A handful of brief notes of things of interest.
16 Cornwall Gardens, London, NW10 2QX – (2021) UKFTT LON_00AE_HMF_2020_0097
A First Tier Tribunal decision on an application for a rent repayment order in respect of an unlicensed HMO. The landlord, Mr Ali Mohamed, admitted the property wasn’t licensed as required, after a finding by Brent Council that it was a licensable HMO, but defended on the basis that for most of the period claimed
the Applicants (and other occupiers) were no more than lodgers or licensees until 1 or 2 weeks before the inspection by Brent Council on 28 August 2019 because the property was a family home occupied in part by his daughter and his son in law. It was, therefore, exempt from the requirement to have an HMO licence.
Alas for Mr Mohamed, the Tribunal quite rightly found that occupation by his daughter and son in law did not make him a residential landlord, nor was his daughter. The other occupants had ASTs and the property was indeed a licensable HMO throughout the period. Then, when it came to whether there were exceptional circumstances that could mean the RRO award should be reduced, the Tribunal sharply observed:
The Tribunal also had regard to the fact that this property and the Respondent’s 3 other properties in the Brent area were all unlicensed. They only became so when Brent Council intervened. Given the Respondent’s acknowledged experience and expertise as a professional landlord of many years, the only reasonable inference to be drawn from his conduct is that he either had a blatant disregard for the legal requirement to obtain an HMO for this and his other properties or was reckless about that matter. At no stage has the Respondent accepted any degree of culpability. Furthermore, the Tribunal was satisfied that had Brent Council not intervened, the Respondent would not have acted to obtain a licence for the property.
RRO of £10,800 made.
Local Government & Social Care Ombudsman decision: Brentwood Borough Council (20 002 688) 23 February 2021
One of the constant refrains from a certain group of private landlords is the dreadful and, they say unlawful conduct of local authorities in a) advising their tenants that they do not have to leave the property before a warrant of eviction is executed, and b) – usually related – that the local authority have refused to take a homeless application and give the tenants temporary accommodation when the landlord has served notice (or indeed at any point until eviction is imminent).
Now, there is an element of truth in that second objection – as we’ll see – but it is not how the usual private landlord refrain has it. So it was very interesting to see this LGO decision in which a private landlord complained that a local authority’s actions (or lack thereof) on a homeless application had cost him in arrears and court costs, and the landlord receiving an award from the LOGO for the councils’ fault. What was actually decided needs a careful look, before the PRS hordes start making complaints about every tenant that wasn’t housing by the council after notice was served.
The complaint:
Mr X complained that the Council advised his tenants to remain in his property after the County Court made a Possession Order in July 2019. He says the Council did not follow statutory guidance. As a consequence, Mr X says he incurred extra costs, loss of rental income and was put to the time and trouble of applying to the Court for a warrant for eviction.
Mr X wanted his property back from his tenants to accommodate a member of his family. In February 2019 he told the tenants they had to leave by the end of July. The tenants contacted the council, and received a letter which said, in part:
“We would not normally consider you to be homeless until a Possession Order from the Court has expired. If you leave accommodation available to you because a legal Notice has been served, you will likely to be found to have made yourself intentionally homeless and no duty to provide accommodation will remain.”
The council then closed the file in March having not heard further from the tenants. In May, after the tenants had stopped paying rent, Mr X served section 8 and section 21 notices. The tenants contacted the council and received a letter which said, in part:
“If you are renting privately you have a legal right to remain in the property until a written legal Notice expires AND a Possession Order is granted by the Court AND until the time and date of eviction detailed on the eviction notice.”
The council also contacted Mr X who confirmed he intended to seek possession.
In mid June, Mr X made a claim for possession. On the day of the possession hearing in mid July, the tenants contacted the council. The officer asked for the court papers. An outright possession order was made. The council did not make any follow up contact with the tenants or Mr X to establish what had happened until mid August when they asked the tenants for the possession order. The warrant of eviction was served on 13 August, with an eviction date of 11 September. The tenants sent it to the council two weeks later and at that point a homeless apllication was taken and temporary accommodation arranged for 5 September. Arrears at this point were allegedly £5000, plus court costs.
The landlord complained that:
the Council actively encouraged his tenants to stay in the property after the Possession Order was made. He referred to the letter sent to his tenants in May 2019 which explained their legal right to remain in occupation until the Court made an order for eviction.
This part of the complaint did not go anywhere. As the LGO observed:
That was an accurate summary of the law. So it was not fault for the Council to give them this information about their legal rights. The Council had a duty to give housing advice on request.
However, Mr X also complained that the Council had not followed the statutory Code of Guidance. This states:
Paragraph 6.34:
“Throughout any period that an applicant remains in occupation whilst the landlord pursues possession action, the housing authority should keep the reasonable steps in the applicant’s personalised housing plan under regular review, and maintain contact with the tenant and landlord to ascertain if there is any change in circumstances which affects whether or not it continues to be reasonable for the applicant to occupy.”
Paragraph 6.36:
“The Secretary of State considers that it is highly unlikely to be reasonable for the applicant to continue to occupy beyond the date on which the court has ordered them to leave the property and give possession to the landlord”.
The LGO found that the council had failed to follow the Code. Firstly, the Council had failed to maintain contact with the tenants and landlord after the possession hearing to find out the outcome. And then:
The Council should review whether it is reasonable for the tenant to remain in occupation at different stages in the possession process. The Code says one of the factors councils must consider is the financial impact on the landlord. The Council did not have regard to that advice. It failed to consider the impact on Mr X although it knew there were significant rent arrears. The Code says it is “highly unlikely to be reasonable” to expect tenants to remain in a property after the Possession Order has expired. The relevant date in this case was 9 August. The Council did not consider the financial impact on Mr X if the tenants stayed in the property beyond that date and did not pay rent. It did not arrange temporary accommodation for them until 5 September. Because of this delay, Mr X was out of pocket because the rent arrears continued to increase and he had the extra expense of applying for a warrant for eviction.
It seems more likely than not that if the Council had considered the advice in paragraph 6.36 of the Code, and made contact with Mr X, they would have decided it was not reasonable for Mr Y and Ms Z to remain in the property. The injustice to Mr X is the additional lost rent and the cost of applying for a warrant for eviction. There would have been no need to make that application if the Council had acted sooner to accommodate Mr Y and Ms Z.
So Mr X was awarded compensation of about a month’s rent and the warrant fee.
The old council habits of doing absolutely nothing on a homeless application until there is a date of eviction die hard – they are certainly still in place with many councils. The Homelessness Reduction Act amendments to Part VII should have changed this, for both prevention and help to secure duties, but often haven’t yet. The key point for the transition from ‘threatened with homeless’ to ‘homeless’ is at the latest the making of a possession order, not the date of a warrant.
But at the same time, the old landlord belief that somehow the council should step in and house the tenants that the landlords propose to evict, and should do so at the earliest opportunity and above all without informing the tenants of their legal rights in regard to the tenancy, also dies hard.
The LGO steers a legally correct path between the two.
And lastly, the Housing Ombudsman has issued a call for evidence for an investigation into social landlords’ approach to ‘damp and mould’.
An initial review of our case data identified a high rate of maladministration on cases that feature damp and mould at 55 per cent of the 112 cases in our formal remit over the last two years. Compensation is also high with a total of £68,000 ordered in the same period, indicating a significant impact on residents in some cases.
Open to both member landlords and their residents, the evidence submissions will ensure the we can make far-reaching recommendations that promote greater understanding of the complexity of tackling damp and mould and share best practice across the sector.
GIven the continued prevalence of the ‘oh it is condensation, keep your heating on and open your windows’ approach, this could be a significant and important investigation. Scoial landlord and tenants are encouraged to respond, but I don’t see why those of us with related experience and legal knowledge shouldn’t also respond… Deadline 4 June 2021.
Nice to see the Ombudsman hold a local authority to account for failing to follow the Code of Guidance. All to often you get homelessness officers saying that it’s “just guidance” and not even attempting to address the issue. Even if it often won’t provide a basis for court action it’s worth knowing the LGO takes a failure to follow the Code seriously.