We all know that the bedroom tax has created huge problems for both tenants, desperately trying and often failing to find the additional 14% or 25% of rent, and for social landlords, watching arrears spiral rapidly upwards.
But I don’t think there is anything that is capable of excusing the actions of South Ayrshire Council in the letters it is sending out to its tenants with ‘Notice of Proceedings’ (Scottish version of Notice seeking Possession). Here is the letter. Fairly standard until you reach the sentence after the passage in bold.
“We may also inform Children Services”.
In the context of the point this letter is sent and of its recipients, there is no other way to read this than as a (barely implied) threat that eviction proceedings are likely to lead to social services involvement and children being taken into care.
This is for arrears of £250. Addressed to people who are clearly in desperate straits already.
Let us get out of the way why this is nonsense, an empty threat, as any housing lawyer or advisor knows.
Most, if not all, people evicted solely on bedroom tax derived arrears would most certainly have an argument that they were not intentionally homeless. The Council would therefore owe a household with children the full homeless duty as being homeless, in priority need and not intentionally homeless. Oddly, South Ayrshire’s letter is silent about that.
There is no conceivable way that Children Services could possibly cope with the children of every homeless household evicted due to rent arrears, or even just bedroom tax arrears cases. And, at a daily cost of a child in care to the Council equivalent to the total arrears mentioned in this letter, it would be a farcical use of council funds.
Even if Children Services were to accept a s.17/s.20 Children Act duty (or Children (Scotland) Act 1995 equivalent) to the children of the household, there is a very strong article 8 human rights case for the family being kept together, so the proper response would be provision or securing of accommodation for the family, not taking the children separately.
So much for the reality of the situation. Now back to the threat.
Is it justifiable? What about a possible line in defence of the letter that the Local Authority is duty bound to have regard to the situation of the children in deciding on potential proceedings?
This would also be nonsense. Whilst the Council arguably does have just such a duty, it cannot be satisfied by a threat/promise of a referral to Children Services after eviction. The consideration has to be in the context of and inform the decision whether or not to pursue eviction in the first place.
So, we have a threat that is unsustainable and unjustified in both law and practice. And a threat that should have been known to be unjustified to the Local Authority making it (or one would have some questions to ask about their legal advice, assuming it was actually sought. I do wonder whether this letter from the housing team was actually cleared with Children Services before being sent out. That would be interesting to know).
But there is always someone prepare to try to justify the unjustifiable.
South Ayrshire – possibly in response to local press questions - have issued a statement. I have attempted to be restrained so far, but South Ayrshire’s statement tests my resolve.
The statement announces that South Ayrshire had decided
“that in those circumstances where a tenant is taking all reasonable steps to meet the required rent payment, and where their circumstances have changed as a result of the application of the size criteria rules, that eviction action will not be pursued for an initial period of up to 12 months from [25 April 2013]“
Apparently ‘all reasonable steps’ means ‘engaging with’ South Ayrshire, who offer “support and assistance – including housing options discussions, help to apply for a Discretionary Housing Payment and setting up reasonable repayment plans”. So, non-existent downsizing and repayment plans for those who can’t afford the rent element in the first place. In addition, I have been told, but have no way of verifying, that the family who received the letter above had applied for DHP but been refused. If that is indeed so, South Ayrshire have some explaining to do about ‘lack of engagement’.
So, for anybody not having a downsize available and not being able to enter a ‘repayment plan’ and with DHP not applied for or refused, South Ayshire have decided to start proceedings with this letter. And the excuse for the ‘Children Services’ threat?
The reference to Children’s Services is included because of our role as a ‘corporate parent’ where we have to ensure the safety and wellbeing of children and young people, who could potentially be at risk if their home circumstances change.
But this is marvellous. Harry Garland, South Ayrshire Council’s Executive Director for Care, Learning and Wellbeing, has invented a whole new duty! The Council is ‘corporate parent’ for children who are not homeless and are cared for in their home. Of course, if South Ayrshire want to stick with this line, I can imagine quite a few housing lawyers keen to hold them to it. A brand new duty of care to ensure safety and wellbeing of children who aren’t actually ‘in need’ yet sounds very attractive.
As a justification for the inclusion of the line in the letter, this is, of course, utter rubbish. Mealy-mouthed rubbish, given the reasons set out above. If South Ayrshire were indeed concerned with their duties, the letter would have mentioned a potential homelessness duty. If South Ayrshire were concerned with non-engagement with support, the letter could and should have set that out as a reason for service of notice. If it failure to apply for DHP was a reason, this should also have been set out.
While, as noted above, South Ayrshire do indeed have a duty to the children before eviction, that duty is to consider the position of the children in any decision whether or not to commence the eviction process. The possibility of a later reference to Children Services is, quite simply, not an answer to that duty.
So either way, Mr Garland is not making a great deal of sense. (As an aside, don’t these people actually run statements past their legal departments before issuing them?)
In the absence of any plausible legal or practical justification for the inclusion of that sentence in the letter, one can only conclude that it was intended as a threat. It is a demand for payment of outstanding arrears accompanied by a sentence which the Council must have known full well would be read as ‘we may well take your kids into care’. Pay up or we take your home and your kids. Is this kind of demanding money with menaces really what Councils are reduced to?
[I see there is a post about Knowsley Housing letters on Joe Halewood's blog, which also mention a referral to Children Services. However, that letter is clearly sent at warrant of eviction stage, so is potentially justified by immediately imminent homelessness and by not being from a Council that would itself have homelessness duties.]
[Update 5/11/2013: South Ayrshire are reported to be 'reviewing the wording of this section of the letter'.
Also a version of this post appeared in the Daily Record on Monday 4/11, in rather dramatic form.