[Update 20/03/17 – Locata have come back to me again and are changing the relevant wording in the toolkit. The issue is resolved.]
I didn’t want to have to write this, but sadly I have to, to protect my and our own position here on NL. Because Andy Gale (known to many in homelessness services) and Locata Housing Services have made it necessary, first by what they have published and then by refusing to correct it.
As you all may know, I drafted a flowchart for the statutory requirements for validity of section 21 notices, after the Deregulation Act. This was an experiment, and, although I was reasonably confident it was broadly accurate, it was put up on NL with an explicit disclaimer
it should not take the place of proper legal advice, or even be relied upon – guidance only.
So it remains, several revisions later. There are reasons for this, the obvious ones. First, I think the flowchart is right, but I’m not certain – at least one error has been spotted since version 1. Second, it is not advice, because advice can be relied upon (and the advisor sued if it is wrong). I’m not making that commitment on something I haven’t been paid to do and which is a free download via a site which does not have professional liability insurance. Third, if you want certainty, you go and pay for the advice.
For these reasons, that disclaimer is important, both to the NL site and to me.
I was surprised when I spotted incoming visitors to the site from an online document which turned out to be a download from Locata Housing Services called AST Casework Toolkit, apparently written by Andy Gale. The downloads are expressly aimed at council homeless units/housing options services.
(Locata are a commercial business, though claiming to be ‘a not-for-profit company owned by local authorities and registered providers’. Unfortunately – and in breach of the law – the website doesn’t display a companies house number, but here it is. The company structure and ownership of Locata is terribly interesting and I may well come back to this in the future.)
The specific part of this document that linked to NL read:
Check whether the section 21 notice is valid using the NHAS or Nearly legal section 21 flow charts (links below). These should be available at the reception desk and copies in every interview booth and in the resources section of the shared drive.
And then, a little further on
If you believe the notice to be valid do you believe there may be a defence against possession action due to either:
- Not following the correct tenancy deposit procedures.
- Not setting up the tenancy correctly due to failure to follow the October 1st 2015 rules for new or renewal tenancies on or after that date.
- Is there a possible defence to possession action due to the retaliatory eviction rules for tenancies on or after 1st October 2015?
Check whether any of the 3 rules above apply using the NHAS or Nearly legal diagnostic s21 flow charts.
That was it. No suggestion that the NL flowchart was guidance only, or that legal position should be properly checked.
This worried me. Firstly, it held the flowchart out as a means to check validity of s.21 notices, without any qualification. Secondly, it was clear that this was to be relied upon in making decisions on prospective homelessness, or in telling tenants whether their notice received was valid, or even if they had a defence to a possession claim.
So I emailed Locata Housing Services:
I’ve noticed that you have included a link to the Nearly Legal s.21 flowchart in your AST Casework Toolkit.
I am concerned that you include the link in the following terms
I am concerned that your document suggests that council housing advisors, and through them, private tenants, could make decisions on the validity of s.21 notices and indeed decisions as to whether to defend proceedings, based upon our flowchart. This is frankly irresponsible.
While I am reasonably confident of the accuracy of the flowchart, it is provided as a free download expressly on the basis that it does not constitute legal advice and should not be relied upon. It is for guidance only and proper legal advice should be sought.
Your document does not mention any such disclaimer and instead holds the flowchart out as a document to be relied upon.
I would be grateful if this could be corrected. We will not be held liable for any errors in the flowchart as a result of your mislabelling of it.
I got a response from Alan White, ‘Business Operations Manager’. He was keen to tell me that the AST toolkit hadn’t been legally checked, and
The AST toolkit does clearly provide a disclaimer on Page 2. It says:
“Please note the following:
The advice provided in this and the other toolkits provided free to local authorities must always be considered in the context of whether a homelessness application has been made and triggered.
Local authorities are reminded that if they have reason to believe that a person may be homeless or threatened with homelessness they are under a duty to take an application; make enquiries and issue a decision on that application. If the person is eligible, homeless and may be in priority need then emergency accommodation must be provided until the enquiries are completed and a decision issued.
The information and advice has not been legally checked and is for guidance only. It does not form legal advice. The author takes no responsibility for the accuracy of the content and a local authority should always take its own legal advice when considering using any resource contained in this toolkit.”
The AST Casework toolkit has clearly been developed to help Housing Options Officers undertake prevention casework. It does not constitute legal advice as per the warning on Page 2 re the toolkit as a whole, and any resources within it. (Waffly bit cut)
A Housing Options Advisor is not going to mistake a flowchart for the Deregulation Act 2015 and therefore the purpose of including them in the toolkit is to help the hard-pressed Options Advisor to understand the changes better – but it is still only a “can opener” to check the rules carefully against the Act and seek legal advice if in doubt.
Oh so not good enough! That disclaimer refers only to their own (or Andy Gale’s own) content and resources, not to that of third parties. Thus they are trying to avoid any liability for their own errors, but not dealing with the issue I raised. And the passage around the link to us was unequivocal – there was no suggestion that the flowchart should be used for guidance only. No, they said it should be printed out for every desk to ‘check whether the notice is valid’.
So, my reply:
That disclaimer extends only to your own content or resources, and to the liability of ‘the author’.
Let us be absolutely clear, our flowchart is not your content or resource, and you are most certainly not the ‘author’ of it.
Your phrasing about our flowchart is unequivocal. While your disclaimer might extend to your material, it does not extend to our material. For that reason, your response is not adequate.
I have given you the opportunity to correct the issue. You have not taken it. I am afraid that in order to protect our own position, I will have to go public on this. I believe that our readership is likely to include many of your existing or potential clients.
I do realise that this might sound petty, at least to non-lawyers, but it is not. There is a world of difference between ‘guidance which should not be relied upon’ and ‘check validity using..’. And the difference is such as to suggest that our flowchart is held out as advice to be relied upon.
For the reasons given before, it isn’t. And I am damned if some commercial set up (and Andy Gale) are going to put me, the site – and indeed prospectively homeless tenants – at risk because of their own carelessness, or ignorance.
So, to homeless prevention people, you are welcome to use the flowchart – but as offered. As a guide, which may not be wholly legally accurate and which should be legally checked before any significant decisions are made.
Meanwhile, Andy Gale and Locata? Well, if you ever want to link to our material again, do not make the same mistake twice. And also why the hell haven’t you got your ‘toolkits’ legally checked?