09/01/2020

New Pre-Action Protocols coming! Social Possession and Housing Conditions.

[Update 13 Jan. The new protocols are out and in force today – Housing Disrepair (England), and Social Landlord Possession Claims ]

Be still my beating heart, there will be two new/revised pre-action protocols on 13 January 2020. There will be a revised Pre-Action Protocol for Possession Claims by Social Landlords, and a new Pre-Action Protocol for Housing Condition Cases (England), with a legacy Pre-Action Protocol for Housing Disrepair Cases (Wales).

As yet these aren’t up on the justice.gov.uk site, and while I’ve seen the revised versions, I can’t link to them or add a file. But I will do a trot through the highlights of the changes.

Pre-Action Protocol for Possession Claims by Social Landlords (current version here). Changes are minor. Apart from mere tweaks of wording and numbering, substantive differences are:

Part 3 now aims to ensure that where “cases where human rights, public law or equality law matters are or may be raised, the necessary information is before the Court at the first hearing”.

At 2.12, not less than 10 days before the hearing, the landlord should “disclose what knowledge it possesses of the tenant’s housing benefit or universal credit (housing element) position to the tenant.”

Now, on the problems with the previous version that we identified here:

1.1 now says “Part 3 applies to claims brought by social landlords where the court must, in principle, grant possession and where s89(1) Housing Act 1980 applies. The protocol does not apply to claims in respect of long leases.”

The previous version of 1.2 has been dropped entirely, and

3.1 now reads “3.1 This Part applies in cases where, if a social landlord proves its case, the court must, in principle, grant possession and where s.89(1) Housing Act 1980 applies.”

So yes, it looks like the contradictions in the last version have been sorted out, and Part 3 does clearly apply to mandatory grounds and also ‘no security of tenure’ cases.

Pre-Action Protocol for Housing Condition Cases (England) (Old disrepair protocol here)

‘Housing disrepair’ is replaced by ‘housing conditions’ throughout.

In the Annex A – letter of claim, there is a replacement section (as well as ‘repairs’ being replaced by ‘works’ throughout.)

Housing Conditions
Your tenant complains of the following defects at the property (set out nature of defects).
We enclose a schedule of conditions which sets out the defects in each room.* The history is as follows: (set out history of defects)
You received notice of the defects as follows: (list details of notice relied on).
The defects at the property are causing (set out the effects of the defects on the client and their family, including any personal injury element. Specify if there will be any additional claimants).
Please arrange to inspect the property as soon as possible. Access will be available on the following dates and times: (list dates and times as appropriate)
Please confirm whether you intend to carry out remedial works at this stage or whether you wish to wait until the property has been inspected by the expert(s) as set out below.
If you intend to carry out works at this stage, please set out a full schedule of intended works including anticipated start and completion dates and a timetable for the works

And then under ‘claim’

We take the view that you are in breach of your obligations in respect of housing conditions. Please provide us with your proposals for compensation.

The Annex B letter of instruction to expert now reads (in part)

We act for the above named in connection with a housing conditions claim at the above property. We are using the Pre-Action Protocol for Housing Conditions Claims – England.
We enclose a copy of the Protocol for your information.*
Please carry out an inspection of the above property by (date)** and provide a report covering the following points:
(a) whether you agree that the defects are as claimed;
(b) whether any of the defects is structural;
(c) the cause of the defect(s);
(d) the age, character and prospective life of the property;
(e) a schedule of works; and
(f) an estimate of the costs of those works.

Wales get the old disrepair protocol, with references to English resources, Ombudsmen etc. removed.

Comment

The social possession claims protocol changes at least sort out some of the incoherences in the last version and make its application plain.

The Housing Conditions protocol is pretty much exactly the same with substituted words. If I am honest, I am not convinced that the protocol schedule letter of claim and (particularly) the protocol schedule instruction to expert do the job adequately.

The threshold issue for a section 9A – 10 Landlord and Tenant Act 1985 (as amended by the H(FFHH)A 2018 is whether a property is so deficient in X issue that it is unfit for human habitation. That, I think, is the allegation that needs to be put in the letter of claim.

But more essentially, there is the concluding question that needs to be put to the expert. Does the condition of the property give rise to a risk to the health and safety of the occupiers? Or Is the property fit for habitation in its current condition in their professional opinion? (in the same way that one would currently routinely ask the expert to say whether there were risks to the health and safety of the occupants present arising from disrepair that would merit an injunction/urgent action – also not in the protocol version).

The old disrepair protocol draft letters of claim and instruction were, to be blunt, not wholly adequate, and it is a little disappointing to see that no further steps have been taken in the last 12 months despite the opportunity (and challenge) presented by the H(FFH)A 2018.

That said, I understand that a far more substantial revision of the Housing Conditions Protocol is underway, concluding who knows when.

In the meantime, I will be using letters of claim and instructions to experts that incorporate the protocol requirements, but do go that bit further.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

3 Comments

  1. J

    Para 1.3 of the new possn one is wrong, surely? There is no requirement that “equality law” (sic) issues be dealt with summarily at the first hearing. Indeed, there is case-law to the contrary.

    Reply
  2. Giles Peaker

    Don’t think that is quite what 1.3 says

    1.3 Part 3 seeks to ensure that, in cases where human rights, public law or equality law matters are or may be raised, the necessary information is before the Court at the first hearing so that issues of proportionality may be dealt with summarily, if appropriate, or that appropriate directions for trial may be given.

    ‘Summarily, if appropriate, or directions for trial’ – as you say, ‘summarily’ not appropriate for Equality Act defences.

    Granted, the wording could have been better.

    Reply
    • J

      Yes, I agree it can be read your way. But it’s unnecessarily imprecise!

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