Evicting vulnerable adults because of a TCPA section 215 notice

rabbituk

As a trustee of a trust for my disabled brother, the local council have issued me with a section 215 notice to tidy up the fenestration of the property that is owned by the trust and that my brother lives in. Sadly my brother is refusing to talk to me and refuses to acknowledge that the house is held in trust for him. Any attempts to have people quote for the job end up in my brother coming out and shouting at them that it is his house and he says what happens. The remedial work requires access so I need my brother to grant me access which isn't forthcoming. All requests oral or written have been ignored to date. I explained to the council that I was going to register a LPA that I held so that I could speak with my brother's doctors in the hope to try and understand him better. The council said that they wouldn't issue proceedings whilst I was getting power of attorney but a month later without any further communication as to why they reneged on the promise and issued a formal notice knowing full well that I was waiting for the OPG to register the LPA - this takes a long time. The compliance period subsequently came and went.

I now have the LPA but a week later I also received a court summons regarding the section 215 notice. So I am now faced with having a criminal record which seems really unfair as I've only done what was agreed beforehand in a really difficult situation. Talking with my brother's doctors hasn't helped as he is ignoring them and they still believe that he has capacity. The only way I can think to stop future court action is to evict my brother in order to gain access, getting an injunction is something that I think he would ignore. I have engaged a solicitor for representation and am talking to another about eviction proceedings but neither of them seem to be on the ball with resolving this whole issue. And of course they all seem to be charging in the ballpark of £300 per hour. The council simply care about the property and I am shocked that they do not need to consider vulnerable tenants living at a property and the affect of their actions have, forcing me to uproot him.

So I'm keen to hear from how others might have tackled this situation with a section 215 notice and a vulnerable tenant who is blocking access to remedy the situation. I can't imagine that I'm the first person who has ever faced this situation. It's a rock and a hard place situation but whilst as a landlord for eviction purposes I have to consider vulnerable adults, it seems unfair that the section 215 notice doesn't and this cannot be used as a defense only a mitigating factor. So any landlord who receives a section 215 notice whilst dealing with a difficult situation with a vulnerable person is in jeopardy of getting a criminal record.

anselld

I am not sure how you could legitimately evict your Brother from a property which is held in trust for his benefit.  To all intents and purposes he is the owner albeit managed by the Trust.
Have you tried appealing the Section 215 notice?

rabbituk

Unfortunately my right to appeal was only valid for 28 days after the notice was served and I did not exercise it. I had already communicated the issues prior to the notice being served to the council and so didn't think to restate the issues again as I realised that I should have lodged an appeal with the magistrates court. I was simply too focused on trying to unblock the communication at the time.

I think there has to be a way to evict a beneficiary for otherwise the beneficiary controls the property. My understanding is that a trust essentially separates control to the trustees and benefit to the beneficiaries.

Brie

My experience with councils is to email them regular updates so they know what is happening and you have a record of informing them.  That way when you eventually end up in something official like court you can let the people in charge know that you have been doing your best and it's actually the council that is being obstructive.  So much of what is done by government and lot so companies is all computer generated based on the fact that people don't engage.  And there's no easy process for them to deal with those that do.  So the "not engage" process goes into action inappropriately.  

I hope you can get things sorted eventually.

rabbituk

Thank you.

Throughout the period I would get requests for updates from the council and I would respond that we are waiting for the LPA to be registered. I have the emails to back this up. The LPA for health and well-being may seem like a long shot but importantly it was agreed by the council that it was a valid approach to take in order to resolve the situation. We gave instruction to the solicitors for LPA on 8th March and finally had it registered on 16th December and actually received it Christmas week.

With  the window of appeal missed, is there any other window of appeal? Can I use the arguments that I should have used at appeal in a defense? This is my first ever time in any court so apologies for the naive questions.

anselld

Yes, you can certainly use all those arguments in defence.  However, you have had LPA granted since Christmas so if you are arguing that you were waiting for that to make progress they will question why there is still no progress.   If eviction is the chosen solution then it would seem sensible to at least serve notice in order to demonstrate some progress prior to the 215 hearing.

Annisele

Does your brother have a social worker? Admittedly my experience of social workers for vulnerable adults has varied between "absolutely brilliant" and "so overworked they're essentially useless". But if he does have a social worker they might be able to help you navigate this - it can't be in your brother's best interests to be living in a property that's dilapidated enough to be having s215 notices served. If he doesn't have a social worker, it might be worth investigating whether he ought to have one.

I also think you should speak to your solicitor about the injunction route again. I know you say your brother would ignore one - but part of the point of injunctions is that there are ways to enforce them.

Finally - is it in your best interests to continue as trustee of this trust? If your brother isn't allowing you to carry out your duties properly, you might be better off working out how to extricate yourself from the problem rather than trying to work out how to solve the problem. If there aren't any other trustees I suspect that resigning won't be easy, but it should eventually be possible.

rabbituk

anselld said:

Yes, you can certainly use all those arguments in defence.  However, you have had LPA granted since Christmas so if you are arguing that you were waiting for that to make progress they will question why there is still no progress.   If eviction is the chosen solution then it would seem sensible to at least serve notice in order to demonstrate some progress prior to the 215 hearing.

After getting LPA at Christmas it wasn't until the first week in the new year that I was able to speak with the doctor at which point I was realising that I wasn't getting anywhere useful with the POA and would need to evict. The following week the summons arrived which switched my focus again to try and understand that.

Yes I agree that it would be good have served the notice by the time we reach court and I have asked a solicitor to look into this about 2 weeks ago. Due to it being the Easter holiday season progress is not fast and they also want to contact counsel to understand how to treat my brother regarding the eviction. There is no written contract but since the property was brought especially for him they suspect we might need to treat him as a tenant rather than a licensee. I am doubtful that notice will be served in time for the initial court date mid next week.

rabbituk

Annisele said:

Does your brother have a social worker? Admittedly my experience of social workers for vulnerable adults has varied between "absolutely brilliant" and "so overworked they're essentially useless". But if he does have a social worker they might be able to help you navigate this - it can't be in your brother's best interests to be living in a property that's dilapidated enough to be having s215 notices served. If he doesn't have a social worker, it might be worth investigating whether he ought to have one.

He used to have a social worker 2 years ago but know I do not know whether that is the case now. I never spoke to the social worker before as I believed that to be a private relationship and none of my business.

Annisele said:

I also think you should speak to your solicitor about the injunction route again. I know you say your brother would ignore one - but part of the point of injunctions is that there are ways to enforce them.

My understanding on the injunction is that if it is ignored he gets called to court. If he then ignores that then it is either fines or custody. I don't see any of these threats working.

Annisele said:

Finally - is it in your best interests to continue as trustee of this trust? If your brother isn't allowing you to carry out your duties properly, you might be better off working out how to extricate yourself from the problem rather than trying to work out how to solve the problem. If there aren't any other trustees I suspect that resigning won't be easy, but it should eventually be possible.

Possibly not but then what is the point of a trust where trustee resigns just because it is a difficult situation. He's still my brother and I want to do the best that I can for him regardless of what a PITA it is. There is another trustee as the deeds require but they are only really involved as an oversight and aren't active.

ArbitraryRandom

rabbituk said:

Annisele said:

I also think you should speak to your solicitor about the injunction route again. I know you say your brother would ignore one - but part of the point of injunctions is that there are ways to enforce them.

My understanding on the injunction is that if it is ignored he gets called to court. If he then ignores that then it is either fines or custody. I don't see any of these threats working.

Though, should that occur, you could carry out the needed works while he was in custody... [tongue firmly in cheek]

But on a more serious and hopefully helpful note, the process/your ability to evict might depend on when he moved in/the property was purchased and if he pays anything which could be considered rent.

From what you've said, I doubt there was a contract signed at any point, and if he doesn't pay rent then I wouldn't think you'd inadvertently created an AST, so it might be a 'common law tenancy' - more info in these two resources: https://www.propertyinvestmentproject.co.uk/blog/am-i-a-landlord/

https://www.landlordzone.co.uk/information/common-law-tenancies/

I also wonder if this court date would be an opportunity for you to progress this issue constructively? 

I had a quick google and came across this which might be relevant re a trustee acting in a beneficiaries interests while also acting against his expressed wishes: https://www.farrer.co.uk/news-and-insights/trustees-the-courts-power-to-bless-decisions/

Annisele

Is the other trustee a professional trustee? I know you say they're only really involved "as an oversight" - but there's an argument they should have started overseeing well before this got to the point of anybody being prosecuted. They really should be helping you with this!

On the social worker point, if your brother does have one they're unlikely to be able to disclose information to you without his permission. But they can certainly receive information from you. And having him be evicted/arrested/fall foul of an injunction will not make their job one bit easier, so they might be prepared to make some attempt at persuading him to allow the work.