Introductory tenancies: Does the scheme penalise secure tenants in emergency accommodation?

Solicitor Chris McGrath discusses some recent Housing Rights cases where victims of domestic violence and intimidation have been required to fulfil the requirements of the introductory tenancy scheme despite being long standing secure tenants.

The introductory tenancy scheme

The introductory tenancy scheme was introduced in 2003 in Northern Ireland. The overriding premise of the scheme was to assist in meeting the Government’s commitment to tackle anti-social behaviour.

The scheme is governed by The Housing (NI) Order 2003. Chapter II Article 6 of the 2003 Order allows the NI Housing Executive or any registered housing association to elect to operate an introductory tenancy regime. Since April 2004 all new Housing Executive tenancies have been granted as introductory tenancies, and although it is an opt in scheme, the majority, if not all, the registered housing associations in NI have also elected to use this scheme.

Article 6 (2) states:

“…..every periodic tenancy of a dwelling house entered into or adopted by the Executive of the association shall, if it would otherwise be a secure tenancy, be an introductory tenancy, unless immediately before the tenancy was entered into or adopted the tenant, or, in the case of joint tenants, one or more of them was a secure tenant of the same or another dwelling house.”

Therefore, if you have not been a secure tenant immediately before moving into a NIHE or housing association property you will become an introductory tenant.

What is an introductory tenancy?

The introductory tenancy is often regarded as a ‘probationary tenancy’, as it lasts for a trial period of 12 months. The ultimate purpose of the scheme is to provide NIHE and housing associations with a speedy and cost effective remedy to deal with anti-social tenants before they obtain security.

If there are difficulties within the first year of the new tenant’s tenancy it can be terminated more swiftly than if a tenant is a secure tenant. An introductory tenant still has the right to an internal review and a court order must still be granted before possession can be obtained, however the safeguards for an introductory tenant are not as significant as they are for those who hold a secure tenancy.

The tenancy of a secure tenant can only be terminated on proof that the tenant has breached a ground for possession and that an order for possession is reasonable in all the circumstances.

Ultimately, it is preferable for a tenant to be regarded as a secure tenant as they will have greater protection against possession proceedings, while additional rights, such as the right to assignment, are only conferred on tenants who hold a secure tenancy.

What happens when emergencies mean existing secure tenants have to go into temporary accommodation?

Following the introduction of the scheme new tenants are required to undertake a 12 month introductory tenancy. However, Housing Rights has recently came across circumstances in which some long-standing secure tenants have been required to again fulfil the trial period of an introductory tenancy through no fault of their own.

Mrs A – intimidated from her home

Mrs A resided in a NIHE property from June 1985 to April 2012. Mrs A was a secure tenant and resided in the property for 27 years. Mrs A’s original tenancy ended when she was assessed as homeless following serious intimidation she experienced in the property. Mrs A was fearful for her safety and as a result left her home and had to  reside in temporary accommodation for a short period of time. Mrs A was then offered a housing association tenancy which commenced in August 2012.  At the commencement of her tenancy Mrs A was treated as an introductory tenant.

Mrs X – homeless due to domestic violence

Mrs X was a secure tenant with NIHE for 11 years. She fled her tenancy in December 2013 after serious domestic violence. Mrs X subsequently resided in a Women’s Aid hostel on a temporary basis. She was assessed as homeless and offered a new tenancy in January 2014, however, she was granted this property as an introductory tenant.

In both cases the tenants had demonstrated their suitability as social tenants for 27 years and 11 years respectively. However, due to matters beyond their control they were now essentially experiencing a demotion of their tenancy. The demotion of their tenancy has prejudiced the tenants as both became subject to the more limited protection against possession action during the first 12 months of their new tenancy.  As introductory tenants, Mrs X and Mrs A would also have been prevented from carrying out improvements to their home, subletting the property, carriying out an exchange or taking in lodgers.

Intention of the legislation 

It is apparent that in these examples the housing associations have relied upon the wording of Article 6 (2) of 2003 Order which specifies that the an introductory tenancy will be granted unless the tenant had been secure tenant of another dwelling “immediately before” the new tenancy being granted.

Therefore, in line with the legislation transfer applicants shall continue to be regarded as secure tenants when moving between social housing providers, but tenants who have had to move into temporary accommodation as an emergency measure are not afforded the same protection.

The housing associations have acted in accordance with the legislation in these cases, but it seems unlikely that this type of outcome was the original legislative intention as it appears contradictory to the spirit of the legislation.

Housing Rights is currently engaging with the Department of Social Development in respect of this issue.  We hope to progress a possible amendment to the legislation and additional guidance for social housing providers. If you would like to find out more about this or are aware of other tenants who have been treated similarly please call us on 028 9024 5640.