As we all know, the current Coronavirus pandemic is having, and will continue to have, a significant effect on the way in which all social landlords are able to manage their tenancies and their assets. It is now clear that emerging Government policy is going to impact dramatically on the ways in which tenancy breaches can be tackled, and how both existing and new court proceedings will need to be dealt with.
We know that our clients are busy on the front line focussing on providing support to their tenants to help them through the current crisis whilst also meeting their legal and regulatory obligations. This e-bulletin seeks to summarise and pull together in one place various developments to help our clients keep abreast of legal and regulatory developments.
This e-bulletin sets out the position as at 25 March 2020.
Coronavirus Act – possession proceedings and evictions
The Coronavirus Act was enacted on 25 March 2020.
Prior to the enactment of the Act, the Prime Minister stressed that the Government’s intention is that no renters shall be evicted as a direct consequence of Coronavirus. On 18 March 2020, the Government announced:-
“The government has announced a radical package of measures to protect renters and landlords affected by coronavirus. As a result, no renter in either social or private accommodation will be forced out of their home during this difficult time.
Emergency legislation will be taken forward as an urgent priority so that landlords will not be able to start proceedings to evict tenants for at least a 3 month period. As a result of these measures, no renters in private or social accommodation needs to be concerned about the threat of eviction.”
The emergency legislation referred to is the Coronavirus Act. From a housing management perspective, however, the provisions of the Act - which will apply through to 30 September 2020 (but with provision for that date to be extended) - are much less impactful than had been expected.
Essentially, the only change is to the minimum period of notice that must now be given to end most – but not all – types of residential tenancy:-
- For assured tenancies: Section 8 of the Housing Act 1988 will be amended so that, irrespective of the ground(s) of possession relied on, the minimum period of notice that must be given is three months.
- For assured shorthold tenancies: Section 21 of the 1988 Act is amended so that the minimum period of notice to be given by the landlord is extended from two to three months.
- For secure and flexible tenancies: Sections 83 and 107D (respectively) of the Housing Act 1985 are likewise amended to incorporate a minimum three month notice period for notices served under those sections.
- Demoted, introductory and Rent Act tenancies: Equivalent legislative amendments will also be introduced to impose a three month minimum notice period.
No mention is made of any forms of tenancy (e.g. excluded tenancies) or licence other than the above, and so it appears that there will be no change to the legal framework governing the notices to be given in respect of such arrangements.
The Act gives the Secretary of State the flexibility to extend the new minimum three notice period to up to six months should that be required as the crisis develops. In Prime Minister’s Questions on 25 March 2020, Boris Johnson said that the minimum notice period would be kept under review. How this would be implemented, and what impact any such extension would have on three month notices that had been served but not expired when the extension takes effect, remains to be seen.
Also, the Regulations prescribing the standard forms of notice to be served under these Acts are also amended accordingly and so precedent notices will now need to be amended.
Overall, therefore, the scope of the Act is much more limited than had been expected. It merely extends the length of notice to be given by a landlord to a tenant before possession action can be taken.
More generally, the Government intends to ‘beef up’ the possession proceedings pre-action protocol to strengthen its remit with the clear aim of slowing up the throughput of issued possession claims, to “support the necessary engagement between landlords and tenants to resolve disputes” and impose an obligation on social landlords “to reach out to tenants to understand the financial position they are in”.
Existing notices and possession proceedings
The Act doesn’t contain any provisions applicable either to notices that have been served before the Act become law, or to possession proceedings that are already on foot. From a statutory basis, therefore, there will be no statutory reason why social landlords could not simply progress possession action in those circumstances. There may of course be non-legal reasons not to do so.
Some County Courts are responding to the new environment by vacating existing hearings and ordering blanket adjournments of all existing residential possession actions (and, in our experience, commercial possession actions that happen to have been listed in a residential block listing). In response to lobbying from the Housing Law Practitioners Association, the Designated Civil Judge for London has directed that all cases should be adjourned for three months unless exceptional circumstances apply (with no guidance at this stage as to what might be considered exceptional). Similar adjournments have been introduced on a piecemeal basis in other courts across the country, including Exeter, Cumbria and Merseyside. Cases in Coventry have also been adjourned but only until early April at this point. On any individual case, it is therefore necessary to contact the court in question to understand their position.
Our experience of working with our social landlord clients is that their focus has moved from enforcement to support, and many are actively volunteering adjournments of rent cases to their tenants to take account of the current socio-economic crisis whilst concerted efforts are made to support the tenant. Where rent arrears are the motivating factor for seeking an order, there is now an expectation upon both parties to work together to establish an affordable repayment plan, taking into account the tenant’s individual circumstances.
It had been expected that the Act would include a ban on residential evictions (either new or existing), but the Act contains no such provisions.
However, it appears that HM Courts and Tribunals Service has been briefed to implement a moratorium on residential evictions and this appears to be being put in place across the country for an initial three month period. For cases where enforcement of a possession order has been transferred up to the High Court for enforcement, we are continuing to liaise with the High Court Enforcement Officers that we work with but initial indications are that they do not anticipate that it will be possible to progress this process during the next three months.
HMCTS have set out their intentions to run court and tribunal hearings with the assistance of video/telephone technology to allow them to continue to provide an essential public function.
HM Courts and Tribunals Service is quickly expanding its capability to accommodate remote hearings. Steps have been taken to train the judiciary on the use of Skype for Business to host hearings, and we took part in a successful High Court appeal over Skype on 24 March, where the Judge heard the case from his home. The volume of cases to be dealt with in the County Courts means that progress towards remote hearings is likely to be much slower there than in the High Court.
The Lord Chief Justice has advised that block listing of possession matters in the County Court is no longer advised and these lists are being quickly cancelled. HM Court and Tribunal Service are now providing a daily operational summary which can be view here.
First-tier Tribunal Hearings
As well as courts, the Tribunal system has moved quickly to introduce urgent interim processes to cope with the challenges presented by Coronavirus over the next six months. New Contingency Arrangements have been introduced and these include the following headlines:-
- The default will be that cases will be decided on paper;
- If a hearing is required, this will take place remotely;
- Site inspections will not take place, replaced either by the use of photos or video or, possibly, a ‘drive by’ viewing;
- In circumstances where a site inspection is essential, the case will be adjourned until this can take place safely; and
- The panel for a hearing may be made up by one person even though ordinarily it would be two or three.
Access to tenanted properties to complete statutory compliance checks
We are working with a number of social landlords on urgently reviewing their policies and procedures for gaining access to tenanted properties to undertake statutory checks (typically annual landlord gas safety checks) in circumstances where an occupier of the property has, or is suspected of having, Coronavirus and is in isolation.
For social landlords, this presents a difficult challenge and the need to balance strict statutory and regulatory obligations to comply with health and safety law with their obligations not to put residents, staff and/or contractors in harm’s way.
Social Landlords have an ongoing duty under the Gas Safety (Installation and Use) Regulations 1998 to make sure that all gas appliances, fittings, chimneys and flues are safe and working efficiently and this requires annual gas safety checks. There has been no suspension of these rules by the Health and Safety Executive (“HSE”) and their latest guidance (accessible here) states:
"If you anticipate difficulties in gaining access as the COVID-19 situation progresses, you have the flexibility to carry out annual gas safety checks two months before the deadline date. Landlords can have the annual gas safety checks at their properties carried out any time from 10 to 12 calendar months after the previous check and still retain the original deadline date as if the check had been carried out exactly 12 months after the previous check.
You are encouraged to arrange your annual gas safety checks as early as possible, as a contingency against tenants being in self-isolation for a period of 14 days (in line with current guidelines), or gas engineers being unavailable due to illness. The two-month period to carry out annual gas safety checks should provide adequate resilience in most situations.
In the event you are unable to gain access to the property, e.g. persistent refusal of access due to vulnerable tenants self-isolating, you will be expected to be able to demonstrate that you took reasonable steps to comply with the law, and that you are seeking to arrange the safety check as soon as all parties are able. This will need to include records of communication with the tenant, and details of your engineers attempts to gain access."
On the basis that the HSE expect gas safety checks to continue as long as the occupiers is not self-isolating or being shielded, social landlords should be mindful of the Government’s guidance on social distancing which can be found here.
How can we help
Our national Housing Management team is tracking the coronavirus developments closely and we are advising and discussing a number of these issues with our clients. This gives us a good perspective on the direction of travel in the sector. If you would like advice or to discuss any of these issues with us, please feel free to contact a member of our team.
For further support and advice relating to the impact of COVID-19, please view our COVID-19 Advisory Service page.