As is now pretty well known (and as I noted in the comments below this post) Wandsworth Council apparently made a bid to bring the first riot related possession proceedings. There are some things about Wandsworth’s behaviour that should be pointed out, but it also turns out that all might not be as it seems, leaving some questions for Wandsworth to answer.
Sadly, I’m going to have to link to some sources (including the Daily Mail) that identify the Wandsworth tenant and her son, who is the alleged rioter. I’m not going to use their names because, at least at present, I see no reason to do and quite a lot of reasons not to (not least if my suspicions are right). But I’m afraid that I can’t avoid linking to material that does.
Let us begin at the beginning. On Friday 12 August, Wandsworth put out a press release announcing:
A council tenant whose son has appeared in court charged in connection with Monday night’s disturbances in Clapham Junction will today (Friday) be served with an eviction notice.
The tenant is believed to be the first in the country to now be facing the prospect of losing their council-owned home as a result of Monday night’s rioting and looting.
The notice is the first stage in the legal process of eviction. The notice gives warning that the council will be seeking possession of the property and that an application will be made to the courts seeking the tenant’s eviction. The final decision will rest with a judge sitting at the county court.
William Flack has done a fine job of dissecting the comments of Council leader Ravi Govindia that follow. But what is worth noting is that:
a) Wandsworth claim to be about to serve a Notice Seeking Possession that day.
b) Wandsworth put up the press release before the Notice was actually served
c) The son was charged (and remanded in custody) but not convicted.
All this is quite surprising, not least the press release prior to serving actually the notice, which is, to say the least, disgraceful behaviour.
It is also worth noting that the alleged offences were at Clapham Junction. As will become clear, the family home is a council flat in Battersea.
Now I, and indeed everyone else assumed that Wandsworth were seeking possession under Ground 2 Housing Act 1985. I expressed surprise that they did not wait for conviction, as if they brought proceedings they would have to prove the alleged nuisance or annoyance under subsection (a).
After Friday and as some details apparently trickled out – mostly via the usually unwelcome attentions of the Daily Mail – the location of the flat being in Battersea became clear. The Mail also identified by name the son and his mother, the tenant.
Quite how the Mail got these details, assuming they are right, has to be a matter for speculation – but the options are that either Wandsworth put enough detail in their press release to enable the Mail to identify the alleged rioter, or someone at Wandsworth told the Mail who was involved.
At this point, any housing lawyer is thinking ‘whether or not there is a conviction (and that is a big IF, of course), Clapham Junction is not in the locality of a flat in Battersea – or at least this should head to the Court of Appeal if the County Court said it was’.
But the Mail, in its loveable way, kept on. The initial Mail stories were wholly supportive of Wandsworth and tried to set the tenant in a bad light, even listing her rent arrears.
Today, however, the Mail had an interview with the tenant. Not only was it surprisingly sympathetic and omitted any mention of the size of her TV, it described the eviction moves as “controversial” and as prompting “huge public debate”.
This, surely, is the sound of the Mail back-tracking rapidly. This may be because the tenant is described as a ‘devout christian’ and ‘charity worker’, or it may be because the Mail has figured out that even its own readership does not uncritically accept punishment evictions. No matter, either way it means that Wandsworth has lost its biggest media cheerleader on this eviction. If even the Daily Mail is having second thoughts, Ravi Govindia clearly runs the risk of looking, well, pretty damn stupid in such a desperate act of witless publicity seeking.
But there may be more. The Mail describes what was sent to the tenant. They describe it as ‘a letter’ which:
signed by deputy housing manager Tom Crawley, to [tenant], says [the son’s] alleged behaviour may mean the family have breached their tenancy conditions under the Housing Act 1985.
The conditions state that no one living at the property should ‘do anything which causes or is likely to cause a nuisance’ or commit ‘an arrestable offence’. It also points out that the family is [£X] in arrears with their rent.
Now if this is at all accurate – and it is the Mail, so it may not be at all – then this isn’t a Notice Seeking Possession, but a warning letter. Certainly anything stating that X’s ‘alleged behaviour may be a breach’ is not a Notice Seeking Possession, which would have to set out the grounds on which possession would be sought. It is less clear whether the Mail’s rendition of the tenancy conditions cited in the letter is full and accurate. If it is then the ‘letter’ is just wrong in law – no mention of locality – but this may be the Mail editing, of course.
There is nothing like enough detail here to be sure, but it certainly raises the suspicion that Wandsworth haven’t actually served an NSP. If that is true – if – then the press release and all the subsequent media attention for Mr Govindia would be a little lacking in the actualite department.
Wandsworth have put this whole affair well and truly in the public domain. So, there are a few questions that need answering:
i) Was a Notice Seeking Possession served on 12 August 2011 on the tenant referred to in your press release?
ii) If so, was Ground 2 Housing Act 1985 cited as a ground for possession?
iii) If so, Ground 2 (a) or (b)
iv) If it wasn’t a Notice Seeking Possession that was served, what was it? And why did you describe it as an ‘eviction notice’?
I look forward to this being cleared up.
[Update 16 August 2011. A reliable source tells me that Wandsworth claim to have served an NSP and that it is only on Ground 1 – breach of tenancy conditions – citing ASB and rent arrears.
As pointed out in the comments below, Wandsworth’s current tenancy agreement includes a clause requiring the tenant, occupiers and visitors ‘not to commit ASB in the property, the neighbouring area and London Borough of Wandsworth’ (which includes Battersea and Clapham junction). The relevant clause (31 of the tenancy conditions) reads:
This is a list of things that you, your lodgers, friends, relatives, visitors and any other person living in the property are not allowed to do whilst in the London Borough of Wandsworth or the area which is local to the property:
• breach the tenancy conditions
• do anything which causes or is likely to cause a nuisance to anyone living in the borough of Wandsworth and/or the local area
• do anything which interferes with the peace, comfort or convenience of other people living in the borough of Wandsworth and/or the local area
• cause damage to property belonging to other people or council property in the borough of Wandsworth and/or the local area
• harass anyone in the borough of Wandsworth and/or the local area because of his or her race, colour, nationality, culture, sexuality, gender, age, marital status, religion or disability
• use the property for any criminal, immoral or illegal purpose
• threaten or harass or use violence towards anyone in the borough of Wandsworth and/or the local area
• threaten or harass or use violence towards council employees, managing agents or contractors
• use or threaten violence towards anyone living in the property
Any breach of the tenancy conditions by anyone living in or visiting the property, or where there is a joint tenancy, by one of the joint tenants, will be treated as a breach by the tenant. If you are evicted it is likely you will be considered to have made yourself ‘intentionally homeless’ and consequently not be entitled to rehousing by the council.
A few points
There has to be a question as to whether this clause can stand up in court. How can a clause forbidding your visitors to commit ASB anywhere in LB Wandsworth be argued as related to the tenancy, for example. The term breached must be a term of the tenancy, not a ‘personal obligation’ (Paddington Churches Housing Association v Boateng 1999 Legal Action 27). The extension to the whole Borough makes this a personal obligation (don’t do anything, or allow household or visitors to do anything naughty in LB Wandsworth). As such it is unrelated to the property – note that the clause draws a distinction between the property and its locality and the Borough as a whole.
This is an amended tenancy condition – in 2009 – and is not in the tenancy agreement originally signed by the tenant. As noted by a commenter below, the Council’s power to vary conditions of a tenancy is given at s.102 and s.103 Housing Act 1985, but that power only extends to terms of the tenancy. If this isn’t a term of the tenancy, the Council has no power to include it by variation and the term is not valid for any pre-variation tenants (and couldn’t be enforced under ground 1 for any tenants at all). This is assuming that the 2009 variation was validly carried out in the first place.
Further, I suspect that the clause, or at least the element extending the ‘area of responsibility’ to the whole borough may well be unfair for the purposes of Unfair Terms in Consumer Contracts Regulations 1999, not least because it is unrelated to the property or the area of the property.
Wandsworth have made things interesting – assuming the tenant has decent representation, Wandsworth will be putting put the validity of that clause in their amended tenancy conditions on trial. I frankly don’t fancy their chances.
Even if the clause stands, I suspect, as do other commenters below, that the court is not going to find it reasonable to make a possession order. Such things as whether the breach is continuing, persistent or repeated and the personal circumstances of the tenant are factors in whether it is reasonable to make an order.
Secondly, the son has not been convicted of any offence and unless and until that changes, Wandsworth are going to have to prove the alleged ASB.
Adding in rent arrears surely invites a challenge – Wandsworth have made the basis for their decision to seek eviction publicly very clear and it had nothing to do with rent arrears. If the ASB element is not made out or the tenancy condition found to be void, then could the claim proceed on rent arrears alone? There has to be an argument about oppression – using the rent arrears for other purposes. Even if it was allowed to, the chances of getting an eviction on the arrears in that situation would be pretty minimal.
And lastly, is the Mail’s account of the ‘letter’ accurate? If the letter/notice refers to something that ‘may’ be a breach of the tenancy condition, then the ground has not been stated, which would leave rent arrears as the only part of ground 1 actually stated in the notice. But of course, the Mail is not necessarily accurate…
Overall then, assuming the NSP was valid, it looks like Wandsworth will be relying on their unilateral amendment of the ‘tenancy conditions’ to try to avoid the locality issue in Ground 2. There will be a lot of people watching this, both social landlord and tenants, because the validity of such a clause will be a big issue. ]