On 23 September 2020, the House of Lords is due to debate a motion from Baroness Grender (Liberal Democrat) to ‘annul’ the Civil Procedure (Amendment No. 4) (Coronavirus) Rules 2020 (SI 2020/751). If the motion is agreed, then the rules would cease to apply.
The rules relate to the resumption of court hearings for eviction cases (or ‘possession proceedings’) in the private and social rented sectors in England and Wales, which were temporarily suspended due to the coronavirus pandemic.
The rules introduce a new, temporary procedure for dealing with the backlog in possession proceedings. The new procedure requires that landlords bringing a claim to court must provide information about a tenant’s circumstances, including the effect of the pandemic.
they will permit evictions of individuals who have been served a notice of eviction between 23 March and 28 August before Parliament has had an opportunity to debate the impact of the rules on (1) homelessness, and (2) the spread of COVID-19.
The House of Lords will also debate a ‘regret motion’ from Lord Ponsonby of Shulbrede (Labour) on the same instrument. The motion states that the rules:
will not continue to protect tenants from eviction, and calls on Her Majesty’s Government to amend the Housing Act 1998 to give courts temporary discretion on evictions, including on evictions arising from rent arrears.
In March 2020, following the coronavirus outbreak in the UK, the Secretary of State for Housing, Communities and Local Government, Robert Jenrick, announced a package of measures to ensure that “no renter who has lost income due to coronavirus will be forced out of their home”.
If a landlord wishes to evict a tenant (eg for falling into rent arrears), they must serve the tenant with notice. If the tenant refuses to vacate the property after the notice period, the landlord can apply to a court for a possession order.
Prior to the coronavirus outbreak, landlords were legally obliged to provide two months’ notice. Due to the pandemic, the Government extended the notice period to three months for eviction notices served between 26 March 2020 and 28 August 2020 and to six months for those served from 29 August 2020.
In June 2020, the Government introduced legislation which temporarily suspended court possession proceedings and enforcement proceedings. This was initially due to end on 23 August 2020, but was subsequently extended until 20 September 2020.
Although these measures suspended court hearings for eviction cases, they did not prevent landlords from serving tenants with eviction notices. This led to concerns that when courts resume hearing cases, tenants who have been served with notices in recent months may be at risk of eviction due to economic hardship caused by the pandemic.
It is not clear how many tenants may be affected. However, the campaign group Generation Rent has estimated it may be approximately 55,000 households. The BBC’s parliament correspondent, Mark D’Arcy, has claimed that due to the backlog of cases “200 extra district judges and tribunal judges were being hired to hear extra eviction cases” once court proceedings resume.
On 10 September 2020, Robert Jenrick told the House of Commons that when eviction cases resume the courts will prioritise those cases involving “antisocial behaviour, extreme rent arrears, domestic abuse, fraud and deception, illegal occupiers and squatters or abandonment of a property”.
What does the instrument do?
The instrument amends Part 55 of the Civil Procedure Rules (SI 1998/3132) to insert Practice Direction 55C. This introduced a new temporary procedure for how possession proceedings which were suspended until 23 August 2020 (and then further suspended until 20 September 2020) will proceed once the suspension ends.
The rules’ explanatory memorandum states that the new procedure will assist with clearing the backlog of eviction cases, by helping to “spread out hearings appropriately in particular having regard to court capacity”. The new procedure will also require that a landlord bringing a possession claim to court must provide any relevant information about the tenant’s circumstances, including:
information on the effect of the pandemic on the defendant and his/her dependants, which will enable the court to have regard to vulnerability, disability, and social security position, and those who are “shielding”.
The new procedure will be in place until 28 March 2021.
What parliamentary scrutiny has the instrument received?
The rules were laid before Parliament on 17 July 2020 and entered into force on 23 August 2020.
The instrument was laid under the ‘made negative’ procedure, meaning that Parliament’s approval is not required for them to enter into force. However, if either House agrees a motion to annul them within the objection period, they would cease to have effect. This would be the effect of Baroness Grender’s motion if agreed.
There is a convention that secondary legislation made under the negative procedure should be laid before parliament at least 21 days before it is due to come into force. The rules’ explanatory memorandum acknowledged that, although the period between it being laid before parliament and it coming into force was more than 21 days, “a significant proportion of that period falls after Parliament has risen [for the summer recess]”. The memorandum continued:
While the Ministry [of Housing] acknowledges the general desirability of observing the “21-day rule”, in the current fast-moving circumstances of the coronavirus pandemic and the need to have appropriate arrangements in place when the stay on possession proceedings ends on 23 August, the Ministry’s view is that the coming into force of this instrument cannot be delayed for the period necessary to allow for 21 days while Parliament is sitting.
Speaking to the i newspaper in July 2020, Baroness Grender said that her motion to annul the rules was “the strongest opposition Parliament can take to the Civil Procedure Rules change”. She also criticised the Government for the lack of opportunity for Parliament to scrutinise the rules:
Ministers have signed off for their summer holidays without so much as a backward glance at all the renters they have left in the lurch this summer […] The fact they snuck these rules out without guidance and without Parliamentary scrutiny demonstrates once again that for this government, renters will always be left behind.
In response, the article quoted a spokesperson for the Government, who said it was wrong to suggest the rules would not take into account financial hardship caused by the pandemic:
[The] new court rules will require landlords to set out information about a tenant’s circumstances, including the effect of the COVID-19 pandemic on a tenant’s vulnerability, when bringing a possession claim. Where this information is not provided, judges will have the ability to adjourn proceedings until such information is provided. The Government has taken unprecedented action to support renters during the pandemic, putting in place a support package to help prevent people getting into financial hardship or rent arrears, including help for businesses to pay staff salaries. We have also ensured that no-one has been forced from their home this summer as a result of the pandemic.
The House of Lords Secondary Legislation Scrutiny Committee reported on the instrument on 30 July 2020. The report summarised the effect of the instrument, but did not draw it to the special attention of the House.
- House of Commons Library, ‘Coronavirus: The return of evictions’, 21 September 2020
- Michael Savage, ‘Calls grow to protect renters as ban on lockdown evictions expires’, Guardian, 20 September 2020
- Generation Rent, ‘Struggling renters are running out of options’, 8 September 2020
- Ministry of Housing, Communities and Local Government, Coronavirus (COVID-19): Guidance for Landlords and Tenants, 21 September 2020
- Shelter, ‘Landlords, letting agents and charities urge the government to help renters clear Coronavirus (COVID-19) rent debts and stay in their homes’, 28 August 2020
Image by Ethan Wilkinson from Unsplash.