In effect from 6th April 2015 (although the document was not published until some two weeks later).
Part 1 – Aims and scope of the protocol
The aim of the protocol is to encourage more pre-action contact between the parties and to enable court time to be used more efficiently. The pre-action protocol remains an important document in advancing rent based possession proceedings and will need to be followed to the absolute letter. The new version states:
"Courts should take into account whether this protocol has been applied when considering what orders to make"
Failure to comply with the protocol can invalidate a claim for possession, sending us right back to the drawing board, having incurred costs in the process. Having strict procedures in place to comply with the protocol will mitigate this risk.
The old reference to understanding and literacy remains:
"If the landlord is aware that the tenant has difficultly in reading or understanding information given, the landlord should have reasonable steps to ensure that the tenant understands any information given"
The protocol also requires officers to consider capacity throughout the possession process.
Part 2 – Possession claims based upon rent arrears:
The new protocol condenses the old in to part 2. The new part 2 is almost identical to the old, save for a few slight amendments:
- The introduction to references of universal credit and the DWP – With the introduction of universal credit on the horizon (and already being rolled out in some areas), the new protocol reminds us of the importance of assisting a tenant with claims for the universal credit (housing element) as well as housing benefit. The protocol therefore adds reference to the DWP who will handle such claims on behalf of tenants.
- Providing copies: paragraph 2.8 adds an important addition to the pre-action process. This now suggests that as well making attempts to contact the tenant after issue of proceedings, they should also have a copy of the pre-action protocol sent to them.
The sanctions for failing to comply with the protocol remain the same, namely:
- An order for costs
- Adjournment, strike out or dismissal of a possession claim.
Part 3 – Mandatory grounds for possession
It is fair to say that the first paragraph of this new part is a little confused. As a result, it is unclear as to which types of case this part applies (ie whether this applies to NTQ cases as well as ground 8 matters). It seems wise therefore to bear this new part in mind in all cases but particularly where ground 8 is relied upon or where a s21 notice is served.
In cases where the court must make an order if the case (or ground is made out), before issuing proceedings, the landlord must:
- Write to the occupant explaining why they currently intend to seek possession and requiring the occupant within a specified time to notify the landlord in writing of any personal circumstances to be taken into account
- Consider any representations and if it is decided to proceed, giving brief reasons why.
This process is similar to the process already followed when a s21 notice is served. The tenant must be given the opportunity to challenge the notice and that challenge should be properly reviewed.
In these cases, the protocol also requires the landlord to add in to their particulars of claim or witness statement, a schedule addressing whether:
- Of whether it has invited the defendant to make representations
- If representations were made, that they were considered
- Brief reasons for continuing to issue proceedings
- Copies of any relevant documents which the landlord wishes the Court to consider in relation to the proportionality of the landlord's decision to bring proceedings.