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You are here: BAILII >> Databases >> The Law Commission >> Renting Homes (Report) [2003] EWLC 284(3) (15 November 2003) URL: http://www.bailii.org/ew/other/EWLC/2003/284(3).html Cite as: [2003] EWLC 284(3) |
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PART III
3.1 This Part provides an outline of the scheme we recommend. Detailed consideration of the issues is found in the Parts that follow.THE SCHEME IN OUTLINE
3.2 At the heart of the proposals we made in CP162 was the proposition that housing law should be shaped by a "consumer approach". There was very broad, if not universal, support for this. The proposition that both landlords and occupiers should be able to find an accurate statement of their legal rights and obligations in the occupation agreement was welcomed.The consumer approach (part iv)
3.3 In developing these ideas, we built on the fact that the Unfair Terms in Consumer Contract Regulations 1999[1] ("UTCCR") were already in force and applied to tenancy agreements. The Office of Fair Trading, who are responsible for enforcement of the UTCCR, were strongly in favour of our approach.
3.4 This approach has a number of practical implications:Implications of this approach
(1) the regulatory framework governing the relationship between landlord and occupier will apply wherever there is a contractual agreement (other than an excepted agreement) for the occupation of a dwelling as a home;
(2) the principles underlying the UTCCR will extend to all landlords and occupiers; and all terms save key terms that are also core terms[2] will be subject to the UTCCR principles of fairness and transparency;
(3) the language of occupation agreements should be as comprehensible as possible; and the structure of agreements should be as clear and user-friendly as possible.
3.5 We recommend that the detailed content of occupation agreements be prescribed by regulation. The regulations will contain schedules setting out different model agreements. These will, by definition, be "fair" for the purposes of the UTCCR. (Terms that are varied and other negotiated terms may be open to challenge as unfair.)Fairness
3.6 We recommend that occupation agreements should use language that is as easy to comprehend as is practicable. Further, the layout of the agreement should be considered carefully in order to assist the understanding of those who will use the documents.Language and layout
3.7 We recommend that there should be two basic agreement types.Agreement types and their use (part v)
(1) Type I agreements with a high degree of security of tenure protected by the Act; these will be periodic agreements only.
(2) Type II agreements with a low degree of security of tenure provided by statute. Landlords will be able to enter either fixed-term or periodic agreements. (Fixed-term agreements may offer a much greater degree of security to occupiers.)
3.8 A key feature of the proposed scheme is that the identity of the landlord should not be part of the definition of the agreement types. The "landlord condition" for a secure tenancy under the Housing Act 1985 should not be replicated in the new scheme. To do otherwise would prevent the creation of a single social tenancy, which is one of the Government's objectives. It would also seriously restrict the flexibility of the scheme, which is one of our key objectives.Landlord-neutrality and the definition of agreement types
3.9 Nevertheless, we recommend that there should be regulation of the use to which the two agreement types can be put. In particular, social landlords will be required to use type I agreements unless the conditions set out in a defined list of exceptions are met.Use of the agreement types
3.10 In default, agreements entered into by social landlords will be type I agreements; those entered into by private landlords will be type II agreements.
3.11 The extent to which landlords provide their occupiers by contract with more advantageous terms than those required by the legislation will be a matter of negotiation and landlord policy. In order to encourage this, we recommend that the majority of terms in agreements can be varied in favour of the occupier."Writing up" agreements
3.12 Our broad objective is that, unless there are compelling reasons for excluding them, all occupation agreements should come within the scope of the scheme we propose. For this purpose the historic distinction between the lease and the licence will no longer be of importance.Scope of the scheme (part vi)
3.13 We recommend abolition of the "six-month moratorium"[3], which we do not believe to be an effective measure of tenant protection. Abolition is essential if the simplification of the scheme we seek is to be achieved.
3.14 We recommend that a number of types of agreement currently outside the principal statutory schemes should be brought within the proposed scheme. These will include, for example, service occupancies and student accommodation provided by universities and local authorities.[4]Inclusions within the scheme
3.15 Although we are anxious to reduce the number of special cases falling outside the scheme – a particular cause of current complexity – we acknowledge that there have to be exceptions. We recommend that there should be two classes of exception from the scheme.Exclusions from the scheme
(1) Agreements covered by other statutory schemes. These include business tenancies, agricultural holdings, and mobile homes.
3.16 While this may seem like a long list of exceptions, the actual number of agreements affected by them will be very modest compared with the total number of occupation agreements that will come within the scope of our proposed scheme.(2) Certain types of agreement excluded on social policy grounds. These include holiday lets; agreements granted as a temporary expedient to persons who entered the premises as trespassers; agreements where the occupier is sharing accommodation with the landlord; agreements relating to certain categories of sheltered accommodation; and agreements relating to accommodation provided on a temporary basis to meet duties to house the homeless under Part VII of the Housing Act 1996.
3.17 Because of the "inclusive" approach that we contemplate, many of the tests currently used to define the scope of statutory protection will be removed. For example, requirements that the rent should be under a defined rent limit or that occupation must be related to the "only or principal home" will not be retained.Removal of statutory tests
3.18 In accordance with this inclusive approach, we recommend that there should be special provision to facilitate the ability of landlords to enter agreements with 16 and 17 year-olds. This can be a problem under the present law, particularly for social landlords wanting to provide secure accommodation for persons in this age group.Contracts with minors
3.19 Obviously, these recommendations will apply to all new agreements entered into after the coming into force of the legislation. But we also recommend that existing agreements should, as far as possible, be brought within the scope of the new scheme. This will greatly simplify the state of the law.Application of the new scheme
3.20 There will be two exceptions. The first is tenancies still covered by the Rent Act 1977. The consultation revealed widespread anxiety among this group of tenants about the prospect of their incorporation into the new scheme. Though they would be fully protected in law, they were not convinced that in practice landlords might not seek to take advantage of them. The second is agreements still covered by the Rent (Agriculture) Act 1976.
The written agreement (part vii)
3.21 For the scheme we propose to work, it is essential that there should be a contractual agreement between the landlord and the occupier.The need for an agreement
3.22 Writing will not be a crucial element in the creation of the contractual relationship. In other words, it will be possible for a landlord and occupier to reach a binding occupation agreement orally.Making the contract
3.23 However, once made, it will be essential that a written statement of the agreement is provided by the landlord to the occupier. There are two reasons for this.Evidencing the contract
(1) It will provide evidence of the existence of the relationship; this will be essential in cases where the relationship breaks down and court proceedings of some kind are in contemplation.
3.24 Where the landlord is happy to adopt the relevant model agreement (see below, paragraph 4.12), it will not be essential for the landlord to provide his/her own personalised version of the whole agreement. Evidence of the agreement will then comprise a front page, which sets out the key terms, states that the agreement is subject to the relevant model agreement, and sets out any additional terms or variations to terms that may be agreed by the parties, to which a copy of the relevant model agreement is appended.(2) The whole point of the consumer approach is to ensure that both parties should have a document setting out their respective rights and obligations.
3.25 As the provision of a written statement of the agreement is essential, there must be sanctions against landlords who fail to comply with this requirement. There was broad support from consultees for this approach. We do not recommend criminal penalties. We do not think that they are appropriate in this context. Current criminal sanctions have not worked well. Indeed, we recommend that the existing law on rent books[5] should be repealed.Sanctions
3.26 We recommend that landlords who fail to provide a written copy of the agreement are liable to a civil penalty related to the rent payable. We think that this will provide a proportionate and appropriate incentive to landlords to comply with the requirement to provide a written copy of the agreement.Rent sanction
3.27 Where the landlord under a type II agreement fails to provide a written copy of the agreement, we also recommend that there be a procedural sanction which will prevent the landlord from being able to take immediate advantage of the notice-only ground for possession.Procedural sanction
Structure and content of the agreement (part viii)
3.28 We recommend that the structure of the agreement should be determined by accepted approaches adopted in other types of consumer agreement. The details will be determined in secondary legislation.Structure and language of the agreement
3.29 We recommend that the agreement should contain four categories of terms:Content of the agreement
(1) The first will contain key terms, providing information about the parties and setting out the fundamentals of the agreement such as the description/address of the property and the rent payable.
(2) The second will contain compulsory-minimum terms. These will (a) prescribe the circumstances in which a landlord may seek possession against an occupier; and (b) set down the duties imposed by law on landlords (such as statutory repairing obligations). It will be possible for parties to agree to amend these terms but only so that they are rendered more favourable to the occupier. Where the term contains a statutorily defined obligation (such as statutory repairing obligations), the term will also be able to be varied if the relevant statutory test is changed. It will not be possible for either party to contract out of these terms.
(3) The third will contain special terms, which impose obligations on occupiers for social policy reasons (in particular, those relating to anti-social behaviour).
(4) The fourth will contain other terms. This part will include default terms, which will deal with a list of issues needed to make the contract work. The model agreements will contain default terms covering these matters, though the parties may substitute their own terms for the default terms. Any substitute term will have to be fair and transparent. In addition, this part of the agreement will contain additional terms dealing with other matters not otherwise considered.
3.30 We accept that in many cases, particularly with type I agreements and some fixed-term type II agreements, the original contract may need to be varied from time to time. Apart from anything else, rent levels will need to be adjusted to match inflation. We therefore recommend that agreements contain terms allowing for variation of the agreement. We also make recommendations about the requirements for landlords to provide written evidence of any variation. Failure to provide written evidence of any variation will also be subject to the sanctions mentioned in paragraphs 3.26 and 3.27.Varying the terms of the agreement
3.31 Notwithstanding the primary objective of making the contract the source of information about the respective rights and obligations of landlords and occupiers, we have accepted that there are issues which will remain outside the agreement. These include a number of matters relating to tenants of local housing authorities, such as the right to repair and rights relating to consultation and information.Issues to be dealt with outside the contract
3.32 This part considers first the processes which landlords must undergo to obtain possession of their premises lawfully; termination by the occupier is discussed more briefly at the end of this part.Termination of agreements and proceedings for possession (part ix)
Termination by landlords
3.33 The principle of due process, whereby a landlord may not lawfully recover possession without an order of the court, will be retained in the proposed scheme. Nonetheless, where the notice-only ground for possession is available, we recommend that a possession order should be capable of being obtained by summary procedures, as is currently the case.Due process
3.34 We also recommend that the related principle, that proceedings should not be commenced without the landlord first issuing a notice of his intention to take proceedings, should also be retained. We recommend some rationalisation of the notice periods required. In the case of proceedings for anti-social behaviour, we recommend that court proceedings should be capable of being started at the same time as the notice is issued to the occupier.
3.35 We have taken the view that, once a notice has been issued, the landlord should decide whether or not to start possession proceedings. Thus we recommend that landlords will have a defined period within which to commence proceedings. Failure to do this will result in the notice of intention to take proceedings lapsing and a new one having to be issued.
3.36 We recommend that type I agreements will only be capable of being finally brought to an end by the exercise of discretion by a court; type II agreements will be able to be ended on mandatory as well as discretionary grounds.Grounds for possession
3.37 A consequence of this recommendation will be that housing associations, which currently let on assured tenancies and which therefore have a number of mandatory grounds for possession available to them (including the right to obtain possession where two months' arrears of rent have accrued), will lose these mandatory grounds.
3.38 In the process of consultation we learned that many housing associations in fact impose a self-denying ordinance, whereby they undertake with their tenants not to use the mandatory grounds. On the other hand, there were those who argued that it was an important mechanism for tackling problems with rent arrears. In many cases, rent arrears were not the fault of the tenant but a consequence of the poor operation of the housing benefit system.
3.39 We have had to reach a judgement on this question. We cannot achieve the simplification of the present law that we seek if we retain mandatory grounds for possession in the type I agreement. To do so would reduce the status of secure (local authority) tenants to an unacceptable extent. We have concluded that all those occupying under agreements with social landlords should do so on the same terms.
3.40 We accept the argument made by many landlords, whether or not they were able to use the mandatory ground, that they found the courts too inconsistent in their approach to decision taking. We make recommendations for structuring the court's discretion which we hope will tackle the problem of inconsistency.[6]
3.41 We recommend that possession may be sought by the landlord under a type I agreement, on the ground either that the occupier is in breach of the terms of the agreement or that other prescribed circumstances relating to estate management are satisfied. In the latter case, the landlord will have to ensure that suitable alternative accommodation is available. In addition, the landlord under a type II agreement may seek possession on the (mandatory) ground of serious rent arrears, or the notice-only ground.
3.42 Currently the procedural steps that landlords must take before they can commence proceedings in court vary, depending on which statutory code is relevant. We recommend changes to the various rules relating to the notices that landlords must give in order to make them more coherent. Failure to issue proceedings following the expiry of the notice period will, after a prescribed period of time, result in its becoming ineffective. Thus before court proceedings can be taken, a further notice will be required.Procedural requirements
Powers of the court
3.43 The consultation process revealed widespread dissatisfaction with the role of the court in determining possession proceedings. We recommend that the Bill contain provisions to structure the discretion of judges when making these orders. In exercising their discretion, judges will be required to balance the interests of (a) the occupier against whom proceedings are being taken, (b) the landlord (whose cashflow may be disrupted by failures to pay rent) and (c) other occupiers and neighbours (who are often aggrieved when their fellow occupiers do not pay the rent on time or are a nuisance or are in other ways in breach of their agreements).Discretionary grounds for possession
3.44 The present system provides for a hearing when a possession order is sought to which most occupiers do not turn up – often encouraged by the landlord not to – but does not require a hearing when the question of execution of the warrant for possession is at issue. In CP 162,[7] we considered that this system represented a less than satisfactory use of the court to ensure fairness. We have been persuaded that to adopt the most radical proposal – prohibiting the use of suspended possession orders – would not at this stage be appropriate. We will however be recommending the creation of a power to enable new procedures to be piloted and evaluated on a trial basis, designed to ensure not only that landlords can still effectively collect rent arrears, but also that occupiers threatened with eviction have a realistic opportunity to state their side of the case.
3.45 We also make detailed recommendations about the point at which the occupation agreement should be regarded as terminated, once a suspended possession order has been breached. These are designed to eliminate the problematic concept of the "tolerated trespasser".
3.46 These will only be available in relation to type II agreements. (The discretionary grounds will also be available.) We recommend retention of the accelerated possession procedure currently available to landlords using the notice-only ground for possession.Mandatory grounds for possession
3.47 A "public body" in public law terms is subject to judicial review of its administrative decisions, in principle including decisions about taking possession proceedings (such as using a mandatory ground for possession, or using the notice-only procedure). A "public authority" for the purposes of the Human Rights Act 1998 is also subject to challenge on the basis of breach of a right under the European Convention on Human Rights and Fundamental Freedoms, particularly Article 8, which guarantees respect for the home.[8] Until recently, the courts had held that any eviction "engaged" article 8(1), the basic guarantee, and so had to be justified under Article 8(2) as proportionate and necessary in a democratic society.[9] The House of Lords, in Qazi v London Borough of Harrow,[10] has now put that broad approach into doubt, although without undermining the basic accountability in administrative law of landlords who are public bodies. The courts will doubtless continue to wrestle with these issues for some time to come. However, a significant problem in coping with public law challenges has been that judicial review must be taken in the High Court, whereas possession actions take place in the county court. We therefore recommend that the county court should be given a jurisdiction to review decisions relating to mandatory possession cases, along the lines of those granted to them by section 204A of the Housing Act 1996 (as inserted by the Homelessness Act 2002). In exercising these powers, county courts would apply judicial review principles.Challenging decisions by public bodies
3.48 Where a fixed-term agreement ends because its time has expired, we recommend that the occupier will automatically become a periodic type II occupier, on as many of the same terms as before as are relevant.[11]Termination of fixed-term agreements
3.49 Where accommodation is abandoned by an occupier, we recommend that the landlord should have available a procedure enabling him to recover possession following service of notice. If the occupier has not actually abandoned the accommodation he or she will be able to challenge the notice in court.Abandonment
3.50 We recommend that the occupier, under a periodic agreement, should have the right to give a month's notice to terminate the agreement. The agreement will continue until the expiry of the notice period. If the occupier continues to occupy after the period is over, he or she will become a trespasser and the landlord may take steps to evict on that basis. In the case of a type II agreement, the landlord will have the right to treat the occupier's notice as a landlord's notice of intention to seek possession on the notice-only ground; thus the landlord can obtain possession through the accelerated possession procedure. The occupier will be entitled to continue in occupation until the court orders possession and the order is acted upon.Termination by the occupier
3.51 Where all joint occupiers give notice, this will similarly terminate the agreement.
3.52 Where one or more, but not all, joint occupiers give notice, we recommend that this has the effect of terminating only the interest in the agreement of the person giving the notice; it will not, as is currently the law, have the effect of bringing the whole agreement to an end.
3.53 Although anxious to achieve the greatest possible degree of simplification in the scheme we propose, we also have to make sure that the scheme will reflect the ways in which people lead their lives. The fact is that, particularly as a relationship between landlord and occupier can last for some time, arrangements made at the start of an agreement may not always remain appropriate or workable. A person may start occupying premises on his or her own, but subsequently wish to bring another person into the dwelling. A group of occupiers may start off getting on well, but then one may want to leave; and the rest of the group may wish to introduce a new occupier to the dwelling. The possibilities are endless.Specific issues
3.54 There is a great deal of law which currently exists, but it is piecemeal and incoherent. We seek to bring order to these issues to make the law more workable and – more importantly – to help landlords and occupiers understand better where they stand legally.
3.55 While an occupier may wish to alter the initial agreement, for example by adding a new person to the agreement, the landlord may well not wish to do so. For example, he may be worried about the ability of a new party to look after the premises properly; or, in the case of social landlords, the new occupier may not have that degree of social housing need that would justify the allocation of a scarce publicly-funded resource to them. There will, therefore, be many situations where it is right that the landlord should be able to turn down a proposal that a new person come into the premises.(1) Consent (Part X)
3.56 Three possibilities can be envisaged.
(1) The landlord has an absolute right to veto a proposal put to him.
(2) The occupier must seek the landlord's consent to do something, but the landlord may only withhold consent on the ground that it is reasonable to do so.
3.57 In situation (2), where consent is required, the occupier must submit any request in writing; consent would be deemed to have been granted if the landlord failed to respond to a request within two months of the request being made (or within two months of any request for further information being complied with); and, where consent was denied, a short statement of reasons should be given by the landlord to the occupier.(3) There should be no requirement for consent – the landlord should not be able to prevent the occupier doing what he or she wants.
3.58 Any action taken by an occupier in the teeth of a landlord's veto or reasonable refusal of consent would not bind the landlord and would expose the occupier to proceedings for possession for breach of the agreement.
(2) Joint occupation (Part XI)
3.59 We recommend that the contractual liabilities of joint occupiers should be joint and several. Thus, if one of a number of joint occupiers defaults on his or her part of the deal, the other occupier(s) will remain fully liable under the agreement, albeit with the right to seek compensation from the defaulter. Joint and several liability is the only practical way to ensure that the proper economic interests of the landlord are protected.Joint and several liability
3.60 We also need to make provision for the common situation where relatively fluid groups of occupiers share a home. We need to provide mechanisms for altering the parties to the agreement. In so doing, we need to balance the rights of the landlord to control the numbers and identity of those living in the home with the rights of the occupier to be able to take in a new occupier.Altering the identity of the occupiers
3.61 Three separate issues will be dealt with:
(1) adding new occupiers to an agreement;
(2) permitting a joint occupier to leave the agreement;
(3) dealing with non-contractual occupants.
3.62 We recommend that this should be possible, subject to the occupier obtaining the consent of the landlord.[12] The legislation will define the extent to which the new occupier will take over the rights and liabilities of the other occupier(s).Adding new occupiers to an agreement
3.63 We recommend that a joint occupier under both a type I and type II agreement should be able on notice to terminate his interest in the agreement without it bringing the whole agreement to an end.Permitting a joint occupier to leave an agreement
3.64 Where a joint occupier leaves without properly bringing the agreement to an end, we recommend that the landlord should be able to use the new abandonment procedure to seek a declaration from the court that the former occupier has indeed abandoned the premises.
3.65 We recommend that, in normal circumstances, the occupation agreement should contain a default term providing that the occupier should control who else occupies the premises on a non-contractual basis. We also recommend that non-contractual occupants should, under the Civil Procedure Rules, be notified of any possession proceedings being brought in relation to the premises in which they are living.[13]Dealing with non-contractual occupants
3.66 We recommend that:(3) Lodgers and sub-occupation agreements (Part XII)
(1) type I occupiers should have the right to take in a lodger, over which the landlord will have no right of veto;
(2) the default position in respect of type II occupiers will be that they are able to take in a lodger subject to the consent of the landlord; and
3.67 We further recommend that any (head) landlord (that is, a person other than the occupier who enters into the lodging agreement) will not be bound by any lodging agreement.(3) lodgers will not be entitled to a written agreement.
3.68 We do not think that occupiers, either under a type I or a type II agreement, should have a statutory right to grant a sub-occupation agreement, even with the consent of the landlord. Thus we recommend that there should be a default term that will give the landlord a veto on the granting of any sub-occupation agreement by the occupier.
3.69 Where the head landlord does give consent, the sub-occupation will usually be a type II periodic agreement. The head landlord who has given consent will also become the landlord of the sub-occupier should the original occupier subsequently leave the agreement.
3.70 We recommend, as a general principle, that landlords should have the right to veto any request for the transfer of rights of occupation from one contractual occupier to another not a party to the contract. This will be subject to three specific exceptions.(4) Transfer of rights of occupation (Part XIII)
3.71 The secure tenants of local authorities are currently able to exchange their tenancies, subject to securing the consent of the landlord.[14] We recommend that this should be incorporated into the new scheme and extended to apply to all type I agreements granted by social landlords. The right will remain exercisable only with the consent of the landlord.(Mutual) exchange
3.72 Secondly, we recommend that occupiers under type I agreements should have the right to transfer their contractual rights of occupation to a potential successor. Again this should be subject to obtaining the consent of the landlord. (Rights of succession are outlined below, paragraph 3.76)Transfer to potential successor
3.73 Thirdly, we recommend that section 24 of the Matrimonial Causes Act 1973 and Schedule 1, paragraph 1 (2)(d)–(e) to the Children Act 1989 should be amended to enable the court to make orders in relation to all occupation agreements coming within the proposed new scheme, whether or not they create a property interest.Transfer by order of family courts
3.74 We recommend that where there are joint occupiers, the normal position should be that the surviving joint occupier(s) will take over the agreement. However, there should be some flexibility in the case of fixed term type II agreements.(5)Effect of death on the occupation agreement (Part XIV)
3.75 We want to address the uncertainty that arises when an occupier dies leaving no joint occupier or other successor. We recommend that periodic agreements should be deemed by law to end on a defined date after the death of the occupier (or the last of joint occupiers).
3.76 Building on existing provision, we also recommend that there should be a statutory scheme of succession available to spouses (broadly defined), other members of the family and carers. Any person in these last two groups must have lived in the home for a defined period before the death of the occupier before the right arises. Where more than one person is potentially entitled, joint succession will be possible. The Bill will provide a framework for the resolution of disputes arising from the statutory succession scheme, with the details set out in regulations.
3.77 We recognise that landlords have a role in the control of anti-social behaviour. Our scheme is designed to provide them with the necessary legal tools. We have recognised concerns with our provisional proposals expressed in responses to CP 162 and have decided not to proceed with those relating to summary eviction and the further structuring of discretion.Anti-social behaviour (part xv)
3.78 We consider that the prime purpose of extending the powers of social landlords to respond to anti-social behaviour is the protection of their occupiers.A general target duty on social landlords
3.79 We recommend that a general "target" duty is imposed upon local authority landlords to take into account in the management of their rented property the need to deal with anti-social behaviour on behalf of their occupiers. We also recommend that a similarly-worded duty be placed on registered social landlords, which the Housing Corporation would be obliged to take into account in the performance of its regulatory functions.
3.80 We recommend that both the type I and the type II agreement should contain a special term which prohibits anti-social behaviour by the occupiers of the property or by visitors. The term will also prohibit use of the property for criminal purposes.Special anti-social behaviour term
3.81 This term may be enforced by possession proceedings or by injunction. Where an injunction is breached, the landlord will be able to seek a possession order as part of the proceedings for breach without having to issue separate possession proceedings. Possession may only be ordered by the court where it is reasonable to do so.
3.82 For the purposes of powers to deal with anti-social behaviour, we recommend that "social landlord" be defined more broadly than elsewhere in our Bill to include non-registered housing associations and charitable housing trusts.Additional powers for social landlords
3.83 We recommend that social landlords, as thus defined, should be able to obtain a free-standing injunction against anti-social behaviour. Where the anti-social conduct consists of or includes the use or threatened use of violence, or where there is a risk of significant harm to a person in the locality of the property, the social landlord will be able to obtain an order excluding an occupier from the property. A power of arrest may also be attached to the order.
3.84 Social landlords will be able to let on a type II basis where the letting is for an initial probationary period. The probationary period will normally last twelve months, but the period may be extended to eighteen months where the behaviour of the occupier warrants such an extension.Exceptional use of type II agreements
3.85 In addition, use of type II agreements will be available when in the course of possession proceedings for breach of the anti-social behaviour term the social landlord requests, as an alternative to eviction, that a type I agreement is demoted to a type II. Demotion will only be ordered where the social landlord produces a plan of support to the court. Demotion will last for a maximum period of one year. After this, the occupier will either be promoted back to a type I agreement, or other arrangements will be made.
3.86 Domestic violence will constitute breach of the anti-social behaviour term. Landlords will be able to take possession proceedings against the perpetrator. Where the perpetrator is a joint occupier, the proceedings will operate to terminate the occupation of the innocent party. However, the court will be able to consider the re-housing arrangements of the innocent party as part of its deliberations on reasonableness. This should provide the innocent joint occupier with sufficient protection.Domestic violence
3.87 Social landlords will additionally be able to apply for orders to restrain anti-social behaviour. Where there is violence, the threat of violence or risk of significant harm to another occupier of the property, they should be able to obtain orders which exclude a perpetrator. A power of arrest may be attached to such order for use in the event of breach.
3.88 The provision of supported housing raises complex issues as to how it should fit into our proposed scheme. Our original proposal was to exclude supported housing from our statutory scheme.Supported housing (part xvi)
3.89 Many respondents pointed out that this was not appropriate. We had failed to appreciate the extent to which providers were committed to enhancing the rights of occupiers. We have benefited greatly from extensive discussions with the key stakeholders in this area and we are grateful to them for their time and expertise.
3.90 We recommend that different types of supported housing attract different levels of security.Status
3.91 Direct access accommodation, that is accommodation provided for immediate occupation, will be excluded from our scheme.
3.92 Temporary supported accommodation such as short stay or respite accommodation will also be excluded. However, once the provision of temporary accommodation exceeds four months it will be brought within our statutory scheme.
3.93 Temporary accommodation provided for the purpose of assessment will also be excluded from our statutory scheme for a period of four months. Again, once the accommodation provided is for a period of longer than four months it will come within our scheme.
3.94 All other supported housing will be treated consistently with our statutory scheme. Social landlords will be required to provide accommodation on a type I basis unless the provision falls within an exception to the statutory requirement.
3.95 We recommend a limited exception to the requirement to provide type I agreements where the landlord is providing supported housing. The exception will last for the first two years of provision. After that time we consider that most occupiers will have acquired the necessary skills to justify the provision of permanent accommodation on a type I basis. Social landlords will have powers available to them to respond to anti-social behaviour by occupiers with type I agreements.
3.96 For some residents the responsibilities and autonomy implied by the type I agreement will not be appropriate and their landlords will consider that those residents require greater control. In those circumstances social landlords will be able to continue to use the type II agreement following an assessment of the support needs of the resident and in particular a statement justifying the continued availability of the police exclusion order, a new power which we detail below (paragraph 3.99).
3.97 Managing a supported housing project imposes particular responsibilities upon a landlord. It must ensure appropriate use of scarce accommodation, it must be able to respond to the particular needs of residents and it must be able to act swiftly to protect the safety of residents and workers where necessary.Supported housing agreements
3.98 We recommend that a specific model agreement is drafted by the Secretary of State, assisted by representatives of both providers and residents of supported housing, in order that the needs of this type of provision are fully recognised.
3.99 We recommend that where supported housing is provided on a type II basis managers should be able to ask the police to exclude an occupier for a period of 48 hours without the necessity of going to court. The police exclusion order will only be available to the police following a request by a designated manager when he or she believes that a serious act of violence has occurred, that the safety of someone on the premises is in danger from a resident or a visitor, or that the ability of a resident to benefit directly from the support provided by the project has been seriously impeded by the behaviour of a resident or a visitor.
3.100 Police exclusion orders may be followed by an injunction to exclude the occupier from the project if the management of the project decide that this is advisable. The application for the injunction may be issued contemporaneously with possession proceedings and the injunction in such circumstances will last until effective eviction.
3.101 The modified type II agreement and the police exclusion order will only be available to relevant landlords. Relevant landlords will be defined more broadly than our normal definition of social landlords since it will include charitable housing trusts and housing charities. We do not consider that the broader powers should be available to private landlords who have no public accountability.
3.102 Our scheme is designed to render the distinction between the lease and the licence irrelevant for the determination of the rights and obligations of landlords and occupiers. We anticipate that there will still be a number of related situations where rights will need determination, not by our proposed scheme, but by the application of principles of land law. One important example will be where a landlord transfers his rights in the land to a third party. These consequential issues are not discussed in this report; they will be considered further in the Final Report.The relationship between the proposed scheme and principles of land law
3.103 The basic position under the devolution settlement is that, in Wales, the National Assembly for Wales exercises powers that in England are exercised by the Secretary of State. The National Assembly has responsibility for housing policy. We have considered whether different provision for Wales would be appropriate. On one important issue – the rule that social landlords should generally be required to use the type I agreement – we have concluded that the National Assembly should have greater powers than the Secretary of State in England. In other areas, however, we have not considered it appropriate to recommend that the National Assembly have greater or different powers from those of the Secretary of State in England.Application to Wales
Note 1 SI 1999 No 2083, based on Council Directive 93/13/EEC. [Back] Note 2 See para 4.19 below. [Back] Note 3 See paras 6.3 – 6.16 below. [Back] Note 4 Though excluded from the current principal schemes, these were still covered by the terms of the Protection from Eviction Act 1977 and were thus not wholly outside statutory regulation. [Back] Note 5 Sections 4 to 7 of the Landlord and Tenant Act 1985. [Back] Note 6 See paras 9.81 – 9.90 below. [Back] Note 7 See paras 12.33 – 12.41 below. [Back] Note 8 There is academic debate on whether or not the domestic category of “public body” for judicial review purposes is the same as the “public authority” category under the Human Rights Act 1998: see for instance Dawn Oliver, “The frontiers of the State: public authorities and public functions under the Human Rights Act” [2000] PL 476. The dispute is not relevant to our proposals in this area. [Back] Note 9 For a discussion of the case law as it was in April 2002, see CP 162 paras 5.70 – 5.77. [Back] Note 10 [2003] UKHL 43, [2003] 3 WLR 792. [Back] Note 11 See para 9.79 below. [Back] Note 12 The landlord will be able, subject to UTCCR, to determine the number, age and general characteristics of any proposed new joint occupier, subject to the overall law on overcrowding. [Back] Note 13 This will be similar to the notification requirements now required in relation to occupiers of premises where possession proceedings are brought arising out of mortgage default: see CPR Rule 55.10. [Back]
