Section 21 and the homelessness code of guidance

Ben Reeve Lewis takes a look.

I have written elsewhere on this blog way back in 2010 on the reasons why local authority homelessness units often don’t pick up an applicant when the section 21 notice expires, instead expecting them to wait until the warrant is executed and the person is finally homeless.

I don’t want to explain it in full again here, take a look at my previous article on it for that but as a recap, Landlords and tenants argue that this causes extra costs for both landlord and tenant in being forced through the eviction procedure for what is after all a done deal.  As long as the landlord has jumped through all the necessary hoops to be able to serve a valid s21 notice that have become the requisite route since the Deregulation Act came in last year.

They also point out that the homelessness code of guidance that authorities work under states a council should consider it unreasonable for a tenant to remain beyond the date of the s21.

For their part the councils argue that the Housing Act 1996 states that a person is not to be considered homeless if they have a legal right to occupy and as we all know a tenant has a legal right to occupy until the landlord gets a possession order.

Section 175 of the Act reads:

“ (1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he—
(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court,
(b) has an express or implied licence to occupy, or
(c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.”

Section 21 does not on its own end a tenancy. If you think it does then get yourself trained.

Local authorities correctly point out that the code of guidance is merely that, guidance, whereas the Housing Act is law.

Also the case of R v. Croydon ex p Jarvis (1994) sets out a further argument that a council is allowed to take into account its own resources when making such decisions. I should point out that the recently published figures of homelessness applications to Croydon for 2015-2016 is 3,422 approaches and most of them arrive brandishing a freshly minted s21.

Picking up under the code of guidance recommendations for large city councils would result in temporary accommodation needed to house them would run out in less than a week. Councils don’t have the same pressure in all areas of the country and may well pick up a client on expiry of the s21.

Its all a question of supply and demand that is locally dictated. Put simply a homelessness unit in Torquay is probably far more likely to be able to follow the code of guidance than Hackney, Manchester or Birmingham.

This argument between landlords and local authority homelessness units has been raging for years about this and finally Government have gotten involved in the form of a parliamentary briefing note acknowledging the problem.

The Housing Minister Brandon Lewis has last week written a letter to all local authorities commenting on this anomaly  with some choice comments.

”Authorities should not routinely be advising tenants to stay until the bailiffs arrive; there in no barrier to them assisting the tenant before this. By doing this local authorities miss a valuable opportunity to prevent homeless.”

Council’s don’t routinely do this because it is illegal to have blanket policies on homelessness and they point correctly to section 175 of the 96 Act.

In areas of high demand you could encounter 20 people in a week who have been told that they still have a right to remain and this could give the impression that there is a blanket policy in place but if a homeless applicant with a section 21 rocks up on Monday and the next 19, dotted about through the week also get the same knock back for the same reasons, this isn’t evidence of a blanket policy, simply evidence that the situation is as a bad on Friday as it was on Monday. Nothing has changed.

Monsieur Lewis goes on to say:

“Unless a local authority has very good reason to depart from the statutory guidance then they should not be placing households in this position.”

That very good reason comes back to the same point, there are too many people making homelessness applications against the actual supply of affordable accommodation.

Brando ends by saying something quite radical….well a government minister admitting the truth is quite radical:

“The ending of an assured shorthold tenancy (AST) has been the most frequently occurring reason for loss of a settled home in the last 15 consecutive quarters. 31% of all homeless acceptances in England between October and December 2015 arose from the termination of an AST, while in London this figure was 40%”

So what exactly is this saying?

Absolutely nothing at all….nothing that wasn’t the case as it stands right now.  The homelessness crisis is bigger than ever and growing.

In recent times much of the growth is down to evictions under section 21, driven by rising rents on the one hand, even for working professionals, and the benefit cap for those not in work or in low paid jobs.

Brandon Lewis is pulling a snake oil trick by pretending to support disgruntled landlords and tenants whilst at the same time acknowledging there is a homelessness crisis that government don’t know what to do with and simply reminding local authorities to do what they are already doing.

In areas of lower homelessness demand councils can often follow the code of guidance, in areas of high demand and high rents, they cant.