We are grateful to Mike Norman of Harrow Law Centre for this update on the position on possession notices and proceedings in Wales.
In many ways the latest updating Welsh regulations dealing with possession notices, applying from 30th June 2021, are refreshingly straightforward – certainly compared to the rather more circuitous journey taken by its (admittedly increasingly distant) English cousin.
The Coronavirus Act 2020 (Residential Tenancies: Extension of Period of Protection from Eviction) (No. 2) (Wales) Regulations 2021 regulations quite simply extend the existing regulations as to the time required for the lengths of various notices seeking possession/notice to quit in relation to the relevant tenures. The timescales are unaltered from the lengths previously noted here, which had been extended once already to 30th June, and now extended again until 30th September 2021.
To the casual observer (at least, one with a keen interest in constitutional law) the explanatory memorandum may prove of more interest, identifying the factors considered in issuing its legislation (Julie James, the Housing Minister, has retained and seen her role expanded into a wider portfolio following the Senedd elections and is now Minister for Climate Change). ithin the memorandum, noteworthy considerations include the consequence of enshrining of the UN Convention on Rights of the Child as primary legislation into Welsh law, meaning that the Minister has to address this in her relevant considerations. Impact of legislation on the Justice System is also noted – although Justice is not at present a devolved matter, on which more below.
With this relatively simple update dealt with, there is space to consider where things stand in Wales across each stage of the eviction process, especially given there is less good news (from the point of occupiers, at least) in respect of the ban on bailiff evictions
Stage 1- Notices Seeking Possession: keeping good form
As previously noted, the most eye-catching of the differences between English and Welsh possession notices are that Wales does not depart from its six month notice period where the possession grounds are rent-only, regardless of the level of rent arrears.
Wales have also been far more ‘light touch’ in terms of alteration to prescribed forms for possession notices. Since various changes in England, such as section 41 of the Immigration Act 2016, do not apply in Wales, the form 3 has not been subject to the same updating.
Even following the Coronavirus Act, the regulations did not require actual changes to the form: they simply allowed the changes to the notice periods to be ‘read in’ as if the wording had been changed, thereby avoiding any need to amend the actual form.
Accordingly, unlike the update to the English notices , the Welsh notices do not make mention of the new Breathing Space Moratorium regulations. This presents as an anomaly, since those regulations do have equal effect in Wales, in terms of potential ability to delay a ‘litigation step’ such as taking possession proceedings, in order to allow the holding of action for debt plans to be commenced etc.
Of course, in practice, there might be less urgency urgency in Wales since recipients of notices will have far longer before proceedings can be issued than in England, who might have as little as four weeks notice where the rent arrears over six months. The most likely short-term beneficiaries of those rules will have had notice months ago, and new notices of course will not be capable of action until much later in the year, if not next year. Even so, it does seem a currently missed opportunity to not refer to every possible avenue of support to assist with the encouragement of debt advice being sought. The gov.uk website hosts the prescribed form 3 for England but unlike forms 4 and 5 below it, does not specify that it is England only.
The site does however note that prescribed form 6A, used for section 21 proceedings, is England-only (sections 33 to 41 Deregulation Act 2015 do not have effect in Wales) and Wales never has introduced prescribed forms for section 21 notices. This means there is likewise no current requirement in Wales to mention the Breathing Space Moratorium regulations in a section 21 notice either.
Stage 2 – Court procedure
As outlined above, court proceedings in Wales are not a devolved matter. At present, Welsh possession proceedings are subject to the overall arrangements.
There is no official guidance given to Welsh courts to distinguish based on the Senedd’s decision to give no specific priority to cases at any level of rent arrears. This means that the listings priority in those arrangements has effect which are to include cases defined as ‘extreme alleged arrears accrued’ (defined at 43(b)).
Although this superficially appears as a difference of priorities along the ‘England-Wales’ axis, it is slightly more complex than that (of course it is). The Master of the Rolls makes clear in his Guidance note that the priority of listing cases is a Judicial function, rather than that of legislative or executive and the matter therefore also cuts along the traditional separation of powers lines. The listing of cases would seem to be outside of the Senedd’s remit even if Justice were within competency.
Stage 3 – eviction warrants
Continued measures to assist persons losing income as the result of the pandemic, and a joined-up approach to taking steps to secure tenancies including appropriate funding, is crucial if Local Authority homelessness services in Wales are to be able to effectively discharge their obligations to prevent homelessness under section 66 Housing (Wales) Act 2014.
The entire raison d’etre of the Act was clearly emphasised at is introduction, to move homelessness prevention ‘upstream’ and avoid having to absorb potentially far greater costs at the point of homelessness.
As in England, availability of advice and prospects of either adequate financial support and/or economic recovery will be key in mitigating the damage which will be caused. On this, the Welsh Government has been very active. Initially specific measures had been introduced, such as Tenancy Saver Loans for those unable to qualify for Discretionary Housing Payments – a budget which of course has now been significantly cut at a very bad time. There are some innovations, such as four authorities now taking part in a Private Leasing scheme aimed at increasing the housing stock available in the Private Rented Sector, for properties available at Local Housing Allowance rates, and three more Authorities on a smaller-scale ‘pathfinder’ arrangement.
Perhaps most crucially, the Welsh Government have now also announced the successor to the Tenancy Saver Loan (meaning it is not open to those on housing related benefits, a £10m Tenancy Hardship Grant, to support those falling more than 8 weeks rent arrears between 1st March 2020 and 30th June 2021. The grants will be administered by Local Authorities, and those already with the Tenancy Saver Loan can request a backpayment through the grant. An announcement which draws strong support from both Shelter Cymru and the NRLA highlights that mutual interest of landlords and occupiers is possible, and indeed hugely important in a sector increasingly relied upon by the Government to utilise housing stock and surely protecting the homelessness budget later down the line. Similar measures are announced in Scotland.
If Westminster has a similar scheme up its sleeve, all signs therefore point to it being warmly received in the housing sector. Even if it were on a Friday afternoon…