Rent Arrears and Homelessness Michael Paget 26 March 2015

Three scenarios 1) Automatic possession order but what were the real reasons for the eviction? 2) Yes, there were rent arrears on the former home but they were the flatmate’s fault. 3) The flat was never affordable in the first place.

The Legal Structure The local authority is the investigator Matters of fact and weight are for the authority – Pulhofer v Hillingdon LBC [1986] 1 AC 484 The nature and extent of inquiries is for the authority to determine. Only if a reasonable authority is not satisfied will further enquiries be necessary – Bayani v Kensington & Chelsea RLBC (1990) 22 HLR 406 Causation is a matter for the authority to determine – R v Hackney LBC ex p Ajayi (1998) 30 HLR 473

Automatic Possession Order The local authority is entitled to consider the reasons for the landlord’s decision to bring (and continue) possession proceedings and must hear the tenant’s side of the story. If those reasons are because of the fault of the tenant, he or she may have become homeless intentionally – see Bratton v Croydon LBC [2002] EWCA Civ 1494.

Automatic Possession Order The local authority needs to consider the ‘operative cause’. In Houghton v Sheffield City Council [2006] EWCA Civ 1799 the local authority was wrong to find that a tenant who had reduced arrears from £1000 to £7, but was still subject to a possession order, had become homeless intentionally.

Automatic Possession Order A local authority is not always obliged to accept what is said on the face of a court order in relation to the correct figure for any arrears – see Green v Croydon LBC [2007] EWCA Civ 1367. However, it would be exceptional for a local authority to come to a different decision from the facts contained in the court order.

Automatic Possession Order Enfield LBC v Najim 4 March 2015 CA. 1 year AST. Tenant had withheld rent three times for floor tiles, garden furniture and washing machine. LL had stated wanted to return to property but did not after possession order.

Najim v Enfield LBC Intentionality finding upheld by the CA. What LL said about future intention not relevant – what was the actual cause? The fact that a ground of possession could not be satisfied with such low arrears is irrelevant. The fixed term tenancy had come to an end and was not renewed because the tenant had been withholding rent without consent.

Practice Points Where the claim and counterclaim were not just discontinued but dismissed still OK to find intentional. Often it is a commercial settlement by landlord faced with publicly funded tenant. Where causation is a matter for the authority it is entitled to conclude that rent arrears were the operative cause of the LL seeking to regain possession. The local authority is not bound, as a matter of law, to accept the court order, which only binds the parties to the court order.

Co-tenant’s fault? Viackiene v Tower Hamlets LBC [2013] EWCA Civ 1764 Joint tenants have joint and several liability Arrangement that J would pay smaller share. He lost his job, stopped paying his share and no replacement tenant was found. V refused help from LL V found intentionally homeless and upheld by CA. Refusal of LL’s help was deliberate. Practice Point - Doubt intentional if no offer from LL

Affordability and Intentionality Farah v Hillingdon LBC [2014] EWCA Civ 359 Private sector tenancy and she fell into arrears. Analysis of her income and expenditure. LA found her to be intentionally homeless but reviewing officer did not give proper reasons for saying expenditure was excessive. LA decision quashed by CA and remitted. Practice Point - Affordability is to be taken seriously – LA must say which items exaggerated and by how much.

Affordability and Intentionality Noel v Hillingdon LBC [2013] EWCA Civ 1602 After being released from prison Mr N takes on a flat with monthly shortfall of £350. So needed to get a job quick. Didn’t. Instead his partner and child moved in but did not apply for additional Housing Benefit. By time of eviction arrears were £14k. LL was entitled to consider failure to get job or apply for HB were operative causes not just taking unaffordable flat.

Michael Paget michaelp@cornerstonebarristers.com