Possession claims by social landlords: what should my landlord and I be doing?

The day is almost upon us, when the stay to possession cases will be lifted on 20th of September 2020 and lawyers and Courts alike are expecting an avalanche of claims to be issued due to rent arrears.

There has been nothing to stop a landlord from filing a claim during the stay, though the Courts cannot actually issue the claims until 20th of September 2020.

If you have a social landlord, then in all claims for possession they are expected to comply with the pre-action protocol for possession claims. There is a clue in the title that it ought to be complied with before any claim is brought. However, it also applies to claims already issued and as they progress to a hearing. Over the years that I have acted as a duty solicitor, quite literally defending what amounts to thousands of possession claims, I have had with me at all times a copy of the protocol. It has been invaluable.

You can find the protocol here. This post will take you through the protocol and set out what your landlord should be doing, what happens if they don’t and importantly, my general and frank suggestions as to what should be doing as a tenant in this situation to avoid losing your home.

The protocol is split into three parts:

Part 1 – Aims

Part 1 is about the aims of the protocol, in short it is to encourage communication between the landlord and tenant and try to agree to a resolution without having to involve the court.

What should your landlord be doing under this part?

• First up, if a landlord is aware you cannot read or have difficulty reading, they should take reasonable steps to ensure you understand the information given. This could be agreeing to meet with you and to talk you through the information. In such times a phone call, or a Zoom or Skype call might be available. It could also be for example, making the letter available in a larger text or by Braille.
• If you are particularly vulnerable, then your landlord should be considering whether you have the mental capacity to defend proceedings.
• If your landlord is a local authority, they may need to consider if any community care assessment is needed – for example, if you are being financially exploited by your Carer, they could arrange for a safeguarding assessment; if you need assistance to manage your affairs due to a mental illness or disability etc. they could appoint a support worker.
• Your landlord will also need to consider whether any issues under the Equality Act 2010 arise. The protocol does not say they need to act in a way other than to consider, the assumption is of course that your landlord will go on to complete an Equality Act assessment before taking any further steps.

What should you be doing under this part?

• If you have any difficulty reading or understanding information, please do tell your landlord. They will want to ensure you can understand the information.
• Be open to communicating with your landlord. In my experience, hiding from a problem will not make it go away, in fact it usually only get worse.

Part 2 – rent arrears claims

This section is a biggie. It covers the initial contact and notice seeking possession stage, after the notice has expired but before proceedings have been issued, and up to the court hearing. I’ll divide it up so as to follow the protocol.

What should your landlord be doing under this part?

Initial Contact

• If you fall into rent arrears your landlord should quickly contact you to fully discuss your situation and how any arrears can be repaid. Where contact is by letter, the landlord should write separately to each named tenant.
• Your landlord should try to agree a repayment sum with you before taking any further action. They might give you a date by which time you ought to propose a sum.
• Your landlord ought to send you a quarterly rent statement
• If you meet the appropriate criteria, your landlord should apply for arrears to be paid by the Department for Work and Pensions by deductions from your benefit.
• If it appears that you are entitled to Housing Benefit or the housing element of Universal Credit, or have a problem with such a claim, your landlord should offer to assist you with this. Most social landlords have benefit advisors who are trained to do so.
• A claim should not be started against a tenant who has commenced a claim for Housing Benefit or the housing element of Universal Credit , which is likely to be paid and you have supplied the information needed for processing, and you have paid sums not covered by this (such as a service charge for water).
• Your landlord should also advise you to seek assistance from Citizens Advice, debt advice agencies or other appropriate agencies in case you might need assistance with debts.

After service of the statutory notice

• I have copied and pasted this from the protocol as it is a step I often see neglected. After service of a statutory notice, but before the issue of proceedings, the landlord should make reasonable attempts to contact the tenant to discuss: the amount of the arrears; the cause of the arrears; repayment of the arrears; and the housing benefit or universal credit (housing element) position. The landlord should send the tenant a copy of this protocol.
• If you reach an agreement and fully stick with it, then your landlord should not bring proceedings.

Court proceedings

• Once you have your court date, then no later than 10 days before this hearing your landlord ought to send you a copy of your rent statement and disclose what knowledge they have of your housing related benefits. This is intended to give you the opportunity to check that the information they are using is correct and query it before the hearing.
• At this time then will usually indicate what order they intend to apply for and why, and remind you of the hearing date and time. They need to remind you your home is at risk.
• My favourite bit of the protocol as a defence solicitor and where I enjoy waving the protocol around is what happens if your landlord does not reasonably comply with the protocol. The court may refuse them their costs or in an extreme case could even order costs against them; they could adjourn the claim generally or to a new date where compliance is still possible, dismiss the claim.

What should you be doing under this part?

Initial Contact
Communicate honestly with your landlord. This is your chance to try to nip the situation in the bud. They want to do the same. They cannot help you if you do not tell them what the issue is.

• Have a go at an income and expenditure sheet to work out what you can afford to repay to your arrears, if anything. Your landlord can work out an affordable sum with you.
• If you receive a letter with a deadline to respond, try to stick to the deadline. Again. Your landlord is trying to engage you to resolve your situation without taking court action and it is an opportunity to avoid proceedings.
• Read your rent statement every quarter and check your payments are recorded.
• If your landlord offers you help with your benefits, take the help. It can be really difficult to sort these out on your own.
• If you have made a claim for housing benefit or Universal Credit, please do tell your landlord. Also, ensure you follow up the claim with the documents needed.
• Whilst waiting for a benefit claim to be processed, if you can try to pay a non-eligible service charge such as water. Your landlord can advise you how much this is whilst your claim is processed, it will keep any arrears down once this has been paid.
• If you have debts, seek help. It’s usually free and will help relieve you of the burden of the stress they might be causing.

After service of the statutory notice

• Use the second opportunity to reach an agreement to pay the rent and the arrears if you have not already done so, it’s never too late to try to resolve matters. And stick to the agreement by the letter. If you are required to pay on the 1st of each month, then you will be expected to do so. Keep a careful note of this.
• Ask for any agreement in writing.

Court proceedings

• Check the rent statement and housing related benefit information you receive is correct. If it’s not and you have payments missing from your account, look for the receipts so you have them ready. If you send them to your landlord then they might agree to adjourn the first hearing to resolve this. If you note that your benefit information is not correct, then contact that department to query it and keep a note who you spoke to and when, and bring it to court.
• Turn up to your hearing.
• Seek legal advice, if you haven’t seek out the duty solicitor. They will wave around the protocol on your behalf where necessary.
• An important note here, if your landlord has complied with the protocol, but you haven’t been reasonably engaging to try to communicate and avoid proceedings, the court will consider then when considering if it is reasonable to make an order for possession.

Part 3 – Mandatory grounds for possession

In my eyes this is quite possibly the important part of the protocol. It applies only to those claims where the court has no discretion as to whether to make an order. For example, in a case of non-secure accommodation or ground 8.

As the court has no discretion, it is intended as a final procedural safeguard, and my view must be followed by a landlord in ever such case, there are no excuses for not complying.

I have a bit of a bugbear in that the language here is “should” and not “must”. What happens if they don’t comply isn’t very clear, the Government really needs to address this and revisit the vague language and insert a sanction for non-compliance as in Part 2. I have often argued that if the court is still minded to make the Order, that the landlord should not be awarded costs. This seems to be an accepted position by most Judges.

What is important here though, is that compliance by landlords in this part is intended to demonstrate that their claim is proportionate and reduce defences being brought on this basis. If they don’t follow it then a landlord is opening themselves up to a defence that the claim brought is unreasonable, irrational and unlawful.

Note that the wording in this Part also applies to occupants and not just tenants.

What your landlord must do to comply with this part?

• Before issuing a claim, and usually at the same time as a notice is given, they should write to the occupants explaining why it currently intends to seek possession and requiring the occupants, within a specified time, to notify the landlord in writing of any personal circumstances or other matters which they wish to have taken into account.
• Consider any response from the occupants and explain to you in writing if they are still going to proceed with the claim.
• Your landlord should inform the court of these steps in their claim or witness statement.

What should you be doing under this part?

• A landlord will usually require a written response from you within a specified time. Ensure you meet this time frame, call them to let them know it’s on its way. Do not ignore this. Get help writing it if needed. It is quite possibly your only chance and final chance to set out your circumstances.
• If your landlord offers you a meeting, please do try to attend. Even if you need to arrange for it to be phone please take the chance to meet with them and try to avoid a claim.

What can be taken from this is that the landlord has some hoop jumping to do and that there is opportunity for you to try to avoid a claim by engaging from the earliest opportunity. I would encourage any at risk to seek advice from the earliest opportunity. From the moment you are threatened with a claim for possession, there is legal help available from solicitors who have a contract, there are free advice lines, free advice centres.

Whichever stage your case is at, a tenancy is not brought to an end until the date of the eviction, and help is at hand. If you need help from our specialist housing team, please call 0330 822 3451 now or request a call back online.