And, like a sudden, startling and slightly embarrassing squeak from a vinyl sofa, flexible tenancies are here!

London Borough of Barnet have announced, in a manner which suggests absolutely no political motivation behind the decision at all, the ‘end of the council tenancy for life‘, as of 9 July 2012.

While no Council can offer flexible tenancies until it has published its ‘Tenancy Strategy’ (which must be by January 2013), Barnet took a considered approach and published its Strategy in April 2012. A basic overview is here.

The Tenancy Strategy itself is worth a read, not least for the number of errors it contains. For example, Barnet kindly announce that:

Where a tenant wishes to appeal the termination of a tenancy and the notice period expires during the period of the appeal [they mean the statutory review], the tenant will be permitted to stay in the property where this is not likely to lead to an unreasonable delay in the property being vacated.

That is less than generous, not least because possession proceedings would fail if the statutory review had not been properly completed.

And then pick the nits out of this:

If the formal review upholds the decision, the tenant then has recourse to the county court

Should the county court uphold the decision, the tenant will be obliged to leave the property

I presume what this means is that if the review upholds the decision then the tenant can only defend possession proceedings (there being no equivalent of the s.204 Housing Act 1996 appeal to the County Court) but who knows? And given that one ground of seeking a review is that the decision is not in accordance with the Tenancy Strategy, the messier and murkier the Strategy, then the more fun is to be had.

I haven’t yet been able to find any record of Barnet having consulted on the Tenancy Strategy. It is, of course, a statutory requirement that Barnet consulted with other providers of social housing in the borough on the Strategy. They might have done, but so far I can’t find any sign that they did, in the 3 months between the passing of the Localism Act and the publication of the Strategy.

So, what is Barnet proposing? Well flexible tenancies for all new council tenancies, save for the following, who will get periodic secure tenancies:

• Secure tenants whose tenancy commenced before 9 July 2012 moving to another council property – already protected in law; [Actually no, only mutual exchanges, but that’s fine if Barnet extend it to transfers]
• Older people who are in receipt of the state pension and will occupy a general needs property. […] The terms of Sheltered Housing tenancies will remain the same as they are currently and will be let as secure (life-time) tenancies;
• Ex-armed forces personnel who have been both medically and honourably discharged and who have also seen active service; to be validated by the Royal British Legion;
• Households where the applicant, their spouse or a dependant child is disabled in accordance with the criteria contained in Appendix 2.
• These criteria would also be applied in the event that a household member becomes disabled during the period of a flexible tenancy and, as a result, become eligible for a life-time tenancy;
• Households where the applicant or their spouse is terminally ill; this would also apply in the event that a household member becomes terminally ill during the period of a flexible tenancy and, as a result, become eligible for a life-time tenancy;

Barnet will be checking with the Royal British Legion that ex armed forces people have been medically discharged (and honourably so) AND seen active service? That will certainly be a first for Council housing departments. Apparently it is tough luck if you have been medically and honourably discharged but not seen active service.

All new tenants otherwise are apparently to be offered an introductory tenancy followed by a flexible tenancy. But what term?

Single people under 25 (except care leavers) will get an introductory followed by a two year term and “Other single people over the age of 25 could be offered two year tenancies rather than five depending on their vulnerability and the outcome of the housing assessment.”

Otherwise a introductory followed by a five year term.

This is, to say the least, an interesting interpretation of the (non binding) Ministerial guidance that the fixed term should be 5 years except in “exceptional circumstances”. Being single and under 25 doesn’t strike me as being exactly ‘exceptional’.

Barnet’s flexible tenancies may be at up to 80% of market rent.

And then the crucial renewal conditions (or rather non-renewal conditions):

The tenancy review criteria will reflect the continuing needs of tenants, any assets they might have accrued or inherited, attitude to work / training opportunities that might have presented themselves and pressures on social housing. Tenancies will not normally be extended where one or more the following apply:

• Households with children with a gross income that is equivalent to the median earnings in Barnet [currently £36,200];
• A household with no children that has a gross income that is equivalent to the median earnings in Barnet minus 15% [currently £30,800. Note income not earnings. Including benefits/tax credits etc.?];
• A tenant or a member of their household who has been convicted of an act of civil disturbance or other criminal activity;
• The tenant has breached the terms of their tenancy and has failed to reach or maintain an agreement with the Council to remedy this breach. For example, there are rent arrears and the tenant has not agreed or maintained an agreement to clear these;
• The property is under-occupied by one bedroom or more;
• The property has been extensively adapted but for someone with a disability who no longer lives with the tenant (this allows the property to be released for someone who will benefit from the adaptations);
• Assets – the tenant or their spouse has assets or savings greater than the amount stipulated in the Council’s Housing Allocations Scheme which would normally exclude someone from being granted a council tenancy [currently £30,000].
• The tenant is a young, single person on a flexible two year tenancy who has not worked or undertaken any training or education for a period of 6 months prior to the tenancy end date.

So, you lose your flexible tenancy for a gross income (with kids) of £36,200. Now, according to Shelter’s London Rent Watch, the average private sector rent for a two bed flat in Brent is £1,170 requiring a net income of £3,343 per month to be affordable. That is £40,116 pa net not gross. Obviously for larger households and properties, the situation will be worse.

This, to me, looks like a very clear incentive for people to keep their gross income below the borough median. Lose your flexible tenancy and take a massive rent increase, of at least 20%, does not look like an attractive prospect.

How these income and capital levels are to be checked is a whole fresh administrative problem, and a whole new set of admin costs for Barnet. No suggestions of how this is to be done in the document, of course, but hopefully they will have figured it out in 30 months time, when they need to start checking.

You lose your flexible tenancy if anyone in the household has been convicted of a criminal activity (anywhere at all, it appears).

If you are under 25, on a two year flexible, your lose it if you have not worked or been in education or training in the last 6 months of the tenancy term (though how that works when the decision on renewal is apparently taken 8 months before the end of the tenancy is anyone’s guess. Good work there Barnet). Is 18 months long enough for someone to secure their position enough to be in work, training or education?

If you are over occupying by one bedroom, not only will your HB be cut from April 2013, but you will lose your flexible tenancy. What is going to count as under-occupation? A kid temporarily at college, leaving their bedroom empty for the moment? Barnet don’t deign to tell us.

In short, there is a clear gulf in housing provision between the top income limit and being able to afford private sector accommodation, even with flexibles at 80% of market rent. And then there is the question of what happens to those who fall off the other end – e.g. the under 25’s who didn’t manage to be in work or education/training at the right time; or those who found some member of their household convicted of a/any criminal offence anywhere.

And, and and… Well, I’m not going to go into possible judicial reviews of a tenancy strategy that appears to have been drafted on the torn out bits of a fag packet, but there do seem to be a few hostages to fortune in there. For example a tenancy strategy that says over 25s will be given a 2 year term ‘depending on the outcome of the housing assessment’ – how on earth is that a criterion that can actually inform a decision on tenancy term, for that is what the strategy is supposed to do, under the Act.

These are just the headlines. The policy details on what counts as valid disability also merit some attention.

Barnet might be the first to break new ground, but if this is the brave new dawn, it is a sad, grey, rainy day ahead. Though possibly one with lots of litigation.