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Unlawful eviction and harassment

‘If you’re not too hot, we’re evicting you”

Last night, as housing law twitter (yes there is such a thing) did what it does, this tweet from @marieajparis definitely caught my attention

(If you can’t see the tweet, it says “My client applied to suspend a warrant yesterday afternoon, and told his bailiffs that he had Covid symptoms and was waiting for his test results. Bailiffs proceed to do a lateral flow test this morning and evicted him before the app. could be heard. Dangerous on many levels!”)

It became clear that the bailiffs were High Court Enforcement Officers, not County Court bailiffs. It also became clear that the tenant had obtained an injunction for re-entry because an application to set aside the possession order had been made before the warrant was issued (although the Judge on the application took a dim view of the bailiff’s approach.

It also became clear that the HCEO set up involved claimed that they were following guidance from the High Court Enforcement Officers Association. The firm involved shall, for now at least, remain nameless, but I know who it is.

Now, to be clear, I have absolutely no idea whether this was guidance from HCEOA, misinterpreted guidance from HCEOA, or the firm was basically making things up. It would not be the first time that such things were made up, to be honest.

The current (post 31 May 2021) Govt guidance is:

bailiffs have been asked not to carry out an eviction if they have been made aware that anyone living in the property has COVID-19 symptoms or is self-isolating.

Note that is not ‘unless you make them do a lateral flow test and it is negative’ (58% accuracy) or ‘they didn’t register as having a temperature on a temperature gun’.

But this is the problem with ‘guidance’. We saw this before, when the govt laughably attempted to ban evictions by writing to bailiffs asking them not to evict people. Either this is put on a legal footing or you will get creative interpretations like this HCEO set up.

That said, if there is actually any guidance from HCEOA that suggests that High Court enforcement officers can carry out (or force people into) on the spot lateral flow tests, or temperature checks, when deciding whether to evict someone with Covid symptoms, it needs to be rescinded loudly and immediately. I think steps are underway to bring this to the attention of the senior Chancery and Queen’s Bench masters, for them to get the message to the HCEOA.

In the meantime – waves at HCEOs – if someone has covid symptoms, DON’T EVICT THEM. A couple of weeks delay as against a potential (and tricky) claim against you? And no, you have no right at all to administer or demand a lateral flow test. None, none whatsoever….

 

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.

25 Comments

  1. Ron Platt

    Let us give them credit, all 3 reasons. Do they appear on TV. They are the closest to the American Bounty Hunters.

    Reply
  2. Edward Kirton-Darling

    Plus, and this is nothing to do with the law, but everything to do with how wrong this is, lateral flow tests should not be used where someone has symptoms – the guidance is very clear thst they are only for symptomless testing. They have been demonstrated to be far less reliable if someone has symptoms and so the resident was absolutely right to wait for the PCR results.

    Reply
  3. John

    Just wrong on so many levels and they can add unlawful and unlicensed medical procedures to the list, even the temperature “gun” is a medical procedure. Pass this one over to the medical negligence lawyers, they’ll have a field day what with unlimited damages etc.

    Reply
  4. NR

    A shocking state of affairs. Unsurprising given that as mentioned, it is only guidance for now. I would expect the Govt to start to get their act together when more cases like this one come to light.

    Reply
  5. Ian Narbeth

    The facts you give make the case sound bad. At the risk of opprobrium from your readers, let me approach the matter from another angle.

    What is to happen if a tenant lies about having “Covid symptoms and … waiting for his test results”? Is the bailiff or HCEO simply to accept this without proof? If so, this is the simplest way to put off eviction. Any and every tenant could use it. Go along for the test and feign some symptoms. It will be impossible for the landlord to prove that the tenant was lying about having symptoms (a few coughs will be taken as proof) and when the PCR test comes back negative the bailiffs/HCEOs will have gone. Can the bailiff/HCEO even insist on seeing proof that a PCR test had been taken or is the tenant’s word incontrovertible? This process can be repeated by a wily tenant.

    Involuntary creditors (aka landlords who are not being paid for the use of their property) will be concerned if, having obtained a court order that the tenant has not complied with, and with the landlord having had to incur additional time and expense of seeking enforcement, all it takes is a simple lie and everyone has to stand down.

    Please note I am not defending the landlord in this case, just asking how a landlord’s interests can be protected in circumstances where lying buys more time and has no adverse consequences. This is not to say that all tenants lie but enough of them do for this to be a problem,For the particular landlord who may be owed £5,000, £10,000 or more it may be financially very serious.

    Reply
    • Giles Peaker

      Ian, I think in the middle of an ongoing public health crisis, you are basically just going to have to suck it up. Given that there is no way that – even if trained and competent to do so (which of course they aren’t) – HCEOs can administer a PCR test (nothing else is remotely reliable) and get the results back in time to evict on a negative test. Given that, it doesn’t make any difference whether, as you put it, ‘the landlord can prove the tenant was lying’, because the eviction would be re-listed in any event. And of course, even if the landlord could show the tenant had invented symptoms on an earlier occasion, that has precisely zero evidential value for whether they are genuinely symptomatic on a later occasion.

      I realise, from your perspective, that the public health is not easy to put in the balance against a couple of week’s rent, but there we are.

      Reply
  6. Bernadette

    Ian,
    It is just guidance so bailiffs will exercise some judgement when a tenant is obviously trying it on.
    It is reasonable for them to ask someone repeatedly claiming to have covid if they have had a test.

    Reply
  7. Ian Narbeth

    Bernadette,
    “It is just guidance so bailiffs will exercise some judgement when a tenant is obviously trying it on.” And there’s the rub. The tenant’s legal team can be expected to say: “The tenant said he had Covid symptoms “. The bailiff/HCEO may have taken the view that the tenant was feigning or exaggerating symptoms.

    “It is reasonable for them to ask someone repeatedly claiming to have covid if they have had a test.” So, how many times does the bailiff have to attend and be told that someone has Covid symptoms before it becomes reasonable “to ask” if they have had a test? Two, three, four (when months may have passed since the first visit)? And what if the tenant lies about having taken the test?

    If landlords behaved like this, tenant advisers would rightly object and would talk about “perverting the course of justice”. When tenants do it, they seem to get a free pass.

    It will also usually be the case that the tenant in these circumstances (a) has not complied with a court order and (b) not made any arrangements for alternative accommodation. All that is happening is putting off the evil day – when the tenant has to leave – at the expense of the landlord. It is also not good for anyone, including the tenants themselves, to incentivise people to lie and game the system.

    Forcing landlords to “suck it up” as Giles proposes will not, I predict, benefit tenants long term. Landlords who have been done over during the pandemic may pull out of the sector and those who have avoided being done over will be more wary. Expect rent increases and more requirements for personal guarantors than previously.

    Reply
    • Giles Peaker

      Ian, bailiffs aren’t generally (or let us be honest, at all) skilled or experienced in making diagnostic medical decisions. They shouldn’t even be seeing the tenant if this is a situation were someone should be self isolating.

      Again, in the scales we have public health on the one hand, or a couple of weeks rent on the other (as these are HCEOs we are talking about). You have made your decision, you would rather put out infectious people who should be self isolating into public spaces than consider the prospect that the tenant isn’t making it up and a possible loss of a couple of weeks rent.

      And not the ‘landlords will pull out of the sector’ refrain again, please. That has been a constant whine since 2004. ‘Evict infectious people or we’ll have to put the rents up’ is not a great slogan for the sector, if we’re being entirely honest.

      Reply
  8. Bernadette

    Ian,
    “The tenant’s legal team can be expected to say: “The tenant said he had Covid symptoms “. ”

    To which the questions would be; What symptoms, when did they get them, why didn’t they inform the bailiffs beforehand, have they been tested, was it positive, have they had any medical treatment, have they moved out any possessions, did they have removals booked, where did they intend moving? etc etc

    Developing Covid symptoms suddenly when the bailiffs are right at the door, with nothing else to support it, is as plausible as the dog ate my homework.

    (Hopefully this is all academic anyway as it’s looking like we are at the tail end of this crisis.)

    Reply
    • Giles Peaker

      Bernadette, you appear to be under the illusion that this is in effect a court hearing. It isn’t.

      And it is, of course, entirely possible to develop covid symptoms on the day or shortly before an eviction date. Or of course to have them for some time beforehand – there is no obligation to notify baliffs in advance, though it would be a good idea, that is even assuming there are any contact details to do so on the notice of eviction date, which isn’t necessarily the case.

      28,773 cases today, up 8,294 from last week? Infection numbers of over 100,000 a day predicted for the summer by the Govt? Funny kind of tail end…

      Reply
    • Giles Peaker

      This bit?

      “What is clear to us from this research is that this lower end of the private rented sector is not sustainable. In most of England, housing is simply unaffordable for private renters on low incomes. Even in more affordable areas, the decisions being made by landlords, letting agents and intermediaries about who they let to and how they operate their businesses, are skewing the market, often disadvantaging renters on low incomes.” ?

      Reply
  9. Bernadette

    …when defending “against a potential (and tricky) claim”.

    “And it is, of course, entirely possible to develop covid symptoms on the day”

    -Repeatedly, without contacting the bailiffs beforehand, without testing, without medical proof, without evidence of intention to move, without paying any rent…

    Reply
    • Giles Peaker

      Ah, so now you are making things up. (And, yes, even in those entirely imaginary circumstances. It is how viral infections work.)

      Reply
  10. Bernadette

    “28,773 cases today, up 8,294 from last week? Infection numbers of over 100,000 a day predicted for the summer by the Govt? Funny kind of tail end…”

    UK Covid deaths in Jan 2021, 1000+.
    UK Covid deaths today, 10.

    Reply
    • Giles Peaker

      And yet if infected, or having symptoms, the requirement is to self isolate). Oh and “The latest official data however, shows the number of people who are in hospital with Covid has increased by 38% in the past week to 1,988 – the fastest rate of increase since last October.”

      Estimates of c.10 million having to self isolate over the summer and 1 million cases. So, at least for evictions in the meantime, hardly a ‘tail end’.

      Reply
  11. Bernadette

    “And not the ‘landlords will pull out of the sector’ refrain again, please.”

    This bit?

    “In most of England, housing is simply unaffordable for private renters on low incomes.”

    …If we’re being honest.

    Reply
    • Giles Peaker

      That is tenants being failed by the private sector (and indeed the govt), not landlords pulling out.

      Reply
  12. Bernadette

    Bernadette on 06/07/2021 at 8:59 pm
    …when defending “against a potential (and tricky) claim”.

    Giles Peaker on 06/07/2021 at 9:04 pm
    “Ah, so now you are making things up.”

    No.

    Giles Peaker | 2 Jul, 2021
    “DON’T EVICT THEM. A couple of weeks delay as against a potential (and tricky) claim against you?”

    Any illusions are entirely your own.

    Reply
    • Giles Peaker

      I’m sorry Bernadette, but you have stopped making sense. I can’t actually work out what ono earth you are trying to say.

      Oh and daily deaths are 37 today, up 14 on last week.

      Reply
  13. Bernadette

    “I can’t actually work out what ono earth you are trying to say.”

    Or Nearest Offer?

    OxygenNitrosoperOxycarbonate2?

    Over N Out?

    Reply
  14. Bernadette

    “Oh and daily deaths are 37 today, up 14 on last week.”!

    Hurray?

    Reply
  15. Ben

    No wonder Giles withdrew from this conversation. Giles had it right when he said “I realise, from your perspective, that the public health is not easy to put in the balance against a couple of week’s rent, but there we are.”.

    Reply

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