Local Authority Eviction help

[caledfwlch]

Hello.

 

A relative has been served with court paperwork for eviction proceedings by her Housing Association, so looking for advice.

 

The HA says they will be asking for a Suspended Possession, as she is paying the arrears and kept to it. But they are a bit dodgy, so she is not taking their word for it, and we are trying to get armed up with information. They also claim they cannot write her a letter saying that they will be asking for a suspended, rather than an actual eviction. Plus the relative has had a very bad experience with the District Judge, and is expecting him to order immediate eviction, rather than Suspended, no matter what the HA says. Especially since the paperwork states that the final decision is down to the Judge, even IF the HA want a suspended.

 

The details are as follows, so wondering if any of these are an "out" to stop the Proceedings, or guarantee a suspended, and not eviction is granted.

 

The Arrears are around £750 now (thats including £100 court fee for the eviction hearing)

 

The Court date is early July, so by then the arrears will be down to about £400-£500

 

Included in the court bundle is a Signed "Witness Statement/Statement of Truth" of money paid, except they are anything but!! The figures signed are completely wrong, and don't even match a screen print out acquired from the HA today - the sums simply do not add up, are missing payments, and for example have 2 payments being made on the same day, when they were not. The witness statement also fails to take into account the housing benefit the relative is paid (housing benefit is only partially covered - Relly pays £28 a week on top, £18 contribution to weekly rent, and £10 towards Arrears., and has done for some time.

 

The residents of the property:

Mother - who is currently on ESA, due to massive heart attack, various problems related to that, a possible operation soon, again due to the heart attack, Blood Pressure problems, mobility issues, COPD and a brand new diagnosis of Diabetes to go with the set. A claim for DLA is also going through at the moment.

Stepfather, not working, and not on any benefits.

Brother 1 - a Student at a local university

Brother 2 - Unemployed on JSA.

 

The Court Paperwork is claiming that the Mother is on an "Assured Tenancy Agreement" But she has never signed a contract with the Housing Association who only took over the Council Social Housing Stock a couple of years ago, and she has been a Tenant of the Council since around 1977/1978 - so surely she would be a Secured Tenant with more rights

 

The contact at the Housing Association has told her he can have her thrown out in 28 days if he feels like it, and that he is able to evict HA Tenants for only 1 week's arrears (generally around £70) He also told us that a fraudulent Witness Statement, was "not an issue" and "unimportant"

 

Also, if the fears regarding the particular judge were realised and he did grant an immediate eviction, can that decision be Appealed, and would it be heard with a different Judge?

 

I have read that some sort of potential landmark judgement was granted at the end of last year, when a Council attempted to evict a tenant, and she defended, and won under the human rights act.

 

Any help and advice would be very gratefully received.

 

Incidentely, she has been waiting since last July/August for the HA to repair the extreme damp problems with the kitchen, walls are black, mould is growing, and the plaster is cracked and falling off, the sloped ceiling on the top floor is also falling apart, just bare wood is showing now, in a huge hole. Damp and Mould are not exactly helpful conditions for respiratory illnesses such as COPD, and the HA are aware of her medical issues, and have been for some time.

 

If somebody attending a meeting with the HA rep, accidently recorded audio of the whole meeting on his phone, during which the HA rep refuses to provide written confirmation that he is applying for a Suspended Possession, but was clearly heard to say, several times that he was indeed applying for a Suspended Possession, would such a recording, were it to exist be of any use? Its amazing the accidents one could in theory make with a telephone with full audio recording abilities, when its stuck in a bag on a desk, if such a thing happened.

[MARTIN3030]

If she has never signed anything following the transfer of stock-how can they even have a course of action ?

I think a full Subject access request should be done immediately.

It is not a foregone conclusion that the same Judge will lead the hearing-a typical County Court can have half a dozen District Judges and a few Deputies.

I will flag this up for more help.

[caledfwlch]

If she has never signed anything following the transfer of stock-how can they even have a course of action ?

I think a full Subject access request should be done immediately.

It is not a foregone conclusion that the same Judge will lead the hearing-a typical County Court can have half a dozen District Judges and a few Deputies.

I will flag this up for more help.

 

Thank you

 

We are a smallish town in rural Wales, so I am not sure how many Judges and Deputies we have - but the HA rep said he is currently organising and sending to the court 15-20 of these hearings every week, and he said that this particular Judge is dealing with almost all of them.

 

I have created a thread in the Legal Issues subforum, regarding why there are genuine and serious concerns regarding this particular Judge, and requesting info on how to possibly ensure that it is not he, who sits in Judgement on the day.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?305181-Eviction-Hearing-Can-the-judge-be-switched-if-Defendant-believes-him-to-be-biased&p=3405516#post3405516

[xoAmyox]

What paperwork has been received by your relative, and do they refer to any section of any legal acts, the housing act etc?

 

What is the total monthly rent?

 

You should not include court costs/fees in any arrears as they are totally separate issues.

 

Can you be more specific about when you relative moved into the property please?

[caledfwlch]

What paperwork has been received by your relative, and do they refer to any section of any legal acts, the housing act etc?

 

What is the total monthly rent?

 

You should not include court costs/fees in any arrears as they are totally separate issues.

 

Can you be more specific about when you relative moved into the property please?

 

Approx total monthly rent - £70 - Housing Benefit pays around £52, mother contributes £18.

 

I don't have access to the paperwork at the moment, but its a small bundle that has been sent by the Court - It states that it is for a "Possession" Hearing, the date it is to be held, and the Witness Statement, by an employee of the Housing Association. The rest is just Info sheets in English and Welsh, about what happens at hearings, etc.

 

The specific property in question was moved into in 1993 - but the Mother has lived in Social Housing, in the same Local Authority area continuously with no break since around 1977.

 

The LA's Tenants were given a vote on transferring the stock to a HA, the result of which was announced in November 208, so the Housing Association itself took over the Social Housing Stock in early 2009.

[xoAmyox]

Sorry, is that rent monthly, or weekly? You refer to weekly amounts in the first post.

[caledfwlch]

Sorry, is that rent monthly, or weekly? You refer to weekly amounts in the first post.

 

Sorry its approx £70 a week, so about £280 per month.

 

Arrears are around the £700 mark.

 

Weekly Rent - Housing Benefit pays £52, Mother contributes £18. So monthly thats £208 in Housing Benefit, £72 contribution from Mother, and she pays an extra £10 per week/£40 per month towards the Arrears.

 

And she makes her Rental Contribution, and the £10 arrears repayment via online banking every Week.

[xoAmyox]

How are you calculating the arrears?

 

With no written agreement then rent is payable in arrears (not in advance) by default, and therefore May's rent wouldn't be due till the end of May for example, assuming monthly rent. Therefore, less may be owed that originally thought.

 

If on the day the notice of intention to proceed to court was served, AND on the day of court more than 8 weeks (if rent is payable weekly) or 2 months (if rent is payable monthly) rent is owed, then the court must make a possession order.

 

It is important that the term owed is applied correctly, rent is owed once it is even one day late. So a monthly tenant will owe 2 months rent the day after a second payment is missed. For a weekly tenancy, 8 weeks owed is the day after the 8th rent payment is missed.

 

It appears, that should the re-payments towards the arrears be kept up until the hearing that no mandatory possession order will be granted. However, the HA may also have applied for possession on discretionary grounds in the Housing Act, and this is ultimately the opinion of the judge. It is unusual for a discretionary order to be made, as judges are wary of removing people from their homes, especially those who may be vulnerable.

[raydetinu]

Speak to SHELTER straight away they have legal eagles to help and will attend court to keep you from eviction if they can.

the yare used to dealing with HA's

[caledfwlch]

How are you calculating the arrears?

 

With no written agreement then rent is payable in arrears (not in advance) by default, and therefore May's rent wouldn't be due till the end of May for example, assuming monthly rent. Therefore, less may be owed that originally thought.

 

If on the day the notice of intention to proceed to court was served, AND on the day of court more than 8 weeks (if rent is payable weekly) or 2 months (if rent is payable monthly) rent is owed, then the court must make a possession order.

 

It is important that the term owed is applied correctly, rent is owed once it is even one day late. So a monthly tenant will owe 2 months rent the day after a second payment is missed. For a weekly tenancy, 8 weeks owed is the day after the 8th rent payment is missed.

 

It appears, that should the re-payments towards the arrears be kept up until the hearing that no mandatory possession order will be granted. However, the HA may also have applied for possession on discretionary grounds in the Housing Act, and this is ultimately the opinion of the judge. It is unusual for a discretionary order to be made, as judges are wary of removing people from their homes, especially those who may be vulnerable.

 

Is their no protection for people paying the arrears, keeping to their agreement who are on disability benefits?

 

I thought a tenancy this old would have more protections than this. The problem is, this Judge if it is him will NOT be wary of evicting vulnerable people. As a Landlord, he has a couple of times presided over the eviction cases of tenants of his properties he is evicting.....

 

Given that she is on ESA, would they have to rehouse her immediately? Its not going to be "her fault" since though she is in arrears she is paying them back, to a schedule offered and agreed by the Housing Association, and has kept to it.

 

One of our worries is that maybe they are actually going for full possession, because the house needs serious work, and due to how serious the damage is, and how long they have ignored requests to fix it, they are likely at risk of prosecution under environmental health right now, so are hoping to get rid of her before anything like that happens. We are talking about kitchen walls literally black with severe damp, and the kitchen falling apart due to it, and white powder falling off the walls - not exactly good in a food preparation area.

[xoAmyox]

There is no protection for those more than 8 weeks/2 months in arrears. You say about other judgements by the same judge, when cases like this come up, the judge has NO choice but to order possession when arrears are above the 8 weeks/2 months mark.

 

Should the judge order possession this still does not guarantee eviction. The HA would still have to enforce the order by applying for bailiffs to evict, or they may hold off on this providing the arrears are still paid back appropriately. This is an arrangement you must make with them directly.

 

Should eviction take place, then unfortunately it will be seen as intentional homelessness, and the council are unlikely to have any duty to re-house.

[caledfwlch]

There is no protection for those more than 8 weeks/2 months in arrears. You say about other judgements by the same judge, when cases like this come up, the judge has NO choice but to order possession when arrears are above the 8 weeks/2 months mark.

 

Should the judge order possession this still does not guarantee eviction. The HA would still have to enforce the order by applying for bailiffs to evict, or they may hold off on this providing the arrears are still paid back appropriately. This is an arrangement you must make with them directly.

 

Should eviction take place, then unfortunately it will be seen as intentional homelessness, and the council are unlikely to have any duty to re-house.

 

So if over 8 weeks, the Judge will still order immediate eviction, even if the Housing Association wants it suspended, and they have no choice in this matter?

 

If we can get figures that make sense, which is another reason I think she needs to speak to Shelter, then minus the £100 court fee, which you say cannot count towards the arrears calculations, then she should be able to get just under the 2 months/8 weeks figure, she will be paying more to do that.

 

When is the Judge handling the case announced? If its not him, then half the worries are over, thats the main area of concern, as even if brought under the 2 months, this guy is liable to order eviction anyway, he is someone who delights in torturing defendents.

 

One case, the Mackenzie Friend attending was refused permission to defend the defendant because

 

"well Mr D, you can't have your mackenzie speak as these people have worked long and hard to gain the right of [court] audience" (in reference to the opposing sides solicitor)

 

I will use any means I can, even if necessary through "unusual channels" to ensure she does not again sit in front of that nasty piece of vermin, as it will likely kill her, with her current heart failure.

[padja]

Right if this is a first hearing in front of a Judge he will order a suspended notice seeking position,(this is standard as they allow the tenant chance to clear the debt) also if she is paying down arrears thsi will go in her favour, next although she is waiting for repair this is no defence for not paying rent. she has a secure tenancy and wouldn't have signed anything when council moved management to housing association. If you are worried CAB or Shelter will be able to get someone along to represent her (I used to do it as an advocate for charity) speak to CAB and they will arrange to speak to HA and normally what happens in court is all sorted out beforehand, i.e they say they are seeking possession but are willing to suspend it as long as defendant carries on paying arrears. Just one thing if your relative can pay off the arrears bfore hearing then hearing is stopped. and she will need to keep rent account up to date for 6 months, to prevent a repeat, but if she cant pay it off then dont worry too much it will be suspended, in my experience judges have never evicted at a first hearing (or a 2nd to be honest) but that is just my experience

[raydetinu]

As said above PLEASE speak to shelter asap, they contact HA in first instance and be with you in court if necessary.

[caledfwlch]

As said above PLEASE speak to shelter asap, they contact HA in first instance and be with you in court if necessary.

 

Contacted them today, but the guy dealing with our county was off, so I will be ringing them again in the morning.

 

Somebody fully versed in things will be vital.

[Ed999]

This is an assured tenancy, because Housing Associations always grant that type of tenancy.

 

The 1988 Housing Act allows a section 8 possession for this type of tenancy, but not a section 21 possession. Details of the section 8 possession grounds are explained at -

 

Shorthold Tenancy - posession, eviction and notice

 

 

There are three grounds on which the court can potentially order eviction for rent arrears -

 

Ground 8: That the rent is more than two months (or eight weeks, if payable weekly) in arrears, both when the landlord gave the section 8 notice and at the date of the court hearing.

 

Ground 10: That some rent was in arrears, both when the landlord gave the section 8 notice and when the court proceedings were begun.

 

Ground 11: That the tenant has persistently delayed paying rent.

 

So even if part or all of the arrears are paid off before the hearing, the court still has a discretion to evict you under ground 11.

 

 

A discretionary ground for possession is one that is not mandatory: the court does not have to order possession in such a case, but might do so in a particularly bad case, such as if the tenant has a particularly bad record of late payment.

[caledfwlch]

This is an assured tenancy, because Housing Associations always grant that type of tenancy.

 

The 1988 Housing Act allows a section 8 possession for this type of tenancy, but not a section 21 possession. Details of the section 8 possession grounds are explained at -

 

Shorthold Tenancy - posession, eviction and notice

 

 

There are three grounds on which the court can potentially order eviction for rent arrears -

 

Ground 8: That the rent is more than two months (or eight weeks, if payable weekly) in arrears, both when the landlord gave the section 8 notice and at the date of the court hearing.

 

Ground 10: That some rent was in arrears, both when the landlord gave the section 8 notice and when the court proceedings were begun.

 

Ground 11: That the tenant has persistently delayed paying rent.

 

So even if part or all of the arrears are paid off before the hearing, the court still has a discretion to evict you under ground 11.

 

 

A discretionary ground for possession is one that is not mandatory: the court does not have to order possession in such a case, but might do so in a particularly bad case, such as if the tenant has a particularly bad record of late payment.

 

Just so I understand all the angles...

 

Exactly how is my mother on an assured shorthold tenancy, and not a secured one?

 

The Housing Association came into existence in 2009, she has been a tenant of the same Local Authority since approx 1977 and has never signed a contract with the Housing Association, nor has a copy of an AST ever been sent to her, nor information stating this was the situation.

 

I was not aware a contract could be altered or entered into without both parties consent, in these things?

 

I was kind of under the impression that people who have been council tenants for over 33 years have rather more rights than someone with an AST, rights that cannot be altered unless evicted, and then offered a new home.

[Ed999]

Exactly how is my mother on an assured shorthold tenancy, and not a secured one?

 

The Housing Association came into existence in 2009, she has been a tenant of the same Local Authority since approx 1977 and has never signed a contract with the Housing Association, nor has a copy of an AST ever been sent to her, nor information stating this was the situation.

 

An assured tenancy is NOT the same type of tenancy as an assured shorthold.

 

However, if I understand you correctly, you are suggesting that your parents are actually secure tenants under the Rent Act 1977.

 

That should have been the first thing you disclosed, not been thrown in as an afterthought.

 

My recollection - which might be incorrect - is that the section 8 grounds contained now in the Housing Act 1988 were formerly contained in the Rent Act 1977, and that the change made by the 1988 Act was only the addition of the section 21 procedure.

 

Even under the Rent Acts, non-payment of rent was a ground for eviction. The discretionary grounds under the 1977 Act will apply, and in my opinion will have the same result as grounds 8, 10 and 11 under the 1988 Act.

[caledfwlch]

The Court Hearing for the Suspended Possession was this morning.

 

The District Judge annulled/cancelled the claim, or whatever the correct legal term is :wink:

 

Firstly, the Housing Association Manager acting as their Representative was unable to provide proof that a Notice Seeking Possession had been served, never mind correctly formatted. the Judge did not take it terribly well when the Manager snapped at him "well, we MUST have sent one"

 

He then pulled out a list of dates where he claims the arrears repayment had allegedly been breached, by missed payments.

 

The Manager did not look very happy when the relative and her Shelter Cymru advisor pulled out Post Office Receipts showing the payments indeed being made on those dates.

 

He got very evasive and silent when the Shelter advisor pointed out the particulars of claim, where in black and white, the HA claim to have sent a BAILIFF to the property, despite not having a court judgement.

 

He looked especially displeased when the Judge turned to him and said "I thought you were supposed to be a Professional, Sir! looks like I was wrong!"

 

As I said in other posts, all the figures and witness statements provided by the HA are complete works of fantasy, and he looked especially silly claiming the arrears repayment plan had been breached, when it provably had not. And I am very tempted into looking at how to get that manager prosecuted or sacked for lying in and before court.

 

He is certainly going to be answering some uncomfortable questions from his bosses I should think - such gross incompetence, that he cannot even provide accurate figures.

 

And as the action has been annulled, the relative is not responsible for the court/admin fee's, the HA is going to have to shoulder that themselves!

 

The Shelter Advisor is now going to work with the relative on the problems with the house, the severe damp that makes the kitchen unusable, which the HA has known about for 2 years, and still not yet acted upon. She is also talking about going to court for compensation regarding it

 

Is it correct that it is now illegal for a Council/ex council moved to HA home to not have Central Heating?

 

It has been a very good day!

[Ell-enn]

Excellent news - glad you got a switched on judge

[padja]

Well done I didnt want to build up false hope but when I went to court defending people I found most LHA/HA were totally unprepared and had very little evidence, if you looked at court list you would probably find they were doing about 8 evictions that day one after the other, and normally rely on the other person not turning up. In addition to what shelter are doing I would contact the councillor/councillors (if you have more than 1) and tell them all they are better placed to tackle HA's incompetence and get action taken.

[Ed999]

Incidentely, she has been waiting since last July/August for the HA to repair the extreme damp problems with the kitchen, walls are black, mould is growing, and the plaster is cracked and falling off, the sloped ceiling on the top floor is also falling apart, just bare wood is showing now, in a huge hole. Damp and Mould are not exactly helpful conditions for respiratory illnesses such as COPD, and the HA are aware of her medical issues, and have been for some time.

 

 

In a case of serious disrepair, contact the local District or Borough Council. They have public health powers, and can help you. In a suitable case they will carry out the necessary repairs, then recover the cost of those repairs from the landlord.

 

If a Local Authority finds a category 1 hazard (the more serious type of hazard) in a property, they must take some form of action. If they find a category 2 hazard, they may take action.

 

The available powers are:

 

Category 1 Hazards

• Serve an improvement notice under section 11 Housing Act 2004

• Issue a prohibition order under section 20 Housing Act 2004

• Serve a hazard awareness notice under section 28 Housing Act 2004

• Commence emergency remedial action under section 40 Housing Act 2004

• Issue an emergency prohibition order under section 43 Housing Act 2004

• In extreme cases they may issue a demolition order or slum clearance order

 

Category 2 Hazards

• Serve an improvement notice under section 12 Housing Act 2004

• Issue a prohibition order under section 21 Housing Act 2004

• Serve a hazard awareness notice under section 29 Housing Act 2004

 

Note: To be valid, a notice MUST specify the statutory section under which the power arises. For example, an improvement notice based upon a category 2 hazard arises under section 12; so if the notice is served under section 11 the error will be fatal to the notice. Most Councils, when serving improvement notices, now specify both sections in order to avoid this problem.

 

 

Damp & Mould -

 

You can contact the Environmental Health department of the Council, and ask them to inspect a property regarding mould.

 

Advice on mould:

http://tenancyanswers.ucoz.com/index/damp/0-15