GOVAN LAW CENTRE

Response to Consultation Paper on Eviction of Tenants in the Social Rented Sector: Protection of Tenants with Rent Arrears
Introduction

Govan Law Centre (GLC) is a community controlled law centre with charitable status (SCO 30193) based in Glasgow. We undertake a large volume of defended eviction and mortgage repossession casework, with over 1,000 sheriff court appearances per annum. Clients contact us directly, or through referrals from social work, money advice, CABx, Shelter, and other agencies.

We work to address unmet legal need including defending evictions and mortgage repossessions, housing disputes, homelessness, personal injury, debt, employment, sequestrations and consumer disputes.

We disseminate a large amount of free Scottish housing and debt law advice online at www.govanlc.com www.edlaw.org.uk and www.additionalsupportneeds.org.uk. Govan Law Centre’s Education Law Unit (ELU) is Scotland's expert legal resource in the field of school education, with a particular focus on the rights of disabled pupils and pupils with additional support needs.

We undertake prevention of homelessness casework across Glasgow, but mostly within the South West. In the South West of Glasgow we manage a section 11 Prevention of Homelessness Partnership with Glasgow City Council Social Work Department (South West) and Money Matters Advice Centre.

GLC has won various national legal awards including Solicitor of the Year 2007 (Mike Dailly), Project Team of the Year 2008 (Prevention of Homelessness Project), Legal Website of the Year 2008 and the Chairman’s Award in 2007 and 2009.

Govan Law Centre opened a branch office in Govanhill in November 2008 (GHLC). We provide free legal advice and representation to residents of the Govanhill area of Glasgow which has significant housing problems. Govanhill Law Centre has with a particular focus on minority ethnic communities, and the Roma community. We disseminate free information from our website www.govanhilllc.com. This includes information leaflets translated into many different languages.

As experienced practitioners in the field of housing law and tenants rights, Govan Law Centre welcomes the opportunity to discuss ways to protect social rented sector tenants from eviction.

The consultation questions:

We have answered only the questions we have views on, and therefore some of the answers are blank.

Question 1: Do you think that there is a need to do more to reduce the number of tenants evicted in the social rented sector for rent arrears.

Yes. Govan Law Centre supports any efforts to reduce the number of tenants evicted in the social rented sector for rent arrears. There are many ways of recovering unpaid rent without resorting to eviction e.g. diligence following a payment action. Many of the clients we act for are vulnerable people and their arrears are often the result of other problems which can be rectified, for example problems with their benefit entitlement. We are often instructed by clients who have already had decree granted against them. In many situations we are able to assist such clients by lodging a minute for recall for decree and assisting our client with the underlying problems which caused the arrears. Many clients have avoided eviction in this way but we are concerned that there a great number of people who have not had the benefit of legal advice and have been evicted when it may have been possible to assist them deal with the arrears situation.

We believe that eviction should only be used as a last resort. It is questionable whether eviction for rent arrears is ever necessary. In 2009 Stirling Council made a decision not to evict any tenants purely on the basis of rent arrears.

Eviction from social rented sector tenancies is a major cause of homelessness. As well as the huge human cost of homelessness, which cannot be underestimated, there is also a significant cost to the public purse. In 2009 an evaluation on the Prevention of Homelessness Partnership between Govan Law Centre, Glasgow South West community Health and Care Partnership and Money Matters Money Advice Centre found that the partnership may have saved the NHS in Glasgow up to £7.2m per annum, and made an overall saving to the taxpayer of £24m per annum. We therefore believe that it is in everyone’s interest to reduce the number of evictions from the social rented sector and work towards achieving the Scottish Government’s aim to eradicate homelessness by 2012.

Govan Law Centre is particularly concerned with cases where court proceedings are raised for very low arrears. In one case a client received a notice of proceedings for recovery of possession in respect of rent arrears of only £7.28. On the other hand there are also landlords who choose not to raise court action until the arrears have reached a very high level but have not assisted the tenant to deal with the arrears prior to raising court action.

Question 2: Do you think that identifying and sharing good practice on preventing rent arrears would help to reduce the number of tenant evictions?

Yes. In our experience practice varies widely from landlord to landlord. Some landlords have many good practices, such as making the services of a welfare benefits officer available, which could be replicated by other landlords. However, it also our experience that landlords are not consistent in the way they provide their services and there is often a large degree of variance between the way different tenants are treated by the same landlord. Another concern we have is that often while the practices themselves may be good they are not used effectively. For example, we have experience of landlords sending out appointment letters for welfare benefits appointments to tenants who could not read or did not speak English. Often tenants have no knowledge of receiving appointment letters but their failure to attend appointments is used by the landlord in court as evidence to support the proposition that it would be reasonable to evict them.

A further difficulty we have experienced is that once an action has been raised in court, we assist clients to enter into a reasonable repayment arrangement, based on their income and expenditure. On several occasions, our client instructs us to make a repayment offer, the client is then invited into their landlord’s office, and pressure is put on them to increase their offers of repayment. Often, clients are advised that if they do not agree to the increased repayment offer, their landlord will obtain an eviction decree against them. One example recently occurred with a large housing association based in Glasgow, when a client was forced to enter into a repayment arrangement to arrears of £10 per week, when the client was able to demonstrate she only had £6 per week additional income to pay towards her debt. Obviously, if a client then defaults on the repayment arrangement this is detrimental to their prospects of saving their home at court. We believe that housing officers should not be able to override an offer of repayment from a solicitor, by putting pressure on clients, and ignoring previous offers of payment made via solicitors.

Question 3: How can we encourage landlords to adopt good practises in sustaining tenancies?

Guidance regarding good practice could be produced by the Scottish Government or another body e.g. the Scottish Housing Regulator and issued to all landlords.

Question 4: What examples of good practice in preventing rent arrears do you think should be shared with other social housing providers?

It would be good practice for all letters regarding arrears and potential eviction to be translated into the tenant’s first language, if they cannot read English. To minimize costs, housing providers could translate a bank of letters in the main minority languages in their community, to be sent to tenants when they fall into difficulties. As many rent arrears cases are caused in the main by delays processing benefits applications, housing benefit and HMRC should also translate letters, and we would argue this is a duty on public authorities already, which is not being met.

Question 5: How best do you think the sharing can be done?

Not answered.

Question 6: Do you think that including in the Social Housing Charter an outcome on landlords’ effectiveness in helping tenants maintain their tenancies would help to reduce the number of tenants evicted for rent arrears?

Yes. We agree that this proposal would help to reduce the number of tenants evicted for rent arrears. It would make it more apparent which landlords were more effective in helping tenants maintain their tenancies which would encourage all landlords to improve in this area.

Question 7: Do you think that a pre-action protocol would help to protect tenants from eviction?

We think that a pre-action protocol would help to protect tenants from eviction but we believe that the alternative suggestion of a Pre-action requirement would be both more effective and more equivalent to the protection afforded to homeowners in mortgage arrears. Please see answer to question 9.

Question 8: Are there any unintended consequences in pursuing this option?

Please see answer to question 10.

Question 9: Do you think that a pre-action requirement would help to protect tenants from eviction?

Yes. We believe that the introduction of a pre-action requirement would significantly reduce the number of tenants evicted due to rent arrears. It would require all landlords to deal with the problem of arrears effectively at an earlier stage. It would also help ensure that court action was only raised as a last resort. The Housing (Scotland) Act 2001 could be amended so that following the pre-action requirement prior to raising an action was necessary in order to ensure that proceedings were competent in the same way that service of a valid notice of proceedings is required at present. Failure on a landlord’s part to comply with the pre-action requirement would therefore be a defence to the action on competency grounds.

We believe it is important, from a public policy point of view that tenants are afforded the same protection as homeowners. The introduction or a pre action requirement would bring the protection of social rented tenants in line with the protection being introduced for homeowners in the Home Owner and Debtor Protection (Scotland) Act 2010.

Question 10: Are there any unintended consequences in pursuing this option?

We are concerned that the pre-action requirement could be seen as evidence that it is reasonable to evict in terms of section 16 Housing (Scotland) Act 2001. We are concerned that landlords will argue that as they have complied with the pre-action requirement and the tenants still has arrears that it will be reasonable to evict. We believe that it is important that full consideration is still given to the requirements of section 16.

Although we hope the introduction of a pre-action requirement will reduce the number of cases raised in court we think care must be taken to ensure that the result is not an automatic assumption that all the cases that end up in court must be ones where nothing can be done to assist the tenant and that eviction will be reasonable in these cases.

We also think it is important that landlords continue to work with the tenant to solve the problem of the arrears, even after court action is raised. Our experience is that once the case has been raised in court some landlords become focused on obtaining a decree and are not as willing to negotiate repayment arrangements with tenants. We are concerned that the pre-action requirement may be seen as landlords as all they are required to do to assist a tenant. Instead we believe it should be seen as a minimum level of assistance that must be given before an action can competently be raised. Landlords should still be encourage to engage with tenants and work towards preventing eviction even after court action has been raised.

Question 11: What do you think should be included in a pre-action protocol or pre-action requirement for social landlords?

We believe the requirement should be similar to the pre-action requirement introduced by the Home Owner and Debtor protection (Scotland) Act 2010

The landlord should be required to have a policy regarding assisting tenants in rent arrears. A copy should be provided to all tenants
The landlord should be required to provide the tenant with regular (e.g. quarterly) rent statements clearly showing all credits and debits to the account. The rent statement should clearly state whether the account is in arrears.
The landlord should be required to contact the client and invite them to discuss the reason for the arrears.
The landlord should be required to provide the tenant with information about sources of advice and assistance in relation to housing benefit. If the landlord has its own welfare benefits advisor an appointment should be made for the tenant to receive advice.
The landlord should be required to make reasonable efforts to agree with the tenant proposals in respect of rent arrears.
The landlord should be prohibited from raising court proceedings if the tenant is taking steps which are likely to result in the payment to the landlord within a reasonable time of the arrears.
The landlord should be required to provide the tenant with information about sources of advice and assistance in relation to management of debt. If the landlord has its own debt counselors an appointment should be made for the tenant to receive advice.
The landlord should be required to take into consideration any health or addiction issues which may affect the tenant’s ability to deal with their affairs.
The landlord should be required to engage with any third party acting with the consent of the tenant to assist them in supporting the tenant retaining his/her tenancy.
The landlord should be required to follow any guidance issued by the Scottish Government in relation to supporting tenants with rent arrears.
In circumstances where the tenant’s ability to pay the rent is affected by their entitlement to a benefit which is still being processed or is under appeal, the landlord should be prohibited from raising court proceedings until the benefit claim or appeal has been resolved.

Question 12: Should landlords be able to retain tenants in their existing tenancy?

We accept that the cost and time involved in creating a new tenancy for tenants in arrears is currently a deterrent to landlords allowing the tenant to remain in the tenancy. Whilst we welcome any changes which will encourage landlords to reconsider their decision to evict a tenant, we are also concerned that landlords may be able to obtain eviction decrees which they could then hold on to and enforce at a much later stage, for example if a tenant defaulted on a new payment arrangement. The decree could be used as a sword of Damocles by landlords with tenants left constantly worried that they may be evicted if they even are slightly late with their rent, perhaps due to a late payment of benefit.

It is also our experience that rent arrears cases often remain sisted for several years before the sist is recalled and decree sought for some reason. In many of these cases the original arrears have been cleared of at least substantially reduced albeit that new arrears may have been accrued. We therefore have concerns that a similar approach would be taken by landlords who obtained decrees but allowed the tenant to remain in the property under the same tenancy.

If this measure was introduced therefore we would wish a time limit to be introduced after which the decree would no longer be effective and could not be enforced by the landlord.

Question 13: Are there unintended consequences in pursuing this option

See answer to question 12.

Question 14: Is there anything else that we could do to make sure that the eviction of tenants for rent arrears is as a last resort.

No answer.

Question 15: Are there any issues around evictions for particular groups, for example, around age, disability, gender, race or religion.

We have experience of representing European A8 migrants in rent arrears actions. In our experience the benefit claims for these clients take a significantly longer period of time to be dealt with than normal. Appeals are often necessary due to the complicated nature of the right to reside rules. Landlords do not appear to appreciate that these delays are outwith the control of the tenant. A requirement that landlords wait until all benefit appeals and claims are resolved would help protect these tenants.

Contact made with clients who don’t speak English also appears to be poor. We have had cases where the landlord has arranged for only some of the letters to be translated.

Question 16 : What comments do you have on our Partial Regulatory Impact Assessment, specifically on any other costs or additional burdens associated with the options set out in this consultation document?

No answer.