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He may in certain circumstances be able to get housing benefit on two homes, but not for two months. I suggest social landlords in all areas, but particularly in areas of low demand, should be flexible enough to be prepared to leave an interval between the letting decision and the start of the tenancy, so tenants in private sector accommodation have time to serve notice to their current landlord.

This does not necessarily mean longer void periods, because often the social landlord will know long before that one of its properties is going to become vacant, so it can take the lettings decision well in advance.

John Bryant, Policy officer, National Housing Federation

Tolerated trespass and assured tenancies
The discussion on tolerated trespassers (7 February, page 36) was most welcome. However, as a recently transferred authority, we would welcome the panel's comments on the relevance of this or similar case law to assured tenants of registered social landlords.

The previous question dealt with a secure tenant who had not complied with the terms of a suspended court order and had slipped into tolerated trespassing. It was suggested that she had lost her secure tenancy and that possession proceedings could be taken against her.

An assured tenant would be similarly affected. The equivalent section in the Housing Act 1988 is section 9. It deals with the discretion of the court to stay, suspend or postpone orders for possession, and to rescind or discharge orders where their terms are complied with. This is in the same terms as section 85 of the Housing Act 1985 for secure tenants.

In the same way, breach of the suspended possession order (SPO) would terminate the assured tenancy. If the tenant then repaid the arrears and costs, the order would at that stage have been complied with – preventing an application to stay or suspend, because this would be irrelevant.

However, the order could not be rescinded or discharged because the court can only do so if the conditions of the SPO have been complied with (section 9(4) of the Housing Act 1988). The (ex-)assured tenant is therefore left in an equally difficult position as the (ex-)secure tenant.

I have to say that the courts are likely to strain against the legal consequences described above, and do all they can to preserve the tenant's rights of occupation by, for instance, finding that a new tenancy has been created, as happened in Swindon Borough Council v Aston (Court of Appeal, December 2002).

There are also bound to be situations where the Swindon case can be "distinguished" – that is, shown to be materially different on the facts – and, in a case where the tenant deserved sympathy, a court might well be able to find sufficient differences on the facts to come to a different conclusion.

However, for landlords, the Swindon case highlights again the importance of treating secure and assured tenants who have breached suspended orders as tolerated trespassers.

Nick Billingham, Partner and head of housing management litigation at law firm Devonshires