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Dealing with an eviction case

• Adjournment and postponement
• Time to pay directions and orders
• Using the Debt Arrangement Scheme
• Using an insolvency option
• Reasonableness
• Making referrals

Rent arrears can be dealt with by an application for time to pay, the Debt Arrangement Scheme (DAS) and insolvency.

Remember, however, that an application to the tribunal will likely be in two parts: an application for payment of the arrears and one for repossession and eviction. The client must convince the tribunal not to award repossession when the arrears have been dealt with.

The first step is to contact the landlord and get their point of view and what they would like to happen. You could try to negotiate writing some of the debt off if the client restarts full payments or ask them to reduce the rent for a few months if the client is going through a difficult patch. You could ask them to defer payment of the arrears until the client’s situation improves, or if the client is on benefits, arrange for the landlord to have a managed payment direct from the client’s benefits.

Try to negotiate before the landlord decides to go to a tribunal.

Adjournment and postponement

If the case has already been called, you can ask for an adjournment or postponement to give you time to put a defence together and look at suitable options.1Sch r28 FTTSHPC(P) Regs

 

1     Sch r28 FTTSHPC(P) Regs »

Time to pay directions and orders

Time to pay directions (TTPD) and time to pay orders (TTPO) are a way to deal with arrears.1The First-tier Tribunal for Scotland Housing and Property Chamber (Incidental Provisions) Regulations 2019 No.51; housingandpropertychamber.scot/news/time-pay-and-other-legislation-amendments

Where your client has enough money to make an offer of repayment within a reasonable timescale, they can apply for time to pay, either before the decision is made (TTPD) or after the decision is made (TTPO).

Remember this only deals with the rent arrears and not an action for repossession. The client must convince the tribunal that they should not allow the repossession to go ahead if the debt is being paid through a time to pay application.

A TTPD is received by the client at the same time as they receive notice of the case management discussion or hearing. The client can complete it and return it to the tribunal.

The application is sent to the landlord, and they can either agree or disagree to the application. If they agree, the time to pay application is awarded and there is no need for a hearing. If they disagree, the tribunal sets a hearing where it will be discussed and decided upon.

A TTPO needs a separate form and must be completed by the client. A copy of the TTPO form and guidance on how to apply can be found on the tribunal website.

See Chapter 11 for more detailed information.

 

1     The First-tier Tribunal for Scotland Housing and Property Chamber (Incidental Provisions) Regulations 2019 No.51; housingandpropertychamber.scot/news/time-pay-and-other-legislation-amendments »

Using the Debt Arrangement Scheme

Rent arrears can be included in the DAS. However, if it is advantageous for the client to make a separate arrangement and treat it as a priority debt with the landlord outside of the DAS, the client can exclude the arrears from the scheme.1s8 The First-tier Tribunal for Scotland Housing and Property Chamber (Incidental Provisions) Regulations 2019 No.51

If they are included, this should be accepted by the landlord, and they should not pursue the client for the arrears outside of the DAS. See Chapter 6 for more detailed information.

When the case calls in the tribunal, it may be a good tactic to ask for an adjournment or postponement to allow time to make an application for a Debt Payment Programme (DPP). This allows you time to go over the client’s whole situation and come up with a suitable strategy.

This alone does not stop an eviction as there may be one application for the arrears and one for the eviction. The client must convince the tribunal that as the arrears are being dealt with, it is unreasonable to grant an eviction order.

 

1     s8 The First-tier Tribunal for Scotland Housing and Property Chamber (Incidental Provisions) Regulations 2019 No.51 »

Using an insolvency option

This could be any of the three options open to clients (Minimal Assets Procedure, Full Administration Bankruptcy or protected trust deeds – see Chapter 6).

As with the DAS, the client must convince the tribunal not to award the eviction order. One argument is that the debt is not ’lawfully due’ and so the ground for the eviction is wrong. In the end, it is up to the tribunal to decide.

Reasonableness

Before the tribunal grants an eviction order, it must be satisfied that it is ‘reasonable’ to do so.

Try to make a case that because the client has dealt with the arrears, it is not reasonable for the tribunal to grant an eviction order.

For assured tenancies, look at section 18(4) of the Housing (Scotland) Act 1988.

For a private residential tenancy agreement, look at Schedule 3 paragraph 12(4) of the Private Housing (Tenancies) (Scotland) Act 2016.

Making referrals

Shelter is an excellent place to refer a client for expert housing advice. You can signpost to Shelter’s website1scotland.shelter.org.uk/housing_advice/eviction or arrange an appointment with one of their specialist advisers. The website is also an excellent source of information for advice workers on all forms of rent arrears.

The Legal Services Agency also takes referrals from debt advisers.2lsa.org.uk/how-we-help/housing

Law centres are available throughout the country. Advisers should make contact with them and set up proper referral procedures.

 

1     scotland.shelter.org.uk/housing_advice/eviction »

2     lsa.org.uk/how-we-help/housing »