25/03/2020

“highly misleading comments”

We have already commented here on the proposed protections in the Coronavirus Bill designed to implement the Government’s promise that there would be a “Complete ban on evictions and additional protection for renters”. There has been a fair amount of criticism over how the the legislation seems to fall short of the earlier promise, for instance the HLPA response here. This has led to a response from the Ministry of Housing, Communities and Local Government, here, and now the Secretary of State for Housing, Communities and Local Government has taken to twitter. The thread is here. It is clear that both are concerned about “misleading information” or “misleading comments”. This is what the Secretary of State says, with some commentary.

1. Some highly misleading comments have been made about our commitment to suspend rental evictions during this national emergency. There can be no evictions as a result of #Coronavirus for 3 months – as promised – and we’ve got the power to extend this if we need to.

I don’t know what comments are being referred to, so cannot say whether it is fair to call them highly misleading. The bald statement in the first part of the second sentence appears to me to go too far, for reasons set out below and in more detail in the previous post.

“2. We are extending all notices, regardless of the type of eviction, to three months. This means tenants will have 3 months relief from any proceedings starting – mirroring the mortgage relief we are giving to landlords.”

I think that the first sentence risks overstating the position. The various types of notice that this will apply to are identified in the legislation and in our previous post. As set out in that post, there are gaps. The amendment to the Protection from Eviction Act 1977 expressly applies only to Rent Act 1977 tenancies. The second sentence is also not correct. The amending legislation does not prevent proceedings being begun based on earlier notices. The amending legislation also does not touch the power in Housing Act 1985, s.83(1)(b) or Housing Act 1988, s.8(1)(b) to dispense with the notice. Now, while I can accept that a landlord may have a hard time persuading a court that they should dispense with the notice in the current circumstances, there can be no categorical guarantee about this. Nor does this do anything, as far as I can see, for residential leaseholders. While some large public authority landlords have been announcing that they will not take action in relation to service charges, not all have done this. And what of leaseholds in the private sector? Also, what about unauthorised tenants of borrowers who have taken out unregulated agreements? (This is niche, I know, but not unheard of).

“3. And as renters might suffer financial hardship at different points this applies on a rolling basis – so for anyone experiencing issues later down the line, they will be protected for three months.”

The legislation will, at the moment, run until 30 September (although there is power to extend this to a later date). But there is nothing to stop a landlord from giving a s.21 notice now (which will only need to give two months’ notice) or even on the day after which this legislation gets Royal Assent (at which time, yes, it will have to give three months’ notice), even before their tenant experiences hardship. If that tenant then finds themselves in difficulty after, say, three months they are not entitled to any further notice. Yes, there are the “use or it lose it” provisions in s.21(4D) and (4E) but that does not really affect this.

“4. The very clear guidance that we have given to judges and bailiffs also means that it is extremely unlikely that any possession proceedings will continue during this period. If there is evidence that this is not the case, we will of course review.”

I do not know what guidance has been given to bailiffs, so cannot comment on this, although I know that in at least some areas no new warrants are being issued and bailiffs are not evicting. I am not sure what guidance the Secretary of State and/or the Ministry have issued to judges. Of course guidance has been issued by the judiciary, rather than by the executive, which can be found on the Judiciary website. I know that some courts are already adjourning existing possession cases until mid-June. This does not yet appear to be universal. Many courts did respond very quickly towards the end of February and beginning of March, with various bespoke orders being made to address the situation as it then was. There have, however, been many accounts of what might be described as a less responsive approach. While the need for a uniform approach was recognised, it appears that different local practices have been arising again in the last few days. Presumably new claims issued will face the same result and simply be adjourned until after mid-June (this may mean that CPR 55.5(3) gets ignored for a while; there is also the problem of accelerated possession claims). A combination of these measures may well be the most effective way of ensuring that no evictions take place.

“5. The Lord Chief Justice has also been clear that public health must be the priority. Tenants and landlords will be expected to work together to establish an affordable repayment plan, taking into account tenants’ individual circumstances.”

We can obviously hope that this expectation is met. Doubtless some, hopefully many, landlords will do this. It would be rather surprising if all landlords did. This isn’t landlord bashing – I have seen a rather ridiculous template letter for tenants floating around.

6. @RishiSunak has announced nearly £1bn of support for renters by increasing housing benefit & Universal Credit. We are also paying 80% of the wages of employees unable to work due to COVID, if their employers can’t.

Fine, although the difficulties and delays with those benefits are well known. As I understand it, the change to the LHA is to level up those situations where the existing LHA is lower than the 30th percentile in the broad market rental area. I confess that I do not know how big a change this will be in practice.

“7. And we have the power to go further if needed. We are keeping these measures under constant review and will be guided by the evidence. The govt is clear – no renter who has lost income due to Coronavirus will be forced out of their home.”

I have no disagreement with the first two sentences. The last part of the final sentence is aspirational but I don’t think that it is what the legislation does, at least as I presently understand it. Anyone who has already lost income is already at risk. Even if there is a moratorium on hearings/evictions, those people will be at risk when that is lifted. And even if we treat these protections as extending to 30 September, or even beyond, they are not going to go on forever.

I do not want to be churlish. There is clearly no perfect solution and a lot has been done at impressive speed in immensely trying circumstances. Other solutions have been proposed, such as here and here (the latter is my personal favourite; it is simple and allows the courts a discretion which can be adjusted to fit the circumstances of the case). What is clear though is that accurate communication is going to be crucial. I fear that in an attempt to correct perceived inaccuracies, the official line has only muddied the waters further.

chief is a barrister in the big city. he specialises in public law, landlord & tenant, football and rock 'n' roll (the last two are only when his clerks aren't watching). he sometimes pops by here, but not as often as he'd like. he will occasionally eschew capital letters. the reasons for this odd affectation are lost in the mists of time.

5 Comments

  1. Ben Reeve-Lewis

    GIles do you know if there are any official notifications on triggering duties where a homeless applicant is threatened with homelessness within 56 days? in relation to longer notices

    Reply
  2. Darren

    Thanks for this. I was issued a S21 notice from private landlord on 3rd November (no arrears) but landlord still hasn’t gone to court so still umsure where I stand, council doesn’t eithee

    Reply
  3. RD

    Although the legislation is perfect, and we have *never* been at war with Eurasia, only Eastasia, have there been any amendments/proposed amendments to this dog’s breakfast?

    Right now we’re facing the prospect of having properties sitting empty for three months instead on one month while we serve Notice on the Public Trustee following the tenant’s death. Probably not what the Minister actually intended, but it is one consequence of the Bill as written. We’re now trying to hammer out as many of those notices in the next 24 hours as we need …

    Reply
    • RD

      Although of course the tenancy isn’t assured once the tenant dies, so *maybe* we’re in the clear? Which would also apply to those tenancies where the tenant is not using the property as their only or principal home. An interesting argument to have, if I could find a judge prepared to sit and hear it next week …

      Reply
      • Giles Peaker

        I think that is the case. The Act only amends specific notices.

        Reply

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