Citizens Advice welcomes the opportunity to respond to the CLG’s consultation on tolerated trespassers.
The CAB service is a network of 433 independent Citizens Advice Bureaux that provide free, independent and impartial advice from more than 3,000 locations in England, Wales and Northern Ireland. Citizens Advice is a partner in the CLG funded National Homelessness Advice Service, the aim of which is to minimise housing problems and prevent homelessness occurring by providing timely and effective advice.
In 2006/7, Citizens Advice Bureaux dealt with around 70,000 non debt-related problems relating to social housing and a further 61,000 about social housing rent arrears. In other words, by far the most common social housing problem dealt with by bureaux relates to housing debt. Nearly 150 Citizens Advice Bureaux have outreach sessions in county courts, providing advice and representation in rent and mortgage possession hearings. Most tolerated trespassers will have become so as a result of a possession order being granted on the basis of rent arrears.
We welcome this consultation paper which sets out clear and realistic options which we believe will benefit both tenants and landlords by clearing up the problems caused by the creation of tolerated trespassers.
General points
Before responding on the specific proposals, we would like to make two general points.
Firstly we note that the proposed solution to this problem has been drawn from the Law Commission’s Renting Homes draft bill. The Bill provides a much needed holistic approach to reform of housing law which has widespread support across a range of stakeholders. This consultation paper has demonstrated the Bill’s value, and we would urge the Department to expedite its progress through parliament rather than rely on piecemeal implementation where problems have arisen.
Secondly we note (para 16) that one of the reasons given for the need to amend legislation to tackle the tolerated trespasser issue, is the concern that otherwise RSLs might react by increasing their use of Ground 8. The paper comments that “this would go against the Government’s policy that eviction should only be used as a last resort”. We welcome this recognition that it is not desirable that RSLs should use the mandatory Ground 8 when dealing with rent arrears. This is an issue on which Citizens Advice has long expressed concern as it is very clear from our casework that there are cases where advice intervention could have prevented tenants losing their home, had possession action not been taken on this mandatory ground.
This is a further reason for expediting the Renting Homes Bill which includes provisions which would end the use of Ground 8 by social landlords. If this Bill is not progressed then we strongly believe there is a need to bring forward other measures to end the use of Ground 8 by social landlords.
Specific points
We agree that the Law Commission’s model clause provides a good way forward. The underlying principle should be that a tenant does not lose their tenancy status and the rights therein unless they surrender the tenancy or are actually evicted. It would be helpful if the amended legislation specifically stated that the tenancy will not be determined until it has been ended by one of the four options outlined in the Law Commission’s clause. The date for possession on a court order will then just be a date after which enforcement of the possession action will be possible if the order is breached. Tenants will understand that if they breach the court order after the (usual) 28 day possession date, they will risk a warrant but still keep their tenancy rights until eviction.
In relation to existing tolerated trespassers, we consider that option b) is preferable as it is more encompassing and will not differentiate between tenants who have kept to court orders and those who have failed to do so (often for reasons beyond their control). In our view this would be a more satisfactory solution than relying on non-statutory guidance, for the reasons outlined in the paper. It is important to avoid the need for additional court action wherever possible, both because of the costs involved and because inevitably some tenants will not access advice and could therefore be disadvantaged.
We agree that provision would need to be made to protect landlords from liability for damages in these circumstances. The legislation would need to prevent retrospective associated actions being brought against landlords where they were acting within the law at that time.
We strongly believe that introductory tenants should be treated on the same basis as secure and assured tenants and that their tenancies should determine after the warrant is executed or they leave and surrender the tenancy. The aim of the reform must be to end the concept of tolerated trespassers altogether. This will achieve greater clarity and simplicity in the legislation as well as fairness.
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