Think Tank

If the action of the parties has led to a tenancy prior to the council adopting an introductory tenancy regime, on what basis can the council agree to revive a secure tenancy? Surely a former tolerated trespasser should be entitled to revive the original secure tenancy if the tenancy arose before the introductory tenancy scheme? A council should consider reviving secure tenancies on a case-by-case basis, otherwise it may be open to legal challenge when it tries to evict an introductory tenant who was a secure tenant prior to the 1996 Housing Act.

I agree that if a tenant successfully applied to the court to vary or set aside the original suspended possession, then their original secure tenancy would be revived. Even if this took place after the council adopted an introductory tenancy scheme, the tenancy would still be secure. It is the original tenancy that is brought back into existence by the court order. Alternatively, the (former) tenant could apply to court for a declaration that they were a new tenant because the council's conduct since the order was inconsistent with the occupant's status of tolerated trespasser.

If they did so, the court could be asked to decide when the new tenancy arose. Where an introductory tenancy scheme is in place, the date of the new tenancy would dictate whether it is a secure or introductory tenancy.

That said, until a successful application is made by the (former) tenant, it is open to the council to make the offer it wants on the basis that the occupant is a tolerated trespasser.

If it is offering only an introductory tenancy and the occupant thinks they either have a new tenancy or that they have good grounds to vary the original possession order, then they must apply to the court. If an occupant accepted an introductory tenancy without independent legal advice, they could challenge an attempt to evict under the introductory tenancy. There is a risk therefore that the council could run into problems at a later stage. However, if an occupant accepted an introductory tenancy with legal advice, they may not be able to raise the point at a later stage. Ultimately, it is up to the resident to make the appropriate court application.

Nick Billingham, Partner and head of housing management litigation at law firm Devonshires

Holiday pay liability
We employ staff delivering home care and have always included their holiday pay in their hourly rate. I've heard that we could be liable for additional holiday pay when they take their holiday – is this correct?

Under the 1998 Working Time Regulations, all workers are entitled to a minimum of four weeks' paid annual leave. Some employers seek to discharge the liability by including holiday pay "rolled-up" in the hourly, daily or weekly pay. The employer does not then have to pay when the workers take leave. There has been debate on whether this practice complies with the regulations and cases have been though employment tribunals.

The Employment Appeals Tribunal cited five categories of contract relating to holiday pay: contracts between the worker and employer that are silent on the issue; contracts that exclude liability for holiday pay;contracts where rates of pay are stated to include holiday pay; contracts that provide for a basic wage or rate of pay topped up by a sum relating to holiday pay; and contracts where holiday pay is allocated to and paid during, before or after periods of holiday.

According to the Employment Appeals Tribunal, contracts that fall into categories one, two and three fall foul of the regulations – while contracts falling into categories four and five are allowable.

Sandy Staff, Human resources management consultant at the Conway Staff Partnership