Shelter Scottish Housing Law Service- 17th November 2016 Homeless advice & assistance for tenants leaving the private rented sector Shelter Scottish Housing Law Service- 17th November 2016 SHLS: Homelesness & Private Rented Sector

SHLS: Homelesness & Private Rented Sector Introduction 6143 homeless applications from the Private Rented Sector, out of a total of 34,662 recorded applications in 2015-2016. This is 3rd highest number of applications after those leaving the parental or family home (8,420) or those who are leaving partners or friends (6,247). Main reason for presenting as homeless:- being asked to leave. 10% of applications concern termination by landlord for reasons other than rent arrears. SHLS: Homelesness & Private Rented Sector

Short Assured Tenants & Section 33 actions Sections 32 & 33, Housing (S) Act 1988 No defence to a court action where valid SAT and valid notices have been served Tenant entitled to remain in occupation until Court order granted Cost to landlord in raising court action Risk of legal costs being passed to tenant (£213 plus outlays and VAT) Stress of housing situation Impact on court system SHLS: Homelesness & Private Rented Sector

SHLS: Homelesness & Private Rented Sector Case Studies Case Study 1 Family of 5. Father working low paid job in factory earning £200 per week. Mother in receipt of Carer’s Allowance as son is autistic. Son receives DLA. The household also receive tax credits. The school have raised concerns the impact the threat of eviction is having on autistic son. Notice given. Cannot afford alternative accommodation in PRS. Case study 2 Single mother with one child. She receives Income Support, Child Benefit and Tax Credits. Valid notices served. Cannot afford alternative accommodation in PRS. Case Study 3 Single man. Previously residing with partner. Landlord agrees to reduce rent following relationship breakdown but advises that tenancy shall be terminated. Valid notices subsequently served. Although in work, tenant cannot afford alternative accommodation in PRS. SHLS: Homelesness & Private Rented Sector

SHLS: Homelesness & Private Rented Sector What legal obligation does local authority have and under what circumstances? Section 28, Housing (Scotland) Act 1987, as amended (1) If a person (“an applicant”) applies to a local authority for accommodation, or for assistance in obtaining accommodation, and the authority have reason to believe that he may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves as to whether he is homeless or threatened with homelessness…. SHLS: Homelesness & Private Rented Sector

SHLS: Homelesness & Private Rented Sector Homeless ‘at home’ Section 24 Housing (S) Act 1987 (2A) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy. (2B) Regard may be had, in determining whether it would be reasonable for a person to continue to occupy accommodation, to the general circumstances prevailing in relation to housing in the area of the local authority to whom he has applied for accommodation or for assistance in obtaining accommodation. (4) Threatened with homelessness =likely he will become homeless within 2 months. SHLS: Homelesness & Private Rented Sector

When is it no longer reasonable to continue to occupy? Tenant has received valid notices although they have not yet expired. Tenant has had valid notices served which have now expired. Tenant has now received Court Summons following service and expiry of valid notices. Tenant has had decree granted against them, based on Section 33. No charge for removing has been served. Tenant has had decree granted, and charge for removing has been served. SHLS: Homelesness & Private Rented Sector

SHLS: Homelesness & Private Rented Sector Case study 1 Presented at stage that notice was given. LA advise neither homelessness nor threatened with homelessness. No application taken. Case study 2 Presented when notices were given. LA advised neither homeless nor threatened with homelessness. Upon expiry of notices, LA accepted homeless application. Case study 3 Presented upon receipt of notices. LA advised neither homeless nor threatened with homelessness. Council eventually accepted homeless application upon service of summons and found it no longer reasonable for tenancy to continue to occupy. SHLS: Homelesness & Private Rented Sector

Statutory Code of Guidance What does the Code of Guidance say on the position of Short Assured Tenants who have received valid notices? – nothing! By contrast the English Code of Guidance provides the following at Para 8.32:- ‘The Secretary of State considers that where a person applies for accommodation or assistance in obtaining accommodation and: A person is an assured shorthold tenant who has received proper notice in accordance with s.21 of the Housing Act 1988. The housing authority is satisfied that the landlord intends to seek possession; and There would be no defence to an application for a possession order; Then it is unlikely to be reasonable for the applicant to continue to occupy the accommodation beyond the date given in the s.21 notice, unless the housing authority is taking steps to persuade the landlord to withdraw the notice or allow the tenant to occupy the accommodation for a reasonable period to provide an opportunity for alternative accommodation to be found.’ SHLS: Homelesness & Private Rented Sector

SHLS: Homelesness & Private Rented Sector Case law R v LBC, ex p Jarvis (1994) 26 H.L.R 194 The local authority’s decision that it was reasonable for the applicant to continue to reside until an order for eviction was granted, was lawful, albeit a departure from the (English) Code of Guidance. SHLS: Homelesness & Private Rented Sector

Conclusion on Section 33 cases Position in law, is weaker in Scotland than in England. Lawful for a local authority to insist that tenant ‘sits tight’ until eviction order granted, so long as (1) the local authority is not applying a blanket policy, and (2) they consider the particular circumstances of the case and give the relevant circumstances appropriate weight. Difference in practice across local authorities Changing practices reflective of the pressure on local authorities? Need for further legislation or Code of Guidance to be updated? SHLS: Homelesness & Private Rented Sector

Homelessness Reduction Bill Initially proposed to amend the definition of homeless to include cases where the relevant notices had expired. Several qualifying conditions now proposed:- (b) it is reasonable to suppose that the landlord intends to apply for an order for possession of the accommodation under section 7 or 21 of that Act (as the case may be), and (c) no local housing authority in England asks, in accordance with subsection (3D) or (3E), the recipient, and any other persons with whom the recipient resides or might reasonably be expected to reside (“other relevant persons”), to occupy the accommodation after the relevant day. Sections 3D and 3E require the local authority to assess prospects of defending case and ask the landlord to consider withdrawing their notice or postponing asking for an eviction order. Will not apply to Scotland! SHLS: Homelesness & Private Rented Sector

Private Housing (Tenancies) (Scotland) Act 2016 Dec 2017? Creates the Private Residential Tenancy. No new SAT after commencement There shall be circumstances under which, subject to correct notice being served the Tribunal will have no option but to grant an order for eviction. Notice period of 28 days (< 6 months or certain grounds are relied on) or 84 days (> 6 months and certain grounds are relied on) Still many unknowns- costs of tribunal cases; interpretation of certain grounds etc. SHLS: Homelesness & Private Rented Sector

LG v Stirling Council [2016] CSOH 121 Judicial review of Stirling Council’s decision that the applicant was intentionally homeless. Deliberately failed to pay rent & had accommodation which would have been reasonable to continue to occupy (notwithstanding disrepair issues) It is for the Local Authority to assess whether or not it is reasonable to continue to occupy; only where the local authority’s decision is perverse or absurd (or otherwise flawed) will the Court intervene. That the Local authority is entitled to consider the applicant’s failure to use alternative legal remedies (in this case the PRHP, given applicant had knowledge of this scheme) That the local authority was entitled to conclude that the real reason for homelessness was the eviction action raised on the basis of rent arrears. SHLS: Homelesness & Private Rented Sector

Accessing homeless services Gatekeeping Working Group amid concerns that people were being denied their basic rights to make a homeless application & to temporary homeless accommodation pending a decision. Of 120 cases recorded- 44 cases concerned failure by LA to take an application; 54 concerned failure by LA to provide temporary accommodation. 44 cases – Glasgow City Council 18 cases- West Lothian Council 17 cases- Midlothian Council SHLS: Homelesness & Private Rented Sector

Breach of Statutory Duty Section 28- where application made and local authority has reason to believe that that person may be homeless or threatened with homelessness, the local authority shall make inquiries Section 29 – the local authority shall provide interim accommodation (1)(a) pending a decision on the application; (b) pending a decision on review of the initial decision; (C) pending an offer of permanent accommodation. SHLS: Homelesness & Private Rented Sector

SHLS: Homelesness & Private Rented Sector Conclusion… The absence of legislative protection (intentional or not) for certain classes of persons. The balancing act between statutory duties introduced to protect one of the most vulnerable groups of people in our society and the local authority’s ability to meet their statutory obligations with limited resources. The difference between the exercise of the local authority’s discretion and a homeless person’s substantive rights and how this is relevant to the legal remedies available. SHLS: Homelesness & Private Rented Sector