Keys in a door lock

In January 2021, the Government announced that in tandem with the imposition of national lockdown measures it would extend a ban on bailiff-enforced evictions in England. The Public Health (Coronavirus) (Protection from Eviction) (England) Regulations 2021 implemented this policy, extending this provision until 21 February 2021.

The Government has since announced a further extension of these protections. The Public Health (Coronavirus) (Protection from Eviction) (England) (No. 2) Regulations 2021 were made on 17 February 2021 and both Houses of Parliament must approve them within 28 days of that date for them to remain in force. The House of Commons debated the regulations on 9 March 2021 and approved them the next day. The House of Lords is due to consider the measures on 18 March 2021.

What do the regulations do?

As with the previous iteration of the measures, 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. Justifying the need for the extension, the Government said that the current circumstances of the coronavirus pandemic mean that restrictions on the enforcement of evictions remain necessary in order to control the spread of infection and prevent additional burden falling on the NHS and local authorities.

These regulations maintain limited exceptions to the ban on evictions set out in the previous measures, which the Government contends will “ensure the measure remains proportionate to the public health risk identified”. Those exemptions are for:

  • cases where the court is satisfied that the claim is against trespassers who are persons unknown;
  • cases where the court is satisfied that the order for possession was made wholly or partly on the grounds of anti-social behaviour, nuisance, false statements, domestic abuse in social tenancies, rent arrears of at least six months; and
  • cases where the person attending the property is satisfied that the dwelling/house is unoccupied at the time of attendance, where the court is satisfied that order for possession was made wholly or partly on the grounds of death of the occupant.

The Government’s rationale for these exemptions are that they cover cases where the public health risks are judged as likely to be lower than might otherwise be the case; where harm to third parties may occur if the order is delayed; or where 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.

Other protections for tenants

These regulations are the latest measures designed to protect tenants during the pandemic. 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:

[R]egulations in force until at least 31 March 2021 which require landlords to give tenants six months’ notice of their intention to seek possession, except in the most serious circumstances such as antisocial behaviour, fraud and arrears greater than 6 months’ rent. Those notice requirements 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 3 months’ notice. Temporary court rules are also in place regarding the arrangements and procedures for new applications for, and the resumption of possession proceedings in the courts.

Scrutiny in the House of Lords

When the previous regulations were debated in the House of Lords on 2 February 2021, Lord Kennedy of Southwark (Shadow Spokesperson for Communities and Local Government) and Baroness Grender (Liberal Democrat) both tabled separate ‘regret’ motions. Discussion of the substance of those motions can be found in the House of Lords Library briefing, ‘Coronavirus: Extending the ban on residential evictions in England’ (29 January 2021). No similar regret motions have yet been tabled ahead of the forthcoming debate on the new regulations.

During the debate on the previous regulations, Lord Kennedy made clear that Labour believed the regulations did not go far enough to protect tenants and ended too early:

These regulations satisfy no one. On the one hand, they extend the ban on enforcement of eviction orders which has been granted by the courts until 21 February, but they also expand the exemptions from the ban, meaning that tenants with more than six months’ arrears could be evicted. Citizens Advice Bureau estimate that close to 500,000 renters are in arrears and are now at risk of a Covid-19 eviction because of the ban being lifted. Already, more than 174,000 private tenants have been threatened with eviction by their landlord or letting agent. Even at the start of the pandemic, nearly two-thirds of private tenants had no savings, on top of the 45% of private renters who have lost income since March. We are asking the Government to stick to their word: that no one will lose their home because of coronavirus.

Baroness Grender offered similar objections:

We welcome the extension to 21 February but, for well-being, security and public health arguments, we believe that extensions of these measures should be linked to extensions of lockdowns. We regret that, unlike the first lockdown, eviction notices can still be served under these rules.

Given the UK and South African variants, the last thing we want is more families homeless, and the greatest cause of homelessness is the end of a private tenancy. I urge the minister to agree to speak with and understand the plight of families who have had to find a new home to rent during the lockdown. […] For public heath safety, for security of a family home, and for mental health reasons alone, we should keep renters in their home. These measures fall far short of those aims.

In response, the minister, Lord Wolfson of Tredegar, said that the Government was attempting to strike the right balance between the needs of tenants, landlords and other relevant parties:

[T]his is not a simple issue. It is not just a question of focusing on the position of renters or landlords, or even a question of focusing on renters and landlords. We also need to bear in mind the position of others, including neighbours, for example, who have a right to be protected from anti-social behaviour or nuisance. This statutory instrument […] seeks to balance those interests against an ongoing pandemic and […] in the light of the various financial support mechanisms that the Government have provided both for renters specifically and for people more generally.

House of Commons Delegated Legislation Committee

The new Public Health (Coronavirus) (Protection from Eviction) (England) (No. 2) Regulations 2021 were debated in the House of Commons on 9 March 2021 as part of their consideration by the Delegated Legislation Committee.

Speaking for the Government, Justice Minister Alex Chalk said that the regulations were a public health rather than economic measure, which would protect the public at a time when transmission of coronavirus remains high. He also restated the case for the exemptions contained in the regulations, contending that these were limited exceptions where the Government feel that the competing public interests in ensuring access to justice, preventing harm to third parties, taking action against egregious behaviour and upholding the integrity of the rental market sufficiently outweigh the public health risks. He further indicated that the expiry date of 31 March 2021 would be kept under review, adding the Government would make an announcement on this matter shortly. Finally, Mr Chalk pointed to the other measures the Government had put in place to help tenants in financial difficulty as a result of the pandemic. These included the six-month notice period the Coronavirus Act 2020 requires must be given to a tenant before court proceedings can be started, and the piloting of a new mediation service designed to resolve disputes between landlords and tenants before a formal court hearing can take place.

Responding for the Labour Party, Shadow Minister David Lammy said that the Government’s measures to prevent evictions were proving ineffective:

It is self-evident that a ban on evictions should stop evictions, but that is not what the Government’s so-called ban is achieving. Eviction attempts by landlords doubled during the winter coronavirus lockdown and more than 500 households were forced out by county court bailiffs. However, the problem is even bigger than that. In 2020, between the start of April and the end of November, 207,543 households approached their council for help with homelessness. A combination of illegal evictions, tenants being put under pressure to leave before eviction, and lodgers never having had protection, has meant that hundreds of thousands have faced the indignity and threat of homelessness.

Mr Lammy was particularly critical of the “loopholes” he argued were created in the previous regulations and perpetuated in the current measures. He also questioned why the powers should last only until 31 March when “we know that restrictions on our liberty, lives and work will go on much longer”. In contrast, he argued that the current provisions should be both extended and strengthened:

We need to strengthen and extend the ban on evictions and repossessions until restrictions are over, extend the mortgage holiday, raise the local housing allowance to cover median market rents, reform housing law to end automatic evictions through the courts, reduce the waiting period to receive support for mortgage interest payments, retain the £20 uplift to universal credit beyond six months, end the five-week wait and suspend the benefits cap.

In response, Alex Chalk said that Mr Lammy had offered an unfair characterisation of the Government’s position and made no reference of the fact that in normal circumstances if someone was two months late with their rent that would trigger eviction proceedings, compared to six months under the current measures. He took further issue with the description of the exemptions in the regulations as ‘loopholes’:

That prompts the question, which of the “loopholes” would he close? The first exemption only exists where the claim is against trespassers, who are persons unknown. Is he saying that no eviction proceedings should be taken in those circumstances?

The second exemption applies where the order for the possession is made wholly or partly on the basis of antisocial behaviour or nuisance. Again, should the landlord not be able to evict then, or if false statements have been made or if there is domestic abuse in social tenancies? Where someone is battering the other person in that flat, is it really being suggested by the Labour Party that the courts ought not to be able to intervene, or where the possession is made wholly or partly on the grounds of the death of the tenant? It would be a ridiculous situation if the landlord could not intervene in circumstances where the tenant had sadly died.

For these reasons, the minister argued that the regulations strike the right balance, ensuring that the needs of tenants are properly safeguarded while recognising that there are exceptional circumstances which need to be catered for.

Committee reports

The House of Lords Secondary Legislation Scrutiny Committee reported on the new regulations in its forty-seventh report of the current session. However, it did not comment beyond noting the effect of the regulations as an extension of previous measures. The Joint Committee on Statutory Instruments has considered the measures but did not call for any further action.

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Cover image by Photo Mix on Pixabay.