Memorandum by Crosby, Formby & District
Citizens Advice Bureau (CAB) (SRH 47)
The Citizens Advice service helps people resolve
their legal, money and other problems by providing free, independent
and confidential advice, and by influencing policymakers.
Sefton is a place of contrasts, from the seaside
resort of Southport to the inner urban area of Bootle. Despite
possessing some stunning coastline and rural areas, Sefton contains
some of the most deprived communities in the North-West. Currently
8 of the 22 wards in Sefton are classed as Super Output Areas
(SOA's). (Indices of deprivation).
The 1995 Merseyside House Condition Survey estimated
that 13.5% of private housing in Sefton was unfit, against the
regional average of 7.5%. There is ongoing work to tackle the
major housing issues linked with deprivation and affordability.
In housing terms, the diversity of Sefton's
communities is equally apparent:
The north of the Borough features predominantly
private sector housing in owner occupation or private renting.
The condition of some private sector housing gives serious cause
for concern, as does the concentration of houses in multiple occupation
(HMO). In addition house and land prices have increased in line
with national trends, leading to a shortage of affordable housing.
The south of Sefton is dominated by heavy industry,
pre 1919 private dwellings and more modern local authority stock.
Disrepair, and non-compatible land uses are the main issues in
this area. Low property values and negative equity are of increasing
concern and housing markets have more in common with Liverpool
and Knowsley than the north Sefton area. The reasons listed above
are why South Sefton was designated as a Housing Market Renewal
Area.
Presently, the housing stock in Sefton totals 121,777
dwellings comprising:
| *Local Authority stock |
13,210 |
| RSL stock | 7,137 |
| Private rented | 10,143 |
| Owner occupied | 91,287 |
*Due to transfer to `One Vision' Housing Association at the end
of the year.
Taken from Sefton MBC website—www.sefton.gov.uk
In 2005-06 10,086 enquiries were dealt with at Crosby, Formby
and District CAB. 10% concern housing issues, of which, 23% were
from private landlord tenants and 13% of these were around the
issues of threatened homelessness. It is therefore clear that
enquiries from the private rented sector are disproportionate
to the number of private tenants in the local area.
Each year there are indications of a substantial increase
of these types of enquiries as the availability for social housing
decreases in the Sefton area. It is clear that many tenants in
the private rented sector are vulnerable due to poor security
of tenure offered by private landlords.
Issue—Retaliatory Eviction
A serious weakness with current legislation is that it doesn't
protect private tenants from eviction when exercising their rights
to have repairs and health and safety issues addressed.
Under the Housing Act 1988 Section 21, to legally end an
Assured Shorthold Tenancy Agreement, the landlord must serve a
Notice Requiring Possession upon the tenant and must give the
tenant a minimum of two months' notice. This notice applies to
a statutory periodic tenancy which is a tenancy that automatically
continues after the expiry of a fixed term Assured Shorthold Tenancy.
As long as this notice is served correctly there is no defence
for the tenant against the repossession of the property. Landlords
are not required to give reasons, so they may legally use this
procedure as a retaliation tactic if a tenant tries to get repairs
or safety issues addressed. As a consequence, private tenants
can be forced to live in poor conditions which have a detrimental
effect on health and wellbeing. Tenants often do not dare risk
taking action to exercise their statutory rights. Evidence suggests
that this is undermining the effectiveness of legislation designed
to improve standards in the private rented sector.
The following recent local cases demonstrate what CABx across
the country are reporting is a national problem.
Case 1.
Client lives alone and suffers from Crohns disease. She has lived
in her privately rented flat for 13 years. As her tenancy agreement
was never renewed after the first 12 months, she now has an assured
short hold tenancy that has become periodic. In legal terms this
means the landlord can use the tenancy accelerated possession
procedure (S 21) and give 2 months notice. The landlord doesn't
have to have any reasons or grounds to do this. The property is
in poor disrepair with damp and has windows that don't close.
Recently the gas fire was replaced with a two bar electric fire
because the landlord did not want to pay for the chimney to be
swept. This is the only form of heating which doesn't sufficiently
heat the property and incurs high costs. As our client survives
on benefits it is difficult for her to cope both financially and
physically as the living conditions aggravate her health condition.
The CAB successfully gained a grant from the `Warm Front'
scheme for gas central heating. As there was no cost to the landlord
he was happy to have it installed. However, when the contractors
came to survey the site for the work to be carried out they decided
they could not do it. The reason they gave is that the gas meter
was located in the flat on the ground floor (Client 3rd floor).
The landlord will not pay the £800 to have the meter relocated
to client's flat, even though the landlord has a duty under the
health and safety regulations. There is a serious safety concern,
for if there is ever a gas leak, our client has to travel two
flights of stairs to the neighbour's flat to ask for entry to
switch off her gas supply. If the neighbour is not at home she
has no other means to deal with the problem other than calling
emergency help. Our client is protected by the law to enforce
her landlord to deal with the health and safety issues. However,
if she does exercise this right, it will result in her putting
her tenancy in jeopardy, making her potentially homeless. In the
past the landlord has served notice on previous tenants who have
tried to have urgent repairs carried out.
Case 2.
Client lives in a privately rented house for the past 5 years.
The house is in general disrepair and the landlord is aware of
this but has refused to address it.
He approached his landlord for help recently, as he was concerned
about the ivy type plant that covers the wall of the rear of the
property. His main concern is it has covered the vent for his
boiler and it has grown over his window, almost completely covering
it. He has tried to cut it back from his window, however, with
at least two wasp nests contained in it, and together with the
thickness of the plant, it is proving too difficult. The landlord
has refused to deal with the problem, giving the reason that he
is concerned that moving the plant will dislodge the brickwork.
He has also stressed that he does not want our client to touch
it either. The landlord has also refused to pay the £45 to
the Council to remove the wasp's nests; he says that it is the
tenant's responsibility. The health and safety issues were pointed
out to the client and he was informed that the LA has powers to
force the landlord to meet his responsibilities. Client has refused
this help as he is concerned the landlord will evict him. Client's
tenancy has lapsed into periodic, which means he can be served
with a Section 21 notice and under current legislation this cannot
be defended.
These people are invisible to the local authority, because their
fears of becoming homeless are greater than his fears for their
safety.
POTENTIAL SOLUTIONS
There is no doubt that there are a large number of private
landlords who operate in a fair and professional manner. However,
for the ones who do not there needs to be some protection for
the tenant.
The 2004 Housing Act has given wide ranging powers to Local
Authority Environmental Health Departments with regard to health
and safety standards. This legislation is at risk of being rendered
meaningless, unless tenants who try to use it are protected from
retaliatory action by their landlord.
One way forward would be to remove the right of landlords
to use S21 to evict a tenant in circumstances where the tenant
has recently taken steps to enforce statutory rights regarding
disrepair or health and safety issues. There is a precedent for
this in that the recent legislation on licensing prevents landlords
from using S21 where they do not have the required license. Also
the forthcoming tenancy deposit protection legislation will make
use of section 21 conditional on the landlord having met the legislative
requirements concerning protection of any deposit charged in a
statutory scheme.
A similar approach already exists in employment law where
an employee cannot be dismissed for trying to enforce their statutory
employment rights. In such circumstance the dismissal would be
deemed Unfair. We are seeking a similar outcome for a tenant who
has a Section 21 Notice served as retaliatory action for attempting
to exercise their legal right to repair and safety work.
The extract below is taken from the Australian residential
tenancies authority website, it illustrates how the issue is dealt
with there. Similar protection is also offered in many states
of America.
RETALIATORY EVICTION
If the lessor/agent retaliates against the tenant by giving
them a Notice to Leave (Form 12) without ground, because
they tenant has enforced their rights, the tenant can apply directly
to the Small Claims Tribunal to have the notice set aside. The
tenant must apply to the Small Claims Tribunal within 4 weeks
of getting the Notice to Leave (Form 12).
For example, if the tenant asks the lessor/agent to fix something
and they believe the lessor/agent has given them a Notice to
Leave (Form 12) because they've asked them to fix something,
the lessor/agent is retaliating against the tenant because they
have enforced their rights. If the tenant wants to stay in the
place, they can apply directly to the Small Claims Tribunal. (c)
The State of Queensland Residential Tenancies Authority 2006.
CONCLUSION
The introduction of such a reform here would help to improve
property standards in the private sector and prevent the repeated
cycle of tenants being evicted and then replaced by new tenants
caught in the same trap. It would also have the advantage of being
targeted only on landlords who are causing this problem, leaving
the rest of the sector unaffected.
The Law Commission's draft Bill on tenancy reform could provide
the opportunity to make these reforms. However, they are not currently
included in it.
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