There are several different kinds of council tenancy. The information in this section covers the most common kind of council tenancy, which is a Secure Tenancy.
The rules are different if you have an introductory or demoted tenancy or any other kind of council tenancy not already mentioned – You should get expert advice whatever kind of tenancy you have because this will affect how your case is dealt with at court.
Steps council landlords should take before going to court
Councils are often called social landlords and there are some special rules they must follow before taking court action for rent arrears.
These rules were made to make sure that you are treated fairly and that you are only taken to court as a last resort. In some cases if the rules have been broken the court can dismiss the claim and make the landlord liable for all the court costs.
The rules about social landlords and court proceedings for rent arrears are in a document called ‘Pre-action Protocol for Possession Claims by Social Landlords’.
The protocol is available on the Government’s website at: Pre-Action Protocol for Possession Claims by Social Landlords (justice.gov.uk)
The protocol outlines how social landlords should:
- try to make contact with tenants before taking court action
- try to agree how the arrears can be repaid at an affordable amount
- provide clear rent statements
- arrange for arrears to be paid by DWP deductions from benefits
- offer to help with any housing benefit or universal credit (housing element) claim.
It can also cover a situation where rent arrears are due to delays in the payment of benefit towards rent. Paragraph 2.6 of the Protocol tells social landlords that they should not start court proceedings if a tenant has made a housing benefit or universal credit (housing element) claim, so long as;
- the tenant has provided all the information needed to process the claim;
- it is likely that the tenant will qualify for housing benefit or universal credit (housing element); and
- the tenant has paid other amounts not covered by housing benefit or universal credit (housing element).
Rent arrears possession grounds for secure tenancies
If you have a secure tenancy there is a specific possession ground that the council can use to try to evict you. This ground is called ‘Ground 1’ and it applies where there are rent arrears or where the terms of the tenancy have been broken in some other way.
The landlord has to state on the ‘Notice Seeking Possession’, which grounds the court is being asked to look at. You should have received a Notice Seeking Possession (NSP) before your landlord applied to the court and this should tell you whether Ground 1 is being used.
If your landlord is using Ground 1 because of rent arrears the court will have to decide whether it accepts you have rent arrears and whether it is reasonable that you should be evicted because of the arrears.
This ‘reasonableness’ test is important because you may be able to give the court good reasons why you should not be evicted.
The good reasons that are most likely to stop an eviction are providing a good explanation for how the arrears occurred, but more importantly reducing or clearing the arrears or putting forward a proposal to reduce the arrears by making sure full rent is paid in future, plus a regular weekly amount off the arrears.
The court could respond to an offer to clear the arrears by instalments by making a suspended or postponed possession order. Click here for an explanation of how these orders work.
If your home is in disrepair
If your landlord has not carried out repairs that are a landlord’s responsibility you may be able to use this as a defence in court if a rent arrears possession ground is being used.
Sometimes the court can offset rent arrears against damages a tenant could claim for a landlord’s failure to carry out repairs. To use this defence you must have told the landlord about the disrepair.
This type of defence is called a ‘disrepair counterclaim’ and it is important to get advice as soon as possible because the process is complicated and you may need an expert’s opinion about the seriousness of the disrepair. If you did not realise that you could use the disrepair issue until quite late on it is still worth telling the Judge because the court could give you time to get advice and evidence.
Breathing Space under the Debt Respite Scheme
A landlord can be temporarily prevented from obtaining or enforcing a court order if a defendant with rent arrears has obtained ‘breathing space’ under the Debt Respite Scheme.
Under the breathing space scheme creditors, including landlords, are prevented from taking action for a fixed amount of time. This period is called ‘breathing space’, ‘respite’ or ‘moratorium’ and it means legal action has been paused so that the person has more time to get help with their debt problems.
The standard breathing space period is 60 days and an application must be made on behalf of the person in debt by a regulated debt adviser.
If the person in debt has a mental health crisis there is no fixed time limit on the amount of breathing space but respite normally ends 30 days after crisis treatment ends. Evidence from an approved mental health professional (AMHP) is required to obtain breathing space under these rules.
For details about how to obtain breathing space see this link: Breathing Space. Debt Respite Scheme Advice. StepChange
Click here for more information about debt advice