On 31 October 2020, the Government announced that it would be introducing a second national lockdown in England from 5 November to 2 December 2020. It stated that it would place restrictions on evictions of residential tenants, and the seizure of goods to enforce debts. Ministers said the measures would help control the spread of Covid-19 and prevent additional pressure on the NHS. The measures preventing evictions are also intended to avoid extra burden being placed on local authorities in their work providing housing support and protecting public health.

The Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020 were laid before Parliament under the made affirmative procedure on 16 November 2020 and came into force on 17 November 2020. The regulations have been made using powers available under the Public Health (Control of Disease) Act 1984 and apply to England only. Restrictions preventing evictions of residential tenants will remain in force until 11 January 2021, subject to parliamentary approval. The measures prohibiting bailiffs from seizing goods inside someone’s house in lieu of debt were in force for the duration of the second national lockdown in England.

The regulations are scheduled to be debated in the House of Lords on 8 December 2020. The regulations have not yet been scheduled for debate in the House of Commons. The regulations need to be approved by both Houses by 10 December 2020 to remain in force.

What do the regulations do?

Ban on evictions

The regulations prevent the enforcement of evictions against residential tenants, except in the most serious cases. The Government stated this was to ensure protection for tenants for the duration of the second national lockdown in England and the subsequent mid-winter Christmas holiday period.

The measure contains limited exceptions from the ban, which include:

  • Cases where the court determines the claim is against trespassers who are persons unknown.
  • Cases where the court determines that the eviction order was made wholly or partly on the grounds of anti-social behaviour, false statements, domestic abuse in social tenancies, or substantial rent arrears that predate 23 March 2020.
  • Cases where the dwelling is unoccupied, and the court was satisfied that the order for possession was made wholly or partly because of the death of the occupant.

The Government stated that allowing evictions to be made in these circumstances while the ban is in force will ensure that landlords are not “disproportionately negatively impact[ed]”.

Restrictions on taking control of goods from residential properties

The regulations prohibited bailiffs from seizing goods inside someone’s house in lieu of debt for the duration of the second national lockdown in England. It did not prevent other steps to enforce debts being taken through the taking control of goods process. Enforcement agents were able to seize goods located outside of the property. Enforcement agents were also able to make contact remotely such as by telephone and visiting but not entering the property. The Government stated that this struck a “proportionate balance” between protecting against the risk of transmission of Covid-19 and allowing the “continuation of justice”.

Why have the regulations been introduced?

During the first nationwide lockdown in England, which started in March 2020, evictions were banned, except in cases of trespass. Enforcement agents were also prevented from taking control of goods.

On 20 September 2020, the ‘stay’ on evictions expired. A package of measures was subsequently introduced. This included regulations in force until at least 31 March 2021, requiring landlords to give tenants six months-notice of their intention to seek possession, except in the most serious cases. These regulations apply to cases where the landlord served notice on or after 29 August 2020. In addition, the Lord Chancellor asked bailiffs not to enforce evictions in areas subject to local lockdown regulations. Following the introduction of the tiers system in October 2020, bailiffs were asked not to enforce evictions in tier 2 and tier 3 areas.

Following the introduction of the second lockdown, the Government believed it was necessary to extend the ban on evictions to the whole of England. It considered it necessary to legislate rather than rely on guidance to bailiffs. The Government stated it had reintroduced the nationwide ban to protect public health by preventing people from being evicted when the risk of Covid-19 transmission was high and access to public services was difficult. It also recognised that alternative housing may not be available over the Christmas holiday period. The Government stated the aim was to avoid placing extra pressure on the NHS and local authorities.

Restrictions preventing enforcement agents taking control of goods was lifted on 23 August 2020. Bailiffs were instead required to comply with Covid-19-secure guidelines published by the Government. As with evictions, the Lord Chancellor requested that bailiffs did not enter properties to enforce debts in areas subject to local lockdown. This request was updated to refer to areas in tier 2 or 3, following the implementation of that system. Following the introduction of the second national lockdown, the Government stated that a nationwide prohibition was necessary because of the high risk of virus transmission and the difficulty in maintaining social distancing requirements within a home.

What has Parliament said?

The instrument has been considered by the Joint Committee on Statutory Instruments. It drew the regulations to the special attention of both Houses, suggesting they required clarification in respect of exemptions to the ban on evictions of residential tenants. In particular, the committee asked the Ministry of Justice to explain at what point in the proceedings the court would certify that the requirements for exemption had been met. The ministry provided the committee with information on the guidance given to the court service for this purpose. The committee also reported the regulations for defective drafting in relation to the provision which states that the expiry of the regulations did not “affect the validity of anything done or not done” under the regulations before they expired. The committee stated that this would be true without this provision and therefore it was not needed. In its response to the committee, the Government acknowledged that it was “probably unnecessary”.

The House of Lords Secondary Legislation Scrutiny Committee has also reported on the Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020. However, the committee did not draw them to the special attention of the House.

Cover image by NFCC.org.