In April 2019 Theresa May’s Government announced its plans to repeal Section 21 of the Housing Act 1988 (as amended by the Housing Act 1996) and put an end to so-called ‘no fault evictions’. Long controversial, Section 21 allows landlords to evict tenants who have assured shorthold tenancies (ASTs):

1. after a fixed term tenancy comes to an end, provided there is a written contract; or

2. during a periodic tenancy (i.e. a tenancy with no fixed end date).

The landlord must give the tenant 2 months’ notice in writing but does not have to provide any reason for the eviction.[1] The provision is subject to some caveats and safeguards to protect the rights of tenants but, even taking these into account, it still allows for the eviction of tenants who have taken good care of a property, kept up with rent payments, and abided by all the conditions of their tenancy. This is in contrast with the provision under Section 8 of the 1988 Act, which states that a landlord can only commence proceedings to take possession of a property let on an assured tenancy if one of the limited range of grounds in Schedule 2 of the Act applies.

Being required to move with only 2 months’ notice would no doubt be a headache for anyone, but it can take a particular toll on families with school-age children, disabled people, people living in rural areas with a shortage of rented accommodation, and people living in poverty, who may struggle to find alternative accommodation within their budget and can ill afford to pay the extra costs associated with moving. It is no surprise therefore that the announcement that the Government planned to abolish Section 21 was widely celebrated by housing charities and campaigners.

Coming up to three years later, however, and the provision remains in force, despite the pledge to repeal it being repeated in the Conservative manifesto for the 2019 general election.[2] The 2021 Queen’s Speech promised that the Government would respond to its 2019 consultation on the issue and publish a White Paper by the end of the year, but in October 2021 it was announced that the White Paper would be delayed until 2022.[3] Meanwhile, analysis of Ministry of Justice figures by the Big Issue Foundation found that some 25,000 Section 21 notices were issued between the April 2019 announcement and November 2021, while campaigning organisation Generation Rent have suggested that rising eviction rates since Covid-related protections were removed could result in one no-fault eviction every 32 minutes this winter. This is an especially grim state of affairs given that, for a while, it seemed that the pandemic had shifted the conversation on poverty and homelessness and highlighted the inequities and insecurities faced by private renters, especially those living at the lower end of the market.

But if the focus of the promised reform is on protecting private renters, what does all this have to do with supported housing? It turns out quite a lot, as I discovered when I spent a year working in the policy team at the National Housing Federation between September 2019 and September 2020, covering supported housing among other policy areas. The NHF is the trade body for England’s housing associations, representing around 900 members ranging from major social landlords managing over 100,000 homes, to small specialist providers with just a handful of properties.

Many of its members also provide supported housing, either exclusively or alongside general needs accommodation. This wide-ranging term can be used to refer to any accommodation where housing-related support is provided as part of a tenancy. Housing associations deliver around 70% of England’s supported housing, including sheltered and extra care housing for older and disabled people, homeless hostels, mental health stepdown units and domestic abuse refuges.[4] Of the rest, around 20% is owned and managed by local authorities, and the remaining 10% by a mixture of private and voluntary sector organisations. The kinds of support offered in these schemes vary widely, but they include job coaching and skills development training, counselling and wellbeing checks. They are all aimed at helping residents maintain their tenancies and live as independently as possible. For many residents in supported schemes, the only viable alternative would be residential care, hospital or another secure institution.

For a type of housing designed to meet the needs of some of the most vulnerable groups in society, it might seem strange to learn that supported housing providers quite often let properties via ASTs. One might assume that security of tenure would be paramount in such schemes and indeed many supported homes, especially sheltered and extra care housing for older people, are let on a lifetime basis. However, there are a number of reasons why supported housing providers might need to take possession of a property urgently, even where a resident has not fallen behind on their rent or otherwise breached their agreement with the landlord. They can be roughly divided into four themes, though there is some overlap.[5]

1. Loss of support

Funding for support services in supported accommodation can be withdrawn for planned or unexpected reasons. Commissioning cycles have a role to play, local authority-commissioned services often being made available to clients for a maximum period of two years, after which they are expected to be able to live independently or their landlord is expected to help them find appropriate accommodation to move onto. In these circumstances, it is always understood that the tenancy will only last for the maximum period for which support is available. Sometimes, however, support may be withdrawn unexpectedly. This can occur where support services are funded or directly provided by an external agency, which suddenly ceases to operate for reasons beyond the control of the housing association. Whether or not the cessation of funding is anticipated, the fact remains that many residents in supported housing are not in a position to maintain their tenancies without the correct support services in place. Tenancies which continue unsupported risk breaking down in a chaotic way which can be harmful and traumatic for residents and costly for social landlords.

2. Residents’ changing support needs

Different types of supported housing offer different services, some much more intensive than others. Sometimes during the course of a tenancy, a resident’s support needs may evolve. They might start out in a high-support service and over time discover that they are able to live more independently. Conversely it may become apparent that they require a greater level of support than their current housing provider is able to offer. Ideally residents in this position will be able to move into more appropriate accommodation by mutual consent, but sometimes a resident might be understandably reluctant to move. In such circumstances housing providers may seek to terminate a tenancy, in the interests of ensuring that residents are properly supported and that very limited supported housing stock is allocated as fairly and effectively as possible.

3. Safety of other residents

Some client groups in supported housing can suffer from serious mental and physical health challenges, substance misuse issues and potentially chaotic behaviour. In services designed to be temporary, residents with very high support needs, which pose a potential risk to their own safety or that of others, will often be given a licence to occupy rather than a tenancy agreement. However, in certain circumstances, even in schemes which are intended to offer long-term or lifelong support, staff may feel that they need to evict a resident at short notice for the protection of other residents. Section 21 is far from an ideal mechanism in such circumstances, but it does offer greater speed than Section 8 proceedings and greater certainty than an application for an emergency injunction. 

4. Long-term unavailability of the property

Supported housing schemes can sometimes have rather complex operational models, whereby buildings are leased and services such as care, mental health provision, housing management support or skills training are subcontracted to other organisations. It is far from unusual for a scheme to have a housing association landlord but a charity or private agency providing housing management and support services. Likewise, it is common for housing associations to lease supported housing properties from a freeholder for a number of years, after which it must be restored to the freeholder with vacant possession, or to lease properties the value of which is affected by ‘planning blight’ because they are in the proposed path of a significant publicly-funded infrastructure project. All of these models allow providers to keep services running in a very challenging funding environment, but they also mean that it is not always possible for landlords to guarantee their residents full security of tenure.

If Section 21 is repealed and no thought is given by Government to the peculiarities of supported housing provision, there is a risk that providers may start to offer more licences and fewer tenancies, giving residents even less security than they would have under an AST. Worse still, providers dealing with especially complex leasing arrangements or precarious funding streams might simply stop providing services altogether. It is therefore to be sincerely hoped that the anticipated White Paper will give serious consideration to the issue.

When we consulted with members during my time at the NHF, there were a range of opinions on potential ways forward. There was fairly widespread agreement that Section 21 is a blunt instrument, which is not especially well-suited to the requirements of the supported housing sector, but also a high level of concern over what the impact might be if all supported housing tenancies effectively became lifetime tenancies overnight.

There was a degree of enthusiasm for the idea of creating a specific new ‘supported housing tenancy’, which might sit alongside some of the other specialist provisions considered in the Government’s 2019 consultation document, for example relating to private lettings to students, the sub-letting of farm buildings by tenant farmers, and the letting out of property designed for use by religious workers during periods of non-use for that purpose.[6] The idea was that the existence of the tenancy might be tied in some way to the ongoing provision of support services. However, it quickly became apparent that creating a single tenancy type to cover the vast array of service models encompassed by the term ‘supported housing’ was likely to be all but impossible.

Retaining ASTs for supported housing providers, while abolishing them for everyone else, seemed highly unlikely to be acceptable to the Government, and would leave social landlords in the morally questionable position of offering less security of tenure than private renters would automatically enjoy after the new measures came into force. Excluding tenancies in supported housing schemes from assured status, and therefore from statutory security, by adding them to the list of exclusions in Schedule 1 of the 1988 Act, would raise even greater moral objections. Schedule 1 sets out a range of tenancies which cannot be assured, including student lettings which are specifically tied to a course of study, holiday lets and licensed premises. Such tenancies can be terminated by a simple notice to quit. While potentially rather practical, adding accommodation for some of the most vulnerable people in society to the list of tenancy types which cannot be assured would be difficult to defend from a political and moral perspective.

That leaves adding a new mandatory ground for possession to Schedule 2 of the 1988 Act as the most workable solution. This schedule sets out a range of grounds on which a landlord can issue a notice seeking possession under Section 8 of the Act. Some, such as Ground 7A concerning anti-social behaviour and Ground 8 concerning serious rent arrears, relate to breaches of the tenancy agreement by an assured tenant. Others deal with circumstances where possession is legally necessary, even if the tenant has done nothing wrong. For example, Ground 2 allows for possession by a mortgagee where the landlord has defaulted on payments on a mortgage on the property which predates the tenancy.

While Section 8 proceedings are not as expeditious as a Section 21 notice, introducing a new mandatory ground for possession for supported housing would at least ensure that providers had some mechanism for moving residents on in circumstances where funding for support had been withdrawn, resident safety demanded it, or a building was no longer available. In its response to the Government consultation on this issue, the NHF provided some suggested wording for the proposed ground and suggested that it ought to apply only to non-profit landlords (namely charities and community benefit societies), to prevent poorly regulated for-profit providers from exploiting it as a loophole in the new law. In practice, it seems probable that any such provision would have to be worded in such a way as to encompass local authority landlords too. Crucially, however, the new ground would be limited to circumstances where

1. the purpose of granting the tenancy is from the outset explicitly limited to that of providing temporary accommodation (specifically defined); or
2. the tenancy is a designated short-term tenancy; or
3. the tenant relies for the successful maintenance of the tenancy or for their own safety and wellbeing on support that is provided by or for the landlord by means of funding by an agency independent of the landlord and not subject to its influence or control, or is provided directly by such an agency, and the agency ceases to fund or provide the support; or
4. the tenant relies for the successful maintenance of the tenancy or for their own safety and wellbeing on support and this support is no longer available; or
5. the support that is provided to the tenant is not in line with the tenant’s needs. [7]

In any of these circumstances, the tenant would also need to have been given written notice in the tenancy agreement, or in a separate document served at the same time, that this ground might be used. The idea behind drawing the circumstances in which the proposed ground would apply fairly narrowly is to ensure that supported housing residents would only be subject to no-fault possession in very limited circumstances in which housing could not otherwise be provided for them.

This seems like a relatively fair compromise and, crucially, does not leave thousands of extremely vulnerable people with less security of tenure than they have at present. Nevertheless, what struck me very strongly while working on the Section 21 repeal consultation with members at the NHF, and afterwards reading the briefing that my colleagues produced on the subject, was how many of the challenges facing the supported housing sector as a whole have been thrown into sharp relief by the proposed abolition of no-fault evictions. If the supported housing sector enjoyed adequate and consistent revenue funding, then residents would not be required to leave at short notice because support services had been unexpectedly terminated. If there was capital funding available to increase the supply of purpose-built accommodation, then providers would not be so acutely constrained by the need to manage their limited stock effectively. If local authority commissioners took a strategic approach to assessing the need for housing-related support services and commissioned them accordingly, perhaps the sector would be less reliant on piecemeal lease-based arrangements. A recent House of Commons Library briefing paper on Section 21 at least acknowledged the need to consider supported housing tenancies when implementing legislative changes in this area. It is to be hoped that one of the tangential consequences of the forthcoming White Paper will be to foster a new appreciation for the sector.

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What I’ve been reading….

Over Christmas I read The Topeka School, a semi-autobiographical novel by American poet and author Ben Lerner. Lerner’s roots as a poet definitely show. The novel is beautifully written, offering vivid portraits of the lives of its cast of characters as it jumps between perspectives and time periods. It is also fascinated by the idea of language itself, its many uses and the power it can bestow on those who know how to use it well. And it’s extremely funny. Definitely recommended.

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[1] It should be noted that, due to the Covid-19 pandemic, the notice periods that landlords were required to give tenants were temporarily extended for landlords who gave their tenants notice between 26 March 2020 and 30 September 2021.

[2] Conservative Party Manifesto 2019, p. 29.

[3] For a full timeline and summary of the measures consulted on to date, see House of Commons Library Research Briefing by Cassie Barton & Wendy Wilson, ‘The end of ‘no fault’ section 21 evictions‘, 29 December 2021.

[4] The figure is taken from the DWP & DCLG Supported Accommodation Review, November 2016, but it seems unlikely that it has changed significantly in the intervening years.

[5] Further detail can be found in NHF Renters’ Reform strategy: Proposal for providers of supported housing and temporary accommodation, June 2021.

[6] See MHCLG, A New Deal for Renting Resetting the balance of rights and responsibilities between landlords and tenants: A consultation, July 2019, pp. 40–43.

[7] NHF Renters’ Reform strategy: Proposal for providers of supported housing and temporary accommodation, June 2021, p. 19.

Image credit: “Key to the open door” by Tawheed Manzoor is licensed under CC BY 2.0