What do we do with a problem like Ground 8?

To those not acquainted with housing law, Ground 8 is one of the mandatory grounds for possession of an assured tenancy listed in Housing Act 1988 Schedule 2. It forms one of the major differences between an assured tenancy (typically Housing Association/Registered Social Landlord) and a secure tenancy (typically Local Authority). As the wholesale transfers of local authority housing stock and tenancies to Housing Associations continue, not wholly uncontested, these differences become increasingly significant.

Ground 8 works quite simply. For the average weekly tenancy, it goes like this: 8 weeks rent arrears at the the time of the service of the Notice Seeking Possession and 8 weeks rent arrears at the date of the hearing of the claim and outright possession must be granted. Note those two dates. It does not mean a continuous period of arrears of 8 weeks or more. One can have entirely paid off arrears and then accrued a furhter 8 weeks, it doesn’t matter.

In dealing with secure tenants facing a possession claim for rent arrears, the Court has an extensive discretion as to whether possession is granted and if so, whether it is postponed. The Court will typically consider the arrears history and any reasons for the arrears, such as difficulties with housing benefit (which are frequent). None of this can be considered in a claim for possession on Ground 8. If the conditions are met, outright possession is mandatory and eviction usually follows promptly.

Some Housing Associations claim that they rarely use Ground 8, relying instead on discretionary Grounds, others claim that they use Ground 8 only ‘in extremis’. All point out that they have a duty to recover rent (although only rarely is any rent actually recovered this way). However, there are still many claims being made, in my anecdotal experience.

Nobody, except the Housing Associations, likes Ground 8. The Courts tend to dislike the restriction on their discretion, particularly when they are very familiar with housing benefit screw-ups. I have heard tales of the Court, where there is any doubt at all that the Notice Seeking Possession was received by the tenant, insisting that the HA witness to service is produced, which they often can’t do and this will, in any case, adjourn matters unless by some miracle, the housing officer is present.

Housing lawyers don’t like it for obvious reasons. So what, if anything can be done in the face of a Ground 8 claim?

Where the Order has been made, are there any grounds to set it aside? The usual ones of non-attendance for good reason and a defence usually won’t work, (but just might for disrepair?). However, I have successfully obtained set asides on the basis of oppression and on the basis that the defendant was a patient in terms of CPR 21.2 so that a litigation friend should have been appointed by the Claimant.

If there is the basis for a disrepair counterclaim, this might work. I haven’t personally run one, but it ought to mean that the amount of the arrears is disputed.

Also check whether the amount of arrears can be disputed, post Riverside Housing Association Ltd v White [2005] EWCA. Have rent increases been correctly levied? [Edit 05/07. The House of Lords has overturned the Court of Appeal judgment. Although the matter turns on the facts of Riverside, this downgrades a challenge on these grounds].

The other challenges are purely procedural. Have the technicalities, such as service, been complied with?

On these lines, a new and interesting prospect is presented by the introduction of the Pre-Action Protocol for rent arrears possession claims. A failure to comply with the protocol, where the claim is brought on anything other than solely mandatory grounds, means the Court can adjourn, strike out or dismiss claims. Claims on Ground 8 typically, though not always, are also made on Ground 10 and 11, which are discretionary grounds, thus opening up the argument that the Claimant has failed to comply with the Pre-Action Protocol and the claim should be dismissed or struck out. This won’t work on a solely Ground 8 Claim, but these are rarely made because of the arrears are reduced below 8 weeks (for a weekly rent), then the whole claim fails.

In my anecdotal experience, Housing Associations have been very poor at following the Protocol since it was introduced at the beginning of October 2006. This one could well be worth considering.

The fact remains that Ground 8 claims are difficult to defend (and for that reason it can be tricky to get funding for a defence). As the use of the ground is often deeply unfair to a tenant who has been trying to get their housing benefit sorted out (and this can take months), it makes an assured tenancy considerably less safe than a secure one.

About Giles Peaker

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 +.
Posted in assured-tenancy, Housing law - All, Possession and tagged , , , , , .

10 Comments

  1. This is useful, thank you. I am a council tenant in an area currently going through the transfer circus with Hyde Housing, and while my simple objection to stock transfer is based on the question of ownership of social housing, i am increasingly worried by the differences in regime between councils, and secure tenancies, and HAs, and the AST, even with the broad waivers of certain powers.

    I have a question about the Ground 8 eviction process, which is only tangential to the legal point perhaps, but worth asking: what are the circumstances for most of these evictions? That is, why do HAs usually resort to them? Is it a matter of cash flow (this seems unlikely), or is Ground 8 a useful tool to rid a HA of irritating tenants who are proving intractable on other gorunds? i’m also more generally at how such a draconian provision found its way into a social housing environment.

    Many thanks for the article, and the site.

  2. The Housing Corporation Guidance to RSLs is to not use Ground 8. But, as this is only a guidance, some RSLs are using them regardless. In my area, particularly London & Quadrant.

    Unfortunately, the anecdotal evidence is that they are often being used as means to control (ex) tenants. An outright possession order is obtained, then the threat of eviction left dangling over the occupier if they don’t keep to an arranged (and usually high) repayment rate. If this is true, it is a particularly nasty behaviour.

    I have not seen anything to suggest they are being used in a targeted way against specific ‘intractable’ individuals. Clearly this would be possible, if the rent arrears conditions were met, but I personally haven’t encountered it, not with Hyde, L&Q or others.

    As for the draconian provision, it was 1988! RSLs had to be tossed a bone to take on the burden of social housing as there was no way local authorities would be allowed to do so.

  3. hi iam a council tenent and when i was working back in 2003 the council told me i had to pay 45 pound towards my rent well it turned out i was paying to less which made me in arreres then 2004 my partner started work we payed full rent but we were still in arreres then from 2005 we were on benfits up till 03/01/07 for some reson iam now in rent arreres again even though council tax and benfits should of bin payed up till feb as we were to get 4 weeks run on of benfits. alinformation was tuck up to them when i had them i have been up yhere to day to fill out a gain another housing benfit form and tack more information the man i spoke to dont now why benfit ent bin paid to feb when the job centure notified them when the benfits stoped so when i come out i phoned the rent team and they said there is an eviction order just bin sent as i owe 3000 rent arreres my rent is 66 and i stared to pay 80 pound a week sonow its going to court yet again

  4. Hello

    I made a mutual exchange with another council tenant.

    On appearance the house looked fine but upon taking possession the gas boiler had to be replaced by a new one which has since been replaced.

    Flooding from bathroom is penetrating electrical wiring which I was told can cause serious problems if the wiring is not rewired throughout the whole house.

    All the downstairs ceilings including the bathroom have dampness because of water penetration.

    The water from taps comes out rusty.

    Windows do not shut properly and handles are loose.

    There is vandalism and harrassment from children playing ball games and breaking windows – I am afraid to leave the house unattended.

    There are only two plug sockets in the kitchen. The washing machine has to be connected across the kitchen wall which is dangerous and also near the gas boiler.

    Doors do not shut properly. Kitchen cupboards broken.

    The Council might be replacing the water pipes and tiling the bathroom but have not said when they will do it.

    Although the house is going to be updated but not till 2012

    I have asked to be rehoused but have been refused.

    I would be gratefull for any assistance you can give me.

    Polly

    Drains outside front door smell.

  5. I’m afraid I can’t comment on individual problems or assist via this blog. I strongly suggest you seek advice from a specialist solicitor. You can find legal aid solicitors in your area via the link towards the top right of this page.

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  8. A Housing Association I work with (governance) has this month decided to permit the use of Ground 8 for the first time, coinciding of course, with the Welfare Reforms being imposed, in particular (they have cited) the proposed Universal Credit introduction. A recent merger was supposed to have been a meeting of cultures, however there’s no way the Board of the pre-merged Association would have considered the Ground 8 route. I’ll fight its introduction but feel unsupported other by a single active resident currently working in the governance structure (I’m not a resident of the Association) but aim to do all I can to bring this piece of draconian legislation to the forefront of resident knowledge and understanding, hopefully with the help of organisations such as TPAS.

  9. I am facing eviction on the grounds 8,11 and 12 and lived at this address since 1996, lately I had serious communications regarding repairs and false accusations and I have complained about it now I feel the housing is taking this action because I challenged them especially when I was accused for neglecting my garden which is false and one of the managers apologised can this be a mitigating case?

    • No. Ground 8 is mandatory. You must try to get the rent arrears below 8 weeks before the first hearing of the claim. You may have a counterclaim for disrepair – I can’t tell from what you say – and you should seek advice and preferably representation immediately.

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