GLC cautions against presuming non-payment of bedroom tax arrears leads to 'intentional homelessness'

A number of recent housing articles and commentators have suggested that where a tenant is evicted due to the inability to pay rent due to under-occupancy (bedroom tax) deductions, they will 'usually be classified as intentionally homeless', and not be entitled to alternative accommodation as a homeless person. This is not a correct statement of the law in Scotland or England, Wales or Northern Ireland.

The statutory intentional homelessness test requires a deliberate act or omission in consequence of which accommodation is lost. This essentially requires local authorities to consider the issue of fault. For example, in the English Court of Appeal case of William v. London Borough of Wandsworth the court expressed this test as follows:

"I accept, of course, that it was for the authority to explain why it took the view that the failure to pay monies due under the mortgage was 'deliberate' within the meaning of section 191(1) of the 1996 Act: or, to put the point the other way, why the failure to pay monies due under the mortgage was not properly to be treated as 'non-deliberate' – in the sense that it was forced upon the applicant through no fault of his own" (at para 36, [2006] EWCA Civ 535).

Where a tenant is paying rent (by way of housing benefit) but accrues rent arrears due to the effect of the bedroom tax and is unable to take any reasonable steps to avoid this, then there would be a strong presumption that this was not the 'fault' of the tenant. If so, a tenant in such circumstances who lost their home should not be deemed intentionally homeless. There is ample authority for this principle, for example:

In R v. Tower Hamlets London Borough Council ex parte Mahmood a council tenant was evicted for arrears.  She was found to have become homeless intentionally. Sir Louis Blom-Cooper Q.C quashed the council’s decision as it failed to indicate whether the council had found that Ms Mahmood deliberately failed to pay her rent – as opposed to being in multiple debt and unable to pay.

R v. Tower Hamlets London Borough Council ex parte Ullah (1992) 24 HLR 680 was a case where an owner occupier in multiple debt sold his house to repay debts: insufficient enquiries were made into the necessity of this course of action and a decision of intentional homelessness was quashed by the court.

Tenants in the South and North East of Glasgow can contact Govan Law Centre's Prevention of Homelessness team for further advice and where possible legal representation: (t) 0141 440 2503.

Govan Law Centre to defend bedroom tax evictions across Scotland

With over 105,000 households in Scotland affected by the bedroom tax - and with 79% of households having either a disabled tenant or resident - Govan Law Centre (GLC) has pledged to defend bedroom tax evictions across Scotland.

Over the last year GLC has led the campaign in Scotland against evictions for bedroom tax arrears with its law reform petition, now calling before the Scottish Parliament on 25 June 2013.

GLC's Principal Solicitor, Mike Dailly said: "GLC's Prevention of Homelessness team has led the way with our bedroom tax toolkit which is being used by tens of thousands of tenants, law centres and advice agencies across the UK. GLC is preparing judicial review cases on behalf of its clients in Glasgow and will be challenging the legality of the Department of Works and Pension's under-occupancy housing benefit cuts".

"As a campaigning community law centre in Scotland, GLC will not sit by and watch tenants evicted because of the bedroom tax, and today we pledge that our Principal Solicitor, Mike Dailly, and our team of housing law solicitors and prevention of homelessness caseworkers will defend and protect tenants across Scotland from evictions for bedroom tax arrears where possible".

If any advice agency requires specialist legal representation for free please contact GLC on 0141 440 2503, and where possible our Principal Solicitor will defend for free. For tenants in Renfrewshire we are working with Renfrewshire Law Centre who will represent you for free in bedroom tax arrears eviction cases.

Evictions & pre-proof hearings

It is now common practice in Glasgow (and to varying degrees at other Scottish courts) for ‘pre-proof hearings’ to be fixed when diets of proof are being assigned in actions for recovery of heritable property. Generally, these hearings will take place a number of weeks prior to the evidential diet.

GLC believes the issue of pre-proof hearings is procedurally uncertain as neither the summary cause rules nor the Sheriff Courts (Scotland) Act 1971 make provision for the fixing of ‘pre-proof hearings’.

Pre-proof hearings are of course well intended, and are designed to ensure the most expeditious progress of the case. However, if the defender fails to appear or be represented at a pre-proof hearing can the court grant decree by default? This type of decree cannot be recalled by minute for recall of decree.

Likewise, what happens if the defender fails to adhere to one of the conditions attached to the pre-proof hearing, such as lodging particular evidence by a certain time? Can the court grant decree by default for such ‘failure’?

Amendments to the ordinary cause rules in 2006 resolved all of these issues for ordinary actions, but GLC believes the position as regards the summary cause rules lacks certainty. Tenants should of course take their own independent legal advice on these matters.

Until the matter is resolved conclusively, GLC would suggest it is competent to minute for recall of decree where judgment has passed at a pre-proof hearing where the defender has failed to appear. We would also argue that pre-proof hearings are truly continuations and that it may be ultra vires to impose conditions to these hearings of a peremptory nature resulting in decree by default where the tenant failed to comply.

GLC has a forthcoming ‘debate’ scheduled at Glasgow Sheriff Court which will explore all of these issues, and we have also highlighted the relevant administrative issues with the Sheriff Principal. We would be interested to learn of the experience in other sheriff courts, and you can use the comment section below to discuss this issue generally.

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