Our grateful thanks to Mike Norman of Harrow Law Centre, our now designated person for housing law in Wales, for this detailed and thoughtful view on whether Wales will be left behind in retaining possession claims with no grounds required.

Introduction

It is often argued (including very frequently, by me) that Cardiff Bay has run the more progressive housing regime within our shared jurisdiction, since the expansion of Welsh devolution in 2011.

With the flagship component of the pending Renters Rights Bill in England however proposing the end of section 21 by abolishing Assured Shorthold tenancies, a question arises as to whether Wales should consider itself ‘left behind’ if it doesn’t follow suit.

I’m very aware saying this, that the recent legislative statement by the Counsel-General, Julie James (para 187 onwards) made clear that the Welsh Government’s focus during the remainder of the Senedd term will relate to homelessness rather than to any more private renting reform. This is taking shape in the form of the Homelessness and Social Housing Allocation (Wales) Bill.

It should be said, this bill does look to be Very Significant Indeed – with huge priority need and intentionality category removals. These definitely deserve their own greater space for comment (but, well, I was already in the middle of this thing).

For the moment, I’ve considered the I’ll-be-there-now-in-a-minute of change of tenancy reform in England, progress made and the challenges in this arena, and why Wales hasn’t been sold on the benefits of ending its equivalent to section 21 (hereafter section 173 if periodic contracts, section 186 or landlord’s break clause if fixed term contract).

‘No-fault eviction’

Starting with the terminology. Giving evidence to the  Local Government and Housing Committee on 24^th April 2024, the then-Cabinet Minister for Housing, Local Government and Planning, Julie James, stated that ‘This business about whether no-fault eviction exists or doesn’t exist, I find quite infuriating actually…’(para 64)

Similarly, in a committee meeting the previous month, she noted that ‘we were very interested to see whether the UK Government was going to do something that made that [no fault eviction] possible. It isn’t actually possible to do that under current law; it interferes with A1P1 human rights. And so, actually, what they’ve done in the Bill is they’ve said they’d ban no-fault evictions, but in fact what they’ve done is put a whole series of no-fault eviction specific grounds into the Bill…’ (para 71).

She was reflecting at the time of course on the then-Conservative Government’s Renters Reform Bill in England. A similar observation might be made now about UK Labour’s successive Renters Rights bill. It’s a literal point, being that a genuine ‘no-fault’ regime couldn’t materialize whilst being human rights complaint (in this case, accounting for the landlord’s human right to possession of their property).I’ve noted previously how Article 1, protocol 1 has been an issue on which the Welsh Government is vexed.

It might be noted that this literal interpretation didn’t prevent the Westminster Labour Party referring to ending section 21 ‘no fault’ evictions in either its 2024 (p79) or its 2019 manifesto. Even so, I’ve preferred ‘no ground’ as the neutral term here.

Renting Homes (Wales) Act and no-ground eviction

Securing legislation to rebalance the landlord-occupier relationship in Wales with it’s ‘big bang’ legislation was an arduous process, taking just under 7 years from royal assent to implementation (Jan 2016 to Dec 22).

Whilst retaining ‘no-ground’ evictions, many more pitfalls were created using the process than previously existed. For example (not an exhaustive list)

1. No-ground-notice has to give at least 6 months notice (if periodic), and proceedings must be issued within 2 months of a claim becoming ‘actionable.’
2. If proceedings aren’t actioned, unless a landlord promptly withdraws the notice, they cannot give another notice until 6 months after the first notice stopped being actionable (use it or lose it)
3. Notice cannot be served within first 6 months of the ‘occupation date’ (periodic contract)
4. If a court is satisfied that notice was served to avoid a repair or human habitation obligation, it has discretion to not allow possession. This also prevents another valid notice being served within 6 months if possession wasn’t ordered (retaliatory eviction)
5. Landlord has to provide a valid Electrical Condition Report
6. Landlord has to ensure there is a working Carbon Monoxide alarm where the regulations require, and/or smoke alarm (at least one on each floor wired to the dwelling’s electrical system)

Amendment Act and Memorandum

In April 2021, the Welsh Government introduced an update to it’s still-unimplemented legislation, the Renting Homes (Amendment) (Wales) Act 2021. It followed the explanatory memorandum (‘The Memorandum’) a year previously.

The Memorandum did refer to considerations of removing the ability to serve a ‘no-ground’ notice altogether, which we’d also noted previously Wales: The Good, the Bad and the Converted – part 1 – Nearly Legal: Housing Law News and Comment.

The Government did note  ‘… failure to address the (2 month notice) could result in contract-holders) being subject to a less favourable set of arrangements than apply in other parts of the UK’ (Memorandum, para 3.24). Whilst it was specifically talking about the length for notices seeking possession, it did speak to a broader desire to not fall behind the rest of the UK.

Scotland

The Welsh Government considered the extended grounds, as had been implemented in Scotland (Memorandum 7.4 to 7.10)

Since many of the new Scottish grounds did not require ‘fault’ and that notice periods were far shorter than 6 months, the Welsh Government didn’t consider this a sufficient trade-off. Greater security isn’t achieved where specifying grounds still led to a mandatory order, didn’t require fault, and evictions could still be progressed quickly – ‘It is of little comfort to a contract-holder that a landlord has had to spend several months compiling detailed evidence of, say, their intention to sell or to refurbish the property, but still only be provided 28 days’ notice of eviction’ (memorandum 7.9).

Arguably, this was rebalanced by further legislative change in Scotland.  In October 2022, the 18 grounds of eviction in Scotland were altered so that all of the grounds became ‘discretionary.’ It’s contribution to the  idea of  ‘greater security’ is by removing the certainty of a landlord being able to obtain possession, rather than having to prove fault or making the process much longer.

Renter’s Rights-  could it allay such concerns?

The memorandum (7.8) also referred to concerns about landlords, without requiring an evidence base e.g. around selling a property, simply saying one thing, then doing another, to get possession. A further concern noted grounds in Scotland could be abused (memorandum 7.10).

In England, the pending Renter’s Rights bill responds (if imperfectly) with a structure of disincentives for landlords.

At the apex of the proposed enforcement range, of course, is the threat of £40,000 fine or being found guilty of an offence(1) for breaches of specified rules. For example, these are severe sanctions awaiting landlords engaging in practices such as requesting possession to let to a family member, then reletting the property within  the ‘restricted period.’

Admittedly, this relies on Local Authority (i) having resources to spot and then (ii) resources to act. It means without money being committed etc., the legislation risks being significantly undermined or operating by a ‘postcode lottery’ approach.

My suggestion would that that such sanctions for breach of grounds (if introduced) could far more even in Wales, if correctly resourced. England has not got the advantage of a single national licensing body (Rent Smart Wales) with a potential for information and powers at its fingertips.

Even if RSW did not find itself with substantial resources for action itself, barring landlords who have re-let during a ‘restricted period’ could be relevant to the question of whether landlords are ‘fit and proper’ at the point of licence renewal. – RSW.

Since all landlords in Wales need to be registered, and licensed if undertaking specific activities, and since operating without the relevant registration is an offence, there are profound disincentives to fall foul of the ‘fit and proper’ test.

Is change necessary? Court numbers

During the above-mentioned LGHC session in April 2024, Julie James made several references the link between eviction rates and further change, giving an indication of Government criteria for future travel

“I don’t know if you’re going to get on to the eviction things, but the numbers on evictions are really interesting, because they’ve dropped very substantially, after a peak” (para 34)

“…as the Act beds in, it becomes more and more difficult to evict people, the notice periods are much longer, people have more redress to advice, and so on. But we’ll monitor that” (para 38), and finally

“We’re going to take some homelessness legislation through the Senedd and we’re going to marry up the duty of the local authority to help with housing and the notice periods, because at the moment they don’t marry up…If we find, after a couple of years of the renting homes Act, that that’s not having the effect we wanted, then certainly we’d be looking to see what else we can do. But so far, the eviction numbers are dropping rapidly, and we hope that it is having the effect we wanted” (paragraphs 66-7)

Considering the figures for most recent quarter prior to the legislative statement (October to December 2024), these showed:

• At 2180, total landlord possession claims in Wales across all categories combined (Social, private landlord and ‘accelerated proceedings’) were the third lowest since 1999. The only 2 lower years were 2020 and 2021, i.e. during the COVID restrictions.

• Within this number, the number of accelerated claims (513, ie 23.5% of all claims) were again the third lowest. As Julie James indicated, this followed a peak of such claims in 2022/3, and is explainable by big changes having taken place. The ‘big drop’ should be seen in this context.

• It isn’t possible to say exactly from the figures released by HMCTS what proportion of the ‘standard’ claims followed a no-ground notice rather than a ground notice. The figures do not make this distinction. What we can do know, is that a landlord serving a no-ground notice has the choice of ‘accelerated’ or ‘standard’ possession process. The accelerated process is of course designed to be the quicker way to recover possession of a property, so a landlord serving a ‘no-ground’ notice is motivated to take this route(2).

• For only the second time since 2012, there were no quarters where the number of accelerated claims were higher than the number of standard claims made by private landlords.

Whilst it is not possible know for definite, it seems reasonable to suggest that landlords generally have been more motivated to use accelerated rather than standard proceedings where available. If that’s right, the Welsh Government might point to the falling popularity of accelerated proceedings as an indicator of no-ground notices becoming used less generally.

LGHC report

The LGHC (Local Government and Housing Committee) released its housing report ‘Private Rented sector’ in October 2024.

Within the report, the committee stated that ‘the UK Government’s Rights bill, introduced on 11^th September 2024, proposes to end the no-fault possession ground in England and replace It with new grounds. We believe the Welsh Government should closely monitor the situation in England and Scotland and should commit to ensuring that if Wales is the only British nation to retain the no-fault ground, this does not mean tenants in Wales are worse off…However, we see merit in the approach suggested by Generation Rent for financial compensation for tenants who have to move through no fault of their own, by allowing them to retain the last two months’ rent as compensation for the financial and wellbeing impacts of a forced move’ (para 104).

This suggests a ‘wait and see’ approach. ‘No-fault’ eviction is referred (see pages 29-31) but is not taken forward, preferring in the interim to suggest occupiers to the last 2 months rent in a ‘no-ground’ situation. This became the 6^threcommendation of the report and accepted in the Welsh Government’s December 2024 response.

It remains to be seen if such legislation could cover those claiming housing costs through Universal Credit. Welfare benefits are not devolved, so some sort of carve-out would seem quite complex. Perhaps this is one area the two Labour governments could work on more harmoniously, than the ill-fated Welsh Government request to the previous Westminster Government, requesting the ignore basic income pilot for children leaving care was exempted from the legal aid means test.

Conclusion, and the future…

Ending the ‘groundless eviction’ process is a highly emotive subject. For many, the prospect of it being finally ended may well feel at once both close, and yet very far away.

The Welsh Government’s viewpoint recently is that ending the ‘no-ground’ practice is not the has not right proposal to take forward where there were other options on the table.

Getting its Renting Homes Act through had its own challenges to say the least, and it is understandable how the pragmatic view is less contentious route.

Whilst the Government will be trying to use the rest of the 12 months to try to get its homelessness legislation through, of course, there is an election next year in Wales. Much appears up for grabs. An expansion of 60 to 96 members is perhaps as significant as that fact that 13 out of 30 current Labour MSs are standing down.

In 2021, when the Senedd elections were last held, Plaid directly had promised an end to ‘no-fault’ evictions and the Greens pledged to ‘phase out’ Assured Shorthold tenancies (presumably this also meant ending section 21/173).

Welsh Labour had made no such manifesto commitment, concentrating instead on committing to get it’s Renting Homes legislation through. The other parties made no reference to this in their 2021 Senedd manifestos.

The Welsh Government of today promises big action on homelessness as one of it’s last actions. We will have to wait, to see what tomorrow’s offering will be.

(1) See e.g. s17 Renters’ Rights Bill (inserting s16K Housing Act 1988)

(2) This isn’t always true, of course. It might be that a landlord wishes to include a claim for rent arrears along with their possession claim, which would have to have a standard claim not accelerated.