According to this Inside Housing report of a Housing, Communities and Local Government Select Committee meeting today (4 May), the Housing Minister Robert Jenrick announced prospective measures to avoid a deluge of eviction proceedings at the expiry of the PD51Z stay.

Unfortunately, this was what he said.

Housing secretary Robert Jenrick revealed today that the government was working closely with the Lord Chief Justice to ensure that a “pre-action protocol” is put in place when the eviction ban is lifted.

This would put a duty on the landlord to “act in good faith” and investigate other solutions to overcome rent arrear issues before embarking eviction proceedings begin.

Speaking at a Housing, Communities and Local Government Select Committee looking into the MHCLG’s response to the coronavirus crisis, Mr Jenrick told MPs: “This (pre-action protocol) will apply at the end of the moratorium on evictions, whether that’s in late June or later in the year.

“It will enable tenants to have an added degree of protection, because instead of embarking upon the eviction proceedings immediately, there will be a duty upon their landlords to reach out to them, discuss their situation, and try to find an affordable repayment plan.

“This will enable tenants to remain in their homes, and to recover the rent they haven’t been able to pay because of their circumstances.”

I’l start by saying that I think a rent arrears pre-action protocol across both social and private sectors is a good idea. I would, indeed, welcome one. But the idea that this will somehow afford tenants an extra degree of protection is just wrong. By itself, this will do nothing to avoid the cliff edge of possession claims that seem very likely when the PD51Z stay is lifted (in June or after whatever extension).

Here is why…

Private sector tenancies.

Firstly, section 21. No pre-action protocol can encompass a statutory basis for possession which requires no ground, no evidence for a ground and which results (assuming the formalities are met) in a mandatory possession order. Sure, the Coronavirus regulations extended the usual two month notice to three months. But there will be a lot of claims backed up by the PD 51Z stay, and a lot of claims filed since, with many more to come on expiry of the (now) 3 months notice.

Section 21 requires no ground, by statute, and no pre-action protocol could apply to a basis for possession which requires no explanation or rationale.

Private and social tenancies – mandatory grounds

And then, what effect would a protocol have even if on a ‘on grounds’ rent arrears possession case? The usual kind of terms for breach of a pre-action protocol are, for example

If a claim proceeds to litigation, the court will expect all parties to have complied with the Protocol as far as possible. The court has power to order parties who have unreasonably failed to comply with the Protocol to pay costs or to be subject to other sanctions. (Housing Conditions protocol),

or

Courts should take into account whether this protocol has been followed when considering what orders to make. (Social Landlords possession protocol).

But it would be an extraordinary (and quite possibly unlawful) step for a pre-action protocol to provide that a landlord could not get possession under a mandatory statutory ground such as ground 8 if the protocol was not followed, as that is a situation in which the court has no discretion not to make the order. A sanction in costs is not going to stop anyone, bluntly, where recovery of cost is potentially dubious anyway.

And then don’t even get me started on a duty ‘to act in good faith’. Utterly, utterly meaningless.

So, this is simply not enough to avoid the looming cliff edge of potential evictions. It will not work. And there are only about 7 weeks left to come up with something…