‘Secure’ v ‘Assured’ tenancies
On transfer tenants lose our special ‘secure’ tenancy and get an ‘assured’ tenancy. Jan Luba QC summarises the meaning of a secure tenancy:
“Most tenants of local authorities enjoy security of tenure as secure tenants, protected by arguably the most generous charter of rights available in the residential sector. That security is lost on transfer. The tenants will at best be assured tenants of the purchaser. Likewise the Statutory obligation on a council to charge only a reasonable rent has no application to a purchaser.” (Large Scale Voluntary Transfer: not all honey and roses, Jan Luba QC, (2000) 4 L.& T. Rev. 6).
A recent pamphlet from Tower Hamlets Law Centre summarises the differences in law between the two tenancies.
“If the council wants to evict you, they must prove both the ground for possession (e.g. rent arrears, anti-social behaviour) AND that it would be ‘reasonable’ to evict you…. A Registered Social Landlord can seek to evict you without the court having to consider ‘reasonableness’ in 8 out of 17 grounds for possession. For example if you are more than 8 weeks in arrears of rent on the day of the court hearing, the court will have to make a possession order even if the arrears are not your fault. (Ground 8).” (Stock Transfer: Essential Reading Before You Choose, Tower Hamlets Law Centre)
Councils claim that the new landlord will write additional rights into the new assured tenancy contract which will make it the equivalent of a secure tenancy. A promise by the new landlord not to use certain powers is not the same as the statutory rights ‘secure’ tenants have in law.
Of promises written into RSL tenancy agreements the Tower Hamlets Law Centre pamphlet says:
“RSLs are likely to honour the agreements they have made. However, if an RSL wants to ignore the promises they have made in a tenancy agreement, and rely instead on the weaker rights set out in law, they may be able to do so. In a leading court case a judge found that a housing association were entitled to override the promise they had made to always give notice before issuing proceedings, because this was allowed by statute.”
The court case they refer to is North British Housing v Sheridan 2000 in which the tenant had an assured tenancy agreement which expressly stated that the Housing Association would not use certain statutory provisions.
However, the Housing Association ignored the tenancy and relied on these provisions. The Court of Appeal said the Housing Association was permitted to do this notwithstanding what the tenancy agreement said.
A survey carried out for the government found that 17 per cent of stock transfer associations admitted to using ground 8 (The Use of Possession Actions and Evictions by Social Landlords, ODPM, June 2005, section 5.4).
In addition, there is no guarantee that new tenants after transfer will be given these extra contractual rights. As the Law Centre put it:
“This may lead to two classes of tenants living side by side on the same estate.”
Over time, the tenancy rights of future generations will be eroded.
The Use of Ground 8
The most draconian measure which RSLs can use against their tenants is the notorious ‘ground 8’ – a ‘mandatory’ ground for eviction which means that the court has to order eviction even if the arrears are not the tenant’s fault. The Court of Appeal recently upheld this in North British Housing Association v Matthews 2004. The tenant in question was waiting for a decision on a backdated housing benefit claim which she eventually won – but too late to save her tenancy. The judge’s concluding remarks recommended “that the Housing Corporation expand its advice about the need for effective liaison with housing benefit departments because of the ‘potentially draconian’ impact of the Ground 8 provisions.” However, according to the Citizens Advice Bureau, “As it stands, the Housing Corporation guidance is minimal in the extreme” (Unfinished business: Housing associations’ compliance with the rent arrears pre-action protocol and use of Ground 8, May 2008)
‘Ground 8’ was introduced in the 1988 Housing Act, which defines an ‘assured’ tenancy. An unpublished survey of 116 of the largest housing associations carried out by the National Housing Federation in the year 2000, found that as many as 16 per cent of possession orders were granted on the basis of Ground 8 (‘Nine tenths of the law’, Inside Housing, 13/1/01).
At the same time evictions were rising:
“The number of evictions carried out by HA’s increased by 36 per cent between 1998 and 2000 to some 6,800.” (Stock turnover and evictions in the housing association sector, Housing Corporation, February 2002)
There are no adequate statistics published to show the use of ground 8 by RSLs in England – however in Wales, where statistics are published, the use of mandatory grounds has increased. In Wales the percentage of outright possession orders granted on mandatory grounds against assured tenants of RSLs doubled, from 13 per cent to 26 per cent of all in orders granted, between 2004/05 and 2005/06 (Social landlords possessions and evictions in Wales 2005/06, National Assembly for Wales, 2006)
As a result of criticism over rising evictions, which were adding to the homelessness problem, in October 2006 the government introduced a ‘rent arrears pre-action protocol’ to try and ensure that social landlords did everything possible to sort out arrears before starting court action. A recent report by the Citizens Advice Bureau found that while this has been very effective in bringing the total number of evictions down, there is still a huge problem with ground 8.
“Use of this ground… effectively bypasses the pre-action protocol which cannot be invoked by the court to prevent an order being granted. In contrast, the use of Ground 8 is not an option available to local authority landlords.” (Unfinished Business)
The report also found that “half of the associations using this controversial remedy were not able (or willing) to provide statistics on its use”; but of those who did, one association used ground 8 in 93% of possession cases.
The reasons they found for RSLs’ use of ground 8 are also chilling: “none of the responses referred to a previous history of court action and suspended orders as being a reason for finally resorting to Ground 8. Rather it would appear that, in given circumstances, notice is served using Ground 8 as soon as a decision to take court action is made… Advisers thought that such associations tended to use Ground 8 in situations where their motivation was clearly to get rid of the tenant, perhaps because there was a history of anti-social behaviour and it was easier to evict on rent arrears grounds… advisers also reported that a few associations used Ground 8 wherever this was a legal option regardless of the circumstances of the case… CAB evidence… suggests that some associations are particularly failing to identify where there are issues of tenant vulnerability or unresolved benefit problems” .
The report’s conclusions are damning: “It seems reasonable to assume that a housing association’s motivation for using Ground 8 is that it provides certainty that they will be able to evict a tenant in circumstances where, had a discretionary ground been used, outright possession might not have been granted…. It seems unarguable from the evidence of this report that the use of Ground 8 by housing associations is resulting in some households becoming homeless where this would not otherwise have been the case.”
Oct 09, 2011 @ 11:48:34
I am a SBC tenant and I do not trust them as far as I can throw them!! I truly hope that tenants can see through their lies and vote NO
Oct 10, 2011 @ 09:57:57
SBC promises will be worth nothing in a court of law. The new tenancy agreement will take precedence. Privatising Council Homes will give draconian powere to HA’s with no democratic controls. The figures quoted by the council, are at best ‘Creative Accounting’. Flogging the family silver, at a giveaway price, for a supposed short term gain. The only real winner will be the Chief Executive of an HA.Save your Home say NO NO NO
Nov 11, 2011 @ 07:49:22
If you can’t trust the Council, Why vote NO, – why not vote YES & start to trust a Board, made up of four of your own members??
Nov 11, 2011 @ 11:47:41
Sadly Ruth we can hardly trust 4 tenants who are going along with the Council, can we? You behaved disgracefully by appearing on the DVD as an ordinary tenant ‘asking questions’. You were not identified as a member of the Shadow Board were you? Why not?
Tenants on a HA Board are not accountable to tenants. They have a legal responsibility to the HA not to the tenants.
We are going to vote NO because ‘the Council’ is not just the Tory Group which runs it at the moment, nor the Senior officers who are doing their dirty work. We want to hang onto our ‘secure tenancy’ which is protected by parliamentary statute. Moreover we have a responsibility to future tenants. HA’s have not been able to produce enough homes to tackle the housing crisis. We need more Council housing not less.
Finally, HA’s have to borrow money from commercial sources. In the current precarious economic climate that is one other reason not to take the risk of ‘transfer’.
Nov 25, 2011 @ 13:20:56
Look at the history of HA’s and their long term plans for mergers and acquistions, some want to be quoted on the Stock Exchange!
On transfer SBC will have NO control, niether will tenants. SBC is far from perfect but better the devil you know.
To jump out of the frying pan into the fire would be suicidal for tenants and a gift for bankers and top executives.
I have now had three door knockings from council staff! I have had to explian to them that when the HA sells out to a bigger association their jobs will be at risk with the usual excuse of ‘Economies of Scale’, the whole shambles being run from a Head Office in Liverpool, Nuneaton or whereever. Snouts in trough comes to mind.
A massive and disgraceful con. Vote NO in the ballot and consider your Local Councillor Election vote very carefully.
Oct 25, 2011 @ 10:39:02
Council Tenants need to understand, Swindon Borough Council aren’t proposing this transfer for the good of the tenants.
Instead – in my opinion, a lot of money is likely to be made, should the Housing Association win , they will inevitably sell on, and make a substantial profit.
I know we will be assured this wont happen, but I for one would prefer a ‘secured’ tenancy over an ‘assured’ one.
SBC isn’t perfect, and I know we have all been waiting in vain for improvements to our homes.
I for one would prefer to delay said improvements for a while longer, rather than get a new kitchen for example in a couple of years with the new Landlords, but have the prospect of exorbitant rents within 5 years (or sooner if the HA sells on).
Remember, all the proposed HA promises would be obsolete should they sell up anyway.
‘Better the devil you know’ in my opinion, at least SBC can’t change our tenancies drastically, due to our current contracts with them.
.
Oct 25, 2011 @ 11:03:34
When politicians and bankers start making promises I become very uneasy. SBC is hellbent on selling the towns assetts. The beneficiaries will be HA board members, SBC consultants [DWP] and the banks arranging huge loans. The tenants are just a nuisance.
Oct 26, 2011 @ 11:52:59
I am really concerned about this proposal. Who to trust???? If we are to believe all the hype we heard before the election ths country would be in a brilliant state by now. All promises no action or at best – lies and U turns. Will it be the same with SBC and HA. Will I be safe in my 3 bedroomed house although I live alone. Will I be forced to move to a 1 bedroomed flat somewhere I don’t want to be?????? It terrifies me.
Oct 26, 2011 @ 14:30:23
If you have the time and the facilities look at what other HA’s have been up to!
Acqisitions and Mergers, over borrowing from banks, setting up business On the Side9 Very definetly and legally ‘For Profit’
According to The National Audit Office Privatisation costs £1300 MORE to improve homes after transfer than it would cost under council ownership.
Housing Associations are very keen to be ‘De-Regulated, thus allowing a change in Not for Profit Status.HA’s are property driven, managing ‘Stock’ as an assett to maximise returns. Tenants are the fooder that feeds the machine and keeps Fat Cat directors on six figure salaries. Make sure you and your neighbours say NO
Nov 11, 2011 @ 08:02:58
Everyone is concerned about the Yes vote – should we get one, you all seem to forget its the Government changing the way Councils are funded which have broughtt us to this, your all saying its better to stay with the one you know – may be – but you don’t know how or what the council will be like under the Governments new way of funding. First we have £145 million to pay to government by 28th March, then having borrowed largely to make that payment we have to borrow even more to run our Housing department. The council will look at raising all our charges to bring in money for them. Improvements to houses will be put on hold, repairs cut back so we do more repairs ourselves.
Nov 11, 2011 @ 11:53:54
Ruth we haven’t ‘forgot’ that the changes are being introduced by the government. The question is why has the group which runs the Council and is in the same political party as the government not challenging the level of debt? The reason is that they want to flog off our houses, and to use the £40 million receipt to plug the hole in their budget. Ultimately this money comes from our rent. They are in effect nicking it to spend on things other than housing.
Nov 24, 2011 @ 05:29:56
Since SBC started this so called unbiased presentation of situation ,so that tenants could make an informed choice ! Why ? if they want an unbiased view to go across to the tenants, are they going hell for leather to convince people to vote for transfer ? ie phone calls texts door to door canvassing even using a private property which just happens to be the home of the housing comunications officer in a photograph in the last issue of H M ..how decietful can you get? People tell me that they might vote for transfer ,cos they’ve been told that under a housing ass they’ll get a new kitchen ! Where did that come from ?? Ask yourselves this , if this was a campaign to sell you double glazing or central heating , would you trust these people ????
Nov 24, 2011 @ 10:58:12
Totally Agree
My perception is that there has been more manipulation of information given out by the Council on this issue than is normally found on the “X Factor” on Saturday night TV.
I too have spoken to people who think that if they vote YES they will get a new bathroom or kitchen. If they look further I think they will find it says “If Needed or Required”. Guess who will be making the decisions about whether your kitchen or bathroom either requires or needs replacing????? Not the Tenant I can assure you.
Nov 24, 2011 @ 12:28:25
@ruth
you sound like russell holland with the £145 million sound bite.
Their is another council with only 5000 houses who will have same level of debt as us , but they are staying under the council control . ???
Swindon Housing Association will be set up with debt and get in more debt at a far higher intrest rate to pay back than Swindon staying in council control.
someone who is supposed to repersent the tenants of swindon , you only post it seems pro housing association , why ??
as a advisor to the tenants you should be telling people the pros and cons
like
H/A will be more at risk money markets ,FACT
H/A are more expensive to live in rent higher FACT ,
Alot of H/A get took over by bigger H/A and different terms FACT,
H/A is only assured tenancy, council is secured FACT
H/A is only offering fixed rent increases in till 2017 what about the future
or dont that count,
H/A what about service charges on flats, masonettes, etc higher FACT
H/A top bosses earn around £350k , who pays for that tenants FACT
So ruth what else would you say is the cons about going to H/A
as a rep for tenants you can add some more as you are a speaker for the tenants ???? i think
Nov 25, 2011 @ 12:45:11
I just got the latest crap sheet through the door from DWA [very independent, don't y'know ?]
Quite frankly I find this entire situation farcical and indeed sickening there is no wonder this place is a standing joke !
We have a council and all it’s merry men [and women] basically telling us to get rid of our council housing ! And the frightening question is how many are gonna be dumb enough to fall for it ! And vote for transfer ??
It’s dead simple really , if you vote to get rid of council housing you are not only doing yourself a disservice . You are also depriving your kids and grandkids of affordable [rent wise] social housing !
So what happens if no-one sees this and votes for transfer? Will the homeless grandkids sit around the campfire saying ” Ooooh Grandma and Grandad “Should have gone to Specsavers” then we’d have a house “?
I hope the vote goes against transfer,! But now’s the time to encourage people to vote to stay with the council ! Not sit back and hope for the best !!
Nov 26, 2011 @ 08:41:33
Oh well another day is here. And the housing hasn’t gone yet.
But !…..how long before we look around and see , the increase in yuppies moving in ,buying up the houses which were built for working people -when we still mattered- in they will come using mummy and daddies money to start them on their climb up the yuppie property ladder ,altering this ,converting that and generally taking over the estates while they look down on “council scum” like us !……..Think it won’t happen ???? …….Look at “Docklands ” before i left they’d already started to move yuppies into the estates where once no self respecting rat would set foot ……But suddenly they had money to tart the places up ! [well you have to for mummy and daddies little yuppies don't you?]
Result ?? Yuppie Heaven
Did it bring down the size of the housing waiting lists ? ha ha ha !
What about us? the people who once manned the industries that once existed?
We my friends are of no further use. So make way for the yuppies and campaign for voluntary euthanasia [it's better than being homeless]
VOTE NO TO TRANSFER ! KEEP YOUR COUNCIL TENANCY !!