Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

Forum Home  →  Discussion  →  Housing costs  →  Thread

Historic Rent Arrears (Housing Costs Related) LA and HA not letting people bid on properties until debt is cleared.

DM128
forum member

The Royal British Legion

Send message

Total Posts: 5

Joined: 16 January 2017

Just looking for a bit of feed back if possible on anyone who has come up against LA and HA not letting people bid on properties if they have historic rent arrears or housing related debt.

Its fair to say that all HA and LA have a Housing Allocations Policy which states that anyone with housing debt are excluded from bidding on properties until the debt is cleared, had a payment plan in for a certain amount of time or reduced to a amount that they deem acceptable.

However lots are now using “Housing Related Costs” to include any debt owed to the Council. So for example someone who got fined for leaving their bin out was excluded until they had paid the fine (that was being collected by a third party). Others include Council Tax arrears, HB Overpayments and Court Costs.

What next? Late returning a Library book and you wont be allowed to bid until you pay the £1.50 fine.

Has anyone had any success in helping people bid on properties whilst owing the LA or HA money.

Many thanks

Elliot Kent
forum member

Shelter

Send message

Total Posts: 1671

Joined: 14 July 2014

Hi,

Yes - this is something of a perennial issue. As you identify, almost everyone has a policy which excludes people for arrears/ unacceptable behaviour/ “housing related debt”. There is a tendency for these policies to grow in scope…

The point is to exclude people whose behaviour makes them unsuitable to be a tenant. That is what the statute allows. You need to read the policy in that light. Exclusion shouldn’t be used as a debt enforcement measure. There should be some rational connection between the debt and the tenant’s suitability; for example if the debt would give rise to a ground of possession.

There also needs to be the scope for exceptions to be made. That could be e.g. because the debt is very small, because of the age of the debt or the circumstances in which the debt was incurred (e.g. if the debt was incurred as a result of financial abuse by a partner).

It is usually worth checking in these cases that the application has actually been processed to the point of exclusion because there is a tendency for people to just to be told not to bother applying because of their arrears. It’s also worth asking for a review in these cases because its the best way to get some actual human input into things. Sometimes they are successful. Sometimes (in the North East anyway) they will refuse to put you on the bidding system but will make you a direct offer.

In your cases, I doubt that the authority would be able to justify exclusion on the bin fine or council tax arrears as they have nothing to do with housing. The court fees are presumably part of a possession order and I think they probably would count. The HB overpayment, I think could go either way.

DM128
forum member

The Royal British Legion

Send message

Total Posts: 5

Joined: 16 January 2017

Thank you Elliot.

Timothy Seaside
forum member

Housing services - Arun District Council

Send message

Total Posts: 266

Joined: 20 September 2018

From a moral point of view I think Elliott’s correct. But I would be more cautious about the statutory restrictions on allocations schemes.

I think the freedom for local authorities to decide on qualifying classes of people is very broad. There have been some notable failed JR challenges to schemes. And the successful ones generally rely on the authority having breached some other area of law - equality, human rights, public law, etc.

I think the bit about suitability of an applicant to be a tenant only arises in terms of priority for allocation - rather than whether the applicant is a qualifying person in the first place. And it’s worded in such wishy-washy language that it’s hard to see how you could build a concrete argument on it - “may” and “include” feature prominently.

Even if you are arguing that bin fines and Council Tax shouldn’t be counted against somebody in an allocation decision, I think there’s an argument (not one I’d agree with, but not one I’d ignore) that any debt can be seen as an indicator of a person’s attitude to paying bills when due. I always think the only reason I haven’t seen a scheme which just excludes anyone with debt is that it would be so easy to challenge, and would get really messy - imagine the local authority trying to argue that somebody had rent arrears with a private landlord when the private landlord got possession through s21 without a money judgment. Council tax debt will be confirmed with a liability order - so there’s no doubt it’s owed. Bin fines can be evidenced by speaking to Alex in Cleansing.

I really dislike the changes that happened to allocations schemes after the Localism Act. I think they’re unfair and divisive, and they are intended to miss the point completely (particularly the whole dog-whistle of local connection - why should we in sunny Littlehampton have to worry about housing the appalling shambling poor of Worthing?). The easiest way to cut housing waiting lists was not to provide more housing, but to change the rules on who could be on the list. The coalition government and parliament intended to give authorities exactly this sort of power to limit allocations.

To answer the final question, the only actual proper challenge I ever did to an allocation decision went to JR on Equality Act grounds and the LA settled the day before the hearing. Other than that, I think LAs can be quite flexible if you make a good case to them - but you probably have to rely more on humanity than law.

Stainsby
forum member

Welfare rights adviser - Plumstead Community Law Centre

Send message

Total Posts: 355

Joined: 17 June 2010

I would argue that if council tax arrears have “nothing to do with housing” as Elliot puts it, HB over-payments similarly have nothing to do with housing as they must be distinguished from rent arrears in possession proceedings (see R v LB Haringey ex p Azad Ayub QBD 13 Apriil 1992 (page 17 paragraph F) )

File Attachments

Timothy Seaside
forum member

Housing services - Arun District Council

Send message

Total Posts: 266

Joined: 20 September 2018

Stainsby - 06 July 2020 08:13 PM

I would argue that if council tax arrears have “nothing to do with housing” as Elliot puts it, HB over-payments similarly have nothing to do with housing as they must be distinguished from rent arrears in possession proceedings (see R v LB Haringey ex p Azad Ayub QBD 13 Apriil 1992 (page 17 paragraph F) )

That’s not a possession case - it seems to be a case which is mainly about recovering HBOP from a landlord in 1992. I can’t see that it has any ongoing relevance because the law has been changed since then to provide explicit powers for LAs to recover HBOPs from landlords - although the LAs I know aren’t generally comfortable with the “blameless tenant” recovery method.

If it was a possession case, it still wouldn’t have anything to do with allocations. How could there be any possession caselaw that addresses the question of how to interpret a phrase like “housing-related debt” in an allocations policy (bearing in mind that the phrase doesn’t come from the legislation)? I can’t imagine even the most inept LA trying to include CT arrears in any possession claim. Rent arrears and breach of tenancy are ground 1 - which couldn’t apply. I can’t think of anything in Schedule 2 of the Housing Act 1985 that could apply to CT debt.

Returning to the question of allocations, I think you could make a good argument in a JR or LGO complaint to say that a local authority was misinterpreting its own scheme if it included CT debt in the phrase “housing-related debt”. But I can also see the counter argument. And if an LA’s policy explicitly includes CT debt then it gets a lot harder to challenge. And overshadowing all of this is the difficulty in getting to JR in the first place.

I think Elliott’s point about getting some human input is the key. If you’re trying to argue that the LA is wrong in law then that’s a big deal, but if you’re asking them to consider your case favourably because it’s only a small amount of debt, or the children really need to get settled in school, or this could help them to avoid homelessness altogether, then everybody can feel good about getting a positive outcome.

Stainsby
forum member

Welfare rights adviser - Plumstead Community Law Centre

Send message

Total Posts: 355

Joined: 17 June 2010

I think you are missing the point Timothy

The fact that recovery from a “blameless tenant” has been to an extent legitimised through secondary legislation does not mean that principles established by primary legislation or common law are in any way changed,

The Azad Ayub case in so far as it established the principle that once rent has been paid either directly by a tenant or via a third party such as an HB payment from the Council , it remains paid regardless of any other debts that the tenant owes is still good law.

Elliot Kent
forum member

Shelter

Send message

Total Posts: 1671

Joined: 14 July 2014

Stainsby - 07 July 2020 10:43 AM

I think you are missing the point Timothy

The fact that recovery from a “blameless tenant” has been to an extent legitimised through secondary legislation does not mean that principles established by primary legislation or common law are in any way changed,

The Azad Ayub case in so far as it established the principle that once rent has been paid either directly by a tenant or via a third party such as an HB payment from the Council , it remains paid regardless of any other debts that the tenant owes is still good law.

Yeah but that just means it isn’t rent arrears - not that it isn’t “housing related debt” which is a distinct term.

It’s like arguing about whether something is an apple or a pear when the policy bans all fruit.

 

 

Jon (CHDCA)
forum member

Welfare benefits - Craven CAB, North Yorkshire

Send message

Total Posts: 1310

Joined: 16 June 2010

For historic debts over 6 years old, you might try an argument that they should be time-barred and so disregarded, along the lines of the (somewhat controversial) Joseph case:
http://www.bailii.org/ew/cases/EWHC/Admin/2009/2983.html

For council tax being classed as housing-related, I don’t know if there’s any mileage in trying to turn this around: a request to write off a council tax debt under s13A of the LGFA might actually have a stronger argument, if you can show that removing the debt would alleviate hardship by allowing a family to be appropriately rehoused. Even if that doesn’t fly, I could imagine that applications for some sorts of charitable relief may be more likely to succeed if the bin fine or whatever is now a priority payment which must be cleared in order to get access to housing.

Fortunately I’ve not had to deal with this in practice, our main provider specifically defines housing-related debt as NOT including council tax.
They also say that debts in bankruptcy are ignored, and in practice this also extends to debts in a DRO. If you can confirm a similar policy, then referring for debt advice may be a good option.