Regulatory gap could 'hamper' tenants' ability to challenge fixed-term tenancies

Published by 24publishing for 24dash.com in Housing and also in Central Government, Communities, Local Government

An absence of regulatory guidance could hamper the ability of social housing tenants to challenge the ‘exceptional circumstance’ rule in the Government’s new fixed-term tenancies, a homelessness charity has warned.

Shelter has launched a new guide following the introduction of the Localism Act 2011 which gives social landlords the power to let properties on fixed-term tenancies for a minimum of five years, but two years in “exceptional circumstances”. Such tenancies would be reviewed after the fixed term and an assessment made on whether the tenant still needed a social home.

The Act requires every local housing authority to publish a tenancy strategy by next January which will direct how councils and housing associations let social housing in the area, including the length of tenancy agreements that are offered.   

However, Shelter believes that five years should be the “absolute minimum” length of a fixed term and fears that a gap in the law and in regulatory guidance will hamper tenants’ ability to challenge shorter-term tenancies.

It fears that some social landlords are planning to use the two-year minimum for the vast majority of tenancies. Indeed Conservative-run Barnet is offering  two-year tenancies as the norm for under-25s.

The guidance warns: “This absence of statutory or regulatory guidance on exceptional circumstances may also hamper the ability of a potential tenant or Tenant Panel to challenge the ‘exceptional circumstances’ set out in their landlord’s Tenancy Policy, or decisions based on these. This is particularly worrying in the absence of consumer regulation, except for in cases of serious detriment. This means there will be no proactive regulation to ensure that the two years will be used as the exception rather than the rule.”

As such, in cases where registered providers want to offer tenancies of less than five years, it wants local housing authorities to set out in their strategies the ‘exceptional circumstances’ in which tenancies shorter tenancies may be used.

It adds: “This would ensure councils (rather than individual social landlords) can make a strategic decision about the meaning of ‘exceptional circumstances’ and would have a role in ensuring compliance.”

It also wants the tenancy strategies to set out the time period within which registered providers should update their policies as there is no regulatory guidance on how frequently they can update them, meaning “renewal criteria could be amended at any time”.

When carrying out tenancy reviews, it wants registered providers to proceed on the basis of a “presumption” that a new fixed-term tenancy for a period at least equivalent to the current or previous fixed term should be granted to the tenant.