Cities behaving badly and other bits

Screen Shot 2015-11-05 at 22.38.33A remarkable note on the Community Law Partnership site sets out what may possibly amount to a mass unlawful eviction of secure tenants by Birmingham City Council.

Birmingham CC have been using High Court Sheriffs for evicting secure tenants after a possession order. This is often quicker than county court bailiffs and importantly, there is often no notice given of eviction date, the Sheriffs simply turning up. There is a process to be followed before a county court possession order can be enforced by High Court Sheriffs.

CLP and counsel Andrew Byles acted for a tenant, Mr M, on an application by Birmingham for enforcement by High Court Sheriffs. In the course of the hearing, counsel for Birmingham made the remarkable admission that Birmingham “had obtained possession writs against families without following the correct processes”. An FOI request then obtained the information that up to 53 High Court Sheriff appointments had previously been obtained by Birmingham. As CLP put it:

It appears that Birmingham City Council implemented a system of using High Court bailiffs without getting proper legal advice.  Marstons Group High Court Enforcement Officers handled the applications for bailiff writs and got the procedure wrong.

If this was indeed the case on the other warrants, then there may be some 50 odd unlawful evictions, with those evicted entitled to seek re-entry and damages. Any Birmingham based housing solicitors should be aware of this.More information about this, hopefully including the actual error made, as and when we get it.

Birmingham had also apparently not been informing tenants of their right to apply to stay an eviction. As the judgment in this case apparently put it: “I have been concerned about the deliberate policy of Birmingham City Council not to inform tenants of their ability to seek to suspend the writs of possession”.

While on the topic of landlords not behaving well, DCLG have released a consultation paper on extending the requirement for mandatory licensing for HMOs to smaller properties, based more on number of households/occupiers than the number of storeys in a property. There is also a proposal for a national minimum room size standard – at least for HMOs – in part in response to Clark v Manchester City Council (2015) UKUT 0129 (LC)

More prosaically, some of you may have noticed a problem with our email updates of late. An absence of dates in case references to be specific, rendering case references somewhat less than actually useful.

To cut a long and tedious story short, this is because the software we use to send out email updates interpreted anything in square brackets as a particular kind of software code and stripped it out of the emails. After extensive correspondence with tech support, some curt if not actually rude words, and some fiddling in the source code, it still isn’t fixed. Infuriatingly. It will be. But for the moment, you might have to click through to the site for full case references.

By and large, it might have been easier to persuade the higher courts to change their standard reference system to use {2015} instead…

About Giles Peaker

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, and still is Nearly Legal on Google +.
Posted in Assured Shorthold tenancy, Housing law - All, Possession, secure-tenancy, Unlawful eviction and harassment and tagged , , , , .

10 Comments

  1. Sorry, but “got the procedure wrong” my eye.
    There are two ways in which a county court possession order can be enforced in the High Court. One is to apply to the District Judge; and in an appropriate case (for example where a Freeman-on-the-Land type tenant amasses a mob of supporters to obstruct a bailiff) such an order might even be granted without notice, though this would be exceptional.
    The other is that the claimant completes a form N293A. And that form includes the statement:
    “I certify that the details I have given are correct and
    that to my knowledge there is no application or other
    procedure pending.
    I request an order for enforcement in the High Court by
    Writ of Possession
    I intend to enforce the judgment or order by execution
    against goods, and/or against trespassers in the High Court
    and require this Certificate for this purpose”.

    Note “against trespassers”. Whoever signs this form to get a writ of possession issued against a tenant without the matter getting near a pesky judge is, IMHO, committing a contempt. And certainly the suggestion that someone made an innocent mistake is risible.

    • I have more details of the judgment and, though it is hard to make out, an idea of what happened. Someone certainly messed up. Where the finger points may be less clear (and subject to possible professional negligence claims, at a guess). Suffice it to say, for now, that both applications for permission to the County Court and form N293A were involved, but a lack of application for permission to either County or High Court on notice for permission to issue a writ.

      Follow up post on enforcement via High Court to come, also including Nicholas v SSoD.

  2. You don’t necessarily have to seek permission on notice – see note on Pritchard & Ors v Teitelbaum & Ors [2011] EWHC 1063 (Ch) at http://nearlylegal.co.uk/2011/04/eviction-without-notice/.
    But you do need to apply to transfer the case up, and if someone signed an N293A in respect of a tenant they were doing something the naughtiness of which has been pretty widely publicised for some years, including on the websites of a number of Enforcement Officer companies

    • Ah but the rules have changed a bit since Pritchard (which was in any event a trespasser case).

      Application for transfer, including subsequent notice of transfer by County Court. 83.19 (and also confusingly, 83.26)
      Rules for issue of writ by High Court 83.13(2). Notice of application for writ requirements 83.13(8)(a)

  3. Yes, but Morgan J in Pritchard interprets a similarly worded provision as requiring notice of the proceedings, not necessarily notice of the application for the writ.

    • No, that is just wrong, I’m afraid. In Pritchard, it was held to be as against trespassers. As against a secure tenant, it cannot be against against a trespasser, by statutory definition.

  4. Pingback: Housing Law Bulletin | Housing | Areas | Areas of Specialisation | Garden Court North - Garden Court North Barrister Chambers

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