Youll need a better excuse than that

Ground 8 possession claims ought to provide housing associations with a speedy means of obtaining possession from tenants with more than eight weeks’ rent arrears.

But housing officers will often attend on possession day only for the court to adjourn the claim because the tenant says the council has not paid their housing benefit.

This kind of adjournment should be a thing of the past.

In the week before Christmas the Court of Appeal gave judgment in North British Housing Association v Matthews [2004] EWCA Civ 1736. It could prove to be one of the most significant cases of 2004 for landlords of assured tenants.

The court decided it was not legitimate to adjourn a ground 8 possession claim to enable the tenant to reduce arrears below the eight week threshold unless there were exceptional circumstances – the tenant being robbed on the way to court might be one example. Arrears attributable to maladministration on the part of the housing benefit authority were not, said the court of appeal, an exceptional circumstance.

It made its judgment after deciding that this was parliament’s intention when passing the Housing Act 1988. For section 9, extended discretion of court in possession claims is expressly stated not to apply to any of the mandatory grounds for possession (s9(2)).

But the court was concerned that its decision could lead to injustice because a tenant might be evicted with eight weeks’ rent arrears through no fault of their own but simply because a council had been unable to decide a benefit claim on time.

It therefore drew attention to Housing Corporation guidance on how housing associations should prevent or respond in rent arrears cases.

The court cited paragraph 62 of regulatory circular 07/04 which is headed Housing Benefit and states: “Possession proceedings for rent arrears should not be started against a tenant who can demonstrate that they have (1) a reasonable expectation of eligibility for housing benefit; (2) provided the local authority with all the evidence required to process a housing benefit claim; (3) paid required personal contributions towards the charges.

“Associations should make every effort to establish effective ongoing liaison with housing benefit departments and to make direct contact with them before taking enforcement action.

If housing associations do not follow guidance, tenants could go to court claiming an abuse of power

“A certificate should be obtained, if possible, to confirm that there are no outstanding benefit enquiries, according to Department for Work and Pensions’ good practice guidance.”

This is important for staff involved in rent arrears cases because although a tenant may not now be able to get possession proceedings adjourned in the county court, they may have another remedy.

The court did not decide the point but did suggest that if a housing association failed to heed the guidance by, for example, not making adequate inquiry of the housing benefit authority, the tenant may be able to raise a defence based on abuse of power.

The court observed: “Where the [county] court is satisfied there is a real chance that the tenant would be given permission to apply for judicial review of the landlord’s decision to claim possession, the court may grant an adjournment of the possession proceedings to allow the tenant to take that course.”

Housing associations have traditionally considered themselves to be beyond judicial review challenges in the High Court. But in recent years the scope of judicial review has widened and the nature of the functions performed by housing associations has expanded as council housing as contracted.

So it may not be long before a tenant with rent arrears caused by housing benefit delays trots off to the High Court to claim that their landlord is abusing its power by seeking possession without following corporation guidance on the active management of rent arrears.

If this all sounds a bit technical, then probably the best bet is simply to follow the corporation guidance on rent arrears cases and do everything you reasonably can to help the tenant to get their housing benefit paid.

Because if the rent arrears are clearly the tenant’s own fault, then they’re not going to get very far in any court.