Andy Lane and Tara O’Leary consider the late changes announced by the Government to extend the stay of possession claims beyond the 23 August deadline.
On 10 August 2020 Andy wrote an article on the ending of the stay of possession claims and in particular Practice Direction 55C, which had been brought in to provide “what happens next”. Concerns had been expressed by many different stakeholders over a considerable period of time as to whether sufficient provision had been made to avoid a homelessness crisis prior to such a development. Unfortunately, the “rushed” revised reforms announced on 21 August 2020 to deal with this are not without their own controversy.
1. The end of the possession claim stay is delayed by 4 weeks to 20 September 2020.
2. The Government will be bringing in temporary legislation extending the time required to be given in “possession notices”, such as the notice seeking possession, to 6 months.
3. The notice change will not apply to all situations.
4. There is no news concerning the intended removal of section 21 notices, and no attempt to amend the mandatory rent arrears ground (8) for assured tenancies so as to give the courts some discretion where such a basis for possession is relied upon.
The further changes
Only two days before the introduction of PD55C on 23 August 2020 the Government finally “buckled”:
1. Stay extended - The Civil Procedure Rules Committee considered a direction by the Lord Chancellor, made on 20 August 2020, to extend the period of stay provided for in CPR r. 55.29 by 4 weeks (to 20 September 2020) and considered the rules needed to bring this into effect. A majority of the CPRC the following day felt bound to follow the direction.
The simple amendment to CPR r. 55.29 to extend the stay has now been brought in. One would now expect to see also, at the very least, amendments to PD55C sometime prior to 20 September 2020 because it is presently drafted on the assumption that the stay is/was lifted on 23 August 2020.
2. Extension of notice periods - The Ministry of Housing, Communities and Local Government later the same day announced the extension but also reported:
“The government also intends to give tenants greater protection from eviction over the winter by requiring landlords to provide tenants with 6 months’ notice in all bar those cases raising other serious issues such as those involving anti-social behaviour and domestic abuse perpetrators, until at least the end of March .”
This latter development is not simply an extension of the existing provision impacting on certain housing possession notices – Schedule 29, Coronavirus Act 2020 – as is apparent by the reference to the fact that certain cases will not require 6 months’ notice. Three further points are worth mentioning at this stage, though they are subject to the actual legislative and other amendments when produced:
A. The reforms will in all likelihood not impact upon those notices already served or served prior to the changes being brought in.
B. Non-Rent Act notices to quit are likely to remain exempt from any extension provisions given their current exclusion from the Schedule 29 provisions. If that proves correct, then in cases involving, for example, sub-letting, parting with possession of the whole, only or principal home allegations or failed succession claims, a “normal” 28-day/1 month notice to quit can continue to be used. This will also be relevant to some forms of “non-secure tenancy”, such as those used to provide temporary accommodation to homeless persons. (Of course if a notice seeking possession is served in the alternative, that at present has the 3-months requirement and may also fall within any temporary reforms brought in.)
C. It is unclear how the government will deal with the fact that a section 21 notice requiring possession only has a 6-month “shelf-life” following reforms introduced by the Deregulation Act 2015, section 36. If covered by the forthcoming temporary reforms then one would anticipate some amendment being made to the primary legislation (i.e. section 21(4D), Housing Act 1988). If not then serving a new section 21 notice would be pointless whilst 6-months notice is required.
Quite understandably the primary concern about the ending of the stay has been the likely impact on those in arrears of rent through no fault of their own. In that context it is worth noting that the Homelessness Reduction Act 2017 added a subsection to section 175 of the Housing Act 1996:
“(5) A person is also threatened with homelessness if—
(a) a valid notice has been given to the person under section 21 of the Housing Act 1988 (orders for possession on expiry or termination of assured shorthold tenancy) in respect of the only accommodation the person has that is available for the person's occupation, and
(b) that notice will expire within 56 days.”
The Homelessness Code of Guidance for Local Authorities (Feb 2018, as amended) says, with our emphasis:
“6.3 Under section 175(4), a person is ‘threatened with homelessness’ if they are likely to become homeless within 56 days. Under section 175(5), a person is also threatened with homelessness if a valid notice under section 21 of the Housing Act 1988 has been issued in respect of the only accommodation available for their occupation, and the notice will expire within 56 days. Section 195 provides that where applicants are threatened with homelessness and eligible for assistance, housing authorities must take reasonable steps to help prevent their homelessness.
12.2 Housing authorities may become aware of residents who are threatened with becoming homeless but not within 56 days, and possibly not within any specified time period; and are encouraged to offer assistance where possible rather than delay providing support which may be effective in preventing homelessness.”
The Government has had ample time to consider a more nuanced approach to the acknowledged difficult issues of possession claims in the time of COVID-19. In the latest round of temporary reforms it has at last indicated (in its reference to notice periods) that not all cases should be treated the same in this area, though the detail is at the time of writing not available.
When the stay is finally lifted the Government has said:
“When courts do resume eviction hearings they will carefully prioritise the most egregious cases, ensuring landlords are able to progress the most serious cases, such as those involving anti-social behaviour and other crimes, as well as where landlords have not received rent for over a year and would otherwise face unmanageable debts.”