Essex Law Clinic Update: A view from the housing frontline

Guest Post by Lucy Davies, Essex Law Clinic Supervisor and Legal Aid Housing Advisor at Suffolk Law Centre.

The amount of new housing legislation over the last 12 months in response to the Covid-19 emergency has been overwhelming. This has added to the complex mish-mash of overlapping housing statutes to create a large amount of confusion. There has been a feeling that the government are running to catch up on housing issues or delaying the inevitable rather than strategically addressing the growing housing and rental debt problem.

The issuing of the Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment)(England) Regulations 2021 saw the extension of the current ban on evictions (subject to certain exemptions as discussed in Clinic Connect 12) due to end on 31 March until 31 May 2021. The temporarily extended notice periods that apply to most notices seeking possession of residential tenancies have also been extended until that date.

Landlords have often made technical mistakes in serving s21 notices but that has increased during Covid as the civil procedure rules, the notice periods, the forms and the periods before expiry of notices have all changed a number of times in the last 12 months, often with the paperwork not keeping pace with the legislative changes. On Housing Possession duty days at Court the new system of an extra Review date hearing prior to a Substantive hearing in possession proceedings does not seem to be working, as many defendants and even some claimants are not taking advantage of the Review hearing and then not turning up to Court for the Substantive hearing. This may be due to lockdown itself or the mistaken belief that the ban on evictions means a ban on possession proceedings – which is far from the case.

The avalanche of possession claims that have been forecast since the end of the first lockdown in 2020 hasn’t yet happened – but then we haven’t yet come to the end of lockdown or its effects. Possession proceedings are going ahead and if undefended will result in eviction, even if that eviction is delayed by the temporary ban. The figures from last year are illustrative – evictions by county court bailiffs didn’t take place at all from April to October 2020 and there were only around 800 in the final quarter of the year, compare that to the previous average figure of 9,000 or so evictions per quarter. Possession claims were also down to about a third of the level seen in previous years at around 45,000. It seems likely that we will see an increase in claims and enforcement of warrants when the restrictions are lifted given the job losses and financial difficulties that have accompanied the pandemic.

Defences to s21 ‘no fault’ evictions can be on technical grounds, or for not complying with the CPR, but these will only take you so far in protecting someone’s home. While s21 as a mandatory ground remains in place, it will be possible and relatively easy for landlords to evict tenants only on the basis they follow the process correctly. The proposed reforms of s21 remain ‘on the table’, but not yet in the statute books, where they would actually do some good. There is opposition from landlord lobbying groups. However, tenants, already struggling under furlough, redundancies and a horrifying level of debt will be willing the reforms to come. So undoubtedly will local authorities, who are already massively under-resourced for the level of homeless assistance they have to provide, lacking -as they do- in social housing or even options for emergency housing. A huge rise in homelessness applications is expected – will a huge rise in funds from central government follow?

Funding was found for the ‘everyone in’ response to Covid, which saw those who are street homeless provided temporary accommodation, even though it revealed that the government estimates of rough sleepers was much lower than the reality. A small ray of hope comes from a recent successful challenge to restrictions to the ‘everyone in’ funding. Thus the judgment in R (on the application of Ncube) v Brighton and Hove City Council [2021] EWHC 578 (Admin) confirmed that this initiative to provide emergency accommodation to rough sleepers could be extended to those without recourse to public funds under certain local authority powers that apply in a public health emergency. At least while the emergency continues some respite can be offered, but the emergency won’t last forever and the government needs a clear strategy and roadmap for private renters and the homeless. If not, the avalanche of possession cases and the consequent overwhelming of local authority homelessness services is a distinct possibility, with potentially devastating personal and societal consequences.

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