Covid-19, Damp and mould, Housing Law

The Scales of Injustice …

… And the Social Housing Myth

By guest writer David Renton

In March, I was in court representing Blessing Musona, a housing association tenant who had lived in her home for thirty years. There was mould growing on the walls and a boiler which for eighteen months had been decommissioned, with a sticker on its side saying “Do not use”.

The lack of a heater explained why the damp was so bad. Ms Musona’s health had suffered, she used to work in shops but now found her job exhausting. She was a single mother and her family’s strong shield. But, because of the bedroom tax, she had a shortfall between her rent and her housing benefit of £120 per month.

Her arrears were around the one-thousand-pound mark. In the meantime, no works were being done to fix the disrepair. Blessing had a plan to resolve her situation. If the landlord wouldn’t authorise works, she would move. She was busy on various website, arranging viewing so that tenants of other social landlords could exchange with her.

Blessing was the tenant of one of Britain’s largest Housing Associations, a body whose annual profits stretch to hundreds of millions of pounds. Yet her housing officer told her that if the flat remained in any debt at all, the landlord would refuse to authorise a swap.

The landlord’s approach was simple: they were interested in the rent; but they didn’t care about any of their obligations to their tenant.

An Ideological Monoculture

I think of Blessing because one thing you often encounter on the left, especially in a time like this when our leaders come from an ideological monoculture, willing to diverge from Conservatism by no more than 1 or 2 percent – is the idea that tenants’ interests could best be served simply by expanding the Housing Association sector.

Aren’t council tenancies tremendously old hat? Shouldn’t the left promote Housing Associations several of which were once charities or co-operatives?

In terms of landlord and tenant law (i.e. a tenant’s relationship to their landlord), there are two main differences between Housing Associations and local authorities.

Section 21 and Ground 8

First, a Housing Association can obtain possession from tenants in a much wider set of circumstances than local authorities. All Housing Association have the potential power to seek possession using “Section 21”, a mandatory ground of possession where the landlord says. in effect, “I own the land, I am entitled to claim it back, I don’t need a reason” and, provided the landlord has complied with certain form requirements, the court must grant possession to them.

Not all Housing Associations use Section 21, with many accepting that it is a draconian and excessive power. All Housing Associations however make use of “Ground 8”, a further mandatory ground of possession where the landlord has to show that the tenant is in two months’ rent arrears and the court must grant possession to them.

It is no coincidence that when campaigners have placed pressure on the government to reform the law under Covid, we have focussed on these two powers. The pandemic has forced millions of people out of work. Benefits have been paid, but late, leaving vast numbers of people in arrears by more than two months.

Second, no Housing Association – not even the very best – has the same obligations as a local council, which include the duty to house anyone in their area who is in priority need and fulfils all the other requirements of our statutory homelessness test.

An Obligation to House the Homeless

Although ministers, journalists and even judges often speak of “social housing” (meaning both local authority and housing associations homes) as if this was a single sector with the same tasks and duties, it is not. I sometimes negotiate with officers in the local authorities who have sold off their entire housing stock.

When they are faced with a person who is eligible for homeless housing, the council officers have no option but to spend their days phoning up the housing associations in their area, begging them to take the homeless person. Sometimes, a housing association agrees, often (for example if the tenant is vulnerable with addiction or with a disability and it would be costly to house them), the association declines. The council is obliged to help eligible homeless people; housing associations have no duty to them.

David Renton’s book ‘Jobs and Homes’ skilfully describes the historical and political context that led us to a point where decisions are made in county courts and employment tribunals, sometimes in a matter of minutes, that can turn a life upside down.

This reflects the reality that, although many housing associations have their roots in philanthropic or idealistic calls for the housing of the vulnerable, for decades they have sought to grow through house building and borrowing from the banks, who in turn expect them to produce a similar profit per housing “unit,” to what the worst of the private sector might obtain. In the larger housing associations, decisions are made by managers on six figure salaries.

While the left can, on occasion, call on the managers of housing associations to stand with us, for millions of housing association tenants the practical reality is that these are businesses with little to distinguish them from other private sector landlords.

A Sustained Political Solution

Things worked out for Blessing. She was able to win compensation for the landlord’s failures to offset her arrears. Sometimes the law works for tenants, but for a more sustained and collective solution, a political answer is needed.

Politicians need to start by revoking Section 21 and extending the legal protections available to housing association tenants and residents, bringing them more in line with council tenants. A more radical solution would involve much greater control over housing by tenants and residents, including the option of a transfer of landlord to the local council, or forming a housing cooperative. SHAC and progressive lawyers will continue lobbying to create the necessary conditions for lasting improvement and change.

David Renton is a housing barrister. His book, Jobs and Homes: Stories of the Law in the Lockdown is published by Legal Action Group.

12 April 2021

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