The Department for Communities and Local Government has published a consultation on its proposed reforms to social housing. The announcement signals the potential end to security of tenure in the social sector.
The RLA believe that the government may not have taken account of the European Convention on Human Rights which could make it difficult to evict a tenant even though the tenant may no longer qualify for subsidised social housing.
At the same time the RLA is particularly worried about how private landlords may be prevented from recovering possession once private sector assured shorthold tenancies have come to an end. This follows on from the recent Supreme Court Case (the case of Pinnock) where the Supreme Court overturned the previous approach of the English Courts and brought them into line with the European Court of Human Rights judgments.
This means that potentially each case where a local authority evicts has to be reviewed to see whether eviction is “proportionate”. This is because it is a “public authority”. The case concerned local authority powers to end tenancies where the tenant does not have lifetime security of tenure.
At the moment private rented sector landlords can automatically evict assured shorthold tenants at the end of their tenancies under the so-called Section 21 procedure, provided they go to court. The court has no option in such cases but to allow eviction.
Whether or not a housing association landlord is also a public authority and will have to go through the same procedure is not clear but it may have to do so.
Says Richard Jones, a lawyer, and RLA policy director:
“The problem that private rented sector landlords face under human rights legislation, as with housing association landlords, is that a Court is also a “public authority” under the Human Rights Act.
"Since all evictions require a court order this means that a court asked to make a possession order in favour of a private rented sector landlord may well be required to decide whether this is “proportionate” in line with European human rights laws even though under the law in Great Britain the court is told that it has to make the order.
“We are essentially seeing the creeping effect of human rights laws, adds Richard Jones. “Judges in Strasbourg are making major policy decisions affecting housing law in Great Britain rather than elected politicians. The situation is made worse because, as the human rights judges themselves admit, they only look at the individual case before them rather than the wider picture.
“Furthermore, they are not democratically accountable on what are really policy issues. The Government are going to face the same problem when it comes to implementing their new proposals for the new style social tenure.
“The Government have promised a review of the Human Rights Act and this is one example of why this review is needed.”
The RLA is writing to the deputy prime minister, Nick Clegg, and the housing minister, Grant Shapps, to voice its concerns arising from the recent Supreme Court decision. Although the Supreme Court made it clear in that case that it did not extend to the private rented sector or housing associations, the RLA believe that it is only a matter of time before there is a challenge.
Background:
The private rented sector has expanded since the law was changed in 1988 which ended security of tenure. At the time, it was feared that tenants would be evicted without good reason. The reality has been different because landlords cannot afford empty properties.
In practice, landlords only evict where there is good reason such as rent arrears, tenant misbehaviour or the landlord needs to sell the property. Ending security of tenure has led to much greater choice for tenants as the private rented sector has expanded since 1988, from less than ten percent of overall housing accommodation to over 14percent.
The RLA is concerned that once the tenancy contract has come to an end it will become even more costly and contracted for a landlord to gain possession than it is at present. Already, in the RLA’s view, landlords are concerned about the length of time and the expense of getting properties back.
If each case has to be looked at in detail to decide whether this is “proportionate”, landlords, who are usually small business people, will be put off renting out their properties, as happened before the changes in 1988.
