The Ministry of Justice has been hit with a judicial review challenge over the ongoing refusal to enforce warrants and writs by bailiffs and High Court Enforcement Officers (HCEOs).
David Smith, partner at JMW Solicitors in London, said: “This is a matter for Parliament and who gets evicted should not be at the whim of the Lord Chancellor.”
Last week the Ministry of Housing, Communities and Local Government announced that evictions would not be enforced by bailiffs until 11 January 2021 at the earliest “except for the most egregious cases”.
The MHCLG said that whilst national restrictions apply, the only circumstances where these protections do not apply are illegal occupation, fraud, anti-social behaviour, eviction of domestic abuse perpetrators in social housing; where a property is unoccupied following the death of a tenant. The government added that it also intends to introduce an exemption for extreme pre-Covid rent arrears.
The Ministry stressed that courts are to remain open through the new national restrictions.
In an article last month Smith gave his reasons for a prospective judicial review challenge, after evidence emerged that county court bailiffs and HCEOs were declining to enforce warrants and writs of possession.
Smith wrote: “The problem with all of this is that it is almost certainly unlawful. It is not open to Bailiffs or HCEOs to simply decline to enforce warrants and writs, even if the Lord Chancellor asks them to do so. They have a duty to do this. Indeed, there is a power to complain to the County Court, in the County Courts Act, about losses resulting from bailiffs not enforcing warrants.
“The other attempted justification being advanced by some bailiffs is that the lockdown regulations prevent them evicting as it would require two households to be in the same property. However, the lockdown regulations contain exemptions for persons doing their jobs and for those fulfilling a legal obligation. There is also an exemption permitting people to move home so tenants can move voluntarily without violating the regulations.
“Finally, this approach also flies in the face of the new structures created around the re-opening of the courts for possession. There was a compromise made between all stakeholders around proceeding with evictions in a controlled manner, targeting those in which tenants were responsible severe and unjustified rent arrears and anti-social behaviour. This is all a little bit pointless if the government is going to bypass this arrangement by barring evictions in some areas.”
Smith said that evictions naturally created hardship for those being evicted, “probably more so right now”.
He added, however, that leaving tenants in huge arrears in place also created hardship, “for those tenants too as the debt will follow them, while leaving tenants who create anti-social behaviour in place creates hardship for those around them”.
Smith said: “Of course the government can prevent evictions if it wishes to. But it should do so lawfully by making regulations under the appropriate legislation and allowing Parliament to review them, not through backdoor letters to enforcement bodies.”
A Government spokesperson said: “It would be inappropriate for us to comment on ongoing legal proceedings.”