Thank you for putting your question in writing.
I note that, apart from writing individually to all of the tenants, you have now also written to all councillors (and presumably Council staff?) to tell them to advise the media and members of the public that the statement is untrue. In doing so I believe you have acted misleadingly and prematurely.
You will appreciate that a full answer like mine below could never have been made in a single A4 leaflet together with all the other comments that needed to be made. But I have no doubt it was in any case the responsibility of the Council to provide this information in what should have been a balanced and fair process on the provision of public information - a process on which the Council has spent so much.
Therefore I draw your attention to the Housing Act 1988. Schedule 2. "Grounds for possession of Dwelling-houses let on Assured Tenancies."
"Suitable alternative accommodation is available for the tenant or will be available for him when the order for possession takes effect."
For the purpose of this Ground 9 it will require 2 months notice; probably a certificate of the local housing authority certifying availability and suitability of alternative accommodation, and - if the assured tenant resists the notice - a Court Order - taking possibly a further 6 weeks - and then possibly bailiffs. But I'm sure you are well aware of the procedures involved.
Ground 9 is a "discretionary" ground therefore the court may decide to reject the application. The judge will look at all the circumstances of the tenant and the Landlord.
It is unlikely the Landlord would be able to rely on the Ground 9 notice alone because the eviction would have to be "reasonable". The Landlord would therefore give a reason. The reason would need no "fault" by the tenant. The reasons can be commercial or social.
One reason is that the accommodation is "under-occupied" AND that there is pressure on the housing stock (which there most certainly is in Tamworth!).
Another - and purely commercial - reason would be that in moving an under-occupying tenant to a smaller property, any new tenants to the larger property would be on "target" rent immediately. This would increase the income and therefore the "viability" of the a new Transfer RSL. Also it may free up a larger dwelling for sale as an empty property on the open market to raise funding for the RSL.
Another reason may be pressure from the Industry financer and regulator (The Housing Corporation) who would look to see the stock is used in the most efficient way and may not wish to finance "inefficient" RSLs whose properties are so "under-occupied". The Housing Corporations Regulatory Code - of which I am sure you must also be aware - reinforces this, and the other reasons, under the umbrella headings RSLs must be "Viable", "Properly Governed" and "Properly Managed". There are references to reducing under-occupation as a policy within the Housing Corporation's own website and it's links to government sites.
I am not the only one to believe Ground 9 can be used in this way. On 12th November 2001 Baroness Turner of Camden made exactly this comment in the House of Lords - quote Hansard - "There are safeguards in existing housing Acts to deal with problems of under-occupation that may arise on the granting of a right to succession. Ground 16 of Schedule 2 to the Housing Act 1985 provides that landlords may seek possession if they believe that the dwelling to which a family member succeeds is too large for him or her and that they can provide suitable alternative accommodation. Ground 9 of the Housing Act 1988 gives landlords a general right to seek possession on the grounds that suitable alternative accommodation has been provided".
That general right of landlords over assured tenants in Ground 9 being established, in reality eviction for under-occupying would have to be a last resort. Therefore RSLs (along with many Councils) quite rightly have a number of incentive schemes in place - higher points, cash grants, reasonable choice of alternative property, etc. that will form part of their under-occupation policy. It would be unlikely that an eviction stage would be reached. RSLs do not generally talk in terms of eviction in such cases. Evictions can be messy and take time and money. However it is clear in law that it is possible, that RSLs could use it as a last resort in their policies. The fact that they may choose not use the power does not alter the fact that it is available to them.
That is a fundamental difference between what is a "Secure" (Council) tenancy - and what will be an "Assured" tenancy. A secure tenant CANNOT be evicted on the same ground.
It may not happen but it most certainly "Can" happen. You'll note the words used in the leaflet were -:
"You CAN be moved from your home merely because less people now live there".
Therefore you can now see that the leaflet was correct to highlight this possibility. It demonstrated Ground 9 as being one of the important differences between "Secure" and "Assured" tenancies.
Any statement by the Council that RSL assured tenants will not be moved for under-occupation can therefore only be an opinion.
Pressure to move people from under-occupations will probably be greater with an RSL. RSLs in general tend to evict more persons than Councils. There will also be a case to remove people whose financial circumstances are so improved that they may no longer require social housing - they may face similar pressures to move on. This website ( http://freespace.virgin.net/petermichael.rutherford/whhata-main.htm )plus links from it - provides sample evidence of what can happen when RSLs get into difficulties, get taken over, and Assured tenancies and Ground 9 becomes an stormy issue for the tenants.
For whatever reason then - you do not seem aware of this fundamental issue and you have quite wrongly informed everyone that this statement on my leaflet was "wrong" or "not true". This is the ONLY issue in the leaflet that you have asked me to comment on - although I understand that there are other issues you have also disputed in your letter to all tenants. If you had checked all of those issues with me beforehand I would have been also able to refute your other observations. Therefore I can only assume that you are already made aware of this and therefore do not feel the need to discuss them with me now?
Unless there is something I am missing here - perhaps some later amending legislation? - then I believe your actions on behalf of the Council have seriously prejudiced this process of Stock Transfer. You have not been "correcting inaccurate information" - as you claim - but instead you have been putting out misinformation - and in a period prohibited by guidance. I would wish for an apology, but the much more serious issue is what do you now propose to do to urgently correct this situation?
I might add here that if an amendment I had made to full council (the day before the ballot papers were mailed as we were later to find out!!) - to include a new mailing to tenants giving some of this leaflet's views - had been accepted (note - a mailing that TBC Officers would have checked over for veracity beforehand) - it would have provided a balance to previous Council supplied transfer information. There would have been no need for your latest mailing. If that amendment had been allowed by the controlling group any such matters would have come to light up front. We would not now be in this invidious situation.
Also if the Council had provided the actual date the ballot papers were due to go out (as repeatedly asked for by myself and others and as indicated by section 40 of the Housing Transfer Manual) - and had the Council not made the ballot mailing concurrent with the mailing of the stage 2 letter (which was contrary to HTM (2005) guidance note 17) - that would also have made it much less likely that this situation could have arisen.
I believe by these, and other, Council actions in this process the Council have misled the public, prejudiced the process and made the ballot unreliable as an indicator of tenant demand on transfer.
----- Original Message -----
Sent: Friday, June 29, 2007 2:44 PM
Subject: FW: Stock Transfer
Below is forwarded on behalf of Rob Barnes, Assistant Director Housing
From: Barnes, Rob
Sent: Friday, June 29, 2007 2:37 PM
To: Bluck, Christine; Davies, Debbie
Cc: Weatherley, David; Collett, Emma
Subject: Stock Transfer
Can this be sent to all members please.
As you will be aware a leaflet has been distributed to tenants expressing a number of views which oppose stock transfer (? Homes Transfer- The other side of the story? signed by Councillor Chris Cook).
Within this literature there is a section which asserts that Assured tenants will have less rights than Secure tenants. At the end of this section there is a statement which has been interpreted by a great many tenants to mean that tenants who underoccupy their homes can be forced to move by the new landlord if the transfer is successful.
As a result of this a number of concerned elderly and vulnerable residents have contacted the Council anxious that they will be forcibly moved from their homes should a stock transfer take place.
This is entirely incorrect- Tenants cannot be forced to leave their homes simply because they are underoccupying them. This is true whether they are a secure tenant of the Council or an assured tenant of an RSL.
I would be grateful if any tenant raises this concern with you that, regardless of your views on the relative benefit of stock transfer, you provide reassurance to them on this issue.
If you require any further information please contact me.
Very happy to put this in writing.
You have distributed a leaflet to tenants in which you express a number of views regarding stock transfer.
Within this leaflet there is a section (marked 3.) in which you assert that assured tenants have less rights than secure tenants. As part of this argument you write ? RSL? s only have assured tenants. You can be moved from your home merely because less people now live there (partner or children move out?)?
The clear implication of what you are saying is that tenants with assured tenancies can be required to move by the landlord if they are under occupying their homes.
This is incorrect. No tenant can be moved from their home merely because they are under-occupying it whether they are a tenant of the Council or an RSL.
What concerns me is not to debate this as a point about the relative merits of stock transfer or to enter into correspondence on any wider issue. I am concerned that a number of elderly and vulnerable tenants have contacted us in a state of considerable anxiety believing (as a result of reading you leaflet) that they will be forcibly moved from their homes. I am also aware that many others will have contacted you or others who are involved in your campaign seeking clarification on this point.
The purpose of my call to you yesterday was to ask you to check your source of this information and hopefully having checked your source recognize that the statement you have made is incorrect. I would hope that we can all then work together to reassure tenants that regardless of the outcome of the current ballot no tenants will be required to leave their home because they are under-occupying the property.
I look forward to hearing your response.
From: Chris Cooke [mailto:email@example.com]
Sent: 08 June 2007 09:15
To: Barnes, Rob
Subject: Our telephone Conversation
Regarding our telephone conversation yesterday reference the item in the Stock Transfer information leaflet I have been responsible for distributing.
I have decided the best way to deal with this is to reply in writing so there can be no misunderstandings.
Because of that could I ask you to put the substance of your point, and what you require me to answer in email to me ASAP.
THE LEAFLET TO TENANTS ON STOCK TRANSFER
COUNCIL ASKS QUESTION - BUT THEN WON’T REPLY!
Before asking me about just the one item in the Independent leaflet on Stock Transfer this email went out to all members and Tamworth Council people
When approached by Housing Director Rob Barnes on this one issue I decided to make this a written correspondence - so there could be no doubt as to what was being said
SO HERE’S THE COUNCIL’S QUESTION IN WRITING - No other questions were asked - meaning they were happy with the rest of the leaflet? Or perhaps they didn’t dare ask?
THE RESPONSE! Surely they knew that I would have one?
A VERY FULL CLEAR AND REFERENCED RESPONSE THEN
SO YOU’D HAVE EXPECTED SOMETHING A BIT MORE THAN A SIMPLE WE STILL THINK YOU ARE WRONG TYPE OF REPLY? WOULDN’T YOU?
FIRST RESPONSE FROM JEREMY OATES - TORY LEADER OF THE COUNCIL
----- Original Message -----
From: Oates, Jeremy
To: Chris Cooke ; Barnes, Rob
Cc: Bluck, Christine ; Councillors ; Dennis Powick ; Weatherley, David
Sent: Saturday, June 30, 2007 10:58 PM
Subject: RE: Stock Transfer
Getting bored now
You've said you "do not accept my analysis"; that it is "incorrect"; that I have "misrepresented" the "how and when" of grounds for seeking possession. But you do not explain why you believe these things. Why not? I gave you a very detailed reply - I expected something a little more adequate in return.
In passing I could say similar disparaging things about the communications that I have seen the Council put out to tenants.
You suggest the detail of a Large Scale Voluntary Transfer (LSVT) somehow ameliorates the effects of changing from a Secure to an Assured tenancy. That it is somehow different. But you do not say how. Nor how this would change if a further transfer/merger goes ahead. Nor of the effects on new tenancies after the transfer. The Council have misrepresented the legal position.
You complain that I am points scoring. I have no such intention. I'm quite sure "points scoring" off Officers or the Council would be counterproductive. I don't take up this issue lightly. The premature circulars to tenants and press releases effectively accusing me of "lying" - from the Council and the Controlling group - seemed much more like points scoring as they were put to a far wider audience.
This is serious. The Council has not provided our tenants with adequate information. You claim I have caused distress to numerous old and vulnerable people. Perhaps they would be in much less distress if the Council had explained these possibilities clearly up front. I suggest tenants would end up in far greater distress having found out that they had made a wrong decision to transfer and were later having to deal with the effects of Ground 9 (in a variety of circumstances). You must know this has happened in other RSLs (LSVT or otherwise).
You have not attempted to answer my argument nor the references involved. Nor have you attempted to question me on any of the other items you claimed were "Not True" in the mailing which you prematurely and absolutely wrongly circulated to tenants.
Therefore I do not accept the Council is correct in this. I am aware of the anger my view has generated amongst the Controlling group and some officers - but I have seen nothing in your reply to persuade me that the words on my leaflets were anything other than correct. The Council had no right to use taxpayers money to rubbish them. It was the ONLY item of literature that ever went out to counter the Council's "information" and give tenants a chance to understand the other side of this story. Tenants deserved at least that small sample of truth.
THAT’S IT!!! NOTHING ELSE!! NO FURTHER REPLY!!
THAT’S IT!!! THEY ARE “RIGHT”! I AM “WRONG”!
THAT’S ALL FOLKS - AND WE ARE JUST GOING TO HAVE TO ACCEPT IT!!
BECAUSE THEY ARE “THE COUNCIL” AND WE SHOULD ALWAYS BELIEVE THEM
- OR SO IT SEEMS
(And don’t forget this is the only issue the Council asked me about - so when they go spending many thousands more of taxpayer’s claiming other things in my leaflet are wrong
- you might just ask them why won’t they ask me first!)