Legal update


HowabolishingASTs could affect care homes


Tom Lumsden, a partner at CooperBurnett, considers how the proposed abolition of the assured shorthold tenancy (AST) in England could affect care homes and care home residents in the future


In July 2019, the Government published a consultation paper following its announcement in the spring of 2019 of the intention, in England only, to remove a landlord’s ability to terminate an assured shorthold tenancy (AST) without having to give any reason. This change would be effected by removing a landlord’s right to serve a Section 21 Notice under the Housing Act 1988. Many residents of care homes occupy their rooms under licences or care agreements; their right to reside arises from a contractual right, which is personal only, ie the care home resident does not have any legal or other interest in the ‘bricks and mortar’ of the building that they occupy. For owners of such care homes, the proposed abolition of ASTs is unlikely to have any consequences.


However, there are also care home operators whose residents do not occupy under such personal licences, but where the two elements of accommodation and care are split into separate documents. In respect of the resident’s accommodation, their right to occupy is granted by a tenancy agreement, which will in almost all cases be an AST. Such a model has suited some care home operators for a variety of reasons. Comfort has always been taken from the fact that in a difficult situation where, for example, the resident’s continued occupation might cause them or other occupiers of the care home distress, it has been possible to invoke the provisions of a Section 21 Notice, which would allow the care home operator (in its


role as ‘landlord’ under the AST) to bring the AST to an end on a ‘no fault’ ground. The fact that the Government is now seriously contemplating repealing Section 21 of the Housing Act 1988 must surely be of concern to these care home operators. If the repeal goes ahead, it will no longer be possible for a care provider to serve a Section 21 Notice on a ‘no fault’ basis, but instead they would have to rely on some of the other statutory grounds for possession. These are known as Section 8 grounds, ie they arise under Section 8 of the Housing Act 1988. They are distinct and separate from the Section 21 grounds whereby no fault needs be proven.


Mandatory grounds


Some Section 8 grounds are mandatory, meaning that a court must grant a possession order if the landlord can demonstrate that the ground is made out. The other grounds are discretionary, which means that if the landlord can demonstrate that the ground has been made out, the court may or may not decide to grant an order, if it considers it is reasonable to do so. The mandatory grounds are listed in Box 1.


As can be seen from the mandatory grounds, it appears fairly unlikely that care home operators, as landlords, will be able to rely on any of these without stretching


April 2020 • www.thecarehomeenvironment.com


the facts of the case where most care home residents are concerned. There are, of course, a number of other grounds for possession that are discretionary grounds. These include the following: l suitable alternative accommodation is or will be available when the possession order takes effect


l rent was unpaid by the tenant when the Section 8 notice was served and has not been paid by the time possession proceedings began


l any obligation of the tenancy (apart from non-payment of rent) has been broken or not performed


l the tenant or anyone living with the tenant has allowed the property or parts of it to deteriorate


l the tenant or anyone living with or visiting the tenant has been guilty of behaviour likely to cause nuisance annoyance or has been convicted of using or allowing the property to be used for illegal or immoral purposes or has been convicted of an arrestable offence committed in the area of the property.


It is difficult to see how, on an application by a care home operator for possession against a perhaps frail, vulnerable and elderly care home resident, a judge would


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