Housing Solicitors

Tenants are sometimes subject to so-called “revenge evictions” - they’ve suffered disrepair, they’ve complained about it to the landlord, and now they’ve then been served with a Section 21 notice seeking possession. A revenge eviction, surely? Does that mean my landlord can’t evict me? Well, not quite. Protections against revenge eviction only apply in specific circumstances. To constitute a defence, the Local Authority (LA) must serve a relevant notice on the landlord in respect of the disrepair. This notice must have been served in the 6 months prior to the service of the Section 21 notice (which makes the Section 21 notice invalid), or after service of the Section 21 notice but prior to a possession hearing in circumstances where the tenant (1) complained of the disrepair in writing to the landlord prior to the service of the Section 21 notice and then (2) also complained to the Local Authority, resulting in the service upon the landlord of the relevant notice. So, if a tenant receives a Section 21 notice having complained of disrepair in writing to his landlord, but there has not yet been any Local Authority involvement, there is a clear step for the tenant to take. The tenant must make a written complaint about the disrepair to their LA. It is then up to the LA to inspect the property and to take whatever steps it considers to be most appropriate – which may involve the service of a notice. According to research carried out by NRLA in 2022, each LA receives approximately 274 complaints about conditions in the Private Rental Sector each year, and in response to these complaints, LAs carry out 135 Housing Health and Safety Rating System (HHSRS) inspections. Only 9% of these inspections leads to a relevant notice. The standards, quality, implementation and enforcement between Local Authorities are not standardised and can differ depending on where you live. There are some advantages to this, but also many disadvantages. When it comes to the service of relevant notices under Sections 11, 12 or 40(7), the NRLA found that just 20 LAs were responsible for the service of 50% of the annual relevant notices served. There are 333 Las in England. So, just 6% of the Las are responsible for 50% of the notices. Whether you’ve got a defence to Section 21 proceedings for a revenge eviction is really a postcode lottery. Most LAs seem to shy away from serving notices under Sections 11, 12 or 40(7). Where they carry out an inspection at all, and where they serve anything at all, they may serve a Hazard Awareness Notice, or (more likely) any variation of “preliminary” letters or “warning” letters highlighting a threat to serve an improvement notice, without actually serving the notice itself. In the NRLA report it was noted that “a number of local authorities indicated a preference for informal enforcement where possible” and try to “[avoid] formal action unless absolutely necessary”. In a defence to Section 21 proceedings, this is of no use whatsoever. What happens, then, if the Local Authority has all the evidence of substantial disrepair and yet fails to serve a relevant notice on the landlord, pursuing informal avenues instead? Or, just as unhelpfully, what if they serve a notice but it is not a notice under Sections 11, 12, or 40(7) but a Hazard Awareness Notice instead? Hazard Awareness Notices are peculiar in that they are an option for situations where category 1 hazards are present, but they place no formal requirements of compliance on the landlord. They are simply a watered down version of an improvement notice with no teeth. Although statistically few Hazard Awareness Notices are issued, almost half of those which are issued are from the same 10 local authorities. The NRLA found that those 10 authorities “tend to use hazard awareness notices almost exclusively”. So, the landscape of this postcode lottery is that only 20 LAs in England make effective use of improvement notices and notices of emergency remedial action. Of the other 303, 10 almost exclusively use toothless Hazard Awareness Notices and favour informal action wherever possible. It is only a small number of local authority areas therefore that a defence of “revenge eviction” may realistically be available to tenants. Even if possession proceedings are brought out of “revenge” against the tenant for raising problems with disrepair, the law will be of no assistance, because local authorities almost across the board are failing to exercise the discretion granted them to serve improvement notices or notices of emergency remedial action. The reasons given to the NRLA for this reluctance by local authorities is a shortage of resources and a “preference” for informal routes which the NRLA interprets as suggesting the formal processes are too complex leading local authorities to prefer an easier route. In respect of emergency remedial action notices, it is also a factor that the cost to the Local Authority of pursuing enforcement under this route are high – although it is also notable (as noted by the NRLA) that two local authorities (Wolverhampton and Hull) performed 57% of all enforcement by way of a notice of emergency remedial action in 3 years. Over the same time period, 153 local authorities made no use whatsoever of these powers. What does this mean for tenants? How can best use be made of revenge eviction protections when so many local authorities are not exercising the discretion granted them even where ample evidence of serious disrepair is available? Local Authority decisions are subject to public law principles of judicial review. A claim for judicial review is a review of the lawfulness of “a decision, action or failure to act in relation to the exercise of a public function”. Decisions relating to both the general duty to take enforcement action for Category 1 hazards and the power to take enforcement action for Category 2 hazards will constitute decision-making subject to the public law principles like any other. Where the Local Authority is satisfied that a Category 1 hazard exists and elects for an “informal” way of dealing with enforcement this could amount to an unlawful decision. The Local Authority should also have policies in place as to how they will implement and exercise the duty and powers given them under Part 1 of the Housing Act 2004, and the approach they will take to enforcement. If the policy itself were to prefer “informal” action over formal enforcement then – where it relates to Category 1 hazards – such a policy itself would be unlawful, and even in relation to Category 2 hazards may be reviewable. Even where the general duty to take enforcement action (Category 1) or the powers to take enforcement action (Category 2) are implemented in line with the statute, the decision as to whether to serve) a Hazard Awareness Notice instead of an improvement notice may be subject to judicial review if that decision is not make in accordance with the council’s own policies, or is made in a way that is irrational or procedurally unfair. Where does this leave possession proceedings brought under Section 21 and the potential for a defence of “revenge eviction”? If the tenant complaints of serious disrepair then receives a Section 21 notice of seeking possession, he should make sure at that point also to make his complaint known to the Local Authority. If the Local Authority carries out an inspection and finds Category 1 or Category 2 hazards and then elects to follow an informal route to enforcement then advisers should surely be considering the merits of a judicial review of that decision, though in the first instance a letter formally requesting the service of a notice under Section 11, 12 or 40(7) may be the best place to start. Even where the Local Authority does elect a formal route to enforcement action, if that route does not involve service of a notice under Section 11, 12 or 40(7) (but perhaps involves a Hazard Awareness Notice instead) then again the merits for a judicial review of that decision – in light of both the facts of the case and the council’s policies – should surely be considered. And if merits are such that judicial review proceedings are commenced then an application to stay the Section 21 possession proceedings pending the outcome of the judicial review would surely be an appropriate step. These are untested waters. If any practitioners are reading this and are aware of judicial reviews brought by tenants relating to these matters then I will gratefully receive the information. I am aware of a judicial review attempt by a landlord’s association in Humber Landlords Association v Hull City Council (2019) in the High Court, but this was a challenge to the perceived over-zealousness of the council’s enforcement policy. The bid failed. I am unaware of bids for a judicial review of inadequate enforcement – but it seems clear that a very proactive approach by a Local Authority is supported by law and backed up by the courts. So perhaps this stands advisers in good stead to challenge the opposite: inadequate policies and actions. Unless advisers are able to navigate a way around the postcode lottery of enforcement, then the defence of a “revenge eviction” will only ever be available to a tiny number of the tenants unfairly facing eviction for daring to complain about the housing conditions in their homes. Until it is the vast majority of Local Authorities who choose or can be forced to take the necessary enforcement action under Part 1 of the Housing Act 2004, then the law designed to protect tenants from revenge evictions is simply not working. About the author: Daniel Bacon is a Housing solicitor at Duncan Lewis. He acts for both landlords and tenants, privately and publically funded, in a range of matters, including possession proceedings, matters of succession, and property ownership disputes. Contact him for advice via email at DanielBa@duncanlewis.com or via telephone on 020 7275 2593. Daniel works under housing director Manjinder Kaur Atwal who has more than 13 years’ experience in housing and property litigation law, tackling possession claims and eviction matters, landlord and tenant disputes, homelessness, housing disrepair, bringing judicial review matters, review/appeals relating to local authority housing decisions, property nuisance/negligence claims, and much more.