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Unlawful eviction and harassment
19/08/2010

On the Naughty Step – drop the dead donkey redux

There is very hot competition among the cast of this sorry episode for being placed on the step. This is also a story which has already been commented on by Tessa Shepperson of Landlord Law, who indeed played a small – and entirely virtuous – part. But Tessa is basically a nice, fair-minded person, and for that reason, her posts are entirely free of bile. I, on the other hand, am not necessarily nice, and rarely lacking in bile to spare.

For a taster of what is to come, here is the first foray of Suzy Butler into the media – the local paper. Note the ‘squatter’ motif, although the local paper does at least have the limited presence of mind to put the term in quote marks.

Then there is this:

Let us pause here to note that Ms Nobre was given an assured shorthold tenancy, paid what appears to be in the order of 6 months rent in advance and remained the tenant of the property, probably on a statutory periodic tenancy. Let us also note that, although facts are hard to discern in the fog of Ms Butler’s variable accounts of events, her father is reported to be a property developer and professional landlord.

GMTV returned to villify the tenant some more a day or so later. By this time, amazingly, Ms Butler isn’t in the tent anymore.

Unsurprisingly, the tenant gave up in the face of some serious media vilification and moved out. Naturally, Ms Butler had cameras on hand for her return.

So, who goes on the step?

Ms Butler is undoubtedly one of the dimmest of accidental landlords. Here, for example is a screen capture apparently from a BBC South East news item of what is apparently the ‘notice’ she served on the tenant (click for bigger).

defective notice screencap

And in fact, from documents that were shown in a BBC South East news programme on 10 August, it appears that she gave an ‘extended agreement’ to Ms Ombre on 25 May 2010, up to 5 August 2010. This suggests that the ‘notice’ above, dated 28 July was sent after a first missed rent payment in July and Ms Butler’s appearance, with a tent, in the local paper on 7 August stating that ‘she had to wait for two months missed rent to serve notice, which had been done the day before’ was immediately after a second missed rent payment on 6 August. Which makes the whole ‘tenant supposed to leave in April when Ms Butler returned’ story deeply suspect. Ms Butler is very welcome to clarify (as indeed is Ms Nobre).

But of course she is far from alone in saying “I can’t understand how I can have no right to enter the home I bought”, when it is not her home but a property she has let to someone else. Her petulant rage and self pity at actually having to obey the law are deeply unappealing, but again, hardly unusual. What is more unusual is that Ms Butler is not only prepared to court the media to implicitly announce to the world that her own stupidity means that it is unfair that the tenant is accorded legal rights against her, but has decided to actively campaign on the basis of the moral correctness of her own lazy ignorance. (Perhaps unsurprisingly, that Facebook page has apparently repeatedly deleted comments vaguely critical of Ms Butler’s stance on the basis that it is, well, against the law and she has behaved unlawfully – on which more below) [Edit 21/8. Someone had put a link to this post on that Facebook page. That has now been deleted by the page Admin].

In a final display of dimwittedness, Ms Butler and her supporters have announced they will be taking their campaign to Parliament, with her local MP – Mike Weatherly – but this is on 24 August, when Parliament is still in recess. Top lobbying work there. (Mr Weatherly can be contacted via here, should anyone feel he needs a spot of housing law explained to him).

And then there is GMTV, allegedly a news organisation, at least whose output is classed as such for the purposes of regulation. Their reporter repeatedly and utterly wrongly describes the tenant as a squatter, sympathises with Ms Butler when she says that the ‘squatter’ doesn’t answer the door to her when she goes to the house, apparently without notice, except once when she went with the police (showing their usual standards in L&T issues) and who then – with Ms Butler – turns up at the property unnannounced and demands to know why the tenant is still there. After standing by as the camera delightedly films Ms Butler petulantly ranting at the tenant inside the house, the reporter then demands to know when the tenant will leave.

And, frankly, that tent was so obviously put up for the camera that it screams out in full ‘Drop the dead donkey‘ bloodstained-cuddly-toy-abandoned-in-disaster-zone style.

In the follow up GMTV section, one anchor (Sally Smedley to a tee) asks, in tones of incredulity, ‘why can’t the landlord turn up with the police, or turn the electricity off, as so many viewers have emailed to say they should do this?’. When the barrister guest explains that this is a criminal offence, the other anchor, astonished, says ‘even though it is your house?’ (The barrister, Philip Rainey QC, is not as clear as could be wished for on the question about homelessness and council rehousing, to be honest, but then Tanfield Chambers aren’t noted for their expertise in homelessness. If only GMTV had asked about leasehold enfranchisement… But he otherwise does pretty well indeed in the face of some ridiculous posturing from the anchors).

So, this is a ‘news organisation’ that, on the sole basis of a (youngish blonde) dodgy amateur landlord’s flaky, unquestioned and unsupported story, is prepared to label a lawful tenant a ‘squatter’, doorstep the the tenant together with the landlord, comprising a breach of quiet enjoyment – at the very least – and demand that the tenant tell them when she will leave the property. All the while failing to give the tenant any chance to reply and talking over and cutting out her attempts to respond. The behaviour of the anchors, being also presumably directed and partially scripted, can also be laid at the door of the ‘news organisation’ rather than the only other conclusion – that they are personally spectacularly dim and ill informed, which is never a good look for a ‘journalist’. In short, this is a ‘news organisation’ that was prepared to expend its resources in support of a landlord’s attempt to force the departure of her tenant without getting a court order through the public vilification of the tenant. And that does not bother to carry out even the most cursory checks of a) the facts and b) the law before broadcasting – on two separate occasions – their utterly wrong story.

Naughty Step badgeFor that reason, however unattractive a figure Ms Butler may be – and just watch that scene of her shouting at the tenant while in the house from the first video again if you need reminding of how cynical her behaviour has been – it has to be GMTV that end up on the naughty step. Other media organisations swallowed Ms Butler’s ‘squatter’ line whole. Only GMTV actually went round themselves to harrass the tenant on camera and demand she explain why she was still there. Broadcasting Standards Commission, anyone?

And for today’s game of offences, what kind of claims can we arguably see made against Ms Butler and/or GMTV?

Against Ms Butler:
Breach of quiet enjoyment, obviously.
I’d throw in breach of Protection From Harassment Act – two or more occurrences of behaviour that D knew or a reasonable person would consider likely to harass. Butler had clearly on her own account been to the property shouting and demanding entrance on a number of occasions, then turns up with the police, then with a GMTV crew who record her shouting at length at the tenant.

Protection from Eviction Act? – I’d have a shot at that. Acts likely to interfere with peace or comfort of occupier – even just telling the media the address and that the property was ‘squatted’ could have been enough, but turning up with GMTV so that she and the reporter could have a go at the tenant for not leaving? Pretty certain. Then follows ‘knows or has reasonable cause to believe that conduct is likely to cause the occupier to give up occupation..’. Ms Butler has said this was why she went to the media – to ‘speed the process up’.

Housing Act 1988 s.27? I’m a bit less sure about this. How far can the GMTV and other media be held to have acting been at Butler’s instigation or on her behalf, or even directly in consequence of her acts?

Against GMTV? – over to you all…

[Thanks to some of the posters here for links to videos etc.]

[Edit 20 August: that last link to a thread at the MSE forums has been deleted by the admins. Not clear why. There are a lot of annoyed people at the MSE forums discussing that deletion of the thread. The suggestion is that the PR person running Ms Butler’s Facebook campaign page objected to being identified. [Edit 08/09/2010. Mr Dumore has contacted me. He asserts that the MSE thread was taken down because it contained personal information about it and, he alleges, threats to him]. That would be Jeremy Dunmore. Mr Dunmore’s twitter page gives as his personal website link a blog by the ‘Ascender Group’. Mr Dumore’s twitter account has many tweets about the Butler ‘campaign’. Mr Dunmore’s public entry on linkedin [just removed, link to cached version] states he is “Founder and Managing Director of Ascender Group“:

we are an innovator in outsourced business development and marketing services structured around an SGO model our aim is to build long term strategic relationships with our clients and deliver bottom line growth enabling us to grow and prosper alongside our customers [sic]

Here is their thoroughly professional blog. Been a bit quiet lately, lately being 2010.

The company website at www.ascendergroup.co.uk (as formerly inked to from his twitter page and linkedin page) doesn’t exist, which is the kind of consummate attention to detail I look for in someone ‘interested in consulting offers and expertise requests’.]

[Edit 21/08/2010. I’ve filed a complaint with Ofcom on the GMTV reports – detail in the comments below. Any updates will be passed on].

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.

85 Comments

  1. Tessa Shepperson

    I wondered when (or if) you were going to comment on this story!

    I told the BBC when they first contacted me about this, that the tenant was not a squatter, and to do them justice, I don’t think they (ie the BBC) used the word after that. Although some of them seemed at bit surprised about it.

    My feeling is that the tenant left quietly, because she felt she had sufficient evidence to bring a compensation claim for harassment. I would be surprised if a summons did not drop through Ms Butlers letter box in the next few weeks. She may wish herself back in the tent!

    If the tenant succeeds in such a claim I hope she will make it public. Because at the moment we have a situation where a landlord appears to have ‘got away’ with levering her tenant out using the power of the media. Which is not good for justice.

    Reply
    • DaftAida

      Tessa,

      Absolutely agree that media is being empowered to replace due judicial process in determining justice whether the matter be this insightful case or the false arrest, trial and judgement of innocents via the power of media. But what’s wonderful in this case, is that true justice may well have been served to everyone’s benefit. In fact, your comments have opened up a third possibility: that both Butler and Nobre (together with collusion with neighbours) set the whole deal up between them, with GMTV as ‘mediator’ to desired results. What entertainment, if so.

      Reply
      • NL

        Aida – a conspiracy theory too far, I’m afraid. I can say with absolute certainty that this was not the case…

        As to justice being served, there is an old maxim that he who comes to equity must come with clean hands. It doesn’t apply to the common law, or indeed statute, but lets just say that if it did justice wasn’t served. Certainly this was a landlord who didn’t follow the law, or apparently believe that they should have to.

        Reply
  2. Lee

    The thread on MSE you have linked to with over 600 responses by people who did not agree with Ms Butler’s actions) has now been deleted.

    Reply
    • NL

      Interesting.

      I wonder if it might having anything to do with Martin Lewis being a regular on GMTV. Last I saw of that thread, there were group complaints to GMTV being organised!

      Reply
  3. CB

    You’d never find Dom Littlewood bowing to pressure from his evil paymasters.

    I’ve banged a complaint. Will post any response in the comments when I get it.

    Reply
  4. PZF

    Although there’s no actual proof that I’m aware of, I would speculate that a raft of Housing Act regulations have been broken as well. Judging by the state of her ‘notice’ and general lack of knowledge surrounding housing law, I’d be interested to know whether Ms Butler’s obligations re Gas Safety Check (if applicable),EPC and providing a UK address for tenant to serve notice to were met…

    Reply
  5. Stephen O'Neill

    How about unlawful conduct with intent to deprive occupier of rights – s.1(3) PEA 1977 or possibly s.27 HA 1988 as principal for the news crew (i.e. in most cases the landlord will be liable for the actions of their agent)?

    Reply
    • NL

      I think probably enough for Ms Butler on PEA, certainly s.1(3).. But not wholly sure on S.27 HA 1988 – how far could news crew be taken as L’s agent? May be acting with her consent, but hard to argue on her behalf or at her direction.

      Reply
  6. CB

    If you can take action against the Police for assisting landlords in illegal evictions then why not news organisations?

    Reply
      • CB

        Well yes but the Police settled in that case. The wording of the PEA 77 refers to “any person” so I’d run it. I’m not saying it’d be successful but the wording of the Act remains quite open.

        Reply
        • NL

          OK, I’m sold. PEA 1977 s.1(3) against GMTV – interference with peace and comfort with intent to cause them to give up occupation. That intent might be a bit tricky to show, though.

        • PZF

          How so? They actually ask her why she won’t leave and WHEN SHE IS GOING TO LEAVE in the interview!!

          I’d say that it was pretty obvious their intention was to get her to quit the property – their crusading attitude and heavy bias towards the Landlord only backs this up. I certainly think they’d find it hard to argue that they DIDN’T want her to go…

        • NL

          Not so clear cut, I think. The questions by themselves aren’t enough to establish intent to cause her to give up occupation. They could be argued to be simply valid inquiries of a tenant whose fixed term had come to an end. And the intention of the items as a whole could be argued to be to highlight the difficult position of the landlord and others in her position – a journalistic intention.

          Of course, GMTV were completely wrong on the law and equally clearly set out to portray the tenant as the villan of the piece, but the specific intent to get her to give up occupation would be a sod to prove.

  7. Stephen O'Neill

    Test case anyone?

    Reply
  8. Michael Read

    Suzy Butler is no stranger to lateness.

    The annual return to the Charities Commission was late – on one occasion by 151 days – on both years since incorporation.

    I have no idea what use to starving children in Peru the provision of “life skills, PE/Yoga or Makaton” is.

    Ms Butler would seem to claim a staff cost of £30k on a charity which has total turnover of just over £150k.

    Finally, should someone complain to the PCC about GMTV?

    Reply
  9. kjetilniki

    thank you for the time u have clearly expended upon a very well researched piece.

    ever thought of being a journalist?

    see if 1 of the sundays will run a story?

    Reply
    • Writing

      “Against GMTV? – over to you all…”

      I wonder if anyone would take the libel case on a conditional fee basis? Calling Ms Nobre a squatter – when she clearly was not – might be viewed as defamatory.

      Reply
      • NL

        @ Writing

        The only person who could be considered for a CFA is the (ex) tenant. Someone might take it but without more information, no-one would commit themselves to doing so.

        Reply
  10. NL

    Well, who would have guessed that submitting an Ofcom complaint is like dealing with Twitter. There’s a 750 character limit! (Character, not word. How can one complain precisely in 750 characters?)

    After much editing this was what I got down to, submitted under my real name and contact details. The item complained of is identified in the header:

    “The item is at http://bit.ly/avIoWa
    i) The description of the tenant as a squatter throughout is wholly wrong and prejudicial to the tenant.
    ii) The reporter either instigated or aided an unlawful breach of the tenant’s right to quiet enjoyment.
    iii) It is strongly arguable that the reporter aided or instigated a criminal offence under the Protection From Eviction Act 1977.
    iv) GMTV wholly failed to check the legal position of the tenant or the landlord, or failed to act on that advice if received.
    v) The actions of the reporter not only breached the tenant’s rights, but put Ms Butler in a position where she is at risk of potential criminal and civil proceedings.
    Please contact me for further details”

    Reply
  11. James

    I do so hope the displaced tenant goes through with her complaint. This stupid woman has set back the perception of landlords as reasonable business people by thirty years.

    Reply
  12. David C

    I’m not going to pretend I know all the legal technical stuff on what laws the landlord or GMTV might have breached.

    If I need to know law stuff for anything important, that is what qualified solicitors are for. The fees they charge, for their own services and those of barristers, to help protect and advise me in advance. Or, after an event if I should ever leave myself open to a claim against me. Something I’d prefer to avoid.

    I do know if I were to ever let a property or my home, I’d seek quality professional advice and do a lot of study on what is involved. Already I was aware it is the tenant’s home during their lawful tenancy and there are procedures to follow in what a landlord can legally do in terms of entry to the property, giving notice, and regaining possession if required.

    The events which have occurred and which are neatly covered in the entry here shock me. This is a very sharp review against a big wave of badly reported tv, radio and press coverage. Thanks.

    Reply
  13. Phillip Williams

    I’m a private landlord, been one since 2000: A registered, accredited Landlord – and yes I still get things wrong & have more to learn.

    This woman, Butler, is a disgrace to Landlording (? is that a real world) .. don’t think we want her type …

    I’m appalled at the criminal(*) Butler’s actions, IMHO, almost as much with GMTV. Well done nearlylegal!
    (*) Criminal due to her criminally evicting tenant.

    Reply
  14. kjetilniki

    i was thinking , and wondered suitable case for a prosecution for libel, but a little look at wiki revealed
    “All forms of criminal libel were abolished on 12 January 2010 when section 73 of the Coroners and Justice Act 2009 came into force.[1]”
    shame innit?

    Reply
  15. Simon

    “An end to Squatters’ rights, what about home owners’ rights?”

    What about Human Rights – and in particular Article 8?

    Clearly Butler and GMTV aren’t public authorities, but the police are… Perhaps a gentle reminder to Sussex Police is in order as well?

    PS
    ‘Life skills’ (?) and yoga probably aren’t top of the importance tree to kids in Peru (or anywhere else!) but if they’re deaf makaton could be very important indeed; let’s give her some credit for that at least :-)

    Reply
    • NL

      Simon

      Apart from the police attending on one occasion when Ms Butler retreived some belongings from the property – and in what way they attended and at who’s instigation is not clear – there hasn’t been significant police involvement.

      On the charity, although baby massage is probably not a priority need for Peruvian homeless, I agree on the Makaton, which is why I have not had a go at the charity at all in the post or subsequently.

      Reply
      • Francis Davey

        Though if you are going to teach sign language why not BSL, rather than the cut-down Makaton, unless the Peruvian homeless also have cognitive difficulties as well?

        And why *Makaton*? Why not a more localised sign language? I’ve no idea what Peruvian Sign Language is like or even if it exists, but surely ASL is more relevant to a Peruvian than BSL, and I bet there’s something more local still.

        Reply
        • NL

          Sure, but then you are arguing about relative levels of benefit. The general point that the charity may be of benefit, and is thus not properly a valid target in a discussion of Ms Butler’s failings as a landlord would stand.

  16. Lydia

    I understand that Ms Butler’s charity works with Peruvian children with significant learning disabilities, rather than simply with poor or homeless children. “Life skills” may therefore refer to teaching them how to dress themselves or something similar, and the massage may be about using touch to get through to children whose understanding of words may be very limited.

    I say “may” because I only know what I’ve looked up about her charity. Still, if none of us knows very much about what her charity does, then all the more reason to stick to criticism of her behaviour as a landlord, where there are facts available and it’s possible to be sure of one’s ground.

    Reply
    • NL

      Agreed.

      Unless some sort of connection comes to light, although heaven knows what, I hereby declare the charity out of bounds.

      Reply
  17. jh

    NL – Surely the charity cannot be out of bounds here.

    The landlord (sic?) runs this charity and used the public perception of this charity to further her case with GMTV – Look at me I’m a good citizen doing good charitable works and this evil tenant etc.

    In fact she has directly and overtly brought disrepute on thatt charity that may well be in breach of Charity Commission regulations and can be investigated by them.

    Ms Butler I presume must have sought agreement from any other trustees of that charity to have raised this? If she did then those Trustees of that charity have played a part. If not… then surely those Trustees have to sanction Ms Butler if not dismiss her?

    The charity for those reasons cannot and should not be immune here.

    Reply
    • NL

      JH. I disagree. While she certainly used her working for a charity in the way you describe, I don’t think that the charity itself can be said to be involved. While Ms Butler’s actions may well have had an impact on the public perception of the charity, that – as you go on to point out – is a matter for the officers and trustees of the charity. I would be frankly gob-smacked if the trustees had been consulted and/or had authorised Ms Butler to use the charity’s name in the way she did.

      The charity per se – its operations, etc. – is not involved in this matter to the best of my knowledge. It would not be right to tar it with the same brush as Ms Butler, for exactly the reasons you give.

      If anything else emerges that does link the charity to this afair, then obviously that is different. But for now, it is out of bounds.

      Reply
      • PZF

        After a string of posts on the charity’s facebook page strongly criticising the LL (which have since been removed) the link to the charity’s page has been removed from the pro-LL facebook group’s page. I think the charity are starting to take note that LL’s actions are starting to reflect badly upon them.

        I had mixed feelings about the posts tbh, as from what I can see (admittedly from the charity’s own websites and interviews with its founder!) it does do some very commendable work and I’m not sure it was an appropriate forum to be having the discussion. I certainly felt for the charity volunteer who was modding the facebook page. (As they didn’t immediately delete the posts I’m assuming that it was not anyone to do with the pro-LL facebook group!) On the other hand, I strongly disapproved of the facebook group linking to the charity’s page anyway, so at least it got that sorted out.

        I don’t seem to be able to reply to your response to my previous post concerning legal action against GMTV, so I’m replying here. I see what you are saying about journalistic intention, but do you not think that branding the tenant a squatter on television and canvassing her neighbours – no doubt stirring up ill-feeling towards her and making it incredibly difficult to continue living there – constitutes intent to make her leave? ‘Right to report’ is one thing, but surely an individual’s right to privacy overrides this? They could have covered the LL’s predicament without doorstepping the tenant, revealing her location and identity as well as a whole host of other personal information.

        Even in the event that LL’s claims of rent arrears are true, they have broadcast these personal details – which even the LL states were down to tenant’s financial misfortune rather than a case of having the money and refusing to pay – for all and sundry to hear. Didn’t one of your previous naughty step occupants land in legal hot water for doing something similar with ‘rent dodger’ signs affixed to houses?

        Reply
        • NL

          PZF
          I’m not saying that there isn’t a case to be made for GMTV having the required intent. But it would not be straightforward or easy to establish, because there are clear alternative accounts of what they were intending to do. There can be little doubt that what they did would go to ‘causing T to give up occupation’, but that has to be the desired result, not incidental. Another hurdle to establishing intention would be that GMTV per se has no interest in or obtains no benefit from T leaving. Thus one counter argument is that they wanted their story, as dramatic and simplified as possible. What happened to those involved was incidental, not an aim.

        • PZF

          Ah, I see. Would their actions leave them open to private action from the tenant then? Not to sure on the legal jargon but I’m thinking along the lines of harassment/breach of privacy/causing distress/damage to character/reputation etc.

  18. jh

    NL – I share your view that (hopefully) the charity wasnt involved in the course of events; however they are involved now after these events, and they need to act.

    A cursory look at the Charity Commission website gives an overview of where and why they will investigate complaints:-

    “In more detail

    The issues we consider to be serious or significant and unacceptable for any charity, its trustees, employees or agents to be engaged in are set out in the list below. The issues are not listed in any order of priority:

    significant financial loss to the charity;
    serious harm to beneficiaries and, in particular, vulnerable beneficiaries;
    threats to national security, particularly terrorism;
    criminality within or involving a charity;
    sham charities set up for an illegal or improper purpose;
    charities deliberately being used for significant private advantage;
    where a charity’s independence is seriously called into question;
    serious non-compliance in a charity that damages or has the potential to damage its reputation and/or the reputation of charities generally;
    serious non-compliance in a charity which, left unchecked, could damage public trust and confidence in the Charity Commission as an effective regulator”

    – “Charities being used for significant private advantage?” is one a few areas of investigation that the CC could use here. General public confidence in is yet another area.

    It is very arguable in my view that Ms Butler has used the good name of this charity to gain private advantage. Whether she is a key worker and/or a trustee she has brought significant reputational risk to that charity who must now, after the fact, be involved and must act.

    There is a strong operational need for disassociation here from the charity to disassociate itself from Ms Butlers actions through say a news release, and/or Ms Butler to disassociate her actions from the charity publicly. After all, she is hardly a wallflower when it comes to using the press is she?

    Even though Ms Butler set up this charity and by all accounts has been doing good works, she has placed the charity in this position by using its name to further her private endeavours and that places the charity at risk of disrepute. The charity whether it likes it or not and however unwittingly is inviolved now and needs to act. If it doesnt then it can fall foul of CC regulation.

    Reply
    • NL

      But ‘public trust and confidence’ is an issue when resulting from serious non-compliance in a charity. That is not at issue here.

      Private advantage? Perhaps, but I am less persuaded that ‘the Angel of the Incas’ used the charity for advantage, so much as the name of it and her role within it. I am also not wholly sure that portraying herself in a certain role in the media would fall under significant private advantage. But I am not a charity lawyer, so my views are – at best – uninformed speculation.

      However, I have noticed that the ‘Butler campaign’ facebook page has just removed the link to the charity’s facebook page that used to be there. So it may well be that there is, shall we say, some concern among the trustees about her association of it with her actions and ‘campaign’.

      In any event, whether the trustees take action against her or not, it is not a reason for the activities and funding of the charity to be discussed or questioned here, without good reason – which so far, there isn’t.

      Reply
      • Marcin

        Having read more than one Charity Commission report, it is clear that they consider themselves to have a very wide remit to criticise the behaviour of trustees – they are certainly not shy about going to the limit of their mandate to investigate, criticise, and direct.

        I think that if Ms Butler were found to have committed some kind of wrong-doing, and the Charity Commission felt the trustees had allowed the charity’s name to be used as part of her campaign, there might well be a risk of Charity Commission criticism (and I say this not because I believe there has been any wrongdoing or warrant for criticism of the trustees, but because my impression is that the Charity Commission is quite zealous).

        Reply
  19. CB

    I must confess having given the matter some thought over the weekend that I’m wavering on the “intent” point.

    PEA 77 would apply to GMTV but intent? intent? intent? (if you pardon the pun(s)).

    Was the reporter (and associated crew) aware that by entering the property they would be interfering with the peice and comfort of the occupier… In my view almost certainly.

    Did the reporter et al intend to cause the tenant to give up occupation of the property? You will note in the first report that it is the reporter who leads the way and to be fair to Ms Bulter she appears (at least initially) reluctant to follow and it is the reporter who knocks on the door and then the reporter who pulls on Ms Butler’s arm to lead her into the property… All this added to the reporters question “when are you going to leave” leads me to think that the intent argument against GMTV might be stronger than I first thought… The actions of the reporter certainly go beyond what can be described as honest blundering.

    On another note I’ve just noticed that’s John Stapleton formally of BBC’s Watchdog on the sofa. Oh how the consumer champions have fallen :)

    Reply
  20. Tom (iow)

    Section 1(3) of PEA can be committed by any person but requires proof of intent to cause the occupier to leave.

    Section 1(3A) does not require intent, only that the act is likely to interfere with the peace or comfort and is unjustified, but it can only be committed by the landlord or an agent.

    I think the GMTV crew *may* be in the frame for either offence, as they could commit the latter by assisting the landlord as well as by being agents.

    Reply
    • NL

      Tom – Agents? They undoubtedly assisted Ms Butler, but I’d consider it a stretch to take them as agents.

      Reply
  21. Tom (iow)

    It was the way I phrased it: I meant that it is not necessary to prove they were agents, as they could be guilty of the offence by assisting or procuring it, if they are not agents.

    Reply
    • NL

      Tom

      Nope – only landlord or agent can commit an offence under 1(3A). GMTV could not be guilty of the offence by assisting the LL in it, or by procuring it, unless they were the LL’s agent,or the LL. Sorry.

      Reply
      • Tom (iow)

        Really? Under the Accessories and Abettors Act 1861 ‘whoever’ assists an offender is also guilty of the offence. Women have been convicted of rape and non-drivers of drink driving under this principle, despite not otherwise being capable of comiting the offences.

        Reply
        • NL

          Then you can see why I’m not a criminal solicitor or in the CPS. But you are back to the mens rea issue there, for the assistor, surely – ‘knows or has reasonable cause to believe’ in the terms of 1(3A). And as I’ve said before, I think showing intent is an issue.

  22. JAC

    I am not sure that Philip Rainey was “hopeless” on the question of homelessness – that seemed a needlessly nasty thing to say. He was correct in what he said though he did not give a long explanation about the reason why councils seek a possession order (to be fair to him this was not asked and it was ITV’s breakfast show rather than a skeleton argument for the Supreme Court). He was, though, a bit unclear about timescales that apply to section 8 possession claims, someone might have taken away the wrong impression that the AST timescales might apply to those claims.

    Reply
    • NL

      JAC
      I was not being needlessly nasty, although given the circumstances I may have been a little unfair. My reason was that there is a widespread misapprehension that ‘the council’ will rehouse anyone made homeless. This was put to Mr Rainey QC along with the presumed suggestion by the council that the tenant wait for a possession order. While Mr Rainey’s response on the possession order point was indeed fair enough, the elephant in the room was the presumption that the tenant (or indeed ‘anyone’ generally) would be accepted as homeless and provided with housing. This is quite simply so massively and utterly wrong for many areas of the country, and in statute, that a short response to that effect was, in my view, required. Both landlords and tenants need to be aware of the actuality.

      Reply
  23. NL

    So, I have an Ofcom letter saying they’re not interested – clearly a stock response to a number of complaints about the GMTV item as exactly the same as the reply is posted here.

    But…

    Ofcom are wrong. I wasn’t complaining about privacy or fairness, but accuracy and impartiality. An email pointing this out in detail and requesting reconsideration has been sent.

    Reply
  24. JAC

    NL

    Up to a point I agree with you but the “reality” is that most tenants going to a local authority to see about accommodation after being served with a s.21 notice are going to be asked about the circumstances in which they are becoming homeless and be told that if they voluntarily leave by going before a possession order is made then they will not be eligible (even if that eligibility is never going to produce local authority accommodation for them). The original question put (before the follow-up about re-housing) was why would a tenant not leave when asked to do so. In practice, I am afraid, it frequently is the case that such tenants staying on after a section 21 notice have been told that they will be “voluntarily homeless” (and therefore ineligible for re-housing) if they go before a possession order is made. Perhaps something more could have been said about about the misconception of what the tenant will actually achieve in terms of re-housing if they stay on until a possession order is made but I still don’t think it deserved the “hopeless” comment. It’s a pretty rare occasion on TV in my experience where all legal and policy issues on a complex matter are thoroughly aired even in teh most respected news/documentaries never mind something like GMTV.

    Also apologies for my my mistake of referring, in the last sentence, to “AST timescale” when I meant “accelerated possession procedure timescales”.

    Reply
    • NL

      JAC

      I know well what the position is on councils telling people to wait for the order. It is also technically wrong, akin to gatekeeping and arguably forces the tenant to incur the court fees on a posession order.

      I also was not expecting a detailed explanation of priority need. But a simple statement that only some, few, people will actually be rehoused by the council would have gone some way in the face of the misconception that was put to him. But on reflection, ‘hopeless’ is a bit unfair – not ‘needlessly nasty’, though. I’ll change it.

      Reply
  25. JAC

    NL

    I agree with your comment about the impact of the council’s “advice” to tenant’s receiving a section 21 or 8 notice. When you ally the consequence of such advice with the serious delay problems in many courts (and in bailiff’s diaries) you end up with the situation we have where a decent landlord (which I do not, for a moment, take Ms Butler to be) can be waiting something like 4-6 months to get possession back without any rent coming in, with mortgages to pay and with legal fees to add on top.

    I suspect, though, that things are only going to get worse with court closures, budget cuts and more rent defaults.

    I note on the Argus comments thread that someone is now saying that Ms Butler had a £16 per day late payment penalty provision (presumably in the tenancy document).

    Reply
  26. Stephen O'Neill

    Following decisions such as R v Newham LBC ex p Sacupima (2000)Knowsley Housing Trust v White it is known that a tenancy agreement for an assured or assur[2008] it is plain that a shorthold tenancy does not come to an end until the Court Bailiff has executed an order for possession. Therefore the service of a section 21 notice does not in itself bring a tenancy to an end. This means that the reasonableness boils down to whether the tenant, or soon to be ex tenant, can afford court costs. Why should that be a relevant consideration? Taken to its logical conclusion a person served with a s.21 notice to which there is no defence will be homeless. Not only is that contrary to the spirit of homeless prevention it is surely against the letter of s.195(2) of the HA 1996.

    Reply
  27. JAC

    SO’N

    I agree with the point I think you are making that in a sensible world local authorities ought not to take compliance with a valid section 21 notice as evidence of intentional homelessness. This issue gets caught up with the idea that the tenancy does not come to an end until an order for possession has been made (s.5(1) of the Housing Act 1988).

    A couple of points in relation to the principles you provide: (1) An assured shorthold tenancy will come to an end on the date that the court provides for the order for possession (see s.5(1)and the Knowsley v White case) rather than the date of execution by the bailiff of the court order. (2) There can be no defence to a claim for possession based on a valid section 21 notice – the real question is whether or not it is a valid notice.

    Reply
  28. R

    I cannot help myself but make comment from a local housing authority (LHA) perspective.

    The landlord – has most likely committed an offence under PEA 1977. The landlord is also sleeping in a tent (allegedly). Why did the landlord not approach the LHA for assistance as a homeless person? she is eligible for assistance, homeless as she is unable to occupy her home, she has a priority need as she has a dependant child. This of course gives rise to a duty on the LHA to provide temporary accommodation. Why live in a tent? If the landlord had approached the LHA for assistance then it would have been sensible for the LHA to help the tenant move to alternative accommodation more quickly resolving the issue before having to go to GMTV.

    The tenant – has been served with notice (assumed to be valid),whether it be a s.21 or s.8 the LHA would need to investigate the reasons for the service of the notice to determine intentionality. A LHA cannot just assume that service of a notice equals intentional homelessness.

    A reasonable LHA – would accept a homelessness application 28 days before the expiry of a notice and offer temporary accommodation (if required)on the expiry of the notice so that extra cost to both tenant and landlord is not incurred. The tenant should be advised as to the consequences of remaining in occupation on expiry of a valid notice. The LHA should also look at other preventative measures e.g. helping the tenant to find alternative accommodation in the private rented sector whether intentionally homeless or not by accessing their rent deposit scheme, homelessness prevention grant etc.

    This information is easily available in it’s most simple of forms and GMTV did not, as many of you have said, explain the position or legislation from any of the parties adequately. Which is disappointing.

    Reply
  29. Stephen O'Neill

    R,

    Why would a reasonable authority accept a homeless application 28 days before the expiry of a HA 1988 notice and offer temporary accommodation? If the local housing authority decide that it is unreasonable for a person to remain in occupation he will cease to occupy that accommodation not because of any fault on his part but because the local authority decided he should. In deciding whether a person became homeless intentionally, the housing authority is obliged look to the time of the tenants action in leaving the accommodation they occupied and a subsequently hypothetical cause of homelessness would not supersede the actual cause represented by their action (Din v Wandsworth LBC [1983]). Even if the tenant would have become homeless at some future date because of something he did or ought to have done, then that is rendered largely academic when deciding whether ceasing to occupy accommodation at that time was deliberate. Ceasing to occupy accommodation was the result of the applicant moving to temporary accommodation made available for his occupation, not because of a deliberate act or omission. Intentional homelessness would be difficult, if not impossible, to run. Although a possession order might have been made because, for example, the tenant did not pay his rent, the actual cause of homelessness would not be deliberate. It is not his fault he cannot afford court costs.

    The arguments in support of the extended definition of reasonableness overstate the significance of the 2006 Code in the context of the proper interpretation of section 177 of the HA 1996. Section 182 of the Act directs local housing authorities in very general terms to have regard to guidance given from time to time by the Secretary of State in the exercise of their functions relating to homelessness and the prevention of homelessness. Neither s.182 nor any other provision in the Act provides that the definition of homelessness and threatened in Part VII of the Act is determined by an ability or inability to pay court costs in repossession proceedings. If the Secretary of state wanted that to be a relevant consideration he should, in my view, have amended the Homelessness (Suitability of Accommodation) Order 1996, SI No 3204.

    Reply
    • NL

      Stephen, while I agree that 28 days before expiry of a S.21 notice may or may not pass the threshold of ‘threatened with homelessness’ depending on the facts, I have to say I simply don’t follow what you mean by “If the local housing authority decide that it is unreasonable for a person to remain in occupation he will cease to occupy that accommodation not because of any fault on his part but because the local authority decided he should”. To begin with, ‘Unreasonable to occupy’ is not the LA’s ‘decision’. It is a factual question.

      And then when you head into intentionality, you have lost me completely. Intentionality is a factual question based on the ’cause’ of homelessness at the time of application. If the T has been served with a rent arrears s.8 notice, then what difference to a finding of intentionality would it make whether the matter was taken to a possession hearing or not for a consideration of intentionality? If the notice is a s.21, likewise – what conceivable difference does an accelerated procedure possession order make to an investigation of intentionality?, A possession order makes no difference whatsoever to a finding of intentionality on a s.21/AP process.)

      The ’cause’ of homelessness is not the offer of temporary accommodation, but the service of notice and the threat of proceedings.

      I also think you are approaching ‘unreasonable to continue to occupy’ from the wrong direction. Is it reasonable for T to continue to occupy where it is a certainty that they will incur both court costs and a judgment against them if they remain, in addition to the rent? A significant additional charge, a possession order on their record as a tenant, on top of the rent, for a further 4-12 weeks of occupation?

      There is, on this view, no need at all that the definition of homeless or ‘threatened by’ should be determined by an ability to pay court costs. Court costs and a judgment against T would, though, go to reasonable to remain.

      Now, to class as ‘intentional’ a tenant who leaves at the expiry of notice rather than remain to face a penalty for the tenancy ending through no fault of their own (via s.21 etc), is ludicrous. For LAs to insist on a possession order and warrant is unreasonable both in terms of the individual T’s position and, of course, in terms of costs to public funds and court time.

      Reply
  30. R

    Stephen,

    You are of course quite correct, however I have never been challenged on intentionality on this basis. I can only assume that the housing advice agencies in my area (and other areas I have worked) have either not picked up on it or alternatively view the practice as reasonable and that their clients would be put at further detriment if it was. If reviews are received advising of unintentionality then the current practice may need to change.

    Intrestingly enough I have had threats for reimbursment from agencies for not providing temporary accommodation at the expiry of a notice and the tenant receiving costs.

    Thank you for your response.

    Reply
  31. Stephen O'Neill

    NL,

    The test is one of reasonable likelihood. Thus, in considering whether a person ceased to occupy accommodation “in consequence of” his deliberate acts or omissions, the question to be asked is whether his ceasing to occupy the accommodation would reasonably have been regarded at the time as a likely consequence of the deliberate conduct. It is an objective, not a subjective, test. It might be imputed to the fair-minded bystander in possession of all the relevant facts that a person who failed to pay his rent would have been evicted in any event and that is in fact why the landlord served a notice under the HA 1988 but ceasing to occupy in this context was not the result of not paying his rent but because the local housing authority told him to move to temporary accommodation.

    What of the landlord who serves a s.21 notice because housing benefit is paid in arrears, or the tenant who was in financial difficulty for a few weeks. There is no certainty that the landlord would make an application for repossession if the tenant sorted himself out. yet on your analysis he would be justified in saying to the local housing authority, “you must move me to some other accommodation. I cannot afford to live here because the landlord is threatening court action.” On any view the local authority should be preventing homelessness, not causing it themselves by saying it is unreasonable for him to continue to occupy the accommodation.

    A local housing authority cannot investigate intentional homelessness on the basis of what probably or might have happened without a crystal gazer. Many evictions are prevented at the last minute if a tenant can pay off the arrears or come to an agreement with his landlord. That is the whole point of homeless prevention. Advocates should work with local authorities to prevent homelessness or, where that is not possible, work with them to find alternative suitable accommodation without the upheaval of going to B&B or temporary accommodation. The cost of providing interim accommodation is much greater to the public purse than court costs. What good is to be gained from advocates insisting that a family is homeless so that they can be wrenched from perfectly suitable accommodation; to move far from their family and friends to live in temporary accommodation when a planned move from their current accommodation to other permanent accommodation could be undertaken through a housing options approach?

    R,

    I see no reason why a local authority should not use its homeless prevention fund to pay court costs. If they both refuse to pay court costs and do not work with the family until they are physically threatened with homelessness then they need to rethink their housing options scheme.

    Reply
    • NL

      Stephen,
      As I said before, it is always dependent on the facts. On that basis, it is equally dodgy to insist that the expiry of a notice is not sufficient to trigger the ‘threatened with homelessness’ threshold. A blanket instruction to ‘wait till the possession order and warrant’, which is what is at issue here, has nothing to do with prevention. It is an attempt to avoid the triggering of a duty by not accepting an application and failing to carry out investigations. A call to the landlord, for example, would go some way to establishing the intnetion ot bring proceedings, or whether they would ‘relent’. I have not seen a single case where, following eviction on a s.21 possession, the homeless officer hasn’t attempted to contact the landlord to find out why possession was sought, in search of grounds for intentional homeless, so why should the same step of contacting the landlord not be part of investigations prior to the issue of proceedings?

      Nothing you say about the point of homeless prevention makes any difference as to whether this takes place before the issue of proceedings or after. But whether that engagement takes place at the point of notice or after issue of proceedings appears to be simply a policy decision by the LA and one which the tenant facing possession proceedings ends up paying for.

      And I still don’t buy the ’cause of leaving the property was being offered temporary accommodation’ line. If that were the case, then similarly you could never establish intentionality on a s.21 based possession/eviction because you could not go behind the immediate event of a ‘no-fault’ possession order. An offer of temporary accommodation is not the cause, it is an effect of being (threatened with)homelessness.

      I note you didn’t respond to the ‘reasonable to remain’ point. How can it be reasonable to remain in a property where T is to incur court fees and a possession order on their record on top of rent, for the benefit of a few extra weeks in the property? In effect, you are asking T to pay for the privilege of losing their accommodation and being able to make a homeless application. Ability to pay the court costs is only an additional point on affordability, not the main point.

      Reply
  32. R

    Stephen,

    A LHA would thoroughly investigate the reason why a notice had been served. If there was anyway that a tenancy could be saved then I’m sure that this is the direction the LHA would take, this could include access to the prevention fund, if HB is paid then direct payments to the landlord etc. Every endeavour would be made to prevent a persons homelessness.

    If a landlord does not want to accept HB and has served notice for this reason then it may be the case that a person is not intentionally homeless if they make a declaration. However all cases are investigated on their own merits. It is obviously cost effective for a LHA to prevent homelessness and I would expect that this is a LHA’s every endeavour but sometimes they cannot get away from taking a homelessness application and seeing it through to conclusion.

    A LHA has reason to believe that a person is going to be homeless at some time soon, they may not be on the streets in 28 days and an eviction date can change e.g. the court grants possession within 14 – 42 days, 4 weeks before a bailiff can attend. I would expect that every LHA would at least try to negotiate with the landlord so that a person can stay in occpation for as long as possible giving time to find alternative accommodation.

    Reply
  33. Stephen O'Neill

    That must be right. A local housing authority should look at what options are available to a person who applies to them for accommodation or assistance in obtaining accommodation. Even though court costs might be the result of repossession action; it might not. Housing options work might prevent homelessness or at least give the local housing authority and the tenant some breathing space to look at alternative options. The difficulty with a decision that a person is homeless because he or she cannot pay future court costs is that that closes the door on any prevention work. Homeless at home would not run because there is still the risk of court costs, so the only option is to move the tenant to alternative accommodation. There will come a point when it is obvious that no amount of prevention work will help, or there are simply no options available and at that time it is right that a homeless case should be opened. But in my view the homeless case should come after the prevention and options work if court costs are the only consideration; not before.

    Reply
  34. Cait

    I am puzzled this debate feels like emperors new clothes?

    It would appear to me that a person is ‘threatened’ with homelessness upon receipt of a notice seeking possession.
    I’m fairly certain that any person on the notional clapham omnibus would consider that a valid notice to leave a tenancy suggests the applicant is threatened with homelessness.

    That should trigger homelessness inquiries, but not a duty to accommodate (as it is only threatened)
    The council can then make inquiries AND take steps to prevent the homelessness in parallel.

    If prevention / options are successful then it follows there would then be a ‘not homeless’ decision. Great stuff – no duty for council as there’s no homelessness.

    If it was not successful – then the inquiries would have to establish whether it was reasonable to continue to occupy or not.

    I see no good legal reason for not opening homelessness *inquiries* – the only reason for not doing so is gatekeeping so the approach doesnt appear on the statistics.

    After all …. why would a rational resource limited local authority try to ‘prevent’ homelessness that wasn’t in some sense threatened in the first place?

    Reply
    • NL

      Cait – Yes.

      Reply
  35. Stephen O'Neill

    NL, I am afraid that I cannot agree with this proposition, whether as a matter of law, logic or social policy. There seems to me no reason in logic why the fact that Parliament has made the question of homelessness need turn upon whether a person might reasonably be expected to pay court costs should require that question to be answered without regard to the purpose for which it is being asked, namely, to determine priority in the allocation of a scarce resource. To ignore that purpose would not be a rational social policy. It does not mean that a housing authority can say that it does not have the resources to comply with its obligations under the Act. Parliament has placed upon it the duty to house the homeless and has specified the priorities it should apply. But so far as the criteria for those priorities involve questions of judgment, it must surely take into account the overall purpose of the scheme. The homelessness provisions are to provide a lifeline of last resort; the whole thrust of which, deals with the practical arrangements for those with no reasonable accommodation available to them -both presently and in the future rather than the legal formalities of repossession proceedings which are entirely incidental to the practical questions that a housing authority is obliged to consider under the 1996 Act. The inability or otherwise of a person to pay court costs has no practical result on the outcome of the homeless decision, and in my opinion, reasonableness ought not to depend on such considerations. Housing accommodation is scarce. Demand far outstrips supply -sometimes by a massive margin. To provide temporary accommodation for those who seek to avoid court costs makes no sense. Taken literally; a person who might have a priority need will be able to avoid court costs, while everyone else will have to pay. I can see no justification for that.

    Cait, if it is unreasonable for a person to continue to occupy accommodation he is, in law, homeless. Threatened with homelessness does not come into it.

    Reply
    • Richard

      Someone is classed as homeless if they are threatened with homelessness within 28 days therefore it is relevant.

      If someone cannot afford to pay court fees then their continued occupation becomes unaffordable and thus it becomes unreasonable for them to continue to occupy.

      For someone who is not in priority need, it is worth them staying until the date for eviction to buy as much time as possible to find a new property. For someone in priority need they are incurring unnecessary costs in having to wait until the date for eviction, they are also clogging up the courts.

      It would be best for a client to make a homelessness application as soon as they receive a notice. The local authority can then house them before court action is needed (unless they contact the landlord and find out that he is not going to apply to court)and court action will be avioded.

      Reply
  36. Cait

    Threatened with homelessness within 28 days triggers the duties to make inquiries Stephen, ie ‘open a homelessness case’

    “There will come a point when it is obvious that no amount of prevention work will help, or there are simply no options available and at that time it is right that a homeless case should be opened. But in my view the homeless case should come after the prevention and options work ”

    So I cannot see how it is lawful to say that prevention and options are done BEFORE the homeless case is opened – as again – WHY would a local authority be investing resources into prevention and option if an applicant was not THREATENED with homelessness?

    The authority would clearly believe that the applicant was threatened with homelessness otherwise they wouldnt be trying to prevent something that didnt exist now would they?

    (this is a seperate issue I think to whether that triggers a duty to accommodate – as I think that would depend on whether it is or continues to be reasonable to occupy)

    Reply
  37. Tom (iow)

    Well it seems that GMTV ended today for good, something I wasn’t aware was coming up. This may explain the lack of interest by OfCom.

    Reply
    • NL

      I’m still awaiting a response – beyond an acknowledgment – of my further detailed complaint on grounds of breach of duty of impartiality and accuracy. More as and when…

      Reply
  38. Ben Reeve-Lewis

    The homelessness code of guidance, which all investigating authorities have to have regard to states this:-

    “The Secretary of State considers that where a
    person applies for accommodation or assistance in obtaining accommodation,
    and:
    (a) the person is an assured shorthold tenant who has received proper notice in
    accordance with s.21 of the Housing Act 1988;
    (b) the housing authority is satisfied that the landlord intends to seek possession;
    and
    (c) there would be no defence to an application for a possession order;
    then it is unlikely to be reasonable for the applicant to continue to occupy the
    accommodation beyond the date given in the s.21 notice, unless the housing
    authority is taking steps to persuade the landlord to withdraw the notice or allow
    the tenant to continue to occupy the accommodation for a reasonable”

    Most homelessness investigation teams I meet dont ever bother to read the code and often dont even have a single copy in their office

    Reply
    • CB

      Hmm I thinks that’s a little unfair… There’s a difference between not reading the code and not abiding by it.

      I think in actuality most Council’s are perfectly aware of the code but choose to ignore it when they think they can get away with it.

      Whether front line staff are given adequate training in homeless legislation is another matter altogether.

      And lets not forget the bizzarre ruling in Yemshaw v Hounslow which pretty much rules to code redundant anyway – Fingers crossed for the much needed appeal in that one!

      Reply
  39. Cait

    Much as I love to quote that specific paragraph of the Code it’s pretty toothless.
    Caselaw is more binding than the code of guidance isnt it? and although they dont trip off the toungue I understand there’s been a few cases that LA’s are able to trot out that contradict that paragraph.

    Where I HAVE been able to use it is when there is something *in addition* to the S21 notice to suggest it’s not reasonable (ie disrepair, or harrassment)

    When I worked for a LA (for a LOT of years) we did indeed have a code of guidance in our office … never really looked at it … however, if someone phoned and plausibly quoted the COG then we generally backed down because we knew we were *supposed* to have reference to it.
    That was pre 2002 though and we really didn’t have a concept of or desire to participate in gatekeeping – that happened more in the neighbourhoood housing offices when it came to allocations :(

    Cait

    Reply
  40. Stephen O'Neill

    Quite apart from what I have said, if the requirements of s.177(3) have not been followed, the policy guidance in the code go guidance is unlawful. I recall the Case of Proclamations [1610] EWHC KB J22, 77 ER 1352, (1611) 12 Co Rep 74, in which Chief Justice Coke held that the executive cannot simply create laws without Parliament, “The King has no prerogative but that which the law of the land allows him”. The Secretary of State cannot use the code of guidance to amend s.177. If court costs, which are incidental to the grant of a tenancy, render continued occupation unreasonable then the SOS should amend the HA 1996 or the Suitability of Accommodation Order 1996. The code of guidance should not be interpreted or read as if it were law. Discretion must be exercised in applying guidance and housing officers must consider the underlying purpose of the Act, not merely mindless apply its strict terms. The guidance at paragraph 8.32 notes that it is unlikely to be reasonable for the applicant to continue to occupy accommodation beyond the date given in the s.21 notice. There is no reference in that paragraph, or any other paragraph, to court costs. On the contrary, the guidance refers to the general cost to the housing authority. That must include the cost of providing temporary accommodation when a person has tolerably satisfactory accommodation available to him. Furthermore, the guidance at paragraph 8.32 is wrong to suggest that if a local authority decides that it is reasonable for a person to continue to occupy accommodation then he must be informed of that decision in writing. If the application threshold in s.183 is not met then there is no obligation to give reasons.

    Reply
  41. JAC

    S’ON

    I think the issue of whether or not it is reasonable to require a tenant to incur court costs following the expiry of a section 21 notice is a red herring. The first point to note is that there are no such costs that are paid by the tenant – the landlord pays the court fees. If the landlord’s claim for possession succeeds then he will get an order for payment by the tenant of fixed costs (I think about £220).

    The real issue is not about the costs but whether a tenant is making himself intentionally homeless if he does not force the landlord to turn the s.21 notice into an order for possession via the accelerated possession procedure and then pay for a bailiff to get a date for eviction. Unless the section 21 notice is defective in some way or the claim for possession is issued before the notice expires or is some sense defective (for instance by including a wrong party) there is no “defence” to an accelerated possession claim.

    The case you are putting forward (I think) is that it makes sense from a policy perspective to ensure that all section 21 notices must be turned into orders for possession before the LA look into homelessness issues as otherwise it encourages tenants not to pressure the landlord into not issuing a claim for possession or defend a claim for possession which is defective. I cannot agree.

    The impact of awaiting the order before looking into homelessness is that the problem of dealing with the homelessness issue remains but has simply been put off for a short period of time during which the landlord has to incur substantial legal costs (not just the £220) and often does not receive any rent and the tenant becomes liable for paying the costs ultimately ordered by the court. It cannot be good policy to create such expense and uncertainty just for a little delay.

    Looking at the principles involved, the issue is, surely, whether or not there is any good reason to think that the landlord will not proceed with a possession claim and get an order for possession if the tenant does not vacate at the expiry of the section 21 notice. So, unless there is something the LA have been told by the landlord indicating that the landlord is not intending to proceed with a possession claim, or the s.21 notice is in some way defective, the only reason for thinking an order for possession will not follow is that the landlord might make a mistake in filling out the accelerated possession claim form or issue before the section 21 notice has expired. Does it really make sense to create all this delay, expense and court work on the off-chance that a landlord might make a mistake? The s.21/accelerated possession procedure is intended to give certainty to the landlord and the tenant that if the checklist is complied with then a possession order will follow – it is on this basis that landlords are given confidence about letting and the private letting world operates. It seems wholly irrational to me to suggest that LAs should not treat s.21 notices as grounds for triggering homelessness treatment and, instead, kick into action only after orders for possession or, even, bailiff’s eviction dates are provided.

    Reply
  42. Ben Reeve-Lewis

    I’m gonna get jumped on from a great height for this post….I know hahaha.

    The great Gatekeeping debate. The vast majority of tenancies out there are AST’s and the vast majority of them are brought to an end through standard S21, accelerated proceedings.

    If an applicant fits the usual 5 criteria the full housing duty is triggered, do you have any idea what the temporary accommodation bill would be if a council had to pick up and temporarily accommodate every person as homeless because their S21 had expired?

    When I was head of homelessness for a West Country council I had a drink with a late lamented member of the old ODPM who told me “You know the name of the game. Get your homeless stats down. We dont care how you do it just dont get caught”.

    Its a mendacious game that everyone has to play.

    Paragraph 2.3 of the code states
    “Housing authorities are reminded that they must not avoid their obligations under Part 7 of the 1996 Act – but it is open to them to suggest alternative solutions in cases of potential homelessness where these would be appropriate and acceptable to the applicant.”

    Arguing points of law dont really penetrate when you have 100 people a day applying as homeless

    Reply
  43. Stephen O'Neill

    Introductory, starter, contractual, shorthold, demoted and family intervention tenancies are all examples of tenancies in which a court will usually have no option but to order possession. Taken to its logical conclusion occupants under these agreements will be homeless if their landlord serves an appropriate notice. That would involve reading far too many words into the HA 1996. Certainty arises when an individual knows that his right to occupy accommodation will not come to an end until and unless a court orders possession and the date to give up possession expires (in cases of homelessness) or will expire within 28 days (in cases of threatened homelessness).

    It is best practice for local authorities prevent homelessness rather than intervene in a housing crisis, but that will depend on the resources available. Local authorities discharge a wide range of functions, from education to housing, upkeep of roads to disposal of waste. All these activities call for resources, of which there is never enough to go round. So, year by year, a local authority must decide what priority to give to the multifarious competing demands on their limited resources. They have to decide which needs are the most urgent and pressing. The more they allocate for one purpose the less they have for another. The more resources they allocate to temporary accommodation the less they have for other activities.

    It is undesirable for advocates to shout ‘gatekeeper’ when most authorities are doing the best they can. It would place a massive burden on authorities if they were to accommodate those who have no reasonable defence to a claim for possession in addition to those who have no accommodation available. It is obviously less than ideal but without more resources, less targets and more housing accommodation, is there any real alternative?

    Reply
  44. David C

    It seems someone stumbled upon the (fashion/photography) blog of the tenant’s 17 year old daughter, who lived with Ms Nobre at the house.

    The blog is about 36 days live. If it is her, she made a poignant posting on 28th August 2010, titled “I’m really not okay.”

    Remember, the daughter is only 17 years old, and as I understand it, a full time student, I’m not going to intrude by making a post on her fashion/photography blog.

    Amongst other things going on in her life, it seems there have been some consequences from being labelled a squatter. Quite apart from all the upheaval and stress they endured with the Suzy Butler-media experience, the daughter’s conclusion is they will now find it much harder to find a place to rent in their area, privately, because Suzy Butler and the press have named and shamed them about the arrears (which may include £15 per day late fees); and because of the squatter label.

    Reply
  45. PS

    Concerning residential occupiers and unlawful eviction. I hope this isn’t a stupid question and would be grateful for any comment.

    We have a case where the assured shorthold tenant died. Her son had been living with her for the last 2 years as evidenced by HB records – declared as residing with her as a non-dependent.

    Unfortunately the tenant died recently whilst visiting relatives abroad. The son went abroad to arrange the funeral etc. To add to his woes, when he returned to the property, the locks had been changed and the landlord refuses to let him back in. Would the son be able to apply for an injunction to get back into has been his home?

    Thanks.

    Reply
    • Marcin

      Check the disclaimer – no legal advice here.

      From your description, it sounds like it would be worth speaking with a solicitor about your options.

      Reply
      • NL

        Hi Marcin – this was an advisor asking.

        Reply
    • NL

      An AST passes by will or intestacy. Death of assured tenant gives the LL a ground for possession against anyone except the original tenant’s wife or husband (or living as). So, short answer, depending on who the tenancy may have passed to under a will or instestacy, is probably that your chap can apply for an injunction if the tenancy passed to him, but assuming the landlord does things correctly, he may not be there for long…

      Reply
  46. PS

    Many thanks NL, I haven’t dealt with this particular situation before.If the tenancy doesn’t pass to our client, would that then mean that the landlord would not require a posession order to evict lawfully, so no injunction for our client?

    Reply
    • NL

      LL has no right to the property without terminating the tenancy, assuming it has passed to someone. May not be assured anymore, of course – principal residence – depending on who it passed to, so could be terminable by Notice on the executor or the Public Trustee.

      In any event it will currently be the Estate’s tenancy. Does someone have grant of probate? Off the top of my head, I’d say an injunction would have to be brought by the Estate, or the person it would have passed to. That may be the son, of course, but if not, I don’t think he could bring proceedings for himself alone. I was wondering about CPR 19.8, but that is for existing proceedings.

      I’m assuming that the son would be there with the permission of whoever is now the tenant, but if not, I would think it would be for the tenant to take steps to get him out, not the LL

      I presume this was a statutory periodic, rather than in the course of a fixed term?

      If belongings are in there, there is also the Torts (Interference with goods) Act 1977

      Reply
  47. E. L.

    What enlightening reading after randomly deciding to do a google search on this woman. Thank you. Vital information.

    Reply

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