OK I'm going to have a go at this one now. This is mostly keeping the 'proportionate means of achieving a legitimate aim' rule in mind, obviously this is quite a legalistic perspective but also a fairly rational one in that it gives landlords (or service providers, whoever) some leeway where they can justify it, but only if they can justify it. So if they can show, with evidence, that the things you have set out would cause them to suffer financial loss if they didn't have blanket 'no DSS' bans, and there was no other way around it, they would probably succeed in showing that they weren't in breach of discrimination legislation.
Millennie Al wrote: ↑
Wed Jul 15, 2020 3:28 am
The law makes some attempt to help by making it rather difficult to evict tenants, but only helps landlords who have rich tenants. If you have a rich tenant who fails to pay the rent or damages your property, you can sue them and recover your losses. However if you have a poor tenant suing them is just throwing away more money because they have no way to pay you when you win. In fact, it's even worse than that because poor people have fewer resources in general, so are harder to find. A wealthy person can have a car, job, and bank accounts which can be used to track them down, but a poor person might be very difficult to find. Consequently, landlords take a bigger risk with poor tenants than rich ones.
In terms of eviction, currently in E&W as you know landlords can evict people using the procedure under section 21 Housing Act 1988
. There are a number of things the LL will have to have complied with to be able to use the procedure, mostly relating to the protection of tenants (e.g. deposit protection, gas safety certificate - s21 has effectively been used as a tool to increase compliance with these requirements), however there is no need to prove fault, no need to prove that it's reasonable to evict the tenant. The tenancy has to be at the end of its term and the LL has to give two months' notice (ignoring legislative changes in response to covid). If a LL chooses to renew a tenancy for longer terms like year on year that's on them, it's perfectly possible to have a tenancy that runs month to month.
If a tenant is in arrears the LL can use both section 21 and a claim for the arrears (either as ground for eviction or as a separate money/debt claim) - I agree that poor tenants aren't often worth suing but the point is the option is open to bring a claim for money under s21 as well to increase your prospects of getting *something* back. If the tenant is in at least 2 months of arrears (if rent is paid monthly), then the LL can use Ground 8
- which means if the ground is met the court has absolutely no discretion but to order eviction (unless there is say, a defence under the Equality Act or a viable disrepair counterclaim which could give rise to compensation that would offset the arrears).
There are a few counterarguments to this:
1) There are delays in the courts and it takes a long time for claims to be dealt with. I'm not going to argue with that; the court system is in an absolute shambles in part due to court closure, staff shortages etc and this is affecting everyone. This is a policy issue and I cannot see a rational justification for saying 'I am not going to let properties to *any* person claiming HB because the government has failed to ensure the court system functions correctly'. There is a constant tension between individuals, executive bodies such as local authorities, the court system etc and the national government in litigation, which needs to be tackled on a higher level but well that isn't happening any time soon so it's tough luck for everyone in the meantime I suppose.
2) Part of the delays (but by no means all) *may* be down to landlords themselves not knowing the system. There was a weird consultation in 2018 about the possibility of creating a separate 'housing court', away from the normal county court system, which seemed to focus primarily on landlords' perceptions of the efficiency of the current system in evicting people. The call for evidence is here (PDF)
. It may well be that e.g. some LLs don't know that after they get an order for possession, they then have to get a warrant to evict. The consultation doesn't seem to have got anywhere since then though, funnily enough.
So, there are issues with 'the system', one way or the other, but that is in no small part down to 'the system' not working as it should. You might disagree that that's a poor reason to justify a blanket ban, and to some extent you would have a point (e.g. the courts often take into account local authorities' 'limited resources' when deciding on issues relating to homelessness/council housing), but again this is about a *blanket* ban rather than just taking extra precautions - e.g. getting guarantors, keeping tenancy terms short if you think that would help, etc. You can look at the tenant's history - have they been on HB for a while and managed to maintain payments? If so that reduces the risk. If they are newly on HB then you look at things like guarantors and so on. I'm not sure what a court would say about insisting on a certain number of months' rent in advance in these situations - this would almost certainly exclude people newly on HB from being able to rent as they probably wouldn't have the money anyway, but if it can be shown that there is a risk in relation to that individual tenant
, perhaps a LL could argue that it is justified - I don't know. I don't really like that idea personally but that's because I'm a big tenant loving softy.
A poor person on benefits relies on their benefits to pay the rent, but there are many ways that things go wrong, leaving them (through no fault of their own) unable to pay the rent. Of course this burden falls on the landlord who has also done nothing wrong, but ends up providing accommodation free or at reduced cost. Even if the tenant is evicted, the arrears may never get paid. At least the current ultra low interest rates mean that if the tenant is not evicted, the benefits eventually turn up and the arrears are cleared the landlord's loss is quite small.
It pains me to say this but a lot of benefit issues are, at least initially, down to claimant error (I am not sure of any stats, sorry not going to try and look anything up now but I'm just speaking anecdotally). The problem is that relatively small errors have a snowballing effect that is disproportionate. E.g. before Universal Credit, a common reason for people's HB being stopped was because they stopped being on a 'passporting benefit (eg. income based Jobseekers Allowance, Employment and Support Allowance etc) and either assuming that meant they could no longer claim HB - and therefore struggling financially - or not realising that the stopping of that benefit meant that their HB would be cut off unless they provided further evidence of their income. But again this is a situation where you can look at the tenant's history, and assess the risk on a case by case basis. If the error is down to the authority that administers the benefit, as you point out it can often be recovered. So can this risk justify a blanket ban on all HB claimants? Would it be justifiable to say, ban all working women of childbearing age in case they got pregnant and were unlawfully sacked by their employer?
There is another serious injustice which makes a tenant on benefits a risky prospect - if it turns out that they were not entitled to benefits, the money already paid in rent might be reclaimed from the landlord. Unless the landlord was in some way consipring with the tenant, this is obviously very wrong - if the state with all its powers cannot correctly determine whether a particular tenant is eligible, how can their landlord - a private citizen or company - be expected to know? In many ways this is the worst case scenario as in this case it is even more useless than ever suing the tenant for the money as they are very unlikely to be able to pay anything - especially if they get convicted of benefit fraud and fined or imprisoned. I had thought that this scenario had been eliminated, but reading https://www.thetenantsvoice.co.uk/your_ ... s-tenants/
The worst case scenario is when a tenant has fraudulently claimed housing benefits. Local councils have a mechanism where they can require the landlord to return the money if their tenant was never eligible to receive the benefits in the first place.
Even if that was accurate, is the possibility of a tenant committing benefit fraud, and the council then seeking to recover it from the landlord, a justification for a *blanket ban*? Really? Are landlords at more financial risk from tenants committing HB fraud than any other possible risk that might arise when renting out a property to someone?
But again - focusing on HB (I'm not a benefit specialist so am looking this up now) - Section 75(3)(a) and (b) of the Social Security Administration Act 1992
(3) An amount recoverable under this section shall be recoverable–
(a) except in such circumstances as may be prescribed, from the person to whom it was paid; and
(b) where regulations so provide, from such other person (as well as, or instead of, the person to whom it was paid) as may be prescribed
(The page on legislation.gov.uk is out of date so the link doesn't actually show that, I've had to look up the up to date version)
The prescribed circumstances specifically in relation to landlords (there are other circumstances which could apply to landlords but this post is going to go on forever) are in Reg 101 Housing Benefit Regulations 2006
(again legislation.gov.uk is a bit out of date):
(1) For the purposes of section 75(3)(a) of the Administration Act (prescribed circumstances in which an amount recoverable shall not be recovered from the person to whom it was paid), the prescribed circumstance is—
(a) housing benefit has been paid in accordance with regulation 95 (circumstances in which payment is to be made to the landlord) or regulation 96 (circumstances in which payment may be made to a landlord);
(b) the landlord has notified the relevant authority or the Secretary of State in writing that he suspects that there has been an overpayment;
(bb) the relevant authority is satisfied that the overpayment did not occur as a result of any change of dwelling occupied by the claimant as his home;
(c) it appears to the relevant authority that, on the assumption that there has been an overpayment—
(i) there are grounds for instituting proceedings against any person for an offence under section 111A or 112(1) of the Administration Act3 (dishonest or false representations for obtaining benefit); or
(ii) there has been a deliberate failure to report a relevant change of circumstances contrary to the requirement of regulation 88 (duty to notify a change of circumstances) and the overpayment occurred as a result of that deliberate failure; and
(d) the relevant authority is satisfied that the landlord—
(i) has not colluded with the claimant so as to cause the overpayment;
(ii) has not acted, or neglected to act, in such a way so as to contribute to the period, or the amount, of the overpayment.
It does seem there is an issue with benefits being recovered from landlords as 'easy targets' but again this relates to a specific set of circumstances - and while I wouldn't necessarily expect landlords to be fully up to date with all the ins and outs of the benefits system, to be honest I think it's reasonable for landlords to be alert to the need to get up to date legal advice on various landlord-related things from time to time before
there is an issue, rather than just winging it and then having to firefight through costly litigation. Obviously that doesn't often happen but I've got limited sympathy with that tbh.
What should be happening is a socialised housing: the cost of housing poor people is subsidised by the fair taxes raised appropriately across the whole population. Instead the state dodges some of this responsibilty by pushing some of the costs onto landlords, which is unfair as some are wealthy with a large number of properties, but many are just ordinary citizens with one or two (and even people who need to move for some reason and cannot sell - e.g. negative equity, temporary job location - who are themselves tenants elsewhere).
Definitely don't disagree that there should be more social housing. Although social landlords evict people in rent arrears on a pretty frequent basis too, in part I believe because these 'debts' affect their ability to raise funds, which is a structural issue that needs to be addressed.
So essentially...while I don't disagree with you that there is a risk to landlords, 1) there is always a risk in relying on someone to pay you money on a regular basis, 2) that risk can be mitigated both before and during the course of a tenancy, 3) if a landlord (or letting agent) wants to argue that the risk in relation to benefit claimants is so high that it justifies a blanket ban on every single one of them, then let them do it, because none of them have so far and this issue has been rumbling on for quite some time now.