This item is Part 5 of our free training material for homelessness officers.
In this free series of useful cases on homelessness prevention we invite you to look afresh at the possibilities for prevention outside of the normal tick-box of finding an applicant somewhere else to live or topping up their rent shortfall with DHP.
These are some of the legal routes available to you if you can ask the right questions.
S 175 (3)Housing Act 1996:
“A person is threatened with homelessness if it is likely that s/he will become homeless within 28 days”
The difficult thing with this category of homelessness is that the 28 day rule isn’t strictly rigid.
A person facing mandatory possession grounds at a date longer in the future may be able to argue that it will shortly become unreasonable to remain.
So the main way to prevent homelessness under this category is in examining the minutia of the possession proceedings and grounds for possession to see if the hearing could be adjourned or successfully defended, particularly where the grounds being used are mandatory.
Capital Prime Plus PLC v. Wills (1999) CA – Courts did not consider tenant’s defence that no section 8 had been served.
The landlords took Wills to court under grounds 8, 10 and 11. There were sufficient rent arrears to allow for possession under ground 8 but the tenant argued they had not been served with a section 8 notice.
Both sides agreed to a suspended possession order being granted, however the tenant defaulted on the terms and found themselves with a warrant being issued.
Wills tried to have it suspended on the same argument but was told that the possession hearing could not be revisited at that stage.
The Court of Appeal said that the county court did not consider the tenant’s defence that no section 8 had been served on him when making the suspended possession order in the first place and bounced it back to be reconsidered.
Moral of the tale: Check the paperwork to see if there is anything in them which might allow the tenant to seek a suspension. Mistakes are often made by the courts.
Milecastle Housing Ltd v. Walton (2005) HCJ – Judge did not consider adjournment on discretionary grounds.
Housing benefit stopped being paid, the council having decided the tenant had ceased to reside in the premises, so possession was instigated on discretionary grounds rather than ground 8.
At the hearing the tenant sought an adjournment to allow time to get HB sorted out but the judge refused and granted outright possession instead. He referred to the case of North British Housing Association v. Matthews, a case where it was decided that a judge could not adjourn a case where the application was made on mandatory grounds.
The judge in the High Court stated quite firmly that the judge in the possession hearing had “By error of law debarred himself from considering whether he should exercise the power to adjourn”.
Basically the judge got the Matthews case back to front.
Moral of the tale: Even judges can get it wrong sometimes, don’t be afraid to challenge. Despite Mr Walton having been repossessed the possession order was set aside and his home was saved.
Mountain v. Hastings (1993) CA – NSP was defective because of incorrect wording used on it.
Possession was granted for rent arrears. The wording on the notice simply read “Three months rent is due”, although the correct amount of arrears did appear later on the form.
At the appeal hearing the court of appeal found that whilst it wasn’t necessary to write out verbatim the wording of the grounds in Schedule 2 of the Housing Act 1988 it was crucial not to omit the following phrases:
- “Both at the date of service of the notice and at the date of the hearing”
- “Rent means rent lawfully due from the tenant”.
The case was bounced back to the county court for a re-hearing.
Moral of the tale: Check the paperwork again. If the forms are not what is termed ‘sufficiently particularised’ then the tenant could mount a defence and save their home. Even if just by way of adjournment, the time bought could allow the tenant to get funds together to clear arrears, lower them or seek other help.
In part 6 we will look at other ways that homelessness can be prevented using an understanding of the rules on affordability of accommodation.
If you want practical, hands-on training on matters relating to this approach to homelessness prevention then look at our courses on: