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As a secure tenant of a local authority or housing trust/housing association the landlord can obtain possession of the property lawfully if they serve the correct Notice Seeking Possession, obtain a Possession Order from the court and subsequently a Bailiff’s Warrant to evict the tenant.

Serving a Notice Seeking Possession is the first stage in the process although it is not the beginning of proceedings and quite often the landlord will serve a Notice Seeking Possession without taking action to issue proceedings as a warning.  The notice should be in the prescribed form and specify the grounds on which the court would be asked to make an order for possession.  When relying on rent arrears the landlord must insert the value of the rent arrears and will usually do so by attaching a rent statement detailing how the arrears have accumulated.

Where the tenancy is a periodic tenancy i.e. a secure tenancy for a period of a week and follows on every week, the notice should specify a date after which proceedings for possession can be begun.  Such a notice ceases to be enforceable twelve months after the date specified.

The notice must not be earlier than the date when the tenancy could be brought to an end by a Notice to Quit.

The court shall not make an order for possession of a property let under a secure tenancy unless one or more of the grounds set out in Schedule 2 Housing Act 1985 are made out.

Grounds 1 to 8 of the schedule are what are know as discretionary grounds in that not only must the court be satisfied that the ground is made out for an order for possession to be made but also that it is reasonable in the circumstances to make a Possession Order.

When relying upon the grounds set out in Part.2 of Schedule 2, grounds 9 to 11, the court must be satisfied not only that the ground is made out but also that suitable accommodation will be available for the tenant when the order takes effect.

When relying on grounds set out in Part.3 of Schedule 2 the court will not make an order for possession unless it considers it is reasonable to make the order and is also satisfied that suitable accommodation will be available for the tenant when the order takes effect.

The landlord must specify in the Notice Seeking Possession the ground that they intend to rely upon when seeking possession of the property before the proceedings are issued.  However the court can grant permission to amend the grounds at a later dated after the proceedings have been issued.

When seeking possession of the property due to rent arrears the council will rely on grounds 1 of Schedule 2 of the Housing Act 1985 and therefore must make out rent lawfully from the tenant has not been paid or an obligation of the tenancy has been broken or not performed.  This ground can also be used where the tenant has behaved in a way which the landlord considers breaches the terms of the tenancy agreement.

Where the landlords seeks to obtain possession of the property relying upon allegations of nuisance made against the tenant they will usually rely on ground 2 in Schedule 2 Housing Act 1985 which provides that the tenant or the person residing in the dwelling house has been guilty of conduct which is a nuisance or annoyance to neighbours, or has been convicted of using the dwelling house or allowed it to be used for immoral or illegal purposes.  As explained above for the court to be satisfied that a Possession Order should be made they must hear evidence that the ground for possession has been made out but also that it is reasonable in the circumstances for a Possession Order to be made.

When considering reasonableness the council must take into account the tenant’s individual circumstances, any pledges made by the tenant to change their pattern in regard to paying the rent or their behaviour in the future, the previous payment history of the tenant and the consequences on the tenant if they are evicted from the accommodation.

Where the tenant is relying upon services provided by the local authority Social Services Department to assist them in managing their tenancy, or where services ought to have been provided to the tenant to assist them with managing their tenancy via the local authority, the existence of community care issues may also be relevant as to whether the council has acted appropriately before seeking possession of the property and seeking to rely upon the above grounds for possession.

Housing Benefit difficulties

Where rent arrears have arisen on the rent account as a result of problems with Housing Benefit claims being processed the possession proceedings will need to be adjourned for a reasonable period to allow Housing Benefit claims and any backdated applications or appeal to be assessed and if appropriate paid before the final level of rent arrears on the account is agreed.  The various case law provides that the court should not make an order for possession until any outstanding Housing Benefit or benefit queries have been resolved.

Disability Discrimination Act Defence

It may be that the tenant suffers with a disability which has impacted on their ability to manage their tenancy resulting in rent arrears or nuisance allegations.  Where this occurs a defence may be raised under the Disability Discrimination Act 1995 if there is medical evidence to support a finding that a tenant has a disability, physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out normal day to day activities, such as managing their tenancy.

If it is found that a tenant does suffer with a disability and the actions upon which the council is seeking to obtain possession of the property i.e. their failure to manage their rent account or nuisance allegations result directly from that disability it is unlawful for the council to discriminate against that tenant because of the disability unless the discrimination can be justified on the basis that it is necessary for the protection of other tenants.  In such circumstances examination will be made of the support provided by the local authority to the tenant under various community care legislation.

Counter Claim for Disrepair

Where the claim for possession arises as a result of rent arrears and Housing Benefit has been paid but there are still arrears on the account it is also possible to defend the Possession Proceedings on the basis of a counter claim for disrepair.

If the local authority has failed to repair the structure or installations of a property within a reasonable period of time they may be in breach of their implied and express repairing covenants.  Damages may therefore be payable and if so any damages payable may be set of against any rent arrears on the account.  This may have the effect of reducing rent arrears below the level of where the court would consider it would not be reasonable for a Possession Order to be made.  If they made a counter claim for disrepair we would also ordinarily seek an order compelling the council to complete the necessary repair works before the proceedings were concluded.

Options Available for the Court

The court has various options in respect of how to dispose of a Possession Claim and in accordance with S.85 Housing Act 1985 the court can where the ground for possession is not made out and/or it does not consider it reasonable for a Possession Order to be made dismiss the claim outright which would mean that no Possession Order is made and if the landlord wanted to seek possession again would have to follow the procedure from scratch starting with serving a Notice Seeking Possession.

The second option would be to adjourn the case on terms which is considered in circumstances where for example there are rent arrears or nuisance allegations which have been made out however the court does not consider it is reasonable for a Possession Order to be made and/or wanted to provide the tenant with an opportunity of complying with terms of the settlement so as to avoid the need for any type of Possession Order being made.  The usual period for an adjournment is six to twelve months which gives the tenant an opportunity of complying with the terms.  If the terms are made out within that period and the Possession Proceedings are not restored the claim is then dismissed.

The third option is for the court to make a Possession Order but for the order to be postponed on terms.  The court can postpone the order for such a period as it considers fit.  The court will usually consider such an option where the ground for possession is made out i.e. nuisance or rent arrears and the court considers it is reasonable for a Possession Order to be made but again wants to allow for the tenant to comply with terms of a postponement which would prevent the order from becoming absolute and therefore the tenancy would remain intact as long as they continue to comply with the terms of the postponement.  Usual terms would include payment of rent on a weekly basis plus a payment towards the rent arrears and/or complying with undertakings given to the court in respect of any nuisance allegations.  This is a favoured options in options where for example a tenant admits to nuisance behaviour but agrees to change their behaviour in the future and not to undertake any further behaviour that would cause a problem to other tenants in the vicinity.

Finally if the court considers that after the trial that the ground for possession has been made out and it is reasonable for a Possession Order to be made they can make an absolute order for possession.  On the date when the order becomes absolute this brings the secure tenancy statement to an end.  If the tenant remains in occupation of the property they do so as what is known as a tolerated trespasser but do not have the rights of a secure tenant.

After a possession order is made

The landlord would then apply for Bailiff’s Warrant which is when the court would deliver notice of when the tenant would be evicted from the property.  The tenant can still apply to suspend any Warrant for Possession although further advice would have to be given at that stage if the proceedings had been defended but a Possession Order had still been made.  The only way in such circumstances ordinarily to preventing the tenant from being evicted is if there was a change in the circumstances between the date when the Possession Order was made and the application to suspend the warrant made.