taking positive action in the first instance. It does not guarantee the local authority will be able to provide social housing, or even private rented sector housing, by the expiry of a section 21 notice and they are legally allowed to consider limits on what they can provide. However, they are required to engage more proactively and this should reduce the number of cases where landlords need to go to court.