Published: 6 May 2020 by Ruth Ehrlich

Renters will soon face a cliff edge. In just seven weeks, the government’s eviction ban is due to be lifted, and renters will once again be at risk of eviction through the courts. Over the last two months, our frontline services have been hearing from people who have lost their jobs, who are terrified about how they will pay the rent, and what will happen to them if their landlord wants to evict them.

The coming weeks and months look uncertain for us all – and worrying about being evicted and possibly facing homelessness is a terrifying prospect.

That is why it is so essential for the government to plan for what comes next.

Big promises…

The Secretary of State for Housing, Robert Jenrick, has made the right noises. Back in March, he said that ‘no renter who has lost income due to coronavirus will be forced out of their home…’. However, for renters facing an ever-growing gap between their income and their outgoings, the secretary of state is yet to make the guarantees they need to keep them safe – and a wave of ‘COVID-19 evictions’ is looking increasingly likely.

In an oral evidence session to the Housing, Communities and Local Government (HCLG) Select Committee meeting held on Monday, Jenrick announced that private renters would be protected from eviction by a ‘pre-action protocol’, extending the protections that already exist for social tenants.

This pre-action protocol would encourage landlords to work with their tenants to agree a reasonable repayment plan – something we know responsible landlords are already doing, but some are not. The aim of this is to encourage communication between landlord and tenant and resolve a problem before it gets to court stage, thereby helping people to stay in their home.

…but no real protections

This sounds great, right?

Unfortunately, without legal back up, this pre-action protocol will be completely meaningless. While the principle is good, current housing legislation does not allow for what is legally referred to as “discretion” in many cases, which means that pre-action protocols have little impact on whether or not a person is evicted.

This is because pre-action protocols are procedural – and not enshrined in law. So a judge can only consider whether or not the landlord has followed the protocol in cases where they already have discretion – which excludes lots of eviction cases.  

This poses a massive problem for those private renters whose incomes have taken a hit because of coronavirus. It’s simply not good enough for government to rely on all landlords to be reasonable and compassionate as a way to keep tenants in their home.

There are currently two ways for a landlord to evict a private tenant who has rent arrears: through ‘section 8’ or through ‘section 21’.

If a landlord is evicting their tenant because of rent arrears, it’s possible they will use ground 8, which is one of the grounds for possession available under section 8 of the Housing Act 1988. This is a mandatory ground for possession, meaning that if the renter has eight weeks’ arrears at the time a notice of possession action is served and when the case gets to court, the judge has no choice but to grant a possession order.

It doesn’t matter if the renter lost their job, desperately tried to make up the hours or was having delays with their Universal Credit application – nor does it matter if the landlord had made no efforts to reach a reasonable repayment plan.

Similarly, the unfortunate continued use of section 21 ‘no-fault’ evictions is incompatible with the spirit of the pre-action protocol that government is so optimistically relying on to protect renters. As long as a private landlord has followed the correct processes and ticked the right boxes, a judge must grant a possession order. A pre-action protocol is, quite simply, meaningless for these kinds of cases.

The solution

But government can take steps to give their idea some legal clout. With amendments to existing legislation, government can ensure that landlords who do not follow their pre-action protocol, and don’t even try to come to an agreement with their tenant, will not be guaranteed possession of their property.

Amending section 8  

If ground 8, section 8 were to be disapplied, all rent arrears grounds would be by default discretionary. Judges would be able to consider if any rent arrears were accrued because of job loss, a drop in working hours or benefit delays. This could be for a temporary period of up to 12 months with the possibility of extending further. This would give tenants some leeway given the inevitable ongoing impact of the crisis and the likely recession to follow.

By disapplying ground 8 and granting them discretion, judges will be able to consider whether or not landlords have followed the pre-action protocol.

Amending section 21

While ultimately the government needs to fulfil its promise to scrap section 21 ‘no-fault’ evictions once and for all, even abolishing section 21 immediately wouldn’t protect current private renters because the law couldn’t be applied retrospectively.

In order to do so, government should instead amend section 21. This would prevent judges from being forced to grant a possession order where it is unjust to do so due to coronavirus. For example, if a tenant had been served with a section 21 ‘no-fault’ notice because they had accrued arrears following a job loss, and the landlord had not followed the pre-action protocol by offering a reasonable repayment plan, a judge could refuse to grant a possession order.

Yes, this changes the nature of section 21 evictions, but the government has already conceded that they represent the imbalanced relationship between landlord and tenant.

We welcome the spirit of the pre-action protocol – but it is meaningless if it’s not enforceable in the courts. Government must take decisive action to ensure that its aims have legal backing and its policy works. And if it fails to do so in the coming weeks, then the eviction suspension will have to be extended until government figures out how to protect people at serious risk of losing their home.

Without these measures, we can expect to see a wave of COVID-19 evictions – and government will have failed on its promise to ensure that no renter is evicted because of this pandemic.

Please email Robert Jenrick and help demand that the temporary eviction ban is not lifted until the government protects renters from unfair coronavirus (COVID-19) evictions.