Coronavirus: Extending the ban on residential evictions in England

Nicola Newson

The Government announced on 8 January 2021 that in light of the new national lockdown, it would extend a ban on bailiff-enforced evictions in England for at least six weeks. The Public Health (Coronavirus) (Protection from Eviction) (England) Regulations 2021 (SI 2021/15) implement this policy.

The regulations were made on 7 January 2021 and came into force on 11 January 2021. Both Houses of Parliament must approve them by 3 February 2021 for them to continue in force. The House of Commons has already approved the regulations. The House of Lords is due to debate them on 2 February 2021.

What do the regulations do?

The regulations prevent enforcement agents or bailiffs from attending residential premises in England to execute a writ or warrant of possession or to deliver a notice of eviction. However, evictions and possessions can continue to take place where a court is satisfied that an exemption applies. The exemptions are:

A claim is against trespassers who are persons unknown.
The order for possession was made wholly or partly on the grounds of anti-social behaviour, nuisance, false statements or domestic abuse in social tenancies.
Substantial rent arrears. This is defined in the regulations as unpaid rent arrears equivalent to at least six months’ rent.
The order for possession was made wholly or partly on the grounds of the death of the tenant and the person attending the property is satisfied that it is unoccupied.

The Government said in its explanatory memorandum that restricting the enforcement of evictions would “help control the spread of infection, prevent any additional burden falling on the NHS and avoid overburdening local health authorities in their work providing housing support and protecting public health”. It justified the exemptions by saying they would apply in circumstances where:

the public health risks are judged as likely to be lower;
harm to third parties may occur if the order is delayed; and/or
there is a need to uphold the integrity of the residential housing market by addressing the most egregious cases involving unlawful entry, misleading statements or substantial rent arrears.

These regulations will expire at the end of 21 February 2021. The Government says it will review whether it is necessary to extend the measures beyond that date, in accordance with the latest public health data and wider public health restrictions. The regulations that set out England’s tier system of coronavirus restrictions, under which the current English ‘lockdown’ is being applied, are currently due to remain in force until 31 March 2021. The Prime Minister said on 27 January 2021 that he would publish a plan during the week commencing 22 February 2021 for taking the country out of lockdown in a “gradual and phased way”.

The regulations effectively extend measures that were in place from 17 November 2020 to 11 January 2021 to prevent the enforcement of evictions against residential tenants during the second national lockdown in England and over the Christmas period. However, there are two key differences between the new regulations and the previous ones:

“Substantial rent arrears” is now defined as arrears equivalent to at least six months’ rent. The previous regulations defined them as arrears equivalent to at least nine months’ rent not including any arrears accrued since 23 March 2020, when the pandemic was declared. The Government argues this is “proportionate” to “balance the impact of the extension of the restriction on the enforcement of evictions on landlords, while continuing to protect tenants from eviction”.
The new regulations permit warrants and writs of restitution to be enforced. These are issued where a person who has been evicted from premises re-enters them illegally.

Other protections for tenants

Before the November 2020 regulations, there was an earlier ban on evictions. During the first national lockdown in England, which started in March 2020, amendments to the Civil Procedure Rules ‘stayed’, or paused, proceedings for possession and eviction except in cases of trespass against persons unknown. The stays ended on 20 September, and evictions were able to resume. Following the lifting of the stays, the Government introduced a package of measures to provide support for tenants, which it has summarised as follows:

Regulations in force until at least 31 March 2021 require landlords to give tenants six months’ notice of their intention to seek possession, except in the most serious circumstances such as anti-social behaviour, fraud and arrears greater than six months’ rent. These regulations apply to new cases where the landlord served notice on or after 29 August 2020. Landlords who served notice between 26 March and 28 August were required to give three months’ notice. Temporary court rules are also in place regarding the arrangements and procedures for the resumption of possession proceedings in the courts.

Response to extending the ban

Responding to the Government’s announcement on 8 January 2021 that it would extend the ban on evictions for at least another six weeks, Polly Neate, chief executive of the housing charity Shelter, said it was “the right call”. However, she described the Government’s policy as “the minimum required to keep more people safe in their homes” and said some people would still become homeless even with the extension.

Ben Beadle, chief executive of the National Residential Landlords’ Association, described it as “a sticking plaster that will ultimately lead to more people losing their homes”. He said tenants’ debts would “continue to mount to the point where they have no hope of paying them off eventually leading to them having to leave their home”. He called on the Government to “take immediate action to enable tenants to pay their debts as is happening in Scotland and Wales”. The Welsh Government has set up a Tenancy Saver Loan scheme to help tenants pay rent arrears due to coronavirus. Similarly, the Scottish Government has a Tenant Hardship Loan Fund. Northern Ireland does not have a similar dedicated fund, but it has passed legislation in response to the pandemic requiring landlords to give tenants at least 12 weeks’ notice to quit before applying for a court order to secure a residential eviction.

Parliamentary scrutiny of the regulations

Committee reports

The House of Lords Secondary Legislation Scrutiny Committee noted this statutory instrument (SI) as one relating to Covid-19 but did not otherwise comment on it. The Joint Committee on Statutory Instruments did not raise any concerns about technical aspects of the SI.

House of Commons

A House of Commons delegated legislation committee debated the regulations on 26 January 2021. Alex Chalk, Parliamentary Under Secretary of State for Justice, said the Government’s approach “strikes the right balance between prioritising public health and supporting the most vulnerable renters, while ensuring that landlords can access and exercise their right to justice; landlords can action possession claims through the courts, but evictions will not be enforced, apart from in the most serious cases”. He argued the Government had taken “unprecedented action to protect renters”, by introducing the furlough scheme, increasing welfare spending and making £180 million available to local authorities in discretionary housing payments to help renters with housing costs.

David Lammy, Shadow Secretary of State for Justice, quoted the words of Robert Jenrick, the Secretary of State for Housing, Communities and Local Government, who said in March 2020 that “no one should lose their home as a result of the coronavirus pandemic”. Mr Lammy accused the Government of breaking this promise by allowing tenants to be evicted for arrears built up during the pandemic, and extending the ban on evictions only until 21 February 2021 when coronavirus restrictions would go on longer than that. He outlined a package of support measures for renters and homeowners he said would ensure nobody lost their home because of the pandemic. He said Labour would not oppose the regulations “because any eviction ban is better than none”, but would not vote in support of them either, as Labour did not believe they went far enough.

The Commons formally approved the regulations on 27 January 2021.

House of Lords

The House of Lords is due to debate the regulations on 2 February 2021. Lord Kennedy of Southwark (Shadow Spokesperson for Communities and Local Government) and Baroness Grender (Liberal Democrat) have both tabled ‘regret’ motions. These are non-fatal amendments, meaning that agreement would not block approval of the regulations.

Lord Kennedy’s amendment expresses regret that the regulations are due to be in force only until 21 February 2021 and about the changes to the definition of “substantial rent arrears”. Baroness Grender’s amendment regrets that the regulations are not automatically linked to the extension of other restrictions in place to address the Covid-19 pandemic, and that they do not take into account economic and financial factors that may have led to renters missing bill payments or reducing spending on food. Her amendment also calls on the Government to bring forward a support package to ensure private tenants are housed and landlords paid during the pandemic.