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.