Tenants told don't be rude about Councillors or face eviction!

 

I must admit that this article from "Nearly Legal" made me smile. Not that abuse and harassment isn't a serious issue in housing but having a tenancy condition saying you cannot be "derogatory" (showing a critical attitude and lack of respect for somebody towards Councillors is just daft and legally unenforceable. 

"They're making a list, they're checking it twice*

Author: Giles Peaker

 

Sandwell Metropolitan Borough Council are proposing to amend their tenants’ secure tenancy agreements. Unfortunately, in their wisdom, they have decided to include a new tenancy condition as follows: “You, people living with you and any visitors to your property must not use social media or any other form of communication to make false statements, abuse, threaten, harass or be derogatory towards Council employees, contractors, agents or councillors” The explanatory document confirms the purpose of this condition, it is about: “Being clear that the Council will take action where social media is used to threaten, harass, abuse or make false statements towards Council employees, contractors, agents or councillors”. Oh. Oh dear. Let’s start with the infelicitous drafting, which would appear to make it fine to make derogatory or ‘false’ statements about council employees or councillors, so long as the statements are not directed at (‘towards’) them. And then, ‘false statements’? How is that to be established? Would the Council have to establish that the tenant/householder member/visitor made the statement knowing it was false (or at least being reckless as to whether it was false)? That is quite the evidential burden… But there is the broader problem with the clause, which is its scope. Just to be clear – in case that was needed –  no council employee, contractor, agent or indeed councillor should be threatened, harassed or abused. If that happens while they are doing a housing management role, there is already a perfectly good ground of possession – Housing Act 1985 Schedule 2, Ground 2(aa) The tenant or a person residing in or visiting the dwelling-house— (…) (aa) has been guilty of conduct causing or likely to cause a nuisance or annoyance to the landlord of the dwelling-house, or a person employed (whether or not by the landlord) in connection with the exercise of the landlord’s housing management functions, and that is directly or indirectly related to or affects those functions, (…) But Sandwell’s clause is not limited to conduct in relation to the council’s housing management function. It seeks to make a tenant liable – as a condition of tenancy – for, as an example, a visitor to their home making a ‘false statement’ about a councillor. (Quite how a social media statement by a visitor could be tied to the tenant’s tenancy is another evidential question, but hey ho).  This, I think, very clearly extends beyond anything specifically tenancy related. Those of us who’ve been doing this a few years have seen this before – attempts to use tenancy conditions to regulate behaviour unconnected with the property or the tenancy. There was, in particular, Wandsworth LBC’s tenancy condition attempting to make a tenant liable for any anti social behaviour committed by the tenant, their household or their visitors anywhere in the borough. That came to grief, quite rightly, the first time Wandsworth attempted to use it by bringing a claim for breach of tenancy conditions under ground 1 Housing Act 1985. The condition was ‘not an obligation of the tenancy’. Aside from Sandwell’s dreadful drafting, there is this broader point – tenancy conditions should relate to the tenancy, the property and the locality. Imposing a general obligation not to be rude to councillors (on social media or otherwise) is not a tenancy related condition. I would fully expect it to be unenforceable by possession proceedings as being a personal obligation, not an obligation of the tenancy. There are various other remedies available where council officers or councillors are being abused, threatened or harassed outside of the context of a housing management function. These should be used where necessary. Just don’t make the ineffective gesture of putting it in a tenancy agreement. That is not the place for policing behaviour in general. *Too soon?

Damp and Mould - It's not lifestyle.

 

This is spot on. As a Housing officer and a Councillor, I have been arguing this point as long as I can remember. The stock response of telling all residents it is always their "fault" for damp and mould due to their "lifestyle" is simply wrong. This is a cross tenure issue including many private landlords. Hat tip Giles Peaker from "Nearly Legal" "The Housing Ombudsman has released a special spotlight report addressing the issue of damp and mould, called "Spotlight on: Damp and mould. It’s not lifestyle" It is the result of both the media spotlight on social housing conditions (ITV News with Dan Hewitt prominent amongst them), and what is described as "the high uphold rate and reoccurring reasons leading to maladministration" in the Ombudsman's case work. (Of 410 complaints investigated, 56% resulted in findings of maladministration, 501 orders were made to put something right with 288 additional recommendations, and £123,094.57 in compensation was ordered across 222 cases, with sums over £1,000 being ordered in 21 cases.) There is a league table of the worst performers, councils and housing associations, with some reaching maladministration findings in 91% of investigated complaints (A2 Dominion since you asked). There are 26 recommendations, all aimed at moving social landlords from a reactive to a proactive approach, and improving their complaints and response systems. The whole is well worth reading. There are inevitably, given that this comes from the Ombudsman, some bits that claimant lawyers will disagree with (the Ombudsman is generally not keen on tenants taking legal action). For example, in a section on the Homes (Fitness for Human Habitation) Act 2018, the report says This is not necessarily the most effective route to resolution for residents as some registered providers will settle the claim out of court while the underlying disrepair issue remains outstanding. I'd have to say if that was allowed to happen, the tenant's lawyers would be at fault. Any settlement should of course include an enforceable commitment for repairs, within a set period. Sadly, enforcement action then has to be taken quite often when the landlord doesn't carry out or complete works, but at least enforcement is possible, unlike an Ombudsman decision/order. But this is a niggle in what is otherwise a well considered report, with recommendations that all social landlords should indeed put into practice. In a passage that will no doubt raise applause from a lot of affected tenants, and those who act for them, the Ombudsman says: This leads to the most sensitive area – the inference of blame on the resident and the associated onus on them when it is often not solely their issue. Our call for evidence revealed an immense frustration and sense of unfairness at the information residents are sometimes provided by landlords about issues like condensation and mould. This reoccurred so often it is appropriate to call it systemic. I met with residents who spoke about feeling patronised, even stigmatised. While I appreciate this is not intended, I would urge engagement with residents to review communication and literature, working together with them to co-design meaningful advice that shares responsibility and supports them at a distressing time. In doing so I hope the word ‘lifestyle’, when it may be a consequence of limited choices, is banished from the vernacular. The routine refusal by landlords to accept that there are issues with a property, and to blame the tenant for the problems ('open the windows, keep the heating on, keep the bathroom and kitchen door closed' etc etc.) has been a huge issue for getting damp and mould dealt with. (It also doesn't make practical sense if the bathroom and/or kitchen aren't provided with adequate ventilation. It just ensures mould in those areas). It is perhaps unfortunate timing for them that in the same week as the report, a housing association, Housing For Women, released a guide to tenants for 'Managing Mould and Condensation' which states, at page 2 "Making sure your home is free of mould and damp is not only important for your health, but it is also your responsibility as a tenant." The Ombudsman's recommendations might have some way to go to being realised... PS . ITV News Dan Hewitt has an interview with the Ombudsman on the report here.