10/09/2020

Forthcoming… ‘No DSS’ judgment and no evictions over christmas

A couple of bits to be filled out later on.

Item 1. Shelter and Tessa Buchanan of Garden Court acted for a disabled applicant tenant, Stephen Tyler, in a ‘No DSS’ discrimination claim against letting agents Paul Carr. The claim went to full trial at Birmingham County Court, and Mr Tyler won, with a finding that Paul Carr had been operating a ‘No DSS’ blanket policy and that this amounted to unlawful indirect discrimination against disabled people. HHJ Mary Stacey awarded £6,000 plus interest in damages, and indemnity costs.

This is significant for several reasons. The first decision on this issue was by concession, whereas this was a fully contested trial. This is a Circuit Judge decision, so of generally persuasive value, if not binding, and also it was not just any Circuit Judge, but the acting DCJ for Birmingham and I understand a contributor to the Judicial College Equal Treatment Bench Book, (and indeed has just been appointed a High Court Judge) so a judge with considerable knowledge in the area of discrimination.

A transcript has been requested, and once I receive it, a full write up will be done. In the meantime, this is a vindication of the approach of Rose Arnall (Shelter’s solicitor) to strategic litigation to establish the point.

As before, the issue was having a blanket policy not to accept tenancy applications from anyone who is or would be in receipt of benefits, rather than considering tenant suitability on a case by case basis (taking into account history, potential referees, guarantors etc.).

Item 2. The Secretary of State for Housing has today announced various things about tenancies and possession claims. Most of this is what we already know – the new notice periods, the Practice Direction 55C requirements (still wrong characterised as landlord having to provide the Court “with information on how tenants have been affected by the pandemic. Where this information is not provided, judges will be able to adjourn proceedings until the information is provided.” All that PD 5C requires is that the landlord inform the Court “what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependants”. There is no obligation to make enquiries, so the answer could very well be ‘no knowledge’.

However, there are two new bits, which might in part, I suspect, result in more Friday afternoon regulations.

First “if an area is in a local lockdown that includes a restriction on gathering in homes, evictions will not be enforced by bailiffs.”

This needs clarifying and specifying how it is to be achieved – all of England now has restrictions on gathering in homes (or will from Monday), so what constitutes a ‘local lockdown’?

And then

There will also be a ‘winter truce’ on the enforcement of evictions, with no evictions permitted in England and Wales in the run up to and over Christmas except in the most serious circumstances, such as cases involving anti-social behaviour or domestic abuse. This will ensure vulnerable tenants are not forced from their homes at a time when public and local authorities may be dealing with the usual level of increased demand for services during this time. To achieve this, guidance will be issued to bailiffs that they should not enforce possession orders in the weeks of Christmas.

A ‘truce’? This is not the trenches in 1914. And then guidance to bailiffs? What about High Court Enforcement Officers likewise, given that it is now easier to transfer a possession to the High Court for enforcement (albeit now on two weeks notice of eviction).

So, we will have to see how these things are achieved….

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.

4 Comments

  1. Alina Mihaela Nacev

    Good morning! Is this is this a binding court order?

    Reply
    • Giles Peaker

      If you mean the ‘No DSS’ decision, then it says in the post. Not binding, but should be followed unless there is good reason not to.

      Reply
  2. Phill Warren

    What period constitutes “the run up to and over Christmas” and the seemingly new period “the weeks of Christmas”? All of December? The two weeks covering the Christmas and New Year period?

    Reply

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