Corrections, omissions, blusters

Several notes/rantlets*

There will be a new prescribed Section 8 Notice Seeking Possession in force from 6 April 2016. The regulations and new form 3 can be found here. This is a prescribed form, so must be used.

A ‘where we are now’ story on homelessness involving a certain very central London Council came out on twitter today. A very pregnant woman was found to be intentionally homeless, the council discharged duty and terminated temporary accommodation just two days before her due date. The woman was thrown out of temporary accommodation and was on the street yesterday (Tuesday). The police had to put her up overnight. An advice centre saw her today and found out that the housing options team (the homeless unit) had completely failed to follow both protocol and their statutory obligations in that no reference or information about the applicant or the impending eviction had been passed to Children’s Services. The council did subsequently, and I quote, ‘apologise for the omission’.  Because it is exactly like accidentally not putting that enclosure in with the letter.

And the Govt response to the Commons Work & Pensions Select Committee report on local welfare safety net (including DHP) has been released. The select committee is not impressed. And neither am I. The response on DHPs  (on which, I must disclose, I gave evidence, and on which the committee made some strong recommendations) at 14-43 is not only fatuous, but in some regards factually wrong. For example:

Where someone applying for a DHP believes that they have been treated wrongfully, they can ask the authority to review its decision and ultimately also have recourse to judicial review proceedings.

There is no review mechanism for a DHP decision. None. Nada. It is JR or nothing. And if the DWP believe that is a decent mechanism for dealing with errant DHP decisions, they are yet more Wednesbury irrational than the decision at issue.

 

*A diminutive or infant rant

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, Benefits, Homeless, Housing law - All.

12 Comments

  1. Thanks for alerting us to the form changes. Bad news for landlords as I suspect most won’t know and will carry on using the old forms.

    How strict are Judges on picking up on out of date form usages generally? In people’s experience?

    • In my experience (and with some exceptions), District Judges are unlikely to be aware of changes in law and procedure until they are pointed out by legal representatives. When I was doing the possession duty desk I would always make sure I had whatever documents I needed to be able to point out this sort of thing to the judge, and the judges would invariably be grateful for the information. And as Giles has said, this is a prescribed form so it’s not a question of judicial discretion.

    • Given that at least one DDJ who will remain nameless had no idea that a s8 Notice had to cite the ground relied upon, I can’t imagine they will all be up to speed. I suspect that as usual the good ones will be right on top of it from day one while others will never get it.

    • S.8(1)(b) Housing Act 1988 does give the court discretion to dispense with the requirements for notice under s.8 on any ground except ground 8, provided it is “just and equitable” to do so. I honestly have no idea how commonly this is used nationwide though.

  2. Thanks for the update on the form changes. The extremely short notice period on this statutory form change is quite unsatisfactory – as is the fact that we are somewhat reliant on hearing of these changes through the good offices of Nearly Legal rather than from the DCLG themselves (who seem to have no mention of these changes on their website). We have asked DCLG on several occasions for notification but receive nothing. Housing Minister Brandon Lewis has a department which appears to be quite disfunctional …

    Please, more help on acronyms in these articles for those of us that are less familiar with social housing matters would be great!

  3. From a purely pedantic/grammatical point of view the DCLG is correct; a person refused DHP can ask for a review, however they do not have the right to a review.

    I promise that I will never again admit that DCLG got something right!

  4. On DHPs, although there is no statutory requirement for LAs to review DHP decisions, I don’t know of any LAs that don’t include a review procedure in their DHP policy (admittedly, my experience extends only to about a dozen LAs). And the DWP guidance manual seems to be pretty clear that there is an expectation that LAs will have a review procedure. I think any LA that didn’t have a review procedure would be acting unreasonably.

    To follow on from Colin Lunt’s point, not only can an applicant ask for a review, an LA must respond to that review request in writing, as soon as is reasonably practicable, giving reasons for any decision it makes on that review request (Reg 6(3) DFA Regs 2001).

    Does anybody know of an LA that doesn’t have a review procedure in its DHP policy?

    • Timmy

      All granted. But of course, no-one knows if all LAs do have a review procedure. Including the DWP. While it may indeed be the case, I don’t see how the DWP can legitimately rely on that being so in their response.

      Acting unreasonably in not having a review procedure? Why certainly. The remedy? Judicial review…

  5. I suppose there is a degree of judicial discretion regarding use of the correct s.8 form if the claim is on discretionary grounds, in that the judge can dispense with the requirement for notice or provisions for content if it is ‘just and equitable’ to do so….

  6. It used to be the case that you could rely on the then prescribed form or “a form substantially to the same effect” ?

  7. These regulations made 23rd March. Coming into force 6th April. A tediously lengthy document entitled ‘Statutory Instrument Practice 2006’ specifies an introduction interval of 21 days – so these short Stat Form introduction times fall short of Parliamentary Good Practice. Thank goodness Nearly Legal dug this up on 30th. Section 21 form introduction last year was a similar debacle. Might just refer this one to the Parliamentary Ombudsman – anyone else interested?

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