Fresource Friday: section 21 validity tool

I often come across homeless officers who aren't trained to spot all of the ways in which a section 21 notice may be invalid.

Complexity

Such a gap in knowledge is, in a sense, understandable. The rules affecting landlords' ability to serve a s.21 notice are now ludicrously complex.

Over the last 10 years the Government has created new laws to improve housing conditions and housing management standards in the private sector. And if landlords breach certain requirements the section 21 procedure ceases to be available.

Some key principles

In addition to the basic rules (e.g. the notice must be in writing, provide at least two months notice) a landlord can't rely on a s.21 notice in relation to a dwelling in England where:

• The landlord hasn't used the prescribed form (Form 6A).
• The landlord hasn't given the tenant the 'How to Rent' guide.
• The landlord hasn't provided the tenant with a gas safety certificate or energy performance certificate.
• The landlord received a tenancy deposit but didn't protect it using one of the approved schemes or didn't comply with the initial requirements of the scheme within 30 days of receiving the money.
• The landlord didn't serve a notice on the tenant within 30 days of receiving a tenancy deposit containing certain information.
• The property is an HMO that must be licensed and the landlord hasn't obtained a licence.
• The request for possession constitutes a retaliatory eviction (as defined by s.33 of the Deregulation Act 2015).

Most of the above are general rules that are subject to exceptions. And until 1 October 2018 some of the requirements only apply to assured shorthold tenancies that were granted on or after 1 October 2015.

Whether a landlord's compliance with the tenancy deposit protection rules invalidates a deposit depends on:

• when the deposit was taken
• whether there has been a replacement tenancy, and
• when the deposit was taken.

Opportunities to prevent homelessness

All of this complexity provides rick pickings for homeless officers who need to buy a few extra months in which to prevent homelessness.

So I'm surprised whenever I encounter homeless teams that don't ensure all notices are given the fine toothcomb treatment. It seems rather counter productive to be in the business of preventing homelessness but not to identify all the defective (or ineffective) notices that applicants receive.

A little help

If you want to ensure your team adopts a methodical and comprehensive approach these forms should help:

• an inquiry form - helping officers to collect the necessary information (there's also a Welsh version) and
• a validity checker tool - enabling staff to evaluate a notice's validity.

Of course you can adapt the information according to your needs.

You'll notice that the checker tool has footnotes which confirm the relevant legal provisions. These will hopefully help staff to give reasons for 'not homeless' decisions or when telling a landlord why they're unlikely get a possession order (although it's usually best to tell landlords to get legal advice).

I hope those of you who give advice or provide housing possession court duty schemes also find the forms useful.

Special mention must go to the excellent Defending Possession Proceedings (8th ed) for helping me get my head around all the deposit protection & s.21 validity permutations. If you work in homelessness prevention and haven't already got a copy you should get one sharpish.

I should mention that the checker tool doesn't confirm the circumstances in which the tenant has a potential claim for a landlord's breach of the deposit protection rules (under section 214 of the Housing Act 2004). Clearly however this is something that tenants may need advice on.

Given the complexities of turning the complex statutory provisions into this kind of tool the usual disclaimer about needing to check the law and obtain legal advice applies, perhaps even more so than usual. Any comments or suggested amendments are welcomed. I may amend it in due course.

Training

I'd recommend that homelessness staff receive training before they're let loose on the forms. Having the opportunity to practice checking notices builds confidence in what can be a daunting area.

I always find those attending section 21 training come away genuinely enthused that they've learnt new ways to prevent homelessness. See here for details of my one day in-house course.

Homelessness Reduction Act 2017

Identifying each and every invalid notice will become even more important when the homelessness legislation is amended by the Homelessness Reduction Act 2017.

Avoiding unnecessary s.189A(1) assessments

Once it's accepted that an eligible applicant is threatened with homelessness a s.189A(1) assessment will need to be undertaken, with all the matters listed at s.189A(2) needing to be assessed (If you're unfamiliar with the forthcoming duties you can see how Part 7 will be amended here).

Given the more onerous duties that will be owed to homeless applicants (not to mention the likely increase in the number of applications) councils won't generally want to accept an applicant is threatened with homelessness until it's absolutely necessary.

Much better to help them as a non-statutory case and prevent them even becoming within 56 days of homelessness if possible.

Deemed 'threatened with' status

A person requesting help with housing must be treated as being threatened with homelessness if:

• they've received a valid s.21 notice
• which is due to expire within 56 days.

This is clearly an improvement, as it ensures that virtually all assured shorthold tenants under notice are assisted and enter the statutory application process.

However, again, the ability to establish whether a notice is valid will be required.

So now's a good time -before the homelessness changes take effect - to ensure decision-makers understand the notice validity rules.