Wandsworth: headed for the naughty step?

As is now pretty well known (and as I noted in the comments below this post) Wandsworth Council apparently made a bid to bring the first riot related possession proceedings. There are some things about Wandsworth’s behaviour that should be pointed out, but it also turns out that all might not be as it seems, leaving some questions for Wandsworth to answer.

Sadly, I’m going to have to link to some sources (including the Daily Mail) that identify the Wandsworth tenant and her son, who is the alleged rioter. I’m not going to use their names because, at least at present, I see no reason to do and quite a lot of reasons not to (not least if my suspicions are right). But I’m afraid that I can’t avoid linking to material that does.

Let us begin at the beginning. On Friday 12 August, Wandsworth put out a press release announcing:

A council tenant whose son has appeared in court charged in connection with Monday night’s disturbances in Clapham Junction will today (Friday) be served with an eviction notice.

The tenant is believed to be the first in the country to now be facing the prospect of losing their council-owned home as a result of Monday night’s rioting and looting.

The notice is the first stage in the legal process of eviction. The notice gives warning that the council will be seeking possession of the property and that an application will be made to the courts seeking the tenant’s eviction. The final decision will rest with a judge sitting at the county court.

William Flack has done a fine job of dissecting the comments of Council leader Ravi Govindia that follow. But what is worth noting is that:

a) Wandsworth claim to be about to serve a Notice Seeking Possession that day.

b) Wandsworth put up the press release before the Notice was actually served

c) The son was charged (and remanded in custody) but not convicted.

All this is quite surprising, not least the press release prior to serving actually the notice, which is, to say the least, disgraceful behaviour.

It is also worth noting that the alleged offences were at Clapham Junction. As will become clear, the family home is a council flat in Battersea.

Now I, and indeed everyone else assumed that Wandsworth were seeking possession under Ground 2 Housing Act 1985. I expressed surprise that they did not wait for conviction, as if they brought proceedings they would have to prove the alleged nuisance or annoyance under subsection (a).

After Friday and as some details apparently trickled out – mostly via the usually unwelcome attentions of the Daily Mail – the location of the flat being in Battersea became clear. The Mail also identified by name the son and his mother, the tenant.

Quite how the Mail got these details, assuming they are right, has to be a matter for speculation – but the options are that either Wandsworth put enough detail in their press release to enable the Mail to identify the alleged rioter, or someone at Wandsworth told the Mail who was involved.

At this point, any housing lawyer is thinking ‘whether or not there is a conviction (and that is a big IF, of course), Clapham Junction is not in the locality of a flat in Battersea – or at least this should head to the Court of Appeal if the County Court said it was’.

But the Mail, in its loveable way, kept on. The initial Mail stories were wholly supportive of Wandsworth and tried to set the tenant in a bad light, even listing her rent arrears.

Today, however, the Mail had an interview with the tenant. Not only was it surprisingly sympathetic and omitted any mention of the size of her TV, it described the eviction moves as “controversial” and as prompting “huge public debate”.

This, surely, is the sound of the Mail back-tracking rapidly. This may be because the tenant is described as a ‘devout christian’ and ‘charity worker’, or it may be because the Mail has figured out that even its own readership does not uncritically accept punishment evictions. No matter, either way it means that Wandsworth has lost its biggest media cheerleader on this eviction. If even the Daily Mail is having second thoughts, Ravi Govindia clearly runs the risk of looking, well, pretty damn stupid in such a desperate act of witless publicity seeking.

But there may be more. The Mail describes what was sent to the tenant. They describe it as ‘a letter’ which:

signed by deputy housing manager Tom Crawley, to [tenant], says [the son's] alleged behaviour may mean the family have breached their tenancy conditions under the Housing Act 1985.

The conditions state that no one living at the property should ‘do anything which causes or is likely to cause a nuisance’ or commit ‘an arrestable offence’. It also points out that the family is [£X] in arrears with their rent.

Now if this is at all accurate – and it is the Mail, so it may not be at all – then this isn’t a Notice Seeking Possession, but a warning letter. Certainly anything stating that X’s ‘alleged behaviour may be a breach’ is not a Notice Seeking Possession, which would have to set out the grounds on which possession would be sought. It is less clear whether the Mail’s rendition of the tenancy conditions cited in the letter is full and accurate. If it is then the ‘letter’ is just wrong in law – no mention of locality – but this may be the Mail editing, of course.

There is nothing like enough detail here to be sure, but it certainly raises the suspicion that Wandsworth haven’t actually served an NSP. If that is true – if – then the press release and all the subsequent media attention for Mr Govindia would be a little lacking in the actualite department.

Wandsworth have put this whole affair well and truly in the public domain. So, there are a few questions that need answering:

i) Was a Notice Seeking Possession served on 12 August 2011 on the tenant referred to in your press release?
ii) If so, was Ground 2 Housing Act 1985 cited as a ground for possession?
iii) If so, Ground 2 (a) or (b)
iv) If it wasn’t a Notice Seeking Possession that was served, what was it? And why did you describe it as an ‘eviction notice’?

I look forward to this being cleared up.

[Update 16 August 2011. A reliable source tells me that Wandsworth claim to have served an NSP and that it is only on Ground 1 - breach of tenancy conditions - citing ASB and rent arrears.

As pointed out in the comments below, Wandsworth's current tenancy agreement includes a clause requiring the tenant, occupiers and visitors 'not to commit ASB in the property, the neighbouring area and London Borough of Wandsworth' (which includes Battersea and Clapham junction). The relevant clause (31 of the tenancy conditions) reads:

This is a list of things that you, your lodgers, friends, relatives, visitors and any other person living in the property are not allowed to do whilst in the London Borough of Wandsworth or the area which is local to the property:
• breach the tenancy conditions
• do anything which causes or is likely to cause a nuisance to anyone living in the borough of Wandsworth and/or the local area
• do anything which interferes with the peace, comfort or convenience of other people living in the borough of Wandsworth and/or the local area
• cause damage to property belonging to other people or council property in the borough of Wandsworth and/or the local area
• harass anyone in the borough of Wandsworth and/or the local area because of his or her race, colour, nationality, culture, sexuality, gender, age, marital status, religion or disability
• use the property for any criminal, immoral or illegal purpose
• threaten or harass or use violence towards anyone in the borough of Wandsworth and/or the local area
• threaten or harass or use violence towards council employees, managing agents or contractors
• use or threaten violence towards anyone living in the property
Any breach of the tenancy conditions by anyone living in or visiting the property, or where there is a joint tenancy, by one of the joint tenants, will be treated as a breach by the tenant. If you are evicted it is likely you will be considered to have made yourself ‘intentionally homeless’ and consequently not be entitled to rehousing by the council.

A few points

There has to be a question as to whether this clause can stand up in court. How can a clause forbidding your visitors to commit ASB anywhere in LB Wandsworth be argued as related to the tenancy, for example. The term breached must be a term of the tenancy, not a 'personal obligation' (Paddington Churches Housing Association v Boateng 1999 Legal Action 27). The extension to the whole Borough makes this a personal obligation (don't do anything, or allow household or visitors to do anything naughty in LB Wandsworth). As such it is unrelated to the property - note that the clause draws a distinction between the property and its locality and the Borough as a whole.

This is an amended tenancy condition - in 2009 - and is not in the tenancy agreement originally signed by the tenant. As noted by a commenter below, the Council's power to vary conditions of a tenancy is given at s.102 and s.103 Housing Act 1985, but that power only extends to terms of the tenancy. If this isn't a term of the tenancy, the Council has no power to include it by variation and the term is not valid for any pre-variation tenants (and couldn't be enforced under ground 1 for any tenants at all). This is assuming that the 2009 variation was validly carried out in the first place.

Further, I suspect that the clause, or at least the element extending the 'area of responsibility' to the whole borough may well be unfair for the purposes of Unfair Terms in Consumer Contracts Regulations 1999, not least because it is unrelated to the property or the area of the property.

Wandsworth have made things interesting - assuming the tenant has decent representation, Wandsworth will be putting put the validity of that clause in their amended tenancy conditions on trial. I frankly don't fancy their chances.

Even if the clause stands, I suspect, as do other commenters below, that the court is not going to find it reasonable to make a possession order. Such things as whether the breach is continuing, persistent or repeated and the personal circumstances of the tenant are factors in whether it is reasonable to make an order.

Secondly, the son has not been convicted of any offence and unless and until that changes, Wandsworth are going to have to prove the alleged ASB.

Adding in rent arrears surely invites a challenge - Wandsworth have made the basis for their decision to seek eviction publicly very clear and it had nothing to do with rent arrears. If the ASB element is not made out or the tenancy condition found to be void, then could the claim proceed on rent arrears alone? There has to be an argument about oppression - using the rent arrears for other purposes. Even if it was allowed to, the chances of getting an eviction on the arrears in that situation would be pretty minimal.

And lastly, is the Mail's account of the 'letter' accurate? If the letter/notice refers to something that 'may' be a breach of the tenancy condition, then the ground has not been stated, which would leave rent arrears as the only part of ground 1 actually stated in the notice. But of course, the Mail is not necessarily accurate...

Overall then, assuming the NSP was valid, it looks like Wandsworth will be relying on their unilateral amendment of the 'tenancy conditions' to try to avoid the locality issue in Ground 2. There will be a lot of people watching this, both social landlord and tenants, because the validity of such a clause will be a big issue. ]

Posted in ASB, Housing law - All, Nuisance, Possession, secure-tenancy and tagged , , , . RSS feed for this post and comments.

About

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

44 Comments

  1. Alistair
    Posted 15/08/2011 at 11:39 pm | link to comment

    This indeed does leave the council with some serious questions to answer. Their press release clearly does state that the tenants would be served with an eviction notice and goes on to detail that such a notice means that the “council *will* seeking possession of the property and that an application will be made to the courts seeking the tenant’s eviction” (emphasis my own). Interestingly the press release also reads “seeking possession of the property and that an application will be made to the courts seeking the tenant’s eviction” which would appear to get them round the fact that the defendant is not actually the tennant. I wonder how difficult they would make it to get hold of their standard tenancy agreement.

    • Posted 15/08/2011 at 11:50 pm | link to comment

      I can probably get hold of a Wandsworth tenancy agreement. But makes no odds. HA 1985 Grounds only.

      • Alistair
        Posted 16/08/2011 at 12:08 am | link to comment

        You’re right. The statute also states “tenant or a person residing in or visiting the dwelling-house” so the content of the agreement is rather irrelevant.

      • J
        Posted 16/08/2011 at 7:19 am | link to comment

        But… doesn’t this sound like they’re trying to use ground 1?

        • Posted 16/08/2011 at 7:35 am | link to comment

          I wondered that. But pusig a claim for rent arrears when it has been loudly announced to be ‘riot related’ and because of the son’s alleged behaviour would be somehiing like an abuse of process, non?

          And the ‘breach of tenancy’ conditions could only be rent arrears, for the same reasons of locality and unprovenness on the alleged behaviour.

          • J
            Posted 16/08/2011 at 8:28 am | link to comment

            I agree that it’s unlikely to be the rent arrears aspect of ground 1, but, if the tenancy agreement says ‘thou (or any family member, etc) shalt not commit any crime’ without reference to a locality, area or neighbourhood, why wouldn’t ground 1 be open to them?

            • Posted 16/08/2011 at 8:56 am | link to comment

              Any tenancy condition which said ‘if any member of your household does a bad thing anywhere, ever, you are responsible’ would surely be an unfair term and void. And has no connection to the tenancy.

  2. Mark
    Posted 16/08/2011 at 8:11 am | link to comment

    Clapham Junction is in Battersea, it always has been. It is NOT Clapham (as in the common) which comes under Lambeth.

    • Posted 16/08/2011 at 9:55 am | link to comment

      Locality is not a function of administrative districts.

  3. Simon
    Posted 16/08/2011 at 8:15 am | link to comment

    “Clapham Junction is not in the locality of a flat in Battersea”

    I don’t know how well you know this area, but Clapham Junction is actually a part of Battersea (despite being frequently misidentified as Clapham, including by many residents).

    In the absence of further information it’s quite possible that a ‘Battersea flat’ refers to a flat around Lavender Hill, where much of the disturbance took place.

    • J
      Posted 16/08/2011 at 8:29 am | link to comment

      ‘Locality’ is, of course, a question of face and degree, so, without more information, we can’t really come to a firm view

    • Posted 16/08/2011 at 9:01 am | link to comment

      Bad phrasing on my part, technically. But from the few details in the Mail articles, I’m pretty confident that distinct areas are involved.

      • Simon
        Posted 16/08/2011 at 9:37 am | link to comment

        Yes, you’re right – having now read the Mail article, it quotes the Mother as referring to “Clapham” as a distinct area from where they live, and their case is being supported by a Latchmere councillor (a ward north of the station) so at the least, referring to CJ town centre as a ‘locality’ would be exaggerating somewhat.

  4. Elouise
    Posted 16/08/2011 at 10:21 am | link to comment

    The relevant condition of the Wandsworth tenancy agreement (and I paraphrase) requires tenants, other occupiers and visitors not to engage in ASB either in the property, in the neighbouring area or, most importantly, anywhere in LB Wandsworth. That was an amendment which came into force in Jan 2009 if my memory serves. Clapham Junction is of course within LB Wandswoth. So whilst they may or may not be able to succeed under Ground 2 given the ‘locality’ requirement, the terms of their tenancy agreement would surely allow them to proceed under ground 1. Whether the Court would think it reasonable is another matter entirely – i certainly can’t see it.

    I would have thought that, if they do actually pursue this, they will be relying on grounds 1 and 2 (both limbs).

    • Posted 16/08/2011 at 10:35 am | link to comment

      Thanks Elouise, that is helpful.

      I’m not sure how far that clause would stand up in court, but in any event would require Wandsworth to prove ASB in the absence of a conviction.

      None of this alters the appearance from the Mail article that no NSP has actually been served – ‘may be in breach of tenancy agreement’ is not a statement of a ground for an NSP. That is the first question – have they served an NSP?

    • kjetilniki
      Posted 16/08/2011 at 11:27 am | link to comment

      if that was in the contract they signed then there might be a contractual liability [subject to he unfair terms in consumer contracts regs].

      It doesn’t necessarily make it a term of the tenancy.

      The wording probaly goes too far to make it a tenancy term, although one wonders what ajudge might decide in the present climate.

      There is a distinction the courts have drawn between a clause contained in a tenancy agreement and a term of tenancy.
      if it is not a term of the tenancy then ground 1 would not be satisfied ebven though it was a contractual term contained in the document that is the tenency agreement.

      If it was not in the tenancy agreement the tenant signed, and is not legally a term of the tenancy then LBW won’t have exercised the power in the HA85 [section 102] to vary the tenancy terms and it is not a valid obligation.

      • Posted 16/08/2011 at 12:03 pm | link to comment

        This is an amended tenancy agreement, as of 2009, not the original. I rather share your view on whether the clause (or at least the extension to all of LB Wandsworth) can be a term of the tenancy. Doing an update shortly.

  5. Claire stuteley
    Posted 16/08/2011 at 11:31 am | link to comment

    I heard the leader of Wandsworth council being interviewed on Radio 4 on Friday afternoon I think it was. What a superilous righteous git! It promptede to write an email to Wandsworth council expressing a view that it children are subject not only to parental guidence, but by the time they are teenagers, are much more influenced by environment and the wider world, and on that basis, it appeared to be grossley unfair to make the mother homeless in retaliation for her son’s alleged crimes.

  6. NR
    Posted 16/08/2011 at 12:24 pm | link to comment

    In short, WLB appear to have tried to be the driver the public bandwagon against the rioters and looters in taking this course of action.
    If they have not served the NSP this entire furore is a little premature. As others have noted, if and when they do, this Notice should cover the grounds alleged and it would be up to the discretion of the District Judge to determine whether it was reasonable to grant a possession order. This could lead to accusations of reasonableness of serving said Notice a la Pinnock and Powell. Incidentally did anyone read the piece in The Times today? Interesting to say the least…

  7. joeh
    Posted 16/08/2011 at 1:10 pm | link to comment

    Thats really helpful but leaves the area of the naming and shaming of this tenant, her son and her 8 year-old daughter.

    While it must be conjecture to say that Wandsworth contacted the Daily Mail, the fact that the news release was issued by Wandsworth ahead of any letter/Notice being delivered is a very murky area indeed. Any thoughts on what the DJ will make of this particular aspect of the case?

    Another linked issue is that it has been reported the son has mental health issues such as depression. Would this for example impact on reasonableness of serving a Notice too?

    Conjecture aside, the actions of Wandsworth and in particular the Leader of the Council (whose Bio says he has read Law no less) leave a very bitter taste in the mouth than just a ‘Naughty Step’ citing seems to be less of a sanction than deserved

  8. kjetilniki
    Posted 16/08/2011 at 2:50 pm | link to comment

    might this not be maladministration and/or misconduct in public office re the code of conduct for councillors?

  9. JAC
    Posted 16/08/2011 at 3:11 pm | link to comment

    The address given in the local paper for the tenant is about 2000 metres from the Clapham Junction riot site. It is arguable that the shops at Clapham Juntion are local to the tenant’s property albeit there are ones closer by on Battersea Park Road. I imagine that residents of the tenant’s property do regularly shop in the Clapham Junction shops though they may also shop at other nearer shops. It is not beyond the bounds of possibility that a judge would find that the scene of the riots at Clapham Junction is “in the locality” of the tenant’s flat. Having said that 2,000 metres away is not so close as to be unarguably in the locality of the tenant’s flat.

    Presumably Wandsworth thought that there was a risk about pursuing a Ground 2 claim on the basis that the ASB may or may not be in the locality of the tenant’s flat and so wondered what other alternatives were available and came upon this Ground 1/2009 ASB amendment option. Wandsworth may have thought that if they lost on this ground they can seek the support (legislative or merely moral) from the government for their actions and are seen to have acted tough and competently. They may have worried that if they went with Ground 2 and lost then their judgment in bringing the claim could be brought into question.

    It will be interesting to see where this goes but I strongly suspect it will be quietly dropped by Wandsworth somewhere down the road when everyone’s blood has cooled a little (and after a number of solicitors’ letters).

  10. Adrian
    Posted 16/08/2011 at 4:13 pm | link to comment

    Quite how the Mail got these details, assuming they are right, has to be a matter for speculation – but the options are that either Wandsworth put enough detail in their press release to enable the Mail to identify the alleged rioter, or someone at Wandsworth told the Mail who was involved.

    Or that the tenant herself (or her advisers) contacted the Mail. Given the sympathetic nature of the interview the paper carried with her, I strongly suspect that she did.

  11. Jason
    Posted 16/08/2011 at 4:32 pm | link to comment

    If the alleged rioter lives in the Latchmere Ward, the disturbances on Lavender Hill would be his nearest main shopping street. As has been said constantly, Clapham Junction and Lavender Hill are part of Battersea, which comes under Wandsworth Council. Clapham is not near Clapham Junction.

    • Posted 16/08/2011 at 5:21 pm | link to comment

      Jason,

      Administrative districts make no difference for locality, which is a question of fact and degree. Whether the areas are under Wandsworth or Lambeth makes no odds. Nor whether it is part of ‘Battersea’.

      But in any event, Wandsworth have apparently gone for Ground 1, not Ground 2, and are apparently relying on the tenancy condition which extends to the whole of the borough of Wandsworth. Locality isn’t the issue in that case, the validity of the tenancy condition is.

  12. Tony Belton
    Posted 16/08/2011 at 6:13 pm | link to comment

    Fascinating article. I am the Labour councillor defending, not in court you understand, said tenant. I note your comments with great interest. I would say, however, that you should not make too much of a thing about Battersea and Clapham Junction. Despite the name, Clapham Junction is right at the heart of Battersea – if you doubt me just find Battersea Main Reference Library, old Battersea Town Hall (now the Battersea Arts Centre. Clapham Junction is Battersea; so much so that it is the Council’s dictum “Clapham Junction, the Heart of Battersea”.

    But that does not detract from the fundamentals of your case.

    • Posted 16/08/2011 at 7:27 pm | link to comment

      Thanks Tony. I think the locality issue has become a bit of a sideshow. The issue from ground 2 – not being used, apparently – is what is a locality for the purposes of the law.

      For example – in the street outside the home, yes; on the same estate, or in the few streets around the home very likely; but when you are dealing with an area larger than that, it isn’t clear. In this case, it looks like somewhere over 1.5 miles away. So just because somewhere is ‘Battersea’ doesn’t make it all part of the same locality. What was the ‘locality’ in this case would be a matter for argument and eventually for the court to decide, if it were to be at issue. But I don;t think it now will be.

      If you continue to assist the tenant and if Wandsworth do move to issue proceedings, can I strongly suggest that she is found a very good housing solicitor? This is probably going to be a tricky and potentially important case.

  13. Chris B
    Posted 16/08/2011 at 6:22 pm | link to comment

    Regarding the matter of ASB being committed anywhere in the borough I think I may previously (years ago) have seen tenancy conditions that sought to prevent a tenant from damaging or defacing any council-owned property anywhere within the borough in question. I can’t, to be honest, see that it is necessarily a monstrous thing for a council to have such a clause. Why shouldn’t a council seek to prevent a resident of Council Estate A, on pain of eviction, if need be, from spray-painting graffiti all over Council Estate B – even if the two estates are a couple of bus journeys away from each other?

    And I don’t see that the damage to council property would necessarily have to be ‘housing-related’ if the clause were drawn widely enough. If a tenancy might be at risk if a tenant or a member of his family were to smash up a school, a park, a library or a playground I can see that a tenancy might be equally at risk if a rioter were to pry up a chunk of council-owned pavement (or a piece of council-owned street furniture) – whether he then chucks it a policeman or uses it to smash a shop window.

    • Posted 16/08/2011 at 8:04 pm | link to comment

      Chris, you are missing the point, I think. The Council could put any clause or condition that they wanted into the tenancy agreement. The question is whether it would be enforceable in law as a ‘breach of tenancy condition’. At law there is a distinction between a term of the tenancy and a ‘personal obligation’ unrelated to the tenancy, despite being set as a ‘condition’ of it.

      For example, what of a private sector tenancy agreement which had a clause forbidding dangerous driving on the motorway? Could the landlord bring possession proceedings for breach of tenancy agreement if the tenant was found guilty of dangerous driving? The obvious answer is that the condition does not pertain to the tenancy.

      Now, your example of damage to council owned property might seem different, but again the issue is how far does the condition pertain to the tenancy? Not damaging the property, sure. Not causing a nuisance to neighbours, sure. But once you start getting beyond that, the question is to what extent the condition is related to being a tenant.

      There may be an argument about a borough-wide ASB condition, but exactly how does that relate to the Council’s housing management function? Or how much is it imposing a personal obligation on the tenant unrelated to their occupation of the property?

      • Mike
        Posted 19/08/2011 at 11:21 pm | link to comment

        Council housing is allocated by the Council; other borough residents (Council Tax payers and rate payers) subsidise it. So it’s completely different from speeding on the motorway.

        As for putting an 8 year old at risk – when paying rent is clearly a condition of the tenancy agreement, then isn’t the mother doing it? Presumably she receives housing benefit and many other benefits as a single mother of two children living at home. It’s entirely possible that she has been put on notice before, and the son being accused of taking part in looting was just the last straw?

        • Posted 19/08/2011 at 11:52 pm | link to comment

          Mike, lovely to hear from someone so well informed. Just a few points, though. Other borough residents don’t subsidise council housing, at all.

          And why assume that the mother is receiving housing benefit? Just because she is a single mother? Would it make any difference to you if she was working in a part-time or low paid job and getting some housing benefit but not the full rent? Or if she was working full time and not getting any housing benefit? If so, why would that be different?

          Of course, lots of things are entirely possible, including that you are willing to asset things as fact that aren’t actually so. But even if what you say about the mother and rent arrears was true (and it may be), why would that make any difference to whether the Council should seek possession for the son’s (alleged) ASB? It is a different ground. For rent arrears, particularly where housing benefit is involved, there are pre-action steps to be taken by the council, including actually trying to sort out housing benefit issues (all too frequently down to cock-ups by HB), while ASB possession has other issues. So an incident of ASB being the last straw for the council after ‘putting her on notice’ about rent arrears would be legally inadequate for a possession claim.

          Part of the point of this post was trying to explain the difference between the law and the demands of knee jerk ‘commonsense’ approaches. Nice of you to give us the benefit of your insights

          • Mike
            Posted 20/08/2011 at 4:04 pm | link to comment

            I understand the point of the post. But read the Wandsworth tenancy agreement:

            “The court will only grant an order if the council can prove that one of the grounds for possession under the 1985 Housing Act applies.” That means if the Council seeks possession on multiple grounds, a court might grant it on only one (if the breach can be proven).

            Allow me to cite William Flack, a South London housing lawyer, from a blog: “When seeking possession of the property due to rent arrears the council will rely on grounds 1 of Schedule 2 of the Housing Act 1985 and therefore must make out rent lawfully from the tenant has not been paid or an obligation of the tenancy has been broken or not performed. This ground can also be used where the tenant has behaved in a way which the landlord considers breaches the terms of the tenancy agreement.” This means, as I construe it, ground 1 of Schedule 2 of the Housing Act 1985 can be invoked to support a breach of ground 2 of Schedule 2.

            [Assorted unevidenced assertions, assumptions and allegations about rent arrears and behaviour of T deleted from here by NL as borderline defamatory, and legally wrong. Mike also appears not to be aware that HB for local authority tenants is not paid to the tenant.]

            On your other point, the flat the family lives in is owned and managed by Wandsworth. Council tax and rates payers pay not only to subsidise the rents, but contribute to the refurbishment and maintenance of flats, communal parts, grounds, security and leisure facilities.

            • Posted 20/08/2011 at 6:45 pm | link to comment

              MIke
              You appear not to have read the post above. I am not mentioning the tenant’s name on this site. I have removed your mentions. I have also edited your comment to remove your extended and entirely unsupported views about the accrual of rent arrears by the tenant and what Wandsworth would or should be doing in a possession claim. There is no support at all for your assertions and your views on how to pursue a rent arrears possession claim are both legally wrong and morally dubious.

              You don’t need to quote William on ground 1 – re-read the post above and you will see I say the same. But ABS and rent arrears would be two separate breaches of tenancy and would have to be dealt with as such in any claim, not as a cumulative issue as set out in your first comment. You are simply wrong on that.

              On your repeated but still unevidenced assertion that a council tenancy is subsidised by ‘council tax and rates payers’,I’ve had a look at the accounts, just to make sure. In 2009/10 Wandsworth Housing Revenue/Expenditure account had income of £117,939,000 in gross rents and charges. Expenditure, not including depreciation on fixed assets (because that isn’t part of your alleged subsidy of ‘rents, refurbishment and maintenance’) was £112,881,000. You are, quite simply, wrong.

            • Mike
              Posted 21/08/2011 at 1:04 am | link to comment

              Replying to NL, not quite sure how comments about benefits can be defamatory when they are verbatim quotes from the tenant, or perhaps you took some offence at the mere suggestion that a low-income self-described single parent with two children living at home would be entitled to a range of social benefits. As to the question of rent arrears, they were cited in the Notice and, if true, may be sufficient to commence proceedings even if the young man was merely, as his mother claims, “in the wrong place and the wrong time”. It is also not “borderline defamatory” to express the opinion that if the Council commences proceedings with a slim chance of success in their “test case”, then they are “barmy”.
              I am aware that HB is paid directly to the Council. I am also aware that there is occasionally a shortfall between HB and rent, to the extent that some Wandsworth council tenants are in significant rent arrears. The amounts are published on the Council’s website. Are you questioning my statement that Wandsworth Council provides free help and advice to tenants in arrears? It’s also on their website. The tenant put her name into the public domain when she agreed to have it published in the national press, but it’s your site…

              I have no dog in this fight, but you seem to want to present this as a case of the Council putting this tenant on Notice on a single ground (the accusations against her son), when that may not be the sum total of their claims. This is relevant as a matter of law. Do you agree?

            • Posted 21/08/2011 at 8:43 am | link to comment

              Mike

              You know what was in the section I deleted, so that’s an end of it.

              Rent arrears can arise in many ways. Two or three months of non payment of housing benefit due to a cock-up would have the same effect as persistent failure to pay the rebated rent, for example. Or it could be a mixture of reasons. We don’t know in this instance, so you when you cast arrears as the result of persistent non-payment, you are jumping to a conclusion.

              Please read the post above again. Far from being ignored, the question of a rent arrears based claim is dealt with there. But you do go some way towards illustrating why I think it could be argued to be oppressive or an abuse of process.

              If Wandsworth brought a claim and won on rent arrears, then it wouldn’t be a ‘test case’, as you put it, at all. It would be just another rent arrears possession claim (and I would anticipate a suspended possession order on that level of arrears, although that is not certain).

              But you suggest that Wandsworth would be so determined to ‘win’ this case – to evict T – that rather than just relying on the ‘No ASB in the Borough’ tenancy condition, they would add in every other ground for possession that they could. The Council’s very public statements about the reason for brining the case would support your view.

              This may be enough for the tenant to argue that the rolling in of the other grounds for possession are an abuse of process or oppressive in that the Council have made very clear the reason why it is seeking possession. The other grounds are attempts to evict her regardless of whether she can defend the main claim/allegation successfully. Would a rent arrears claim have been brought at this time if not for the riot allegations? I’m not at all sure whether such a defence would be successful, but it may be raised. So, exactly your attitude and approach would be a potential defence for the tenant.

              Given the haste with which the NSP was served, I suspect that Wandsworth haven’t complied with the rent arrears possession pre action protocol, which would further muddy the waters of any possession claim including the rent arrears – always assuming that the tenant remains in arrears.

              In any event, it would rather backfire on Wandsworth in publicity terms if their loudly proclaimed ‘riot related’ possession only went ahead because of rent arrears.

      • Chris B
        Posted 24/08/2011 at 4:09 pm | link to comment

        The cases on the distinction between terms of a tenancy (which in oldspeak ‘touch and concern the land’) and mere ‘personal obligations’ seem to have been decided in the context of whether or not successors in title should be bound by those obligations which are – or are alleged to be – mere personal obligations ….

        …. but secure tenancies are generally non-assignable anyway (by virtue of s91 of the HA 1985).

        And even personal obligations ought to be enforceable as between the original parties, no?

        • Posted 24/08/2011 at 4:28 pm | link to comment

          Chris – but as personal obligations, not as tenancy conditions. So not enforceable under Ground 1 HA 1985

  14. joeh
    Posted 16/08/2011 at 8:55 pm | link to comment

    kjetilniki above “might this not be maladministration and/or misconduct in public office re the code of conduct for councillors?”

    Perhaps though I was thinking more of a council and a councillor placing an 8 year-old child at risk from these announcements or even placing the Mother at risk from retribution after the mass hysteria that all ‘rioting scum’ etc, are, we are told.

    Tangential perhaps, but I come across council (in)actions frequently which place vulnerable people at risk and where a safeguarding action could be taken against a council, yet the safeguarding guidance doesnt say how this can happen and assume that councils always act in the best interests of vulnerable people.

  15. Tony Belton
    Posted 17/08/2011 at 5:42 pm | link to comment

    OK, again and without getting too hung up on the locality. C Junction is Battersea. This lady lives in Battersea but the 2K estimate of distance is about right. She is however about as near to Sloane Square as she is to C Junction. I would think that reasonable people would think of their locality (in London) as being their road, estate, 5 minute neighbourhood. A definition of locality which covers the whole Borough means – Roehampton, some 4 miles away, Tooting, Putney – a population of nearly 300,000. That I suggest is not locality in any real sense.

    • Posted 17/08/2011 at 6:23 pm | link to comment

      I agree. Which is why Wandsworth have gone for Ground 1 and clause 31 in the amended tenancy conditions, as set out above. Avoids the locality issue by imposing a ‘whole borough’ condition. Whether that will stand up in court is another question entirely.

  16. henryhomer
    Posted 22/08/2011 at 3:34 pm | link to comment

    You do have to wonder what is going on in Wandsworth. If you want to make an example of someone, at least pick the best case you can.

    Go for a convicted rioter/looter with their own tenancy which is close to the scene of their crime.

    In this way you avoid the ‘innocent mother’ argument and easily satisfy the ‘locality’ test.

    The deterrent benefit of evicting a rioter/looter would still be the same and the council would avoid the egg on face of failure which seems likely in this case.

  17. joeh
    Posted 30/08/2011 at 7:49 pm | link to comment

    I have been searching for the court case and the outcome of the young person involved but to no avail. I do not that RG and the Council have been a lot less vocal and ebullient about this (or any other case) – Yet I did find this press release allegedly written on 16 Aug by Ravi Govindia: -

    “”And Wandsworth won’t act on hearsay. We will only seek an eviction if there is a conviction. Ultimately the decision does not rest with us, but with the courts. We will put forward our evidence to a judge while the tenant, no doubt with legal representation, will make the opposing case. The court will weigh up both sides carefully before reaching a verdict.”

    http://www.wandsworth.gov.uk/news/article/10632/evicting_rioters_is_being_fair_to_neighbours

    WE WILL ONLY SEEK AN EVICTION IF THERE IS A CONVICTION!

    Really? Despite hurriedly trying to correct his outrageous behaviour with this comment I do note the use of “…while the tenant, NO DOUBT WITH LEGAL REPRESENTATION, will make the opposing case!!

    It seems Ravi Govindia wishes to see tenants not have any legal representation at all and carry on his despotic megalomania as judge jury and executioner … Oh yes he read law according to his bio!

    is it possible to electrify naughty steps?

  18. Justin Bates
    Posted 21/02/2013 at 6:47 pm | link to comment

    For those who are still interested, today, in LB Wandsworth v Maggott, the DJ at Wandsworth County Court agreed that cl.31 is not an “obligation of the tenancy” for the purposes of ground 1 as it’s too broad and more properly construed as a personal covenant unconnected with the use of land. Claim dismissed.

    Justin

One Trackback

  1. [...] be served with an eviction notice”.  Nearly Legal website notes that Wandsworth’s new leader Ravi Govindia’s rush to make a name for himself was not all that it seemed.  First, the tenant’s son has not been convicted of anything, and [...]

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