FAQs – The Court Process for Social Tenants

This section aims to answer Frequently Asked Questions on eviction proceedings for rent arrears for council and housing association tenants, explain your rights and responsibilities, and how we can help you.

If you are facing eviction proceedings, contact Edinburgh Housing Advice Partnership (EHAP) for advice: Phone  0845 302 4607 or email us at: EHAPAdmin@chaiedinburgh.org.uk

Edinburgh Housing Advice Partnership (EHAP) is a service delivery partnership comprising: Community Help & Advice Initiative (CHAI), Granton Information Centre, Four Square, Move On and Changeworks – all of which are established charities delivering  a range of advice and homelessness prevention services in Edinburgh.

 

Read our answers to Frequently Asked Questions below or download our leaflet here.

I have received a Summons. What can I do?

You will be sent a Summons if your landlord wants to ask the Sheriff Court for a Court Order for your eviction. The Summons will show the date when the case will call in court
(a Friday morning).

If you have received a Summons, make an appointment for housing advice with us or another advice agency. If we cannot give you an appointment at short notice, you should attend court, where one of our advisers can give you some last minute advice and book an appointment for you if possible. You will need to represent yourself at the first calling and ask the Sheriff for “a continuation of a few weeks”, to give you time to get advice and representation.

What happens at the first calling?

The first time a case calls in court, we call it the ‘first calling’. At that point, we will ask for a continuation, that is for another court date, so we can make an offer of repayment to your landlord and ask for more time to resolve any benefit issues and to give you time to start making payments.

How can EHAP help me with my court case?

In the first instance, we will try and negotiate a ‘continuation’ with your housing officer, to avoid the case actually calling in court.

If we can’t get your housing officer to agree to a payment plan and continue the case, you can instruct us to represent you in court and speak to the Sheriff on your behalf. We will state why it is not reasonable to grant a court order for your eviction. We will need to explain your circumstances, explain why the arrears built up and what you are doing to address the problem, for example apply for housing benefit, look into benefit issues, and make an offer of repayment for the arrears.

How long will the case stay in court for?

Once a housing officer or Sheriff has agreed to continue the case, we get another date for the next court calling. The case is likely to get continued over several weeks or months for the landlord to monitor payments, i.e. to make sure you keep to the arrangement and not miss any payments, but also to address any benefit issues.

If you do not keep to your payment plan, however, the landlord is likely to ask the Sheriff to grant an eviction order (called a decree). 

Can I get court representation from EHAP?

We can represent you as long as we have clear instructions from you, i.e. we need to hear from you in the week before the case calls in court. Although we will try and contact you, it is your responsibility to contact us at least 3 days before court, if you do not hear from us.

 Do I have to attend court?

We always recommend that you attend court if we cannot get an agreement with your landlord beforehand. If you are unable to attend court for whatever reason, we can speak to the Sheriff without you as long as we have spoken to you beforehand. However, it shows goodwill and helps the case if the tenant is present.

 What will I need to do at court?

If you instruct us to, we can speak to the Sheriff on your behalf and you would just stand next to us, in case the Sheriff wants to speak to you directly or ask you any questions. The Sheriff will make a decision there and then, about whether to continue the case or grant an eviction order. Court is public.

What is a ‘sisted’ case?

Once a payment arrangement has been adhered to for a number of weeks or months, and all benefit issues have been resolved, the landlord will eventually agree to ‘sist’ the case. This means that the case will no longer call in court, so there won’t be any more court dates at that point, but you will have to keep paying the agreed amount until the arrears are paid off.

If you default, then the landlord can easily bring the case back to court, with a single letter, by issuing an ‘Incidental Application’ form.

When the case is sisted, it will technically remain on the court books (but without any court callings or court dates) until the arrears are repaid.

 When does the case stop being in court?

Once the arrears are repaid in full, the case will be called back to court one last time for it to be ‘dismissed’. In most cases, the court will award expenses to your landlord (approximately £350), unless you can show the court action wasn’t necessary. Expenses of a court action aren’t treated as rent arrears but rather as an ordinary debt. You won’t have to repay the expenses in one go and can arrange a payment plan for these.

Helping Private Rented Sector Tenants

We are delighted to announce a new project aimed at supporting tenants in the private rented sector (PRS).

The new project will work with tenants currently living in the PRS who are at risk of losing accommodation. This may be due to rent arrears, disrepair or harassment by their landlord. They may also have barriers to finding alternative accommodation in the PRS, including lack of deposit, difficulty finding accommodation due to requiring benefits to pay for accommodation and/or suffering from mental health issues. These barriers will be addressed through income maximisation and the use of Discretionary Housing Payments (DHP), grants to secure deposits and rent deposit guarantee schemes.

Tenants will also be supported to remain in their current accommodation through pursuing repairs through the Housing & Property Chamber, income maximisation, negotiation with private landlords, money advice and improving budgeting skills. When it is not possible for the client to remain in their current tenancy or they do not wish to do so, they will be supported to find suitable and sustainable alternative accommodation.

Welcoming the new Project, Fintan Kavanagh (CHAI’s Deputy Service Manager, Housing Advice) said:  “Our Edinburgh Housing Advice Partnership (EHAP) service has a great deal of experience in engaging with tenants in the private rented sector, and that experience has clearly demonstrated the challenges that come with living in that sector.  This new service will enhance our capacity to meet those challenges and bring dedicated advice and support to PRS tenants who need it most.”

CHAI is currently recruiting for a part-time PRS:  Advice & Support Worker to develop the new project.  Details can be found here.

CHAI gratefully acknowledges the support of the Bank of Scotland Foundation in funding the new project.

Debunking HOUSING Myths

There is a lot of false information or ‘myths’ out there about housing and homelessness which we have found to be harmful to people, causing them unnecessary stress and worry. Read on and let’s debunk those myths!

1. MYTH: “You don’t have to pay any rent if you are on benefits such as JSA, ESA, Income Support.”

>>TRUTH: You may have to pay some rent even if you are on means-tested benefits, for example due to a non-dependant deduction if you have adult relatives living with you, or due to a Housing Benefit overpayment.

 

2. MYTH: “If my landlord wants to evict me, they just need to send me a letter.”

>>>TRUTH: Landlords must follow specific legal procedures and issue certain documents such as notices, depending on your type of tenancy, before they can legally evict you. Ask us for help to check whether the documents issued by your landlord are valid. But here is an overview—for each type of tenancy:

(a) Social landlords, such as a housing association or the council, can only evict you on certain grounds (specific reasons), for example due to a breach of tenancy agreement or rent arrears. They must issue a Notice of Proceedings with sufficient notice period, followed by a Court Summons before the case can go to the civil court. A Sheriff (judge) may issue a Court Order if they decide it is reasonable to evict you.

(b) For private Assured Tenancies, landlords can only evict you on certain grounds and must obtain a Court Order first. First they need to issue you with a Notice to Quit and a Notice of Proceedings (AT6 form) which must give enough notice.

(c) For private Short-Assured Tenancies, landlords do not need to use any grounds to evict you, but must issue valid notices before the eviction can proceed. If you refuse to leave after these documents have been issued, your landlord would need to get a Court Order to forcefully remove you. However, it’s not a good idea to wait for that stage because you would have no defence in court and would be liable for court expenses due to the type of tenancy you have.

(d) A new Private Residential Tenancy regime replacing Short-Assured and
Assured private tenancies came into force in December 2017.  For these new tenancies, landlords must issue you with a Notice to Leave and give sufficient notice period, which varies depending on how long you’ve lived in the property and the reasons/grounds for the eviction. Landlords must also obtain an Eviction Order from the First-Tier Tribunal (Housing & Property Chamber) who decide whether it is reasonable to evict.

 

3. MYTH: “If I don’t move out, my landlord could change the locks or forcefully
remove me from the property.”

>>>TRUTH: Changing the locks or removing a tenant without an Order (from Court or from the Housing and Property Chamber for new Private Residential Tenancies) is a criminal offence. Call the police if the landlord attempts to evict you without a Court Order. If the landlord has a Court Order, Sheriff Officers may then come to the property to forcefully remove you if you refuse to leave.

 

4. MYTH: If I live with my landlord they can ask me to go at any time as it’s their home.”

>>>TRUTH: The resident landlord only has to give reasonable notice to evict their tenant. If the tenancy is longer than 4 months’, 40 days’ notice is required. If the tenancy is for less than 4 months, resident landlords must give a minimum of 28 days’ notice. The lease (tenancy agreement) may extend but not reduce these notice periods.

 

Homelessness

 5. MYTH: If I am evicted, I will be re-housed by the Council.”

>>>TRUTH: If you have nowhere to stay, you should make a homeless presentation to the local authority. Currently presentations can be made at City of Edinburgh Council’s office at 1A Parliament Square, Edinburgh, EH1 1RF. They can be called on 0131 529 7368 or 0800 032 5968 for out-of-hours assistance. Presentations can also be made at any local council office.

The Council will initially give you temporary accommodation until they can do a full homelessness assessment to decide if they have a duty to re-house you. They will use specific criteria to make their decision:

  • You must be actually homeless.
  • You must have a local connection with Edinburgh, for example if you live/have lived, work or have relatives here.
  • You must not be intentionally homeless, i.e. they will look into whether you deliberately did or did not do something that caused you to leave accommodation which you could otherwise have stayed in.

If the Council decide that they don’t have a duty to re-house you, we can appeal the decision. Ask us for an appointment.

 

6. MYTH: The Council can refuse to give me temporary accommodation if there is no accommodation available at the time.”

>>>TRUTH: The absence of available accommodation does not excuse the local authority from their legal duty to provide temporary accommodation.  Ask us for advice and we can help you challenge this.

Click here to download this article as a factsheet (PDF – Housing Myths).

Click here to read our next post ‘Busting Myths about Debts and Bankruptcy’.

Click here to read our next post on Benefit Myths.

Benefit Must-Know Facts

 

Here are key facts to maximise your income and avoid benefit overpayments. These facts are very much worth knowing about. You can download our factsheet (PDF) here.

 

What To Do If You Urgently Need Money

 

  • If you have no money due to a crisis or emergency, apply to the Council’s Scottish Welfare Fund for a Crisis Grant which you won’t need to pay back. You’ll find a list of all contact details in this document.

 

  • If you are waiting for your new benefit claim to start, you can apply to the Department for Work and Pensions (DWP) for a Benefit
    Advance.

 

Changes in Circumstances

 

  • Report all changes in your circumstances to the Council, the Department for Work and Pensions (DWP) and HMRC’s Tax Credits Office. Don’t assume that these three bodies share information. It is your duty to report any changes, for example when: you stop work or start another job; you increase your hours at work; your wages or benefits go up or down, e.g. you get an annual pay increase; someone moves in or out; you start a new relationship, get married or break up with someone; you have a baby; your child stops full-time education; or your childcare costs go up or down.

 

  • Ask for a receipt when you hand in evidence to the Council or the JobCentre, and take note of the date, time and the name of the person you speak to, if you report a change over the phone.

 

Changes in Circumstances – Housing Benefit 

 

  • You must contact the ‘Revenues and Benefits’ section of the Council to notify your changes in circumstances, and not rely on your housing officer to pass on the information for you, even if you are a Council tenant.

 

  • For any change in circumstances related to jobs, the Council will need to see your P45 (if you’ve stopped a job) and your last 2 monthly payslips, 5 weekly payslips or 3 fortnightly payslips for any new job.

 

  • Inform the Council when your child reaches their 16th or 18th birthday or when you stop getting Child Benefit for them, as this will affect your Housing Benefit.

 

Housing Benefit Issues

 

  • You may have to pay some rent even if you are on means-tested benefits, for example due to a non-dependant deduction if you have adult relatives living with you (even when they are neither working nor claiming benefits), or due to a Housing Benefit overpayment. Check your rent charge with the Council.

 

  • If you are affected by the Benefit Cap or by the Bedroom Tax because you have a spare bedroom, go to the Council and apply for Discretionary Housing Payments.

 

  • If you are struggling to pay your rent despite getting Housing Benefit, you may also qualify for extra help from Discretionary Housing Payments. Ask your local Council for an application form.

 

  • To avoid overpayments, check your Housing Benefit award letter to make sure the Council have the right income details for you—these are shown on the left bottom corner of the letter. If in doubt, phone them and ask what income details they have on records.

 

Tax Credits

 

  • Renew your Tax Credits before 31 July by completing and returning your review form.

 

  • Children who turn 16 are automatically removed from your Tax Credits claim at the end of August following their 16th birthday. You must contact the Tax Credits Office to advise if your 16-year old child is continuing in education or not.

 

Benefit Sanctions

 

  • If your JSA, Universal Credit or ESA has been sanctioned, apply to your local JobCentre for Hardship Payments. If you have no money at all while you wait for Hardship Payments, apply to the Council’s Scottish Welfare Fund for a Crisis Grant. You can challenge/appeal any sanction. Ask us for help.

 

  • Your Housing Benefit will be stopped or ‘suspended’ during the sanction. It does not mean you stop being entitled to Housing Benefit; it’s just that the Council must re-assess your income. Write to the Council to let them know you have no other income or savings, and give them a bank statement for the period of the sanction, so they can reinstate your Housing Benefit.

 

You can download our factsheet (PDF) here.

 

A Handy List of Phone Numbers

Click here to download a list of useful phone numbers to reach DWP’s various benefit departments and some other numbers for The City of Edinburgh Council such as Revenues and Benefits, EdIndex, Social Care Direct etc. Contact us if you would like a hard copy of this document.

Debunking Harmful Benefit Myths

There is a lot of false information or ‘myths’ out there about benefits and council tax, which we have found to be harmful to people, causing them unnecessary stress and worry and leading to benefit problems. Read on and let’s debunk those myths!

 

Benefits

 

1. MYTH: “The Department for Work and Pensions (DWP), HMRC (the ‘taxman’/tax credits office) and the Council Housing Benefit Department all communicate so if you tell one of them about a change in your circumstances (e.g. that you’ve stopped signing on, started or stopped a job, or had a pay increase), they’ll tell the others.”
>>> TRUTHThe DWP, the Council and HMRC don’t share information. It is your duty to report any change in circumstances to each of them.

 

2. MYTH: “If you are a Council tenant, you can report your changes in circumstances to your Housing Officer for your Housing Benefit to be updated.”
>>> TRUTHYou must contact the Revenues and Benefits section of the Council to notify your changes in circumstances. Don’t just speak to the receptionist of the local Council Office either. Hand in a letter to Revenues and Benefits and ask for a receipt, or email them at incomeandbenefits@edinburgh.gov.uk, or phone them on 0131 608 1111.

 

3. MYTH: “You can’t claim Housing Benefit if you have rent arrears.”
>>> TRUTH: You can claim Housing Benefit even if you have rent arrears, if you qualify based on your income. What you cannot get is Discretionary Housing Payment to pay off your rent arrears. If you are in arrears, seek help to appeal any gaps in your housing benefit and arrange an affordable repayment plan to repay your arrears.

 

4. MYTH: “You can’t claim Housing Benefit if you are working.”
>>> TRUTH: You may be able to get some Housing Benefit even if you are working depending on your wages. How much Housing Benefit you’ll get is determined by your earnings.

 

5. MYTH: “Non-dependant charges won’t be applied to your Housing Benefit if your adult children are not working.”
>>> TRUTH: Non-dependant deductions will apply even if your adult children or other non-dependants who live with you (excluding your partner) have no benefit income and no earnings. There are exemptions: if your non-dependant is in full time education or if they are under 25 and on means-tested benefits such as JSA.

 

Benefit Sanctions

 

6. MYTH: “You cannot challenge a benefit sanction.”
>>> TRUTHYou can appeal any sanction—the first stage is to ask the DWP to reconsider their decision and give reasons why. Ask us for help. While the appeal is being processed, apply to your local JobCentre for Hardship Payments and to the Council’s Scottish Welfare Fund for a Crisis Grant.

 

7. MYTH: “When you’re sanctioned you stop being eligible for housing benefit.”
>>> TRUTH: Your Housing Benefit will be stopped or ‘suspended’ during the sanction. It does not mean you stop being entitled to Housing Benefit; it’s just that the Council must re-assess your income. Write to the Council to let them know you have no other income or savings, and give them a bank statement for the period of the sanction, so they reinstate your Housing Benefit.

 

Council Tax

 

8. MYTH: “You don’t have to pay any council tax if you are on benefits such as JSA, ESA, Income Support.”
>>> TRUTH: In Scotland, water and sewerage charges are collected through council tax. Even if you get the maximum council tax reduction, you will still need to pay some money to the council every month for these water charges.

 

Click here to download our Myth Busting factsheet (PDF).

Click here to read our next post ‘Busting Myths about Debts and Bankruptcy’.

Click here to read our next post on Housing Myths.

New Family Support & Advice Service

CHAI Advice is coming to your local School!

CHAI are now providing free, impartial and confidential advice directly to families across Edinburgh whose children attend the following schools –

  • Castlebrae High School
  • Castle View Primary
  • Craigour Park Primary
  • Dalry Primary
  • Gilmerton Primary
  • Gracemount Primary School
  • Liberton High School
  • Liberton Primary
  • Niddrie Mills Primary
  • Oxgangs Primary
  • Pilrig Park School
  • Prestonfield Primary
  • Rowanfield School
  • Stenhouse Primary
  • Tynecastle High School

The appointments are based within each school to make the service more accessible for parents/ guardians who may be struggling with:

  • Housing Issues
  • Debt Problems
  • Income Maximisation
  • Welfare Rights

Book an Appointment Today

We believe everyone should have the same opportunity to accessing advice services so if you’re in need of help or wish to refer a client for an appointment, please contact the relevant school above for further details.

Newsletters

We issue bi-monthly newsletters to keep parents updated on welfare rights issues that are relevant to them.

For example, in our first issue, we cover help with school meals and school uniforms, disability benefits for children over 16 transitioning from Disability Living Allowance (DLA) to Personal Independence Payment (PIP), and how to avoid tax credits pitfalls.

Use the comment box if you wish to suggest ideas for articles in future newsletters.

To subscribe to our bi-monthly newsletters, send us an email with your email address through our Contact Page.

Further Information

Please contact CHAI on 0131 442 2100

Edinburgh Legal Walk

2017 EdiLW Fundraising Banner

A CHAI/EHAP Team successfully completed the Edinburgh Legal Walk on Monday 9th of October – a 10 Km walk around the centre of Edinburgh.

Why we walked?

The need for free legal advice and representation has grown in the past few years. The recession has increased poverty and reduced support services. Meanwhile funding for the advice centres themselves has reduced.The work our Edinburgh Housing Advice Partnership (EHAP) service does:
  • Prevents families being made homeless
  • Prevents destitution
  • Helps people gain the support to which they are entitled

EHAP

If you want to help us continue to provide an effective and free Court Representation Service for those facing eviction/repossession for rent or mortgage arrears, you can still donate here

Thanks!

Partnership working battling to provide basic needs

EHAP advisers have been attending the Bethany Care Shelter on Tuesday nights where people are able to get a three course meal and somewhere warm to sleep for the night.

An EHAP adviser is available every Tuesday night for a chat and some housing advice until lights out at 10.45pm.

Bethany has seen demand for the service increase alarmingly over the last few years and the total number of individuals presenting this year for the duration of the service is on target to top nine hundred. In fact, this winter they have regularly had to turn people away having reached capacity. They offer those turned away sleeping bags, if available.

For more information and an example of a success story see the following article: http://www.ehap.org.uk/about-ehap/news/bethany-christian-trust—blog.aspx

All the world’s a Courtroom …

l_harry45_caph_hpe4

Young Solicitor makes telling legal point!

Today’s Guest Blog is from Nellie Allen-Logan, an Intern who is on placement with our Edinburgh Housing Advice Partnership (EHAP) Service.  Nellie is in the final year of a Law Degree at Arizona Summit University, and we asked her to reflect on her experience of the civil legal system in Scotland compared with ‘back home’ …


 

Even though it was in the middle of winter when I arrived in Scotland from sunny Arizona, my shock did not come from the weather, but from the vast differences in law. The United States (U.S.) brought their common law from England through the Magna Carta. However, Scotland does not follow English law, but Roman law. Their common law is an ancient set of rules that are not written down, but govern by word of mouth. Common law in the U.S. follows old English law (which for the U.S. is only a few hundred years old). Scottish common law goes back centuries to the time of Roman occupation and the general laws that citizens would follow. These ancient ways are still used today even though there is no binding legislation. One similarity that I have observed is the U.S. has state and federal governments, and here in Scotland, it is comparable to Scotland and the United Kingdom. Certain rights in the U.S. are divested to the states, and some to the federal government. This is similar here in Scotland, where Scotland maintains certain powers within its parliament as compared to the United Kingdom parliament.

In the U.S., every person that represents another person in a court of law, must be an attorney that has had a legal education and passed the state bar exam for the state they wish to practice in. On the other hand, Scotland allows lay representation in sheriff’s court for certain issues and amounts of money. A lay representative usually has a certain amount of experience and training so that they are competent when presenting a case in court. As a law student, I found this to be a bit of a challenge, but one I accepted with vitality. I was determined to learn Scottish laws and be able to represent persons in court as soon as I could. I was successful in my first court calling, and ensured that I was prepared for any situation that the pursuer or sheriff may present.

Sheriff Court

Edinburgh Sheriff Court on a typically Scottish sunny day …

One vast difference is the comparison of Sheriff’s court to Municipal court (city court) in the U.S. Even though Sheriff’s court is not as formal as high court, it still is full of tradition. Each representative or solicitor must bow to the seal upon exiting the court room. All solicitors wear robes, and the Sheriff usually wears a wig and robe. Additionally, the Sheriff is referred to as my lady or my lord. In the U.S., generally, judges (as they are referred to) are the only ones to wear robes, and they do not wear wigs. All attorneys usually wear a nice dress suit and no robes, and there is no bowing upon exiting the court.

I have noticed that Scotland is extremely generous with their welfare benefits and ensure that their citizens are well taken care of. In the U.S. welfare benefits are not as generous and generally, can be difficult to obtain. The idea of advice agencies is immensely charitable, especially when citizens of Scotland are not able to obtain the benefits they need, or are unaware of the benefits they should be receiving. In the U.S., usually, there are no agencies to give advice, but merely a place where the people can make claims. If a claim is denied, it is up to the person to figure out how to appeal the decision on their own. Here in Scotland, the government ensures that there are advice agencies to assist people with obtaining the advice they need to obtain benefits.

This has been an immensely eye opening experience for me regarding the legal field. To be able to go to another country and completely immerse myself in a new legal system has shown where the U.S. could improve, and these are ideas that I will take with me.

Nellie Allen-Logan

The Bedroom Tax – Say No to Evictions

Housing Benefit EvictionWe’re now only a few short weeks away from the introduction of one of the more contentious elements of the UK Government’s Welfare Reform agenda.  Perhaps appropriately, All Fools Day sees the start of the Under Occupancy Charge or ‘Bedroom Tax’ – as it is increasingly known.

The Bedroom Tax is targeted on working age Social Sector tenants (those in Council and Housing Association properties) who are deemed to be under-occupying their accommodation by one or more bedrooms.  Those who are affected, and who are in receipt of Housing Benefit, will have that Benefit reduced by between £13 – £24 per week depending on their rent costs and the number of ‘extra’ bedrooms they have. Continue reading