In Part 1 of the Debt Respite Scheme, Debt Breathing Space legislation article, we discussed the implications for landlords and in Part 2 we delve into the mental health crisis breathing space. Do note however that;
‘this is only available to someone who is receiving mental health crisis treatment and it has some stronger protections. It lasts as long as the person’s mental health crisis treatment, plus 30 days (no matter how long the crisis treatment lasts).
This aspect of the legislation is probably the one that has caused much confusion and we felt it was worth quoting the government website again as a starting point.
‘The government committed to develop an alternative route to access the protections for people receiving mental health crisis treatment, so that they do not have to access debt advice first. If an Approved Mental Health Professional (AMHP) certifies that a person is receiving mental health crisis treatment, the AMHP’s evidence can be used by a debt adviser to start a mental health crisis breathing space.
In addition to the debtor, the following people can apply to a debt adviser on behalf of a debtor for a mental health crisis breathing space:
- any debtor receiving mental health crisis treatment
- the debtor’s carer
- Approved Mental Health Professionals
- care co-ordinators appointed for the debtor
- mental health nurses
- social workers
- independent mental health advocates or mental capacity advocates appointed for the debtor
- a debtor’s representative’
It is important to understand this aspect of the legislation carefully
Many people have missed its point. The Mental Health Breathing Space can only be issued by a registered mental health professional. No one can go to their GP and ask for one, for example.
The Mental Health Breathing Space is only available to someone who is receiving mental health crisis treatment
That is, being locked up against their will because their mental health is a danger to themselves or their community. This also applies to someone who has voluntarily gone into hospital before the section was implemented. The third group of people will be those dealt with by an emergency mental health team. This means they were thinking about sectioning but decided not to as they thought the person could be cared for at home. This pertains to very serious mental health conditions.
We are not talking about someone who is depressed or sad and lonely. These are people who regularly and routinely are at very high risk. They are experiencing a crisis and need very specific help.
Basically, this solution can be applied to a very limited group of situations and people with very serious conditions. It is not a ‘get out of jail free’ card on any level.
The Mental Health Breathing Space legislation differs from a standard breathing space
This is available to anyone experiencing problem debt. It gives people legal protections from creditor action for up to 60 days. The protections include pausing most enforcement action and contact from creditors. It also freezes most interest and charges on their debts. The time for this is limited to 60 days. Under the Mental Health Breathing Space, the freeze lasts for the length of the mental intervention, however long that might be, plus 30 days. It is not time limited
It may sound like a long period but do bear in mind that most people committed to hospital in this way for more than 60 days will probably want to give up their property anyway. We suggest this number is probably 99.9%. They will not be residing in the property so there are other grounds to terminate the tenancy potentially.
However, we want to emphasise that this is a limited category of people we are talking about that need to be cared for, not evicted.
What about Property guarantors? Are they liable?
As a landlord thinking about property guarantors or joint liable tenancies where one person might be granted breathing space but there is another tenant that owes an equal amount but doesn’t have that. What happens?
A Breathing Space applies to all joint tenants that are part of the same tenancy. But they wouldn’t apply to people on single room lets, these are unconnected. If they are on a joint tenancy it applies but doesn’t apply to guarantors. They are not jointly liable, and their liability is separate and is for different reasons anyway. However, in a joint tenancy you could potentially chase the guarantor.
All of this discussion underlines the importance of the landlord regarding undertaking thorough affordability checks and references. There is a responsibility to ensure that tenants can afford the rent responsibility to pay the rent and also to compare income and expenses etc. during the onboarding stage.
Planning for wastage and possible loss is part of good business planning
There is a wider point that if you are running a sensible business then there should be plans in place to meet objectives and even if your tenants can’t pay for a period of time you should be able to manage this having factored in such a scenario. Basically, a business owner is not running a good business if they can’t weather such a storm. Any decent business has to plan for some possibility of wastage and loss.
Of course, single asset business’ are tougher to factor in non-payment especially through Covid and will possibly change the landlord landscape going forward. Some landlords are walking away while others are increasing their portfolios. In these situations portfolio landlords can typically ride the wave more effectively.
However walking away is not the only solution. Landlord protection is available and is something Howsy offers as part of our Protect plan, which includes rent guarantee to protect your income when your renters can’t pay on time. Find out more.
Can you refuse to rent to someone with known mental health issues?
This is unlawful discrimination and actually asking the mental health question contravenes data protection issues. In fact, asking that question will put you in trouble with the Information Commissioner plus the Equality and human Rights Commissioner. This is definitely not a strategy to pursue. In fact, asking the question won’t give you enough value after all there is not an obvious bright line between past and future health conditions. 70-80 % of the general population have low level health issues. As a percentage these numbers are very high, especially at the moment. Therefore, it cannot be considered as a useful decision point.
If you have questions of your own, get in touch via [email protected] and we will do our utmost to help.
Summary from David Smith
We will have to see how this pans out. However, I do not think this will affect too many people. As we slowly unlock courts and potentially a significant number of tenants saying that they have a Breathing Space move into employment with luck they will enter into a debt solution. In theory everyone gets upset at new legislation but ultimately nothing really changes very much.
Growing rent debt and long notice periods and moratoria will stay in property because of debt solutions. If it doesn’t work out not much will change. After all, landlords need to experience 6 months of rent arrears to start proceedings now.
If you are looking for help in managing your properties, to stay on top of growing legislation, and have access to a legal property expert on speed dial, Howsy can help. Find out more about our property management plans here or book a call with one of our team to find out more.