Councils behaving badly – Part whatever

With grateful thanks to Housing: Recent Developments in March 2018 Legal Action comes this report of a county court case for unlawful eviction. What makes it slightly unusual is that the perpetrator landlord was a council.

Lutman v Ashford BC, County Court at Canterbury, 5 October 2017

From 2011, Mrs Lutman was the secure tenant of Ashford BC. Her husband also lived at the property.

Mrs L was admitted to hospital with dementia in late 2012. Mr L continued to reside at the property.

In February 2013, Mr L was sentenced to 18 months in prison, with a release date of 12 November 2013. During the period of imprisonment, Mrs L left hospital for respite care in a residential home. Meanwhile the rent and bills were paid from a joint account.

Then things went badly wrong…

In early October 2013, Ashford BC sent an officer to give Mrs L a notice to quit to sign – Mrs L printed her name in capital letters. The officer later said  ‘it would not be correct to say that she understood the notice’.

Also in early October 2013, Ashford BC served a Notice to Quit on Mrs L, expiring 4 November 2013.

On his release on 12 November 2013, Mr L found that the locks on the property had been changed.

Ashford BC had never taken possession proceedings. They asserted that they had taken possession because Mrs L ‘had ceased to occupy’ the property and Mr L was in prison at the time.

Mr L claimed damages for unlawful eviction and for belongings never returned to him.

At this point, most housing lawyers would either be gleefully advancing the claim, or if acting for the landlord, wincing and advising reaching for the chequebook. Not so Ashford BC, who defended to trial.

The Circuit Judge found:

Mrs L’s notice was invalid as she clearly lacked capacity at the time. She did not even hand over the keys to effect a surrender, but would not have known what she was doing even if she had. Ashford BC were aware at the time of her lack of capacity.

Mrs L was not capable of making decisions about her residence, so it could not be said she had the intention to cease to reside and not return. Her return, though unlikely, could not be ruled out. She remained a secure tenant when the locks were changed by Ashford BC. Rent was paid and accepted until December 2013, after the change of locks.

In addition, continued occupation by Mr L would preserve her tenancy. He was in prison, but the property remained his primary residence.

Damages under s.27 and s.28 Housing Act 1988 – the difference in value between the property between vacant possession and Mr L’s continued right to occupy – were assessed at £40,575. Special damages of £1,000 in respect of lost belongings also awarded. And (I presume) costs to Mr L.

Comment

I can’t even…

 

 

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 Housing law - All, secure-tenancy, Unlawful eviction and harassment.

11 Comments

  1. Thanks Giles. Just to make sure I’ve got this – if we put can put the capacity issue to one side for a moment – we are talking about a tenant’s NTQ; which is not a surrender as such(?); so the non return of keys is not such a key (pardon the pun) issue?
    If the tenant’s NTQ was valid it’s the vacant possession that’s the issue and council’s/housing associations would be well advised to obtain an order for possession (and as I understand it they usually do?).
    But, am I correct to say that if the capacity issue was removed from the equation and locks were then changed without a court order we would be talking about much less serious offences?
    Or am I hopelessly wrong?

    • I may have over stated in saying Mrs L was given an NTQ to sign. She was given something to sign, which isn’t wholly clear fro the Legal Action report. From the Judge’s comments, it might have been a ‘relinquishment’ notice or something similar – ie, a purported surrender. The Council also served an NTQ at about the same time.

      If it was a tenant’s NTQ and there were no capacity issues, then things would have been very different indeed.

    • It likely would’ve been a notice of termination they’d have tried to get the tenant to sign. It’s a weird one. I’ve had tenants hospitalised with no prospect of return to their home and had to ‘chase’ them for a termination and keys to the property. That, in itself, is a pretty common issue for Housing Officers. Health Professionals and Social Workers who would organise a move into a Care Home don’t always follow through with notifying councils and housing associations of what’s happened as their focus is on the health and wellbeing of the tenant. It usually comes to light when rent arrears appear from nowhere (not in this case though).

      We’d usually have conversations with the Health Professionals and Social Workers re: the tenant’s mental capacity and prospects of returning to their home, especially if the tenant was not capable of voicing their own preference. Social Workers would need to have Court of Protection paperwork in order (or family member with Power of Attorney) to make decisions on the tenant’s behalf though.

      It’s not made clear what Ashford BC understood the household makeup to be. The NTQ might’ve been served if they believed there were other people residing at the property but had been unable to contact them (i.e. the husband appeared on the household but they were not aware he was in prison). A NTQ will usually provoke a response after all. I would find it surprising if they weren’t aware of his imprisonment though. In which case, the NTQ appears to be a back up because they were aware the tenant’s termination was not sound due to her lack of capacity.

      Even if we give Ashford BC the benefit of the doubt on all of this, the moment Mr L came home, they should have looked at the circumstances of the termination and realised that they had got it wrong. That the Housing Officer, Housing Manager and in-house Legal Team thought that this was OK is worrying.

  2. Unlawful Eviction Case: Housing Ombudsman does not use evidence highlighting social tenant ‘Lacking Mental Capacity?’

    Having fought for a family friend who was unlawfully evicted by a London Council whilst he continually suffered from Paranoid Schizophrenia, it was another ‘Reality Check’ for me when it was confirmed by the Housing Ombudsman “we do not address medical evidence” about a social tenant ‘Lacking Mental Capacity’ as part of their decision-making process.

    Shocked by this reality check, I was left asking the Housing Ombudsman “what on earth are you there for – if not to address ALL evidence from both sides of a complaint?”

    [rest edited by NL]

    • Given that we have no idea what the complaint was, who by -and whether they had any place to bring it – and whether the medical evidence was even relevant, I can’t comment on this. But unlawful eviction is an issue for courts, not the housing ombudsman.

  3. Dear Giles, apologies for the lack of information.

    Please copy or click on link below to see more information, which I posted previously:
    [edited by NL]

    Regards,

    Ivor

    • Ivor, that link didn’t provide any more information. Nor should any details be public. This is not the place for an unclear attack on a decision by the Housing Ombudsman.

  4. Oh Giles,

    Thank you for your reply. But, it’s clear that you should simply provide a lay-person with a template to respond to – to enable a legitimate reading for your professional expertise. I was very careful about how much information I used for this LinkedIn expose.

    I will think very carefully whether I should respond in more detail to you – or just leave it be,

    All the best.

    Ivor

    • Ivor, please leave it be. This is not the place for a general and undetailed attack on the Ombudsman. But you should absolutely not be making anyone’s personal information public, either.

      As per my first reply, unlawful eviction is properly a matter for the courts.

  5. No Giles, Unlawful Eviction must also be a viable policy of the Ombudsman in a Democratic society – where those who cannot afford Justice will benefit from such a policy.

    There was a similar case law example to the case I referred to briefly. But, I agree, we should leave it there.

    I am not too sure what personal information you are referring to – NO full names where used unless those citing similar references to cases.

    Thank you for taking the time to reply.

    Regards.

    • Ivor, the Ombudsman can’t make a finding of unlawful eviction where the fact are contested. The ombudsman can’t make an enforceable award of damages. The ombudsman can’t make an order for re-entry.

      This has nothing to do with a democratic society.

      Legal aid is available for unlawful eviction cases.

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