We all know that the bedroom tax has created huge problems for both tenants, desperately trying and often failing to find the additional 14% or 25% of rent, and for social landlords, watching arrears spiral rapidly upwards.
But I don’t think there is anything that is capable of excusing the actions of South Ayrshire Council in the letters it is sending out to its tenants with ‘Notice of Proceedings’ (Scottish version of Notice seeking Possession). Here is the letter. Fairly standard until you reach the sentence after the passage in bold.
“We may also inform Children Services”.
In the context of the point this letter is sent and of its recipients, there is no other way to read this than as a (barely implied) threat that eviction proceedings are likely to lead to social services involvement and children being taken into care.
This is for arrears of £250. Addressed to people who are clearly in desperate straits already.
Let us get out of the way why this is nonsense, an empty threat, as any housing lawyer or advisor knows.
Most, if not all, people evicted solely on bedroom tax derived arrears would most certainly have an argument that they were not intentionally homeless. The Council would therefore owe a household with children the full homeless duty as being homeless, in priority need and not intentionally homeless. Oddly, South Ayrshire’s letter is silent about that.
There is no conceivable way that Children Services could possibly cope with the children of every homeless household evicted due to rent arrears, or even just bedroom tax arrears cases. And, at a daily cost of a child in care to the Council equivalent to the total arrears mentioned in this letter, it would be a farcical use of council funds.
Even if Children Services were to accept a s.17/s.20 Children Act duty (or Children (Scotland) Act 1995 equivalent) to the children of the household, there is a very strong article 8 human rights case for the family being kept together, so the proper response would be provision or securing of accommodation for the family, not taking the children separately.
So much for the reality of the situation. Now back to the threat.
Is it justifiable? What about a possible line in defence of the letter that the Local Authority is duty bound to have regard to the situation of the children in deciding on potential proceedings?
This would also be nonsense. Whilst the Council arguably does have just such a duty, it cannot be satisfied by a threat/promise of a referral to Children Services after eviction. The consideration has to be in the context of and inform the decision whether or not to pursue eviction in the first place.
So, we have a threat that is unsustainable and unjustified in both law and practice. And a threat that should have been known to be unjustified to the Local Authority making it (or one would have some questions to ask about their legal advice, assuming it was actually sought. I do wonder whether this letter from the housing team was actually cleared with Children Services before being sent out. That would be interesting to know).
But there is always someone prepare to try to justify the unjustifiable.
South Ayrshire – possibly in response to local press questions – have issued a statement. I have attempted to be restrained so far, but South Ayrshire’s statement tests my resolve.
The statement announces that South Ayrshire had decided
“that in those circumstances where a tenant is taking all reasonable steps to meet the required rent payment, and where their circumstances have changed as a result of the application of the size criteria rules, that eviction action will not be pursued for an initial period of up to 12 months from [25 April 2013]”
Apparently ‘all reasonable steps’ means ‘engaging with’ South Ayrshire, who offer “support and assistance – including housing options discussions, help to apply for a Discretionary Housing Payment and setting up reasonable repayment plans”. So, non-existent downsizing and repayment plans for those who can’t afford the rent element in the first place. In addition, I have been told, but have no way of verifying, that the family who received the letter above had applied for DHP but been refused. If that is indeed so, South Ayrshire have some explaining to do about ‘lack of engagement’.
So, for anybody not having a downsize available and not being able to enter a ‘repayment plan’ and with DHP not applied for or refused, South Ayshire have decided to start proceedings with this letter. And the excuse for the ‘Children Services’ threat?
The reference to Children’s Services is included because of our role as a ‘corporate parent’ where we have to ensure the safety and wellbeing of children and young people, who could potentially be at risk if their home circumstances change.
But this is marvellous. Harry Garland, South Ayrshire Council’s Executive Director for Care, Learning and Wellbeing, has invented a whole new duty! The Council is ‘corporate parent’ for children who are not homeless and are cared for in their home. Of course, if South Ayrshire want to stick with this line, I can imagine quite a few housing lawyers keen to hold them to it. A brand new duty of care to ensure safety and wellbeing of children who aren’t actually ‘in need’ yet sounds very attractive.
As a justification for the inclusion of the line in the letter, this is, of course, utter rubbish. Mealy-mouthed rubbish, given the reasons set out above. If South Ayrshire were indeed concerned with their duties, the letter would have mentioned a potential homelessness duty. If South Ayrshire were concerned with non-engagement with support, the letter could and should have set that out as a reason for service of notice. If it failure to apply for DHP was a reason, this should also have been set out.
While, as noted above, South Ayrshire do indeed have a duty to the children before eviction, that duty is to consider the position of the children in any decision whether or not to commence the eviction process. The possibility of a later reference to Children Services is, quite simply, not an answer to that duty.
So either way, Mr Garland is not making a great deal of sense. (As an aside, don’t these people actually run statements past their legal departments before issuing them?)
In the absence of any plausible legal or practical justification for the inclusion of that sentence in the letter, one can only conclude that it was intended as a threat. It is a demand for payment of outstanding arrears accompanied by a sentence which the Council must have known full well would be read as ‘we may well take your kids into care’. Pay up or we take your home and your kids. Is this kind of demanding money with menaces really what Councils are reduced to?
[I see there is a post about Knowsley Housing letters on Joe Halewood’s blog, which also mention a referral to Children Services. However, that letter is clearly sent at warrant of eviction stage, so is potentially justified by immediately imminent homelessness and by not being from a Council that would itself have homelessness duties.]
[Update 5/11/2013: South Ayrshire are reported to be ‘reviewing the wording of this section of the letter’.
Also a version of this post appeared in the Daily Record on Monday 4/11, in rather dramatic form.
which was a bit startling. And very entertaining.]
If the LA’s/RP’s have attempted to work with a tenant in order to assist them and that tenant chooses to ignore their requests and correspondence, then it is inevitable that possession proceedings will eventually ensue.
Of course I agree that assumptions can not be made around what other duties may or may not be owed under Part VII or the Children’s Act.
In relation to the amount of arrears being a relatively low figure at £250, it is likely that this would have been build up over number of months. Housing Officers would not be managing these appropriately if there we just allowing rent arrears to increase with no foreseeable resolution.
I do accept that there are people who are genuinely unable to meet the shortfall, in these cases eviction is nonsensical other solutions need to be found, for example downsizing through Part VI, longer term DHP’s, mutual exchange etc..
We must remember that there are also those that can afford the shortfall, but simply choose not to. When these individuals are evicted it is likely that they will intentionally homeless and at that time it may well be necessary and appropriate to send referrals through to Social Service departments.
Lee
I believe you have missed the whole point, which is the inclusion of the mention of referral to Children Services n this letter as a threat, aimed at making the tenants pay.
I understood the “point of the article” but I disagree – (although I accept that the letter should have been written much more carefully.)
In my opinion it is vital that responsible landlords make tenants aware of the possible consequences of decisions that they are making. Furthermore the statement itself is correct… “may refer the case to Social Services”… it does not specify when or at what stage of the proceedings, or indeed what is likely to happen to the children following the referral.
My post was to present the other side of the argument and to make it clear that whilst the shortfall is unaffordable for some, it is clearly affordable for many others.
Lee
The letter is not ‘making tenants aware of the possible consequences of decisions’. If it was, then it would, for instance, set out homelessness provisions. And the very vagueness about a referral to CS that you identify undermines your point on this.
It is a threat, made knowing how the recipients will read and interpret that statement. Quite the reverse of a ‘responsible landlord’.
As to your statement that the bedroom tax shortfall is ‘clearly affordable for many others’, really? Have you got research to back up that statement? Because all the research that has been done, by Riverside Group, by the Joseph Rowntree Foundation and by others, says exactly the opposite to you.
Interesting comments Lee – so if households are advised to stop heating, and eating in order to free up the twenty or so pounds to pay their rent out of their £71.70 per week benefit and decide eating is more important, they are deemed to be ignoring advice and impliedly deserve to lose their home. Remind me not to become ill or disabled under this council. I guess that would be my choice too . . ..
I don’t think you understand how housing benefit works. Other than a very small percentage of in-work tenants whose rent was only being topped up by HB, most victims of the bedroom tax would struggle to find the shortfall. Their HB would have been means- tested and they would have been awarded ‘full’ housing benefit. This is awarded when the tenant has no income, they are absolutely on the minimum subsistence level of other benefits and they therefore have no money to pay, or even contribute towards, their rent. The Government have take this system, still awarding ‘full’ HB to people with no money to pay rent, but now deducting the bedroom tax at source from that ‘full’ award. To avoid inevitable arrears that tenant must use their other subsistence benefits that are meant to cover food and heating costs or the costs of disability. People are using DLA to cover the shortfall or they are not paying it at all. That sick and disabled tenants have been forced to use other benefits to cover the loss of HB does not mean they can ‘afford’ the bedroom tax. It means they have no choice.
I understand Housing Benefit and I have first hand experience of seeing what people’s incomes is when they are directly effected by the bedroom tax.
I am not suggesting that it is easy, or that I agree with the policy as I feel it is completed flawed. I am pointing out the fact that there are people who can afford the shortfall.
“A brand new duty of care to ensure safety and wellbei,ng of children who aren’t actually ‘in need’ yet sounds very attractive.” Yes indeed! The Council (through its housing office) now accepts liability for any number of transgressions and failures. As a parent, it is now obligated to ensure school attendance, reasonable and civil behaviour, food and shelter, you name it! This is wonderful. Now “previously real” parents can kick back and relax; finally the Nanny State has taken up its promised duties!
I think this is appalling and my TRO ears prick up straight away. I think a much underused statute may help. Section 40 of the Administration of Justices Act 1970. The Act makes it a criminal offence to make demands for payment in ways which cause “Alarm distress or humiliation”.
It’s the distress bit I’m thinking of specifically. Am I wide of the mark or stretching it? NL readers will have a more informed grasp than me
Not just this HA either. But KHT on Merseyside as well. Can send you a copy of it if you want
I mentioned the KHT letter at the end of the post. I think it is a different situation – it was sent with notice of warrant of eviction, so potential homelessness imminent. It has its own problems – for instance in insisting could be intentional homelessness, but in those circumstances, mention of a reference to Children’s Services is probably more justifiable, rather than at the very start of the possession process.
Just a quick clarification. ‘Priority Need’ was abolished in Scotland on 31 December 2012. Intentionality remains in force however.
http://www.legislation.gov.uk/sdsi/2012/9780111018187/pdfs/sdsi_9780111018187_en.pdf
Personally I believe the scheme should have been implimented with greater consideration for the individuals who are hardest hit by the change.
However, social housing has lost its intended purpose, it is no longer there to support individuals and families at times of need it has become a shelter from the reality of over inflated housing costs in the private sector.
On the topic of the private sector; local housing allowance and previous schemes have only allowed for a level of HB relevant to household composition for some time. From April 2011 local housing allowance was reduced to the 30th percentile of private rents in a designated area leaving many HB recipiants in the private sector making up similar shortfalls (and in some cases greater).
On the topic of referrals to social services: Does this not prompt the recipiant to remember that they have a responsibility to care and provide for their children. Why shouldnt they be reminded of their responsibility and who knows this could be the motivation they need to engage with available support and attempt to better their situation?
Justin, your last paragraph is, frankly, astonishingly patronising. If you really believe that people in desperate straits need the ‘motivation’ of a threat of referral to social services, I can only, if I am being charitable, assume you are completely ignorant of people’s situations.
The difference between LHA and the bedroom tax has been extensively discussed. one key part being that it applies retrospectively to properties that people have been allocated and from which they are unable to downsize.
Giles I do not require or welcome your charity, let me assure you I am far from ignorant to peoples situations. May I also refer you to the start of my previous comment “I believe the scheme should have been implimented with greater consideration for the individuals who are hardest hit by the change” this in my view includes those who are unable to downsize.
The fact remains that people require support to deal with the changes brought about by central government (not housing providers or local authorities) different people will require different support but it can only be provided if they engage.
Motivation can come from many sources and seeing your children happy would be motivation for all parents I would hope.
OK LHA Vs. BT: Tenant enters into an AST, 6 months later rent increases and it is now stretching their finances…?
I do not proclaim to have all the answers merely expressed my opinion as you have done.
Justin
I have no argument with support being given. South Ayrshires support extends to i) putting people on a list for downsizing. For which there are propeties available for less than 1 in 10 of those affected; ii) help to make a DHP application. I understand (though can confirm) that a DHP application was made by the recepients of this letter and refused. Certainly there won’t be enough DHP to go anywhere like around all; iii) a ‘repayment plan’. A repayment plan for arrears when people can’t afford the base rent is clearly a nonsense. You have (and I have) no idea whether the people receiving this letter had ‘engaged’ or not, save for South Ayrshire’s bland assertion that it was so. But if none of South Ayrshire’s 3 options are workable? (As will indeed be the case for the majority). Does that constitute lack of engagement?
On motivation, this was the cover letter with the Scottish version of a Notice Seeking Possession. It is the formal start of possession proceedings. Yet you consider that further ‘motivation’ is required and that an implied threat to the family’s children is both necessary and, in some conceivable way, appropriate?
Hence my response. What kind of conception of people can you have that would mean that such a threat was in any way appropriate?
I note that you find having someone else’s view of you projected onto you displeasing. There may be a slight irony in that.
On LHA v BT, of course there are difficult situations arising from the LHA caps. But it remains that the LHA assessment is not based on where you are actually living. It is theoretically possible to find, say, a four bed property for the LHA allowed for a three bed. Unlikely but technically possible. There is no such possibility for BT.
The DWP’s estimated cost savings to the HB budget from bringing in the bedroom tax where actually based on the assumption that no-one would move and that they would just pay up.
I would like to think that this action would not be taken against someone who has engaged or is known to have attempted to better their situation. But you are right we do not know for sure.
From reading your article and responses to my comments I gain the impression that you are objective to the scheme as a whole? Please correct me if I am wrong?
LHA is determined by the household composition (and therefore subject to change) with the same room entitlements as BT, in very limited circumstances you might be right that a 4 bed could be found on 3 bed LHA allowance.
Given that LHA is set at 30th percentile that leaves 70% of privately rented properties in a geographic area that will require a “top up” of HB claimants. In less afluent areas where there are typically less owner occupiers there are many people stuck in a similar situation: HB wont cover rent and they cant afford to pay the top up. Who speaks out for them in the public domain?
Furthermore should they be defended on the basis that their HB will not cover their rent?
Before we go back to the allocation issue – I agree that this is an issue and should have been dealt with more thought (a staggered impact maybe).
I have no objection to diferences of opinion and welcome others views, I suppose I feel that bed room tax being the reason for failing to pay rent is an excuse private renters could have used for years – Have they?
DWP cost savings; have you looked into the current sanction provisions?
Justin
I don’t think this is the place for an extended discussion of the LHA scheme. But in the private sector, landlords can get possession via a s.21 notice/accelerated procedure, which makes any arguments about rent arrears or defences around arrears redundant.
There has been quite a bit of discussion around the various LHA caps since they were introduced. My own view is that they are unworkable in a housing shortage. The original stated aim of lowing private sector rents has failed utterly.
There is also an argument for using the oft-forgotten Pre-action Protocol for Rent Arrears. Unlike the Mortgage equivalent, this has teeth and I have had many a success in having claims struck out on the basis of with such small arrears and inadquate consideration and engagement with tenants before taking possession action. I think that in every case where the arrears are solely as a result of bedroom tax it should be argued very strongly that the full force of the sanctions for non-compliance with the PAPFRA should be brought to bear on the Claim.
Brilliant, Justin – no really. That’s how we stop banker’s crimes and corporate tax avoidance. Take their kids away.
Lets slow down a bit here and not get caught in a moral or legal argument about the purpose of social housing, the ‘threat’ implied in the South Ayrshire letter and the nature of low-income parenting. I am writing this as someone who is fundamentally opposed to the bedroom tax but ………………
I am also in favour of a welfare state that provides an adequate level of care for those who are in hardship. I work in a local authority social work dept and I think its simply ‘good practice’ if that dept is kept informed by colleagues in Housing if someone with children is going to face eviction. I dont want to find out about that situation on the day the bailiffs turn up and then have to start arguing, negotiating and HAVING to look-after children as an alternative to them being out on the streets. I’m not naive – the letter can sound like a threat – but it can also be seen as part of an early-warning system to ensure that proper support is given to a family at an early a stage as possible. Believe it or not, but Councils generally dont want to evict and Councils certainly dont want to take kids into care due to homelessness. So wouldnt you rather Children Services were made aware at an early stage that there is a potential crisis – or is your view of social workers still based on the Kiddie Snatcher in Chitty Chitty Bang Bang?
Gary
I think you may have misread the letter (and the situation) slightly. This letter went out with the Scottish equivalent of a Notice Seeking Possession, yes. It is before any court proceedings, before a court order, before a warrant of eviction has been obtained. However, it is not saying that Children Services will be kept informed of the status of possession proceedings. (I would actually be surprised if that happened.) It is not part of an ‘early warning system’. It actually says that a referral may be made at court action.
I was careful to say I would be surprised if the letter had been cleared with Children Services, precisely because it uses such a referral as a threat. You and I know that the last thing CS would want to do is to have to end up with care. We know that there is quite a lot that CS could and would do to try to avoid the family becoming homelessness. But the fear of many tenants is that social services involvement may result in losing their kids. See the interviews here, for example. http://www.newstatesman.com/politics/2013/06/secret-cuts-part-three-bedroom-tax
In the absence of any other justification for including this phrase in the letter, and I can see none, it is included deliberately knowing what the tenant’s fears are. If you are looking for someone encouraging the Kiddie Snatcher view, it appears to be the housing dept of South Ayrshire.
can I point out that there is no “pre action protocol” for rent arrears in Scotland
We do have statue and regulations which require pre action requirements to be followed and the Notice of Proceedings has to explain how the landlord has met those requirements
Some tenants do not want the patronage of their landlords, but prefer to ‘engage’ elsewhere, such as by getting independent advice from a CAB or other voluntary organisation, or by joining an anti-bedroom tax campaign group. Such organisations are more likely to both provide thorough and workable advice, and defend the tenants when their landlords attempt possession proceedings. The very insistence from HAs that tenants must ‘engage’ with them, and them alone, says a lot about their attitude. I have yet to see any HAs in my locality refer their bedroom tax victims to my CAB, even though we have (still) specialists in debt and welfare rights, who can jointly give budgeting advice, negotiate non-priority creditors into better payment arrangments, maximise tenants’ incomes and win bedroom tax appeals. Of course, we also have three housing specialists, who can put a spanner in the HAs attempts to get possession and eviction orders.
So … is it a well-intentioned but clumsy letter, or a crude attempt to scare people into paying up?
The offending sentence is sandwiched between two paragraphs warning of the adverse consequences if the person doesn’t clear his/her arrears. In the context it seems to me that it is clearly intended to scare. What I would be interested to know is whether this is a standard form of words the Council uses in all rent arrears cases (in which case it is slightly more excusable), or whether it has been drafted specially for bedroom tax arrears? If the latter, the Council’s reasoning might have been: “the punters think that because the Council is politically opposed to the bedroom tax then we won’t bother to collect it so they don’t really regard it as proper rent arrears – well, this will make them sit up and take notice”. That would be disgraceful because the Council must know full well that many tenants affected by the bedroom tax have no way of finding the extra cash – of all the people who end up in rent arrears, these are the ones least able to do anything about it. If, however, this is the form of words that the Council always employs at this stage in an arrears case, I can see how it might be justified as a way of saying “look this is getting serious now, if you don’t pay your rent there will be consequences you might not have thought about yet.”
Peter
I think it would be disgraceful even if it were the standard form of letter. But the Council’s public statement suggests these were specific letters for those affected by the bedroom tax.
This letter from South Ayrshire Council is a disgrace. Just as disgraceful is the way in which they, like many, indeed most, supposedly publicly accountable bodies hide behind bland spin from their PR people when they make huge mistakes. Instead they should try being either honest and defend their position or apologise because when get it badly wrong. Unfortunately, nothing gets sorted out in this country because we seem hell bent on exchanging sound bites instead of acknowledging and tackling real problems.
The notion of tenants ‘engaging’ or not with landlords is a superficial nonsense. That assumes the landlord is independent when they are not.
Look on any landlords website to see if they say anything about appealing the bedroom tax – none of them do. No social landlord advises a tenant they can appeal which is their right. So you have to question the validity of tenants engaging with the landlord. Yet landlords say if a tenant does not engage with THEM it means they are not engaging and the court is told the tenant buries their head in the sand. What utter tosh!
The Pre-action protocol is often ignored too
Actually Joe, I am a non practising solicitor specialising in welfare benefits and housing law, and am employed by a large housing association to assist tenants with welfare benefit appeals, debt/money advice and possession proceedings, and to identify and source our stock to downsize tenants. We employ a number of workers from social welfare backgrounds to assist tenants in this way. To suggest housing associations are doing nothing is both crass and a sweeping statement and offensive. Incidentally we also pay for removal costs, carpets, white goods and furniture to enable a move even if it is to another HAs stock. We don’t like the ‘bedroom tax’ anymore than many of the commentators on here not least because the level of rent arrears affects the service we are able to give as a non-profit making organisation. We have charitable aims and do not lose sight of that.
I second these comments, I am personally aware that lots of RP’s and HRA’s are actually employing officers to assist people with these difficult changes….. part of this work involves maximising tenant income (including appeals for various benefits including the size criteria), assisting with applications of HB and DHP and general money and debt advice.
Further work is also being undertaken to deal with challenges households face with the benefit cap as well as the upcoming rollout of UC’s.
I’ll third those comments. There seems to be moves to make HAs & RPs the bad guys here. The majority are working exceptionally hard to assist tenants through welfare reform by maximising income, helping with debt, making applications and appeals around benefits. They are also aware that people may wish to work with CAB and other services and support this and signpost. But at a time when these services are being cut or have long waiting lists there is another option by getting help from the landlord. Landlords want to keep tenants in their home, evictions & court action cost money and time and create void losses and can have a detrimental effect on communities. Early intervention can be crucial to prevent situations escalating.
There is also a duty to advise Childrens Services of families that face eviction whether it be related to arrears or some other reason. It’s a straightforward duty of care.
Interestingly the DHP situation in some parts of Scotland is very strong – some areas have received additional funds due to rurality and from the Scottish Govt. The area I live in has more than £1,000,000 in the pot which should cover all social housing bedroom tax for the entire year. Perhaps it’s time to put the decision making process for DHPs under the microscope, I certainly struggle to see any logic in who is awarded and who is refused.
Derek
Some RPs are indeed doing what they can. others certainly aren’t. I did not generalise in the post, and deliberately so.
On the ‘duty of care’ – there is no such duty. There may be an obligation on Council landlords to notify CS, but there is no general ‘duty of care’. And for the reasons I have set out in the post, that doesn’t cut it as an explanation for this letter. There are plenty of duties that South Ayrshire would owe at the point of eviction, the homeless duty being a prime example, or a social services duty to inform or disabled adults. None of these are mentioned, so a ‘just mentioning the duties that arise on eviction’ line doesn’t excuse it. Moreover, this is at Notice Seeking Possession stage, at least 5 to 6 months before any putative eviction. No duty to inform CS had arisen or could potentially arise for many months.
Note also how that sentence – ‘we may inform Children Services’ follows directly on from the ‘penalty’ paragraph above – possession proceedings and £400 court costs. It is deliberately phrased that way, in the knowledge of how it would be read by tenants.
That Children’s Services require to be informed when eviction is faced may be correct but the wording, timing and inclusion of this information clearly comes across as a thinly veiled threat to parents that their involvement could well lead to the removalof their children.. I wonder if Harry Carter agreed with the Director of Children’s Services to permit social services to be their bogeyman to scare the wits out of vulnerable tenants.. I somehow doubt it. Social services have a difficult enough job engaging with and supporting families that need their help to ensure that their children are properly cared for. This type of stereotyping of social work as purely authoritarian does nothing to help hard pressed social work staff doing an already difficult job. It does not surprise me that figures like Mr Carter should permit this type of action. Once in power they can lose their sense of humanity and decency, often in the face of downward pressures from central government, just as in the case of the NHS, to achieve centrally set financial targets. This does not excuse the repellent behaviour however.
Out of interest would Banks or Building Societies issue a referral to Social Services if evicting a ‘hard working’ homeowner from their property for non performance of the mortgage? Intriguing why this threat should just apply to tenants. Would a private landlord even?
No and no.
Where the council is the landlord and a unitary authority, there may be such an obligation.