Barnet’s brave new dawn

And, like a sudden, startling and slightly embarrassing squeak from a vinyl sofa, flexible tenancies are here!

London Borough of Barnet have announced, in a manner which suggests absolutely no political motivation behind the decision at all, the ‘end of the council tenancy for life‘, as of 9 July 2012.

While no Council can offer flexible tenancies until it has published its ‘Tenancy Strategy’ (which must be by January 2013), Barnet took a considered approach and published its Strategy in April 2012. A basic overview is here.

The Tenancy Strategy itself is worth a read, not least for the number of errors it contains. For example, Barnet kindly announce that:

Where a tenant wishes to appeal the termination of a tenancy and the notice period expires during the period of the appeal [they mean the statutory review], the tenant will be permitted to stay in the property where this is not likely to lead to an unreasonable delay in the property being vacated.

That is less than generous, not least because possession proceedings would fail if the statutory review had not been properly completed.

And then pick the nits out of this:

If the formal review upholds the decision, the tenant then has recourse to the county court

Should the county court uphold the decision, the tenant will be obliged to leave the property

I presume what this means is that if the review upholds the decision then the tenant can only defend possession proceedings (there being no equivalent of the s.204 Housing Act 1996 appeal to the County Court) but who knows? And given that one ground of seeking a review is that the decision is not in accordance with the Tenancy Strategy, the messier and murkier the Strategy, then the more fun is to be had.

I haven’t yet been able to find any record of Barnet having consulted on the Tenancy Strategy. It is, of course, a statutory requirement that Barnet consulted with other providers of social housing in the borough on the Strategy. They might have done, but so far I can’t find any sign that they did, in the 3 months between the passing of the Localism Act and the publication of the Strategy.

So, what is Barnet proposing? Well flexible tenancies for all new council tenancies, save for the following, who will get periodic secure tenancies:

  • Secure tenants whose tenancy commenced before 9 July 2012 moving to another council property – already protected in law; [Actually no, only mutual exchanges, but that's fine if Barnet extend it to transfers]
  • Older people who are in receipt of the state pension and will occupy a general needs property. [...] The terms of Sheltered Housing tenancies will remain the same as they are currently and will be let as secure (life-time) tenancies;
  • Ex-armed forces personnel who have been both medically and honourably discharged and who have also seen active service; to be validated by the Royal British Legion;
  • Households where the applicant, their spouse or a dependant child is disabled in accordance with the criteria contained in Appendix 2.
  • These criteria would also be applied in the event that a household member becomes disabled during the period of a flexible tenancy and, as a result, become eligible for a life-time tenancy;
  • Households where the applicant or their spouse is terminally ill; this would also apply in the event that a household member becomes terminally ill during the period of a flexible tenancy and, as a result, become eligible for a life-time tenancy;

Barnet will be checking with the Royal British Legion that ex armed forces people have been medically discharged (and honourably so) AND seen active service? That will certainly be a first for Council housing departments. Apparently it is tough luck if you have been medically and honourably discharged but not seen active service.

All new tenants otherwise are apparently to be offered an introductory tenancy followed by a flexible tenancy. But what term?

Single people under 25 (except care leavers) will get an introductory followed by a two year term and “Other single people over the age of 25 could be offered two year tenancies rather than five depending on their vulnerability and the outcome of the housing assessment.”

Otherwise a introductory followed by a five year term.

This is, to say the least, an interesting interpretation of the (non binding) Ministerial guidance that the fixed term should be 5 years except in “exceptional circumstances”. Being single and under 25 doesn’t strike me as being exactly ‘exceptional’.

Barnet’s flexible tenancies may be at up to 80% of market rent.

And then the crucial renewal conditions (or rather non-renewal conditions):

The tenancy review criteria will reflect the continuing needs of tenants, any assets they might have accrued or inherited, attitude to work / training opportunities that might have presented themselves and pressures on social housing. Tenancies will not normally be extended where one or more the following apply:

  • Households with children with a gross income that is equivalent to the median earnings in Barnet [currently £36,200];
  • A household with no children that has a gross income that is equivalent to the median earnings in Barnet minus 15% [currently £30,800. Note income not earnings. Including benefits/tax credits etc.?];
  • A tenant or a member of their household who has been convicted of an act of civil disturbance or other criminal activity;
  • The tenant has breached the terms of their tenancy and has failed to reach or maintain an agreement with the Council to remedy this breach. For example, there are rent arrears and the tenant has not agreed or maintained an agreement to clear these;
  • The property is under-occupied by one bedroom or more;
  • The property has been extensively adapted but for someone with a disability who no longer lives with the tenant (this allows the property to be released for someone who will benefit from the adaptations);
  • Assets – the tenant or their spouse has assets or savings greater than the amount stipulated in the Council’s Housing Allocations Scheme which would normally exclude someone from being granted a council tenancy [currently £30,000].
  • The tenant is a young, single person on a flexible two year tenancy who has not worked or undertaken any training or education for a period of 6 months prior to the tenancy end date.

So, you lose your flexible tenancy for a gross income (with kids) of £36,200. Now, according to Shelter’s London Rent Watch, the average private sector rent for a two bed flat in Brent is £1,170 requiring a net income of £3,343 per month to be affordable. That is £40,116 pa net not gross. Obviously for larger households and properties, the situation will be worse.

This, to me, looks like a very clear incentive for people to keep their gross income below the borough median. Lose your flexible tenancy and take a massive rent increase, of at least 20%, does not look like an attractive prospect.

How these income and capital levels are to be checked is a whole fresh administrative problem, and a whole new set of admin costs for Barnet. No suggestions of how this is to be done in the document, of course, but hopefully they will have figured it out in 30 months time, when they need to start checking.

You lose your flexible tenancy if anyone in the household has been convicted of a criminal activity (anywhere at all, it appears).

If you are under 25, on a two year flexible, your lose it if you have not worked or been in education or training in the last 6 months of the tenancy term (though how that works when the decision on renewal is apparently taken 8 months before the end of the tenancy is anyone’s guess. Good work there Barnet). Is 18 months long enough for someone to secure their position enough to be in work, training or education?

If you are over occupying by one bedroom, not only will your HB be cut from April 2013, but you will lose your flexible tenancy. What is going to count as under-occupation? A kid temporarily at college, leaving their bedroom empty for the moment? Barnet don’t deign to tell us.

In short, there is a clear gulf in housing provision between the top income limit and being able to afford private sector accommodation, even with flexibles at 80% of market rent. And then there is the question of what happens to those who fall off the other end – e.g. the under 25′s who didn’t manage to be in work or education/training at the right time; or those who found some member of their household convicted of a/any criminal offence anywhere.

And, and and… Well, I’m not going to go into possible judicial reviews of a tenancy strategy that appears to have been drafted on the torn out bits of a fag packet, but there do seem to be a few hostages to fortune in there. For example a tenancy strategy that says over 25s will be given a 2 year term ‘depending on the outcome of the housing assessment’ – how on earth is that a criterion that can actually inform a decision on tenancy term, for that is what the strategy is supposed to do, under the Act.

These are just the headlines. The policy details on what counts as valid disability also merit some attention.

Barnet might be the first to break new ground, but if this is the brave new dawn, it is a sad, grey, rainy day ahead. Though possibly one with lots of litigation.

Posted in Allocation, FLW article, Housing law - All, 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 +

7 Comments

  1. Adrian (London)
    Posted 10/07/2012 at 11:52 am | link to comment

    … and from 1 July 2012 Family Mosaic Housing Association (with 20,000 homes as opposed to Barnet’s 10,000 homes)also appears to have ended lifelong tenancies, replacing assured tenancies with (maximum 6-year) ASTs for all new tenants …

    http://www.familymosaic.co.uk/News/Fixed-term-tenancies

    … and according to its pamphlet Family Mosaic is also adding an extra sort of ‘Ponzi scheme’ element to its fixed-term tenancies for good measure – because all its new fixed-term tenants must ‘opt’ to purchase one of Family Mosaic’s shared-ownership units as soon as their “household income is sufficient to purchase at least 25% of their home”, the pamphlet is ambiguous as to whether refusal to exercise one’s ‘option to purchase’ would trigger eviction only after expiry of the 6 year period or whether it would be considered a breach of tenancy not to buy at the point at which one becomes a means-tested ‘eligible staircaser’ (how very charitable)

  2. Chris
    Posted 10/07/2012 at 4:36 pm | link to comment

    To be honest I’ve not paid vast amount of attention to this. However as a solicitor I am glad I’ll be kept in work by the looks of it.

    So what would happen when you’re evicted because of flexible tenancy? Would you qualify for rehousing under the Housing Act 1996 you know being homeless and all.

  3. chief
    Posted 10/07/2012 at 7:05 pm | link to comment

    Doesn’t the issue go rather further than Grant Shapps’ letter? The HCA standard provides that RPs must have a “clear and accessible” policy (oh, my aching sides) that sets out, amongst other things, “Any exceptional circumstances in which they will grant fixed term tenancies for a term of less than five years in general needs housing following any probationary period”.

    Furthermore, RPs “must grant general needs tenants a periodic secure or assured (excluding periodic assured shorthold) tenancy, or a tenancy for a minimum fixed term of five years, or exceptionally, a tenancy for a minimum fixed term of no less than two years, in addition to any probationary tenancy period”.

    On a separate point, Barnet’s first group of people who still get secure tenancies is at least consistent with the HCA’s standard: “Registered providers shall grant those who were social housing tenants on the day on which section 154 of the Localism Act 2011 comes into force, and have remained social housing tenants since that date, a tenancy with no less security where they choose to move to another social rented home, whether with the same or another landlord.” Although it’s probably right to note the bracketed coda to that passage: “(This requirement does not apply where tenants choose to move to accommodation let on Affordable Rent terms)”.

    I agree that this has all the hallmarks of back of a fag packet policy making. Those things come with health warnings for a reason.

  4. JS
    Posted 11/07/2012 at 2:00 pm | link to comment

    Surely the biggest absurdity of all about flexible tenancies and assets is Mr Cameron proposes to bring back thumping discounts for the RTB and those with money enough can escape non-renewal by buying the property – the idiocy of this Act is beyond compare .

  5. joeh
    Posted 12/07/2012 at 6:37 pm | link to comment

    A question raised on twitter today was is this age discrimination under ECHR (section 4.5) Perhaps this is covered by is age an “exceptional circumstance” point above?

    Anybody have any idea what is a “housing assessment?” also does a “housing assessment” based only on someones suitability for a tenancy being applied to just those aged under 25 seems strange to me. Are all 25 year olds automatically suitable and automatically more mature and able to handle a tenancy than a 24 year old? The innate subjectivity of any such “housing assessment” for any age is also a huge issue for me thats open to review / appeal and further legal actions.

    JS – according to an article in the Telegraph today Shapps wants up to 2.5m more RTB sales at up to £75k discount – a nice way to giveaway up to £187.5bn of national assets!

  6. Catherine
    Posted 13/07/2012 at 2:00 pm | link to comment

    Thanks for the post, very helpful. On a slightly housing nerd-y point, can you(NL)say where your view comes from that LA can’t grant flexible tenancies until they’ve published their tenancy strategy? My reading is that LA housing management function is no different from the housing associations in the district, all of them can make their own tenancy policies independently, only needing to have regard to the LHA’s tenancy strategy. I think they can make the policy (and follow it in granting fixed term tenancies) before the strategy exists. Am I missing something?

    • Posted 01/08/2012 at 2:52 pm | link to comment

      It is unlawful for an LHA to allocate tenancies other than in accordance with its allocation policy. Any allocation policy dealing with flexible tenancies has to be informed by and in accordance with the tenancy strategy.

2 Trackbacks

  1. [...] spin policies some councils are planning to introduce them such as Barnet (and do read Nearly Legal’s withering expose of how ridiculous this is) or the larger Housing Associations such as Family Mosaic no longer [...]

  2. By Ben Reeve Lewis Friday Newsround #66 on 13/07/2012 at 12:33 pm

    [...] my favourite article of the week was on Nearly Legal,  an excellent legal resource that I confess, being a non-lawyer sometimes loses me in the [...]

Post a Comment

Your email is never published nor shared. Required fields are marked *

*
*

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>

css.php