Legal: How intentional homelessness is changing in Wales

 

A recent Supreme Court case put the intentional homelessness test back in the spotlight, raising questions about how fair the test is and whether, for Wales, it should have any place at all in our homelessness system.

The case concerned a woman known as Ms Samuels and her four children who, having been evicted, approached Birmingham Council for assistance. The family was found to be intentionally homeless, as the reason for the eviction was rent arrears.

The arrears were due to a shortfall in her housing benefit of £151 per month. Ms Samuels and her children were wholly dependent on benefits. She argued that she couldn’t afford the shortfall.

But the local authority decided that she should be covering the shortfall with her non-housing benefit income. At Court of Appeal the judge agreed with the local authority. Ms Samuels appealed that decision and the matter eventually came to the Supreme Court.

Britain’s highest court found that the council’s approach had been unlawful. Subsistence benefits are not designed to allow a surplus to be spent on rent or other expenses. As he delivered the judgment Lord Carnwath said, ‘I find it hard to see on what basis the finding of intentional homelessness could be properly upheld.’

Although this is an English case, it is applicable in Wales. This decision is significant because not only did the Supreme Court assert that expenses at or below subsistence benefit income level are reasonable, it also ensures a sharper focus on the individual and the needs of families and children.

Local authorities will need to ensure that they apply the principles in this case. Housing advisers will need to consider any decisions carefully to ensure the correct principles have been applied. A failure to do so could lead to further challenge.

In Wales, the Housing (Wales) Act has championed the person-centred approach and put prevention at the heart of the legislation. The guidance to the Act says local authorities should ensure that households can afford the housing costs without being deprived of basic essentials such as food and utilities.

While this is welcome, further steps need to be taken to consolidate this approach. The Samuels case demonstrates that finding a family intentionally homeless in these circumstances is an archaic approach.

In 2014 the Welsh Government set a target of 2019 to end intentional homelessness for households with dependent children. The precise date for this target hasn’t yet been set.

Official figures show that intentionality is being used less and less often: in fact, last year only three authorities were responsible for the majority of decisions, with the rest using it fairly rarely.

Even so, we know from our casework that intentionality is still being used against homeless households who should have a priority need for accommodation.

We’re looking forward to the Welsh Government setting a firm date for ending intentionality for households with children and, one day, ending it completely.

A final important point on the Samuels case: it took a lengthy battle of three years for Ms Samuels to get her case to the Supreme Court. This will not be unfamiliar to anyone undertaking legal aid work.

Following the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) it has become increasingly difficult to obtain funding. This has in turn led to a massive reduction in firms who specialise in housing law.

Even if an individual can access advice, it’s an uphill struggle to obtain funding as there is a constant questioning and challenging by the Legal Aid Agency in what appears to be any attempt to defeat an application for funding.

This probably explains why legal aid applications have fallen by 34% since 2013, coupled of course by advice deserts. There is no point in having the right to challenge adverse decisions if a person cannot also secure adequate funding and access specialist advice to enable them to navigate the complex legal system.

A big step towards long-term security for Wales’ half a million private tenants

 

By Jennie Bibbings

Last week the Welsh Government announced a proposal that will give private tenants a minimum of one year’s protection from a no-fault eviction.

Speaking at the Shelter Cymru People and Homes conference, the Minister for Housing and Local Government, Julie James AM, said that the Government will consult on whether tenants should be given six months’ notice when they are going to be evicted using the no-fault ground, compared to the current two months’ notice.

By also banning the use of such evictions in the first six months of a tenancy, this will effectively give tenants at least a year knowing that they can’t be evicted without a good reason.

Most tenants support a ban because of the inherent unfairness of a law which allows landlords to evict without needing to show that the tenant has done anything wrong.

A survey found that nearly three-quarters of private tenants in Wales want to see the introduction of laws similar to Scotland’s, where tenancies are open-ended and no-fault evictions are banned.

The Welsh Government’s announcement follows the pledge in April by the First Minister to end no-fault evictions during this Assembly term. While this new proposal will not end no-fault evictions completely, it will be a strong deterrent for landlords. Instead many would probably use fault-based grounds, meaning they would need to provide evidence to the court to show why the eviction is necessary.

This is the art of the possible,’ said the Housing Minister at the conference. ‘Don’t let the perfect get in the way of the good things that we know will make a big difference.’

At Shelter Cymru we’ve been campaigning on this issue for several years, with nearly 2,000 people signing a petition.

We’ve shared our disappointment with the Welsh Government that there won’t yet be a complete ban. However, increasing the notice period is still a big step in the right direction.

We do understand that there are practical difficulties in amending the Welsh tenancy legislation during this term. We don’t want to hold up implementation of the Renting Homes (Wales) Act 2016 any longer than necessary.

We will still be campaigning for an eventual ban. However, in the meantime this proposal will have many positive effects.

For example, it is going to effectively end the practice of revenge evictions. Even though the Renting Homes Act does offer some protection already, this additional step will ensure that no landlord will resort to no-fault grounds as a quick fix to dodge their legal responsibilities – something that happens all the time in our casework.

It’s also going to mean that very few housing associations will use no-fault grounds to evict tenants on starter tenancies – a practice that is really unfair, since nobody should ever be evicted from social housing unless there are reasons good enough to convince a judge.

As with everything though, there could also be negative consequences for some. Local authority homelessness services are going to need firm guidance on how to work with households threatened with homelessness because of a no-fault eviction.

What we do not want to see is people told to come back in six months. It would be totally unacceptable to put people through that prolonged stress and uncertainty.

Homelessness prevention work must begin as soon as a notice is served. Having a longer window for interventions could give much more scope for innovative prevention work: landlord mediation, repayment plans, support referrals, and if necessary extra time to find alternative suitable accommodation.

Soon Shelter Cymru will be putting resources online to help as many people as possible to take part in the Welsh Government’s consultation. Landlords will be making their voices heard loud and clear – we must ensure that tenants are equally heard.

Legal: Drafting issues with the Housing (Wales) Act 2014

 

Evans vs Fleri (2019)

Shelter Cymru represented Mr Evans in his appeal against an order of a district judge granting possession to his private landlord, even though the landlord was not licensed by Rent Smart Wales at the time he served Notice Requiring Possession.

This was a surprising decision given that the Housing (Wales) Act 2014 clearly requires a landlord to both register and hold a licence (or use the services of a licensed agent) in order to let a property.  If the decision were correct, even though not binding on other courts, tenants of private landlords would be vulnerable to eviction by unlicensed landlords, a situation which would fly in the face of the whole purpose of the legislation.

The wording of s.44 of the Act, dealing with notices requiring possession under s.21 Housing Act 1988, gave rise to argument in this case before a district judge considering an application for possession by a landlord who was registered but not licensed at the time he served his tenant with a s.21 Notice.

S.44 states that a section 21 Notice may not be given…if a) the landlord is not registered in respect of the dwelling or b) the landlord is not licensed…and the landlord has not appointed a person who is licensed under this Part to carry out all property management work in respect of the dwelling on the landlord’s behalf.

The landlord argued that the correct interpretation of the section was that a landlord must either be registered or licensed, not registered and licensed, in order to serve a s.21 Notice.  The district judge agreed and made a possession order, but acknowledged he might be wrong and gave permission to the tenant to appeal.

On appeal, the Circuit Judge pointed out that the word “or” can either be used to separate two scenarios which are mutually exclusive so that only one can apply – which was the district judge’s interpretation of s.44 – or it can be used to separate two scenarios which are not mutually exclusive and which therefore can apply simultaneously.  It is not the case that a landlord must either be registered or licensed.  A landlord may be registered but not licensed or may be both.  In s.44, due to poor drafting, the word ”or” is capable of having both meanings.

In order to determine the correct meaning, the judge then looked at other sections of the Act itself and at the intention of the Welsh Assembly when enacting the Housing (Wales) Act.  The Act clearly requires landlords to be registered and licensed, or to use the services of an agent who is licensed, in order to carry out property management functions such as serving notice to terminate a tenancy.

The licensing requirements are rigorous, a landlord must show s/he is a fit and proper person to hold a licence, and must go on a course.  Failure to register or hold a licence is a criminal offence punishable by a fine. The Communities, Equality and Local Government Committee of the Welsh Assembly recommended that an unlicensed landlord should be prevented from serving a ‘no-fault’ eviction notice (i.e. a s.21 Notice).  As a result of that recommendation, s.44 was inserted into the Bill and became law.

The judge commented that it would be surprising if the Welsh Assembly’s intention had been to make the serving of a notice to terminate a tenancy by an unlicensed landlord a criminal offence, and yet allow that landlord to obtain a possession order in reliance on such a notice.  Equally, it would be surprising if an unlicensed landlord, (so a landlord who is not a fit and proper person and who has not undergone training,) could serve and rely on such a notice.

The judge therefore concluded that landlords must be both registered and licensed in order to serve a valid s.21 notice, and the possession order made by the district judge was quashed.

Homeless trans people are not getting the help they need

 

 

John* was in the early stages of medical transition. Deciding to live openly as a trans man, after many years of deliberating, had caused his marriage to break down and compromised access to his child. These events led to serious mental health repercussions for him.

When John was interviewed for a new Shelter Cymru research study, he was living primarily in his van in rural Wales. He’d been homeless for nearly two years.

Despite having several decades of employment history he was working casual hours and trying hard to get a better-paid job – but none of his interviews had yet led to a job offer. He hadn’t told his employer about his trans status, believing that it would cost him work.

He had also not approached local authority homelessness services for help. Partly this was because he was under the impression that he wouldn’t be eligible for assistance as he was working a few hours a week.

He also had serious reservations about how he would be treated: like many other trans people, he worried that presenting to services would be an unpleasant experience in which his gender would be scrutinised and questioned.

Shelter Cymru’s new report, authored by PhD researcher Edith England, found that around half of the trans people interviewed had not used homelessness services despite clearly being homeless, sometimes over protracted periods.

The study, believed to be one of the largest datasets of homeless trans people in the UK, found that concerns over safety were a key factor keeping trans people from accessing help.

As well as sharing homelessness risk factors with LGBTQ+ people as a whole, such as family rejection, the study found that two additional factors existed for trans people.

First, relationship breakdown was an issue for trans people of all ages, often compounded by abuse.

Second, trans people often became homeless as a result of economic insecurity, with loss of employment especially associated with coming out as trans.

People who were accessing formal support for transitioning socially, legally and/or medically often found that maintaining access became extremely challenging once they were homeless.

But despite trans people’s fears about using homelessness services, the study found that some people who did use services had positive experiences. The overall picture was of services that want to help trans people, even though staff were not always aware of the best way to do this.

One solution that emerged was the need for specialist training for frontline staff – not just standard equalities training.

Trans people also expressed a strong preference for LGBTQ+ specific – or better yet, trans-specific – accommodation and support services, not only for young people but across the lifespan. Although this was seen as the ideal solution, there’s also a need for mainstream services to be accessible to trans people. Local authority service commissioners need to consider how this can be achieved in a way that is flexible and person-centred, rather than a generic one-size-fits-all approach.

John saw employment as his route out of homelessness. But repeated knockbacks from job interviews were taking a toll on his confidence: ‘Obviously I look good on paper because I’m getting interviews but I’m just not getting the work,’ he said. ‘And it’s quite gutting really, and I don’t know whether it’s because there’s something about me personally.

‘It could be because I’m trans, it could be because when they get my CV and they see a man’s name and they think this is going to be a man and then I turn up and they look at me and they think this isn’t a man.

‘It could be that it isn’t discrimination, it could be that there’s always a better candidate. But it starts to feel like, when you’re not ever getting a job, it starts to feel like it’s something personal. Especially when you’re always getting interviews and then you’re not getting a job.’

 

* Name changed to protect anonymity

Grenfell Tower – Two years on, how should Wales respond?

By Paul Bevan

Today marks two years since the shocking and tragic fire at Grenfell Tower in North Kensington, in which 72 people died and more than 70 others were injured. The impact of the tragedy became even more alarming as, very quickly, we learnt that the fire’s colossal impact was largely avoidable, had different cladding and fire measures been in place.

The sense of despair and anger reminded us so vividly of the Aberfan disaster in 1966 in which 116 children and 28 adults died – a tragedy which, like Grenfell Tower, could have been avoided.

In Wales, following the events of two years ago, social housing providers instigated work to assess the fire resistance of their properties. On a wider scale, Welsh Government established a Building Safety Expert Group which reported on improving the safety of residential buildings across Wales in the report, ‘A Road Map to Safer Buildings in Wales’.

We welcomed the immediate response to the report by Julie James AM, Housing and Local Government Minister, when, in April this year, she announced, ‘I will reflect on the group’s recommendations but one recommendation I will accept here and now is that we promote the retro-fitting of sprinklers. Hard evidence supports sprinklers’ effectiveness in preventing fatalities so I am committed to looking at how we can further promote retro-fitting in high-rise buildings across sectors.’

Although this is a welcomed step towards improving safety, the Grenfell Tower fire has come to symbolise something much more deep-rooted than questions about fire safety and building regulations. For every high-rise tenant wondering whether a similar tragedy could happen to them, there are many more who simply cannot find a home in their community. There are those who are battling to keep a roof over their heads or are sleeping rough on our streets.

The Grenfell Tower fire has come to represent how we have failed people in most need in our society – those in need of the most basic of human requirements: the need for access to shelter, a place where we feel safe and which we can call home.

This terrible tragedy, if nothing else, should commit us to doing everything we can to ensure it never happens again. A big part of that process should be to embed into Welsh legislation the right to adequate housing.

We would urge the Minister and Welsh Government to be courageous and make a lasting difference for current and future generations. A right to adequate housing can bring safety and security to everyone in Wales – now is the time to ensure that we can all have affordable, good quality and safe housing.

Priority need is an admission of failure

 

The Welsh Government has commissioned an important piece of work to look at the impact and consequences of amending or even abolishing the priority need test in Welsh homelessness legislation – John Puzey considers the test and the consequences of not abolishing it.

When the Homeless Persons Act was first introduced in 1977 the inclusion of the priority need test was an admission of scarcity; now, 42 years later, it’s an admission of failure.

The test was to ensure that people with children, or who were in some way vulnerable, would, unless they were found intentionally homeless, get a secure permanent home. There were not enough secure permanent homes to meet the needs of all homeless people as well as those on the waiting list, so it was a device to ration access to people considered in most need. If you were not in priority need, forget it – it was a winner takes all system.

We changed that in Wales a few years ago with the introduction of the first Welsh Housing Act. This new law requires that everyone facing or experiencing homelessness must get help from local authorities, whether you are in priority need or not. But priority need hasn’t gone. Yes, it has been pushed down the decision making process to a later point, but it’s still there, used as the final rationing card if all else has failed, and many people are being failed.

There are clear issues with this. What happens to people where the prevention work has not worked and who are not in priority need – perhaps, ironically, some of the most vulnerable people? How much, even sub-consciously, does the knowledge that a household may or may not be in priority need affect the effort and quality of the prevention and alleviation work? How much energy and time goes into attempting to prove someone is not vulnerable and how consistent are the decisions across Wales?

But ultimately the very existence of priority need means we have failed. We have failed in the last 42 years to ensure that there are enough homes for people who are homeless and those on waiting lists living in inadequate housing. Rationing is normally introduced for an emergency; this one has been going on for four decades!

That’s why we have to end priority need and extend the full re-housing duty to everyone who is homeless. We have to do it in a planned way, in a way that ensures the homes and support, if needed, is put in place, but we have to do it. The very commitment to doing it can drive increased social housing and improve other policies and practices such as allocations and evictions. It’s a pity this possibility was not included in the recently launched affordable homes review, but we have now, with the priority need review, an opportunity of making it clear what the continued unacceptable consequences of doing nothing are.

So we need an end point, a point when the emergency ends, when rationing ends, with milestones on the way as new groups of vulnerable people are given the hope and right to a home. What about starting with single under 35-year-olds, what about people sleeping rough?

We need a commitment to a direction of travel and a year when we arrive. Let’s not make it too far in the future because every day that goes by, homeless people across Wales are being told they are not in priority need, and that there is nothing else that can be done.

Ending homelessness, not managing it

 

Just over a year ago Shelter Cymru researchers interviewed 100 street homeless people in three parts of Wales. The results of that study were stark: people were literally trapped on the streets, partly by their own ill health and partly by the inability of services to reach out and offer the right kind of help.

Last week we spent some time in one of the three areas speaking to people sleeping rough to see how we could help and what, if anything, has changed.

In many ways, the stories we heard were the same. People told us of frustration with the system; difficulties chasing homelessness applications and gathering all the evidence that councils said people needed to produce, such as forms of ID or letters from the GP. We heard about the difficulty of trying to battle addiction while street homeless, with limited treatment services available.

We heard from people who’d been excluded from hostels and from people who were afraid of going into large-scale emergency accommodation. We also saw first-hand the work that’s taking place on the front line and heard from professionals how frustrating it can be to work with such a complex system.

We heard from professionals and homeless people, and what was shockingly clear was that what we are currently offering is not enough.

People are often expected to move through a complex system of different types of emergency accommodation before they are able to get a room in a hostel. They often don’t know from one day to the next whether they’ll have a space that night. We heard how destabilising this is for people and it was explained to us how a tent offers more stability and certainty than a space on the floor in emergency accommodation.

Rough sleeping is the most visible and acute form of homelessness, but Wales is experiencing high levels of homelessness of all types including people living in temporary accommodation, people sofa-surfing, and many more living in insecure housing situations that could easily lead to homelessness.

So what does this tell us? We need change… a big change. We need to make sure that we are offering people stable and secure homes; and we need to provide the right support at the right time.

We need to build social housing – especially one- and two-bed homes, for which there is massive demand.

We need to get services working together in a joined up way so that evictions are genuinely a last resort and when they do happen, they don’t lead to homelessness.

For people with complex unmet needs, we know that Housing First works. This has been done elsewhere successfully and is starting to take off in Wales but we need it at scale. The biggest argument against Housing First is cost: however we know it saves money elsewhere, such as the NHS. There still hasn’t been an assessment of what it would cost to meet the full scale of need in Wales, but we are talking about hundreds, not thousands of households.

We also need to learn from services within Wales that achieve high success rates by rapidly rehousing people into their own homes, rather than pushing everybody through the hostel system.

Because of welfare reform and austerity, it is harder for homeless people to find homes than it has been for many years. This situation was not created within Wales, but we have the tools to address it. We should be aiming to end homelessness, not merely to manage it.

How it feels to use housing services

 

A recent exercise undertaken by Shelter Cymru’s Take Notice project shows why it is important that service providers make a continual effort to listen to the views of real people.

Is there a better way to find out what’s being done well in homelessness services and what needs to be improved, than by asking the people who actually use those services?

Over a three week period in August and September, Take Notice project members visited four different housing service providers in Swansea, posing as mystery shoppers using scenarios based on their own personal experiences of homelessness.

They carefully documented their feelings about these visits, providing a unique insight into the feelings of people using our services; one that has been captured through the eyes of people with direct personal experience of housing crisis.

Take Notice members were asked to look at the initial welcome that a person receives when visiting a housing provider, and how accessible the premises and therefore the service is for people.

Psychologically informed environments and trauma informed approaches continue to be emerging agendas in homelessness services. The physical environment and first impressions of a service are important as they will set the tone for the ongoing relationship between service user and provider.

Evidence-based design stresses the impact of the environment on our well-being and behaviour. We wanted to see to what extent things such as comfort, colour, light and space had been considered in the organisations we visited. We also wanted to find out the extent to which mystery shoppers felt treated with respect and whether staff were interested in their individual circumstances.

Ideally we hoped to find that Swansea housing and homelessness providers were putting the person at the centre of their service and treating each person who approached them compassionately. In total 21 mystery visits were made which allowed some consistent themes to emerge from the exercise.

The positives
Take Notice members felt that the services were easy to find and that waiting times were minimal. They generally felt that the services were brightly decorated and welcoming and where this wasn’t the case, they didn’t hesitate to point out the difference that this would have made in terms of feeling relaxed and welcome as they walked through the door.
More importantly, the majority of visitors felt that their enquiries were handled sensitively and respectfully almost all of the time. They felt listened to; they felt they were given time to explain their situations; and they felt they knew what would happen next.

Room for improvement
Take Notice members told us that they wanted to see significantly better disability access and language accessibility. There were issues with privacy with people having to disclose personal and sensitive information in earshot of anyone else in the waiting area. Where private rooms were available, these weren’t always offered or clearly signposted. They felt that where they encountered increased security measures that these were off-putting: services without glass barriers or security guards felt more inviting.

They were disappointed that signposting to other local services that could provide a range of help and assistance was not more consistent. We were able to feedback that housing officers and reception staff, as well as handling issues sensitively, should take get better at signposting to other local agencies as this goes a long way to people feeling like their circumstances have been listened to and taken seriously.

Twenty-one visits and four reports later, the participating organisations have a unique insight into what they are doing well and what needs to be done to better meet the needs and expectations of the people who come to them for help.

Find out more about Shelter Cymru’s Take Notice project.

Let’s stop making young people homeless

It’s great to see evictions from social housing continue to decline in Wales. Clearly there is a determination by most social landlords to do all they can to prevent people from becoming homeless, a real challenge in the context of austerity and the Universal Credit rollout.

But even with figures at their lowest for years, at least 775 households lost their homes in 2017 through evictions from social landlords. On top of that figure there’s an unknown number of evictions taking place among tenants on licences and Assured Shorthold Tenancies.

What happens to these people? Where have they gone?  What circumstances are they now in? Is there more we can do?

Of course there is.

I was struck when I read the excellent, and influential Preventing Youth Homelessness: an international review of evidence published by the Wales Centre for Public Policy, by a set of very sensible ‘system prevention’ recommendations aimed at health and social care: that there should be ‘zero discharge into homelessness’, and that in the criminal justice system there should be a planned discharge, providing young people with housing options.

In other words duties should not end until people are assured they have appropriate accommodation and support where necessary.

It’s not surprising that these two areas were identified in the report – we all know the overwhelming evidence is that people who have left care or the criminal justice system are disproportionately represented among street homeless people.

But what also struck me was that there was no similar recommendation aimed at social and supported housing. Certainly the report recognises the crucial role social housing plays in preventing homelessness, but perhaps we need to go one step further. After all, the most effective way of preventing homelessness is not to let it happen.

Of course social landlords don’t ‘discharge’ people from their homes: they evict them. So why not replace ‘discharge’ with ‘evict’ – ‘social landlords should not evict young people into homelessness.’

We know that there will be occasions when a social landlord reaches a point where they feel all other avenues have been exhausted and a tenant needs to be evicted. But adopting the ‘as long as it takes’ principle, should that be the end of the relationship?

Instead could we explore in Wales a collaborative approach between key services and social landlords to ensure that evictions mean a move to an alternative home, rather than homelessness?

It seems to me that the benefits of this approach are enormous, both in terms of the individual or household concerned of course, but also in terms of developing a planned approach to resolving tenancy difficulties, rather than the costly and less effective crisis driven response that is usually necessary when responding to the emergency of homelessness.

I’m not sure how we get to this point. Voluntary protocols?  WG guidance and expectations? A law one day maybe? But if it could work for young people, why not families with dependent children? Why not eventually all tenants having difficulty maintaining their tenancies?

I am sure our friends in the sector will, understandably, have a hundred questions and concerns about this idea – but let’s start the dialogue – what a prize to win and what a huge step it would be to ending homelessness in Wales.

Vulnerable tenants mustn’t lose out in the letting fee ban

 

Leanne* contacted the Shelter Cymru Live helpline earlier this year because her landlord was trying to evict her and her children for rent arrears.

She knew there would be some arrears due to Universal Credit, but the amount the letting agent told her she owed was incredible to her. She’d been trying really hard to keep afloat, and she just couldn’t understand why the arrears were suddenly so high.

When she looked into it further, she discovered that the agent was charging her a default fee of £26.30 every single day that she was late with rent.

Just let that amount sink in.

It is £184 a week.

It is £800 a month.

A big part of the problem was that her Universal Credit was paid a week later than her rent due date. She’d tried to get both dates moved, but neither the DWP nor the letting agent would budge.

Why would the agent refuse this? Well, it might be because default fees are a tidy source of income for those unscrupulous agents who are happy to exploit people in poverty. For years we have been campaigning to ask the Welsh Government to ban tenant fees.

In June we were delighted to hear that our campaign supporters’ voices had been heard. The Renting Homes (Fees etc.) (Wales) Bill is currently going through the Senedd and is likely to come into force some time next year.

There’s a huge amount to welcome in the Bill. Tenants will no longer have to find hundreds of pounds in upfront fees at the start of a tenancy. The security deposit will be capped, probably at six weeks’ rent. Any holding deposit will also be capped at one week’s rent, and fully refundable.

It is going to make private rented housing more accessible for hundreds of thousands of people in Wales.

There are, however, a number of areas of the Bill that still need improvement. And the biggest area of concern is default fees of the type charged to Leanne.

Default fees are currently permitted in the Bill. A Senedd committee recommended that the Bill should be amended to require default fees to be ‘fair and reasonable’. This proposal was rejected by the Welsh Government, arguing that ‘fair and reasonable’ was a civil rather than criminal test. Instead they are proposing to issue guidance on what is and isn’t an unfair default fee.

This doesn’t give enough protection to tenants like Leanne and her children.

If this Bill became law as currently proposed, Leanne would need to take her agent to court to challenge the unfair fees. This is a completely unrealistic proposition.

Apart from the stress and worry of court action, there is no Legal Aid available for cases like these. Leanne would have to represent herself in court, unless she could afford a private solicitor, and she’d have to find several hundred pounds of court fees upfront. The court system is so overloaded that it would take months for the case to be heard, during which time she’d be risking a revenge eviction.

This wouldn’t be necessary if Leanne had been charged any of the other types of prohibited payment. She’d be able to go to the local authority or Rent Smart Wales and get a fixed penalty notice issued. Access to justice would be swift and fair.

This is why we want to see default fees defined in the Bill itself or in regulations. We’re not saying that agents should never charge a late payment fee in order to recoup the expense of chasing arrears. But we do think it is vitally important to ensure that tenants are not put in the position where they are essentially unable to challenge an unfair default fee. This will create a loophole open to exploitation, and it will be tenants on low incomes who suffer most.

We’re calling on the Welsh Government to amend the Bill so that:

  • Default fees are defined in the Bill as two types of payment: late payment of rent, and lost keys. Other fees should be recovered via the security deposit
  • Late payment fees are charged once a month only, and capped at a level to be set by Ministers and periodically revised
  • Late payment fees cannot be charged until the rent is 14 days late.

If you agree, please email your Assembly Members as soon as possible to ask them to put forward amendments to protect tenants from rip-off default fees.

 

* Leanne’s name has been changed