Preventing possession in social rented housing
Nicola McCrudden is the Policy & Communications Manager at Housing Rights Service. Below she describes her recent experiences of possession hearings at Laganside county court.
Sitting in Laganside county court, Belfast, on a Thursday morning listening to a stream of possession hearings made me confident of the need for a pre-action protocol for non payment of rent in social housing.
The level of arrears in social rented housing is growing. At the end of March 2013 the Housing Executive’s total rent and rates arrears were £14.6m, an increase of £616k. The picture is similar within the housing association movement where levels of [non technical] arrears grew by over 15% between 2010-11 and 2011-12. Unfortunately we can see the problem getting worse for many tenants. Therefore, the introduction of a pre-action protocol by the courts is timely and sensible.
Pre-action contact in rent arrears cases
Northern Ireland already has a pre-action protocol for mortgage arrears cases. It sets out the steps which the court expects lenders to follow before taking possession action. There is no similar protocol for rent arrears, but that is about to change. The Lord Chief Justice believes that social housing landlords and their tenants should also be aware of the steps the court will expect to be taken before starting legal proceedings. The main thrust of the draft protocol is to encourage more pre-action contact between landlords and tenants. Our experience of providing an in-situ Housing Possession Court Duty Scheme tells us that pre-action contact is critical to preventing home loss.
The draft protocol says that, before commencing legal action:
- the landlord should contact the tenant as soon as is reasonably possible when the tenant falls into arrears to discuss the cause of the arrear, the financial circumstances and any benefit entitlements
- the landlord is expected to refer the tenant to appropriate sources of free independent debt advice; and
- the landlord should also try to agree a reasonable, realistic and sustainable repayment arrangement.
The role of advice and representation
I reflected upon the content of the protocol outside the Laganside courtroom where five tenants were waiting for their hearing. Worryingly, the vast majority of tenants hadn’t turned up. I hoped that the pre-action protocol would require landlords to encourage their tenants to attend court and to get representation. None of the five tenants who attended had legal representation. Our adviser approached each one individually to see if they required advice. They all accepted, relieved to get the professional support and assistance on offer.
Although their personal circumstances differed, all of the tenants were facing the same painful prospect of losing their home. What struck me immediately was that all of the tenants were working, but in very low paid jobs. Their arrears ranged from £500 to £3,000. Most of them had already made a pre-court settlement with the landlord to pay off the arrears. Our adviser had concerns that the tenants were over committing themselves and that the arrangements were unsustainable. He presented each case to the court, outlining reasons, and in every case the landlord and judge accepted the lower, more realistic, repayment offer.
The draft protocol also requires landlords to take reasonable steps to ensure that tenants understand any information given to them. This is essential, because if a tenant has problems reading or understanding information s/he may not be aware of the legal process or possible consequences.
One of the tenants at the county court had a language barrier. It was obvious he wasn’t fully aware of what was going on in the court room or the implications of the possession order granted. It made me wonder whether more could have been done by the landlord to address the tenant’s particular needs.
Improving the rent arrears pre-action protocol
The pre-action protocol for rent arrears provides sensible guidelines for the Housing Executive and housing associations to follow before appearing at a possession hearing. It contains a series of practical steps to follow, including a compliance checklist. Even though it is not a legal document it can be considered by the court as evidence of compliance with the suggested guidelines.
In our view, the draft protocol is a very positive and much needed development. It will help to reinforce the need for landlords and tenants to act fairly and reasonably with each other. But, it could be improved.
What we feel is missing, and would be helpful to include, is guidance on when a case should not come to court. This should include, for example, cases where:
- entitlement to Housing Benefit can be established but the decision regarding a claim is outstanding;
- direct deductions from benefits can be made; or
- the arrears are at a low level.
One of the tenants in Laganside county court had arrears of just over £500. With a monthly rent of £360, I silently questioned whether it was necessary to take an elderly tenant to court because she owed less than two months’ rent. The judge came close to adjourning the case generally for this very reason.
I am pleased that social housing tenants are soon to be afforded similar protection as homeowners through the practice of introducing pre-action protocols. Hopefully, this positive step will encourage more pre action contact, ensure that tenants get appropriate independent advice and that possession action will only ever be taken as a last resort.
Read the Pre Action Protocols Document.
Dealing with people already in rent arrears? This month's Adviser feature provides tips on addressing this problem
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Comments
At Ark Housing Association we fully support the idea of pre-action protocols for possession action cases. The cases highlighted raise a lot of questions about current practices and policies within RSL sector.. Certainly a £500 debt case doesn't appear to warrent such action; perhaps it's time to get up from the computer's and desks and get out to tenants homes, make the face to face personal contact, find out the real facts of our tenants circumstances and stop following computer aided processes.
We all need to manage our income streams but surely we have a greater obligation to help out tenants and prevent rising, uncontrollable debts and repossession actions like the one's noted? Time for a re-think for many of us in the way we manage this critical activitiy.