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15/12/2008

Family Intervention Tenancies

From 5th January 2009 — in England at least — we will all be faced with a new beast the “Family Intervention Tenancy”, previously alluded to by my colleague J.

Since the last significant piece of the legal jigsaw was completed when the rules for local authority review of notices to quit has just been laid before parliament in the form of the Family Intervention Tenancies (Review of Local Authority Decisions) (England) Regulations 2008 (SI 3111/2008). I thought that it might be useful to describe Family Intervention Tenancies in more detail as well as explaining how the review of a notice to quit is conducted.

What is a Family Intervention Tenancy?

A Family Intervention Tenancy (“FIT”)  is a form of residential tenancy without security of tenure that may be offered by either a local housing authority or a registered social landlord  (RSL)/ registered provider of social housing(RPSH).

FIT’s may be offered to anyone who is a tenant of a secure (or assured) tenancy subject to a possession order on the grounds of anti-social behaviour or domestic violence or anyone who (if they had a secure or assured tenancy) could have had such a possession order made against them. Thus they may be offered to individuals who are homeless or tenants of private landlords as well as to the offering landlord’s own tenants.

Obviously the “offer” may be one that the prospective tenant would find difficult refuse — especially if they are already subject to a possession order — but there is no legal compulsion on them to accept it.

Creating an FIT

A local authority (or RSL/RPSH) may offer an FIT to a prospective tenant (T) if three main conditions are made out.

First, if T is a secure tenant (assured tenant in the case of an RSL/RPSH) a possession order has been made on either ground 2 (anti-social behaviour) or 2A (domestic violence) (in the case of an RSL/RPSH grounds 14 or 14A) or such an order could have been made whether or not the tenant was a secure (or assured) tenant.

Second, the landlord’s purpose must be the provision of behaviour support services.

Third, the landlord must have served a notice containing prescribed information on the tenant. The notice will inform the tenant:

  • why the FIT is being offered
  • which dwelling house would be let on the FIT
  • the main terms of the tenancy, in particular about any requirements in the proposed tenancy concerning behavioural support service
  • the security of tenure of the FIT and any loss of security of tenure the tenant will suffer
  • what the landlord will do if the tenant refuses the FIT
  • that the tenant is not obliged to accept the FIT
  • where to obtain advice on assistance with the notice

All the detail is in s.297 of the Housing and Regeneration Act 2008 which will insert new exceptions into schedules 1 of the Housing Acts 1985 and 1988 when it comes into force.

Eviction

An FIT will usually not be protected by any form of security of tenure and so the landlord will be able to evict by notice to quit in the usual way. For an RSL/RPSH there is no restriction on the service of a notice to quit subject to any possibility of challenge on public law grounds as in Weaver which has been the subject of earlier analysis on this blog.

A local housing authority must comply with procedural requirements (set out in s.298 of the Housing and Regeneration Act 2008) which give the tenant an opportunity to ask for a review, as follows:

  • the landlord must serve a notice under s.298(2) which will (amongst other things) offer the tenant the opportunity to have the decision to serve a notice to quit reviewed
  • within 14 days of the receipt of the s.298(2) notice the tenant may request a review
  • after 14 days from the receipt of the s.298(2) notice if there has been no request for a review (or the tenant has withdrawn any request) the landlord may serve a notice to quit otherwise the review process starts.

Review of a local authority’s decision to evict

The review process is governed by the  Family Intervention Tenancies (Review of Local Authority Decisions) (England) Regulations 2008 (SI 3111/2008). The review process may either result in an oral hearing or in a decision on written representations. It will be up to the tenant to request an oral hearing —  a review based on written representations being the default.

If the person who made the original decision to evict and the reviewer are both officers of the authority, the reviewer must hold a more senior position than the original decision maker.

Review by oral hearing

A review proceeds in the following way:

  • within 14 days of receipt of the s.298(2) notice, the tenant requests a review (it would be sensible to include a request for oral or written representations in this request though that is not required)
  • within 21 days of receipt of the s.298(2) notice, the tenant must send a response consisting of a copy of all written evidence they wish to be considered as well as  the names and addresses of all their witnesses
  • within 14 days of receipt of any response by the tenant and if the local housing authority wishes to respond to it, they must send its response to the tenant and the reviewer.

The authority and the tenant must be given 7 days notice of the hearing. At the hearing, although the reviewer has the conduct of the review, both the tenant and the authority must be given an opportunity to make representations, put questions to any witnesses and call witnesses on their own behalf. A tenant may be accompanied or represented by any other person who need not be a lawyer.

Time is tight and the reviewer must inform both the authority and the tenant of the result of the hearing in writing within 7 days of the hearing.

Review by written representations

Where there is a review on written representations, the tenant has a little more time to send their evidence to the reviewer:

  • within 21 days of receiving the s.298(2) notice the tenant must send written representations to the reviewer and the local authority, including any evidence they wish to be taken into account
  • within 14 days of receiving any such material from the tenant and if they wish to respond, the local authority must send its response to the reviewer an the tenant

The reviewer must notify the tenant and the authority of the result of the review:

  • where the tenant submitted no evidence, within 28 days of service of the s.298(2) notice
  • where the tenant has submitted evidence:
    • where the authority has submitted a response, within 14 days of the response
    • where the authority has not submitted a response, within 28 days of the authority’s receipt of the information supplied by the tenant

Conclusion

This blogger will be interested to see how often and in what circumstances FIT’s are used. Happy 2009!

Posted in: ASB | Housing law - All

2 Comments

  1. NL

    That is very helpful indeed, Francis.

    I realise that they are to be offered post-possession order (secure/assured), but I wonder how long it will be until a ‘forthcoming’ offer becomes mentioned in possession proceedings – or is offered during stay of warrant or setting date of possession hearings – to sway consideration of reasonableness.

    Reply
  2. Francis Davey

    The way I read the test “could be made” suggests that the offer of such a tenancy could be routinely made when commencing proceedings without any real objection (clearly one must believe a possession order “could be made” if one is applying for one). Though some judges might take a dim view if its seen as trying to tip their hands.

    On the other hand one might see judges swayed by the “forthcoming” offer make a possession order and then the offer not materialise. I can see some representatives making disingenuous submissions in that direction.

    Worse, what if the judge requires that an offer be made as a condition for the order? That may not be in the court’s power (or in the representatives) and so we might find a more severe order made than should be.

    As I said, I will watch this with great interest and look forward to hearing what people have been experiencing on the ground.

    Reply

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