Free Legal Action coronavirus-related law and practice content from May 2020 to July/Aug 2020 issues.

On 5 June 2020, the lord chancellor asked the Civil Procedure Rule Committee to make rules extending the stay on possession proceedings and evictions in England and Wales (already imposed until 25 June 2020 by Civil Procedure Rules 1998 (CPR) Practice Direction (PD) 51Z) for a further two months to 23 August 2020: ‘Ban on evictions extended by 2 months to further protect renters’ (Ministry of Housing, Communities and Local Government (MHCLG) press release, 5 June 2020).

The committee agreed and approved a new CPR 55.29, which reads:

The rule was formally made by the Civil Procedure (Amendment No 2) (Coronavirus) Rules 2020 SI No 582 and took effect at the end of the previous stay on 25 June 2020.1For a review of the impact of the initial stay, see Julian Gun Cuninghame and Romana Canneti, ‘Possession matters’, New Law Journal vol 170, issue 7889, 3 June 2020, page 1.

The regulator of most mortgage lenders, the Financial Conduct Authority (FCA), has confirmed that the current ban on lender repossessions of homes will be continued to 31 October 2020: ‘FCA confirms support for customers who are struggling to pay their mortgage due to coronavirus’ (FCA press release, 2 June 2020) and see ‘Help with mortgages to continue for homeowners affected by coronavirus’ (HM Treasury news story, 22 May 2020). The FCA’s Mortgages and coronavirus: updated guidance for firms (published 2 June 2020; updated 16 June 2020) states:

The master of the rolls (Etherton MR), as head of civil justice, has convened a judiciary-led, cross-sector, task-and-finish working group to consider and address matters affecting litigants and the courts when the stay on possession proceedings is lifted. The chair is Robin Knowles J and the judicial members include HHJ Luba QC.

The Civil Justice Council has published the report of its ‘rapid review’ of the COVID-19 pandemic's impact on civil justice: Report and recommendations: The impact of COVID-19 measures on the civil justice system (May 2020). Section 8H of the report (page 79) is entitled ‘Housing – Managing the resumption of possession hearings’.

The most recent repossession statistics only cover the period up to the beginning of the national emergency: Mortgage and landlord possession statistics in England and Wales, January to March 2020 (provisional) (Ministry of Justice, 14 May 2020).

Housing barrister Liz Davies has developed a detailed set of proposals for the Chartered Institute of Housing (CIH) aimed at avoiding a spike in evictions once the current protections end: Protect tenants from arrears, evictions and homelessness – an urgent call to government for action during and after the coronavirus epidemic (CIH, May 2020).2Liz Davies will be writing about housing rights after the pandemic in the October issue of Legal Action.

On 22 May 2020, the House of Commons Select Committee on Housing, Communities and Local Government published the first report of its inquiry into the impact of COVID-19 on homelessness and the private rented sector: Protecting rough sleepers and renters: interim report. First report of session 2019–21 (HC 309). The committee recommended that the government:

The House of Commons Library has been regularly updating its free briefing paper explaining measures the government has put in place during the coronavirus outbreak to assist households to retain their homes and to enable local authorities to tackle the specific challenges faced by rough sleepers: Coronavirus: a ban on evictions and help for rough sleepers (Briefing Paper No 08867, 9 June 2020).

On 1 June 2020, the UK government updated its own suite of non-statutory guidance on housing aspects of the national emergency:

On 9 June 2020, the Regulator of Social Housing in England (RSH) similarly updated its suite of guidance materials specifically directed to social landlords: ‘RSH statements on coronavirus (COVID-19)’ (RSH news story).

In Wales, the government has produced new guidance to help tenants adversely impacted by the national emergency: Tool for frontline staff: support available to tenants living in Wales – COVID-19 (Welsh government, May 2020).

New research has highlighted how the pandemic has exacerbated Britain’s housing tenure divide: Lindsay Judge, Coping with housing costs during the coronavirus crisis (Resolution Foundation, 30 May 2020). It found that one in eight (13 per cent) private renters had fallen behind with their housing costs since the COVID-19 crisis started, compared with just one in 12 (eight per cent) mortgaged homeowners. A recent survey by the Joseph Rowntree Foundation (JRF) found that more than a third of furloughed private renters (37 per cent) were worried about being able to pay their rent when the coronavirus lockdown ends (JRF press release, 4 June 2020).

But in a similar survey of private tenants across England and Wales commissioned by the national Residential Landlords Association (NRLA), 90 per cent said that they had paid their rent as usual since the coronavirus crisis began and most, 84 per cent, had not needed to ask their landlord for any support: ‘No evictions crisis looming say landlords’ (NRLA press release, 6 June 2020).

In December 2019, Hackney obtained a possession order against Mr Okoro. In February 2020, Mr Okoro was given permission to appeal against the order and the hearing of the appeal was listed for 21 May 2020. On 27 March 2020, CPR PD 51Z came into force, which stayed all claims brought under CPR Part 55. On 15 May 2020, HHJ Dight CBE vacated the appeal hearing, transferred the claim to the Chancery Division of the High Court and ordered the parties to file and exchange written submissions on the question of the jurisdiction of the appeal court to hear the appeal pending the lifting or expiration of the stay. On 18 May 2020, Mr Okoro appealed against that order on the basis that HHJ Dight CBE had impermissibly lifted the stay of the proceedings.

The appeal was transferred to the Court of Appeal, which allowed the appeal. Although the appeal against the possession order was governed by CPR Part 52, the claim itself had been brought under CPR Part 55. The appeal was therefore stayed by CPR PD 51Z.

Bank of Scotland brought a claim for possession against Ms Copeland, which resulted in a possession order being made on 6 August 2018. On 1 November 2018, Ms Copeland’s application to set aside that order was refused. Ms Copeland made an application for permission to appeal against the refusal to set aside the possession order. It was heard on 26 and 27 February 2020. Before judgment was given, the proceedings were stayed by PD 51Z.

On 28 April 2020, Cavanagh J heard a rolled-up application for permission to appeal against the making of a possession order. On 28 May 2020, Cavanagh J ordered, following Okoro (see above), that the judgment would not be handed down until the stay in PD 51Z was lifted. On 12 June 2020, Cavanagh J considered whether – in light of Copeland (above) – judgment should be handed down.

Local housing allowance (LHA) is the maximum rate at which housing benefit (HB) or the housing costs element of universal credit (UC) is paid to claimants who rent their homes in the private rented sector. In 2013, LHA rates ceased to be linked to local market rents, and from April 2016, the rates were frozen completely for four years (Frozen out: the real value of the local housing allowance in the final year of the benefit freeze, Chartered Institute of Housing, November 2019, page 3). As a result, the number of properties available at or below the LHA rate has been less than the number of private renters claiming benefit, with the result that large numbers of people have been facing a shortfall between what they have to pay for their accommodation and the HB/UC housing costs element they receive, and having to meet that shortfall out of other income.

The District Councils’ Network (DCN) has reported evidence of a large number of households in the private rented sector being at risk of homelessness due to needing to spend over half their income on rent, and incomes falling due to the pandemic (‘Coronavirus: half a million on brink of homelessness due to pandemic, councils warn’, DCN press release). It has called for the permanent lifting of HB for private sector tenants:

Homelessness charities, while commending the government’s ‘Everyone in’ hotel and emergency accommodation operation and the lifting of LHA to link it to the bottom 30th percentile of rent, have made a series of recommendations for homelessness prevention during the pandemic (Open letter to the prime minister on the next steps needed to protect people experiencing homelessness in the coronavirus outbreak, 2 April 2020). These include an increase in discretionary housing payments (DHPs), particularly needed in high-rent areas where the increase in the LHA rate will have limited impact, and lifting the requirement to repay advance payments of UC paid during the five-week waiting period.

For working-age claimants, HB is being replaced by the housing costs element of UC. The government’s plan, as things stood in February this year, was to complete the roll-out of UC to all working-age claimants by the end of 2024 (Benefit cap: data to November 2019, DWP, 6 February 2020, page 14). COVID-19 has resulted in an unprecedented number of claims. Between 16 March and 12 April 2020, 1.8m claims for UC were processed (Lockdown lifeline: ensuring adequate support across the benefits system during the COVID-19 pandemic, Citizens Advice, May 2020, page 4).

A survey of 39 organisations managing over half a million social and affordable properties concluded that tenants on UC are more likely to be in arrears and have higher arrears than those on HB (Patching the safety net: measuring the impact of universal credit on tenants and landlords– survey results 2019, National Federation of ALMOs in partnership with Association of Retained Council Housing, 2019, page 4). The authors came to the conclusion that the UC system for alternative payment arrangements (APAs), a system designed to support vulnerable claimants by which payment of the housing element of UC to the claimant (the default position) can be changed to payment directly to the landlord, is ‘not fit for purpose’ (page 4).

The Residential Landlords Association (RLA) has also reported dissatisfaction with APAs among landlords (Sally Walmsley, ‘Universal credit is forcing tenants into rent arrears’, RLA, 23 August 2019). An analysis by Shelter of the impact of UC on housing identified problematic ‘in-built design features’ in UC, including the five-week waiting period and the APAs scheme, APAs being difficult to apply for and appearing only to be awarded at the point of crisis (From the frontline: universal credit and the broken housing safety net, Shelter, August 2019, page 8).

The Coronavirus Act 2020 made no changes to the Mental Capacity Act (MCA) 2005, secondary legislation or statutory guidance. Instead, the Department of Health and Social Care issued guidance: The Mental Capacity Act (2005) (MCA) and deprivation of liberty safeguards (DoLS) during the coronavirus (COVID-19) pandemic (the MCA guidance) (9 April 2020; last updated 15 June 2020). While the MCA guidance reinforces the need to make decisions in accordance with the principles of the MCA 2005, it is perhaps unhelpful that it appears to truncate the ‘best interests’ checklist set out in MCA 2005 s4.6See Sophy Miles’s post on the guidance, ‘Coronavirus, mental capacity and deprivation of liberty’, Doughty Street Chambers, 9 April 2020. It further appears to condone failures to authorise deprivations of liberty in a timely fashion in its advice to care homes:

Alongside other jurisdictions, the Court of Protection has had to respond to the COVID-19 crisis. HM Courts and Tribunals Service published its family business priorities in April 2020. Court of Protection work that ‘must be done’ includes urgent applications, applications under MCA 2005 ss16A and 21A, serious medical treatment cases, deprivation of liberty cases generally, statutory will applications when the testator is close to the end of life, and safeguarding applications initiated by the Office of the Public Guardian. Work that ‘will be done’ includes welfare cases, while property and affairs cases are in the category of work that ‘we will do our best to do’.

On 23 March 2020, the vice president of the Court of Protection, Hayden J, set up a ‘multi-disciplinary thinktank’ of experienced practitioners, known as the HIVE group. Helpfully, the group’s mailbox (hive@justice.gov.uk) is in the public domain and can be used to raise issues related to the court’s operation during the pandemic.

The court rapidly expanded its ability to work remotely. On 31 March 2020, the vice president issued detailed guidance on remote access (the March guidance). This is essential reading for Court of Protection practitioners. It sets out a ‘primary aim’ (para 4, page 2) to ensure access to justice for all parties to cases before the court, and goes on to provide that ‘remote hearings are the default position until further direction’ (para 6, page 2), subject to the court’s permission. Attended hearings will only take place where there is genuine urgency and a remote hearing cannot take place.

The March guidance includes a draft remote hearing order, which needs to be approved in all cases. Importantly, the draft order includes a direction that future hearings will be in private. The order therefore disapplies Practice Direction 4C (which provides that hearings will normally be in public). If the court has already made a transparency order, then it is important that this is specifically discharged by the remote hearing order.

Although remote hearings in the Court of Protection will therefore remain listed as private, the March guidance states that the attendance of members of the press or public may be accommodated. This was supplemented in a letter dated 11 May 2020, where the vice president suggested that when members of the public or press attend a remote hearing, the advocate for the applicant should begin the case with a short opening, to help any observers grasp what the case is about.

The March guidance asks for ‘imaginative ideas’ for the participation of P, noting that the attendance of P at a hearing is first a matter for P’s legal representatives and/or litigation friend. When judicial meetings with P are necessary, this will only take place via a remote teleconferencing facility.

The vice president has also endorsed guidance on remote advocacy by the Court of Protection Bar Association. For an appraisal of the move to remote hearings generally, see Sue James’s recent article, ‘Remoteness of justice’ (May 2020 Legal Action 18).

Unusually, the Court of Protection has been willing to extend its reach to local authorities. On 4 May 2020, the vice president wrote to the directors of all adult social services expressing his concern at the ‘striking and troubling drop in the number of section 21A (MCA 2005) applications which has occurred, in some areas, alongside a significant reduction in referrals to advocacy services’. The letter continued:

The emergence of the pandemic raised immediate concerns over the potential, as in other closed environments, for rapid transmission and risks to both prisoners and staff. There was also concern over how promptly HM Prison and Probation Service (HMPPS) was reacting given the scale of the potential problem. Eventually, on 31 March 2020, the justice secretary announced that certain pregnant women prisoners and mothers in mother and baby units (MBUs) would be released (‘Pregnant prisoners to be temporarily released from custody’, MoJ press release), and on 4 April 2020 announced a further scheme by which he envisaged that up to 4,000 prisoners would be released early (‘Measures announced to protect NHS from coronavirus risk in prisons’, MoJ press release, and ‘Coronavirus: low-risk prisoners set for early release’, BBC News, 4 April 2020). This was significantly fewer than many experts thought would be necessary to ensure that transmission in prisons was limited.

A number of individual judicial review challenges were brought by vulnerable prisoners seeking release, and the Howard League and the Prison Reform Trust also wrote to the justice secretary on 17 April 2020 stating that the response to the pandemic was unlawful in that insufficient steps were being taken to protect the lives of prisoners and staff.7The Howard League website contains the correspondence and the documents disclosed by the MoJ in response, including the Public Health England documentation. As at 15 April 2020, 232 prisoners had tested positive across 60 prisons, as had 96 prison staff – there had been a doubling of cases in 10 days.

The MoJ responded to the correspondence on 28 April 2020, robustly defending its approach in light of the steps it had taken to combat transmission in prisons, relying on a briefing carried out by Public Health England on the impact of the measures taken by HMPPS. By the date of that briefing, 23 April 2020, there had been 279 positive tests for prisoners and 15 deaths. The briefing was further of the opinion that the measures imposed by the service meant that it was estimated that 100 prisoners might die from the virus, as against a worst-case scenario of 2,500 to 3,500 deaths contained in an earlier briefing of 24 March 2020.

Crucially, the MoJ rejected any suggestion that the best way to prevent transmission within prisons was to reduce the prison population significantly. The impact of this (see further below) has been the imposition of highly restrictive regimes in prisons, resulting in what amounts to solitary confinement for a significant proportion of the prison population for an indefinite period.

In terms of release of prisoners, the MoJ confirmed that the following mechanisms could be used to effect release where appropriate.

On 6 April 2020, the Prison Rules 1999 SI No 728 were amended (by the Prison and Young Offender Institution (Coronavirus) (Amendment) Rules 2020 SI No 400) to add a new r9A (a similar r5A was added to the Young Offender Institution Rules 2000 SI No 3371). This introduced end of custody temporary release (ECTR). The rule allows the justice secretary, during the transmission control period, to release fixed-term prisoners on temporary licence for the purpose of ‘preventing, protecting against, delaying or otherwise controlling’ the transmission of the virus, or for the ‘most appropriate deployment of personnel and resources’ (r9A(2)(c)). There are restrictions on who is eligible – remand prisoners, those facing deportation, those imprisoned for sexual offences and category A prisoners, for example, cannot be released under this rule.

The policy direction issued under r9A (End of custody temporary release, MoJ/HMPPS, 24 April 2020) confirms that release under the rule will be further restricted to those who have served at least half the custodial term of the sentence, are assessed as posing a low or medium risk of serious harm (ROSH) and are within 61 days of their release date. The direction also envisages tagging of those released. In evidence to the Justice Select Committee on 12 May 2020, justice minister Lucy Frazer QC confirmed that just 55 prisoners had been released under the scheme (Jamie Grierson, ‘Coronavirus: only 55 prisoners freed early in England and Wales’, Guardian, 12 May 2020). By 19 June 2020, the figure was 175 (HM Prison and Probation Service COVID-19 official statistics: data to 19 June 2020, MoJ, 26 June 2020).

A further policy, most recently updated on 24 April 2020, gives guidance on the use of existing release on temporary licence powers under r9 (COVID-19: use of compassionate ROTL, MoJ/HMPPS). The policy confirms that special purpose licence (SPL) on compassionate grounds might be granted subject to an individual risk assessment. The policy is supplementary to the general Release on temporary licence (ROTL) policy framework document (MoJ/HMPPS, 16 May 2019; reissued 27 January 2020), which governs the use of r9 and the equivalent Young Offender Institution Rules 2000 r5, and largely excludes from eligibility those who would be ineligible under the general policy.

The policy states that SPL may be granted to pregnant women, mothers with their babies in MBUs, and those defined under NHS guidelines as ‘extremely vulnerable’ to COVID-19 (for example, transplant recipients, those with severe asthma or COPD, or those on immunosuppressant drugs). The policy states that unlike normal ROTL, prisoners can be released without a return date but with weekly reviews. There must be written reasons for decisions. In her 12 May statement (see above), Lucy Frazer QC stated that only five prisoners had been released on a compassionate basis, and 21 pregnant women. By 19 June 2020, there had been a total of 43 releases, including pregnant women and mothers with babies (HM Prison and Probation Service COVID-19 official statistics: data to 19 June 2020).

As noted above, the focus of the MoJ’s efforts in response to the pandemic has been to severely restrict regimes in prisons rather than to facilitate a significant reduction in population. By 19 June 2020, the prison population had decreased to 79,600 – down about 4,300 from the 13 March 2020 figure – and this reduction was mainly down to the reduction in numbers coming In from the courts due to the pandemic (HM Prison and Probation Service COVID-19 official statistics: data to 19 June 2020). The measures imposed (which are summarised in the letter to the Howard League and Prison Reform Trust referred to above) include:

On 16 April 2020, the Parole Board made the decision to cease all face-to-face hearings. The decision was to attempt to progress cases through a combination of remote hearings and an intensive paper review process. The board has issued various policies that describe how it intends to work during the pandemic. In its new listing framework (Parole Board listing prioritisation framework for oral hearings), the board has stated that it envisages face-to-face hearings recommencing in July 2020 (although this appears optimistic). The key points in the policy are:

From 30 March 2020, landlords no longer need to see original documents when carrying out right to rent checks. According to Home Office guidance, Coronavirus (COVID-19): landlord right to rent checks (30 March 2020):

The refugee sector has been active since the COVID-19 crisis started. Two dedicated Google Groups, covering policy and operations, were set up by the British Red Cross (BRC) and UKLGIG.9To join, email: Catherine.Kelly@uklgig.org.uk. The situation is fast-moving, and so specific points are not detailed here. Very broadly, the Home Office has indicated that those already on support will not be evicted, and asylum-seekers and refused asylum-seekers seeking support should be granted it, subject to proving destitution. The BRC has been the point of contact with the Home Office, and the collated ongoing list of questions and answers can be accessed here. The key requests include the raising of support rates, IAA 1999 s4 support to be cash and the facility to grant subsistence-only s4 support.

The Refugee Council also regularly updates the information on its website, covering (currently) 22 different areas.

The BRC’s 2020 report, The costs of destitution: a cost-benefit analysis of extending the move-on period for new refugees has, for the time being, been overtaken by current events. This report, building on previous BRC research, calls for the period of asylum support, following the grant of status, to be extended from 28 to 56 days so as to prevent new refugees falling into destitution before their mainstream benefits or employment starts. The Home Office confirmed in a letter to the BRC of 27 March 2020 that asylum support will continue for those in this situation for three months, and this will be reviewed in advance of end of June.

It is likely that all destitute refused asylum-seekers are currently eligible for IAA 1999 s4 support, as set out in the Asylum Support Appeals Project (ASAP) factsheet, COVID-19 and asylum support (17 April 2020). It is believed that applications from this group are no longer being refused, except on grounds of destitution. Therefore, asylum support appeals continue, regarding both s4 and s95 applications. Almost all appeals are on the issue of destitution.

WP was a Polish national with a history of mental health issues including admission to a psychiatric ward. The home secretary made a decision to remove her from the UK due to criminal offences and she was detained pending her removal. WP appealed and the removal was put on hold due to the COVID-19 pandemic. A report was prepared under Detention Centre Rules 2001 SI No 238 r35, which stated that, despite WP accessing psychiatric treatment and anti-psychotic medication in detention, she may deteriorate if she remained in detention. However, although the home secretary had determined that WP was eligible for accommodation under IA 2016 Sch 10, she claimed that, due to COVID-19, there was no possibility of providing a timescale as to when accommodation would be provided. At the time WP made an application to the court, she had been in detention for four months.

AQS, who had mental health problems, was in receipt of IAA 1999 s95 support. Another man was moved into his room on 19 March 2020. The other man had a persistent cough and night sweats, and AQS was concerned this was related to COVID-19. AQS began to have symptoms and became angry that he had not been allowed his own room. An incident ensued, the police were called and he was required to leave on 20 March. On that day, AQS’s solicitor and Mr Smith of the charity Young Roots contacted Migrant Help Limited (MHL), as the single point of contact for the home secretary, but received no substantive response.

AQS stayed the weekend with some people who gave him a bed and some food. On 23 March, Mr Smith contacted MHL again, which, on his evidence, told him that asylum-seekers with COVID-19 symptoms could not apply for IAA 1999 s98 accommodation. On 24 March, MHL told Mr Smith that homeless asylum-seekers should ask for accommodation through the NHS. On 27 March, proceedings were issued, and an interim order was made the same day for him to be provided with single person accommodation. By 29 March, AQS had moved into a facility specifically for those with COVID-19 symptoms.

The matter was dealt with by written submissions. The home secretary’s summary grounds stated that there was no policy not to accommodate those with symptoms and referred to the apparent confusion on the part of MHL. The judge commented that ‘[i]t is … appropriate to be direct’ and ‘when MHL conveys information it is the secretary of state who is conveying information, through that channel’ (para 22). The summary grounds also stated the measures being taken, in conjunction with advice from Public Health England, and that there was a dedicated facility in London to accommodate those with symptoms in isolation.

18 May 2020

The appellant had first applied for asylum in 2003. His application for IAA 1999 s4(2) support had been refused on the basis that he was not destitute. Financial checks had revealed that there were bank accounts in his name which he had failed to declare. By the time of the appeal, which was heard on the papers, he had provided bank statements showing he had a total of £25.99, and also other evidence to demonstrate his destitution, including a witness statement. Since 10 April 2020, he had been housed by Liverpool City Council (LCC) in a guesthouse, due to the COVID-19 pandemic. LCC did not provide him with any food; for that he was reliant on food banks and charity.

Judge Wilkin found that the legal basis for LCC’s support was unclear, and contrary to the 1999 Act under which s4(2) and s95 support replaced support previously supplied by local authorities to those subject to ‘immigration control’. The LCC accommodation could not be considered ‘adequate’ within the meaning of the 1999 Act due to its lack of legal basis, and it was uncertain as to whether he could remain there for the next 14 days. In any event, even if it was adequate, the appellant was destitute on the alternative basis that he did not have sufficient funds to meet his essential living needs for the next 14 days.

The appellant came to the UK, with her two children, in December 2019 on a visitor’s visa, and applied for asylum on 7 March 2020. On 17 March 2020, her application for IAA 1999 s95 support was refused on the basis that she was not destitute. She had failed to explain transactions on her bank statements or the funds declared on her visa form. The respondent calculated that she would need £617.20 to house and feed herself and her children for the next 14 days, as required under s95(3) and Asylum Support Regulations 2000 SI No 704 reg 7(a). At the time of the appeal, which was a telephone hearing, she was living in s98 accommodation in Wales. The day before the hearing, the judge issued directions to both parties to address the following matters, taking into account the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020 SI No 353 (W 80):

The appellant’s representative submitted written responses and proof of destitution in advance of the hearing. The respondent argued for a remittal, as this was a complex issue and required policy input. The judge granted the remittal, and requested the respondent also address:

IAA 1999 s4(2) support was discontinued to the appellant, a 19-year-old Iraqi, as he had breached the conditions of his support by abandoning his accommodation. Under Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005 SI No 930 (IA(PAFAS) Regs) reg 6(2), it is a condition not to be absent from the accommodation for more than seven consecutive days, or a total of 14 days in any six-month period. The appellant, who suffered from depression and anxiety, had been sharing a bedroom with another person who had become aggressive towards him. The accommodation was in London. He made a detailed request in writing for a single room and informed the accommodation manager of the problems. When he did not receive a response, he moved to a town in Wales where he had previously been living and sofa-surfed with friends. He provided further details and medical evidence as to why he had moved prior to the discontinuation decision. The judge found that he was not in breach of the conditions of his support, as he had had a reasonable excuse for leaving the accommodation.

The COVID-19 health crisis has had a significant impact on the justice system, including coroners’ courts. The tragic death toll caused by this virus is in the tens of thousands in the UK alone, which has meant that not only must the coronial service adapt to ‘social distancing’ requirements, and all that this entails, but it has also caused an additional strain in terms of the sheer number of extra investigations to be carried out by the service.

As COVID-19 is a naturally occurring disease, it is capable of being categorised as a natural cause of death. As such, the fact that COVID-19 caused or contributed to death does not necessarily mean that it will be referred to a coroner. The Notification of Deaths Regulations 2019 SI No 1112 (which came into force on 1 October 2019) define the circumstances in which a doctor must notify a coroner about a death: reg 3. They are similar to the circumstances in which an investigation and inquest must be held pursuant to Coroners and Justice Act (CJA) 2009 s1, and include where the doctor suspects the person’s death was unnatural, where the cause is unknown, or where the person died while in state detention. ‘Unnatural’ in this context includes a death from natural causes that results from some culpable human failure: R v Inner North London Coroner ex p Touche [2001] EWCA Civ 383; [2001] 3 WLR 148 at paras 43–46.

An investigation and inquest will also be required if the European Convention on Human Rights (ECHR) article 2 procedural duty is triggered, for example, due to a systemic failure that led to the death, and that duty will not be satisfied by other pending proceedings (such as a criminal trial or public inquiry): see, for example, R (Parkinson) v HM Senior Coroner for Kent [2018] EWHC 1501 (Admin); [2018] 4 WLR 106 at paras 88–90; December 2018/January 2019 Legal Action 18. Thus, a coronial investigation should take place in respect of a death caused by COVID-19 where there is reason to suspect a culpable human failure and/or a breach of article 2 that has not been investigated.

Chief coroner’s guidance no 37: COVID-19 deaths and possible exposure in the workplace (28 April 2020) has drawn the most public attention, as it addresses COVID-19 deaths and possible exposure in the workplace. The revised guidance includes:

Guidance no 37 has attracted significant concern, with its encouragement to coroners at para 13 (page 3) that the scope of an inquest should not include, for example, the provision of PPE to a healthcare worker who died with COVID-19. The suggestion that the ‘inquest is not the right forum for addressing concerns about high-level government or public policy’ must be treated with real care. A central function of the inquest is to examine failings in systems, policies and procedures that put the lives of others at risk: see, for example, CJA 2009 Sch 5 para 7, R v HM Coroner for the Western District of Somerset ex p Middleton [2004] UKHL 10; [2004] 2 AC 182 at para 19, R v Secretary of State for the Home Department ex p Amin [2003] UKHL 51; [2004] 1 AC 653 at para 31 and R v HM Coroner for the County of West Yorkshire ex p Sacker [2004] UKHL 11; [2004] 1 WLR 796 at para 28.

A failure to provide appropriate equipment, training, resources or other systems to the health services may breach article 2 (eg, Smith and others v Ministry of Defence and other appeals [2013] UKSC 41; [2014] AC 52 at paras 63 and 68; December 2013/January 2014 Legal Action 23, R (Humberstone) v Legal Services Commission [2010] EWCA Civ 1479; [2011] 1 WLR 1460 at paras 69–70; March 2012 Legal Action 11, and Brincat and others v Malta App Nos 60908/11, 62110/11, 62129/11, 62312/11 and 62338/11, 24 July 2014 at para 112, holding masks were inadequate), as may a failure to protect patients from a care home (Watts v UK App No 53586/09, 4 May 2010; (2010) 51 EHRR SE5 at para 88). An arguable breach must be investigated.

Any exceptions to these crucial statutory and ECHR functions, of identifying dangerous flaws in systems and policies, must be narrowly construed. In Scholes, the Court of Appeal approved the investigation by an inquest of systems and policies, including the policy for deciding which type of secure institution a juvenile will be held in. However, the Court of Appeal held that a public inquiry, to investigate whether sentencing policy was appropriate, was not required. Arden LJ’s reason was based on the need to respect the democratic legitimacy of parliament: ‘The more purely political (in a broad or narrow sense) the question is, the … less likely it is to be for an appropriate matter for judicial decision’ (para 82, quoting Lord Bingham in A and others v Secretary of State for the Home Department; X and another v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68 at para 29). Thus, if investigation of an issue at an inquest will usurp the proper function of parliament, it may be inappropriate. But that will rarely be the case.

The chief coroner’s reliance on Lord Phillips’s comment at para 81 of R (Smith) v Oxfordshire Assistant Deputy Coroner and another is inappropriate. Military operations are a special context, and none of the other eight justices in that case agreed with him about this point. Indeed, Lord Brown disagreed with him (see para 151), correctly explaining that Middleton held (at para 47) that ‘[i]n the absence of full criminal proceedings, and unless otherwise notified, a coroner should assume that his inquest is the means by which the state will discharge its procedural investigative obligation under article 2’. That applies to any article 2 duty to investigate systemic failures relating to COVID-19, such as in the provision of PPE equipment or failure to protect care home residents.

It may be considered remarkable that the guidance does not refer specifically to article 2 at all. Para 14 may imply that the chief coroner believes a public inquiry will undertake a wider investigation into, for example, the provision of PPE. The merits or otherwise of a public inquiry into such matters are likely to be widely explored in the coming weeks and months ahead. However, as at the time of writing, no such public inquiry has been established and we cannot know if the terms of reference of any inquiry will include all relevant deaths. As such, inquests remain the state’s default vehicle for exploring whether any of its agents contributed to an individual’s death that was caused by the virus.

CJA 2009 s7(2)(c) requires coroners to conduct an inquest with a jury where they have reason to suspect the death was caused by a notifiable disease. In relation to England and Wales, CvA 2020 s30 disapplies this requirement in relation to COVID-19, which is no longer ‘a notifiable disease’. However, it does not amend any of the other provisions of s7 as to when a jury will be, or may be, required, including s7(3) where an inquest may be held with a jury ‘if the senior coroner thinks that there is sufficient reason for doing so’.

It is notable that some of this recent guidance affects not only inquests in respect of deaths related to COVID-19, but also all ongoing inquests, whatever the cause of death may be. In this regard, Chief coroner guidance no 35 – hearings during the pandemic (27 March 2020) states that the coroner has to be physically present in court, otherwise ‘it is not a court’: para 5. We understand that this has caused a large number of pre-inquest hearings to be adjourned, because coroners have been unable to hold hearings from their courts.

It is not correct that the coroner has to be physically present in court for a hearing to be effective. A coronial hearing may take place remotely online or by telephone, even if the coroner is at home or in an office. The Civil Justice in England and Wales Protocol Regarding Remote Hearings (26 March 2020) gives practical guidance on the means by which hearings can take place remotely. Chief coroner guidance no 35 is out of keeping with other courts (civil, family, criminal and the senior courts) around the country, where judges may be at home and conduct hearings remotely. The legal basis for the assertion that ‘absent a coroner, it is not a court’ is not explained in the guidance and appears to be open to challenge. The practical implications of delays will surely include the need for substantial additional resources in the future, potentially for years to come, to provide for additional coroners, their officers, and court availability in order to address the backlog that is likely to be created.

Another development that has wider significance, now and in the future, is guidance no 34, Chief coroner guidance – COVID-19 (26 March 2020), which states that the chief coroner and the lord chancellor are prepared ‘in principle’ to consent to the appointment of assistant coroners by local authorities without open competition to deal with urgent workload pressures: para 11, page 4. This may include considering the appointment of assistant coroners who have no previous coronial experience. These appointments will be permanent appointments to the age of 70: paras 11–13, page 4.

It is conceivable that the ‘fast track’ appointment of assistant coroners may have both a short- and long-term impact on the diversity and suitability of those who are appointed assistant coroners. The purpose of open competition is that those selected on merit are drawn from the widest range of eligible candidates. Clearly, the current pandemic is likely to create unprecedented pressure on all coronial areas, both due to the rise in the number of deaths and because of delays caused by a range of factors affecting non-COVID-19-related deaths.

The UK government has produced further non-statutory guidance directed to specific housing issues that have arisen during the national crisis. This includes:

In England, the Regulator of Social Housing (RSH) has gathered all its COVID-19 related guidance to social landlords (on matters such as gas installation servicing obligations) onto one page: ‘RSH statements on coronavirus (COVID-19)’ (RSH news story, 6 March 2020; last updated 14 May 2020).

On 18 May 2020, Christopher Pincher MP, minister of state for housing, wrote to all social housing residents in England setting out all the measures in place to support them during the next phase of the national emergency: Coronavirus (COVID-19): letter to social housing residents (MHCLG, 18 May 2020). The letter states: 'We are also strongly advising landlords not to issue new notices seeking possession during this challenging time without a very good reason to do so.'

The House of Commons Library has updated its excellent free guide, Coronavirus: housing support, reviewing all the housing measures introduced in response to the crisis (Briefing Paper No 8867, 30 April 2020).

On 2 May 2020, the housing, communities and local government secretary announced the UK government’s intention to extend the ‘priority need’ concept in Housing Act (HA) 1996 Part 7 (homelessness). He said: ‘[T]hrough the Domestic Abuse Bill, the government will also be ensuring that victims of domestic violence get the “priority need” status they need to access local housing services much more easily. This is a fully funded commitment which will mean that no victim of domestic violence has to make the unbearable choice between staying somewhere where they know is unsafe or becoming homeless’ (Communities secretary’s statement on coronavirus (COVID-19), MHCLG, 2 May 2020).

Also on 2 May 2020, the UK government announced that a new specialist taskforce has been created to lead the next phase of its support for rough sleepers during the crisis: ‘Dame Louise Casey to spearhead government taskforce on rough sleeping during pandemic’ (MHCLG press release). Headed by Dame Louise Casey, who will report to the prime minister and the housing, communities and local government secretary on this work, a team of experts will advise councils on plans to support rough sleepers into long-term, safe accommodation once the national lockdown is lifted. On 22 April 2020, she wrote to all local authorities about assistance provided to rough sleepers: Dame Louise Casey writes to local authority homelessness managers and rough sleeping coordinators (published 23 April 2020). See generally Rachael Dobson ‘Policy responses to “rough sleepers”: opportunities and barriers for homeless adults in England’, Critical Social Policy vol 39, issue 2, May 2019, page 309.

A new House of Lords Library briefing contains helpful links to all recent developments on homelessness and rough sleeping issues relating to the present national emergency: Homelessness and COVID-19: next steps (Lords Research Briefing LLN-2020-0100, 7 May 2020).

In September 2019, Mr Arkin, as a fixed-charge receiver, brought a claim for possession under Civil Procedure Rules 1998 (CPR) Part 55 against Mr Marshall. On 27 March 2020, the parties agreed directions for trial. The directions were endorsed by an order of the court. On the same day, the claim was stayed for three months by CPR Practice Direction (PD) 51Z. Mr Arkin applied to the court for an order lifting the stay to enable the parties to comply with the directions. HHJ Parfitt dismissed the application. Mr Arkin appealed to the Court of Appeal.

Mr Escott was a Traveller with mental health and substance abuse issues. He had sepsis and aspirational pneumonia, and required ongoing medication. On his application for homelessness assistance, the council initially offered shared hostel-style interim accommodation: HA 1996 s188. Mr Escott contended that it was unsuitable because his medical history made him extremely vulnerable to coronavirus and other residents were not practising social distancing. The council identified a self-contained unfurnished flat. Mr Escott accepted the offer. The flat did not have a fridge or cooker. A council officer personally provided a microwave. His solicitors requested furniture and white goods on the basis that he could not shield himself indoors if he had no cooking or food storage facilities. When they were not provided, he sought an interim injunction in proceedings for judicial review.

Martin Spencer J refused the application. No precedent had been identified showing that in order to comply with the duty to provide ‘suitable’ accommodation, a council had to provide furnished accommodation. Councils were frequently found to have complied with their duties by providing unfurnished accommodation. The existence of the coronavirus pandemic did not change that; in general terms, the duty was still met if unfurnished accommodation was provided.

Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents (Home Office/UKVI, 24 March 2020; last updated 22 May 2020) permitted those whose leave is to expire between 24 January 2020 and 31 May 2020 to update their records with the Coronavirus Immigration Team, with the consequence that their leave would be automatically extended until 31 May 2020.

A press release of 24 March indicated that provided the individual had emailed the Home Office, no enforcement action would be taken during that period of time (‘Visas extended for those currently unable to return home due to COVID-19’, Home Office/UKVI).

Pilot Practice Direction: Contingency Arrangements in the First-tier Tribunal and the Upper Tribunal was issued on 19 March 2020 by Sir Ernest Ryder, the senior president of tribunals, with the approval of the lord chancellor, and applies to all appeals and applications to the First-tier Tribunal (FtT) and Upper Tribunal (UT) (with some provisions applying only to the FtT (Property Chamber)).

The default position under the practice direction is that where a hearing is necessary (where the parties have not consented to a determination or a paper determination) then a hearing is to proceed remotely (paras 6–7). Additionally, the tribunals are instructed to take account of the impact of the COVID-19 pandemic when considering applications for extensions of time for compliance with directions and the postponement of hearings (para 12).

Presidential Practice Statement Note No 1 2020: Arrangements during the COVID-19 Pandemic, issued by Michael Clements, the president of the FtT (Immigration and Asylum Chamber), on 23 March 2020, required all appeals (from 23 March 2020), with the exception of human rights12It is understood that this is solely in respect of article 8 claims rather than protection claims./EEA appeals, to be commenced using the online procedure, unless it is not possible to do so, in which case there is a requirement to explain why that process cannot be used.

Much confusion abounded with several practice statements issued by the FtT from 21 March 2020 onwards, all of which were superseded by later versions, as regards appeals that were extant as at that date. The effect of these various directions appears to be:

Also on 23 March 2020, Lane J, president of the UT (Immigration and Asylum Chamber), issued Presidential Guidance Note No 1 2020: Arrangements during the COVID-19 Pandemic, indicating that, for statutory appeals where permission has been granted, the UT judge will consider whether a decision can be made without a hearing (paras 11–12) and that, where hearings are to take place, this may be by audio or video link (para 20). Documents are to be filed electronically but attachments must not exceed 15MB (para 25). Judicial review cases issued in the UT are to be filed by post where not urgent (para 35) and urgent cases that have been refused without a hearing can be reconsidered at a telephone hearing (para 34).

The Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 SI No 416 were laid on 9 April 2020 and came into force on 10 April 2020. They are to cease on the same day as the expiration of Coronavirus Act 2020 s55(b) (r1(2)).

Among the changes are amendments to the Tribunal Procedure (Upper Tribunal) Rules 2008 SI No 2698 to reflect Lane J’s presidential guidance note (r5):

The Immigration (Biometric Registration) Regulations 2008 SI No 3048 and the amendments thereto require all individuals seeking to apply for leave to enter or remain, for indefinite leave or for citizenship to provide their biometric data. Sopra Steria, which runs the biometric enrolment centres, issued a statement on 28 March 2020 to persons with forthcoming appointments announcing their cancellation and indicating that they would be rescheduled approximately six weeks later.

Details of housing-related measures taken in England and Wales arising from the current national emergency are set out at 2–13 below. For a regularly updated overview of those measures, see the House of Commons Library’s briefing paper Coronavirus: housing support (Briefing Paper No 08867, first issued 2 April 2020).

For England, the Ministry of Housing, Communities and Local Government (MHCLG) has issued the following non-statutory guidance:

In Wales, the material issued by the Welsh government (see generally here) includes:

The UK government has issued advice for landlords carrying out right to rent checks during the coronavirus pandemic: Coronavirus (COVID-19): landlord right to rent checks (Home Office, 30 March 2020). Although such checks are still required, the new guidance advises that:

Contractual obligations to make rent and mortgage payments, and to meet lawful increases in those payments, continue to apply during the current national emergency. The Residential Landlords Association (RLA) reports that landlords are contacting it saying that their tenants are under the impression they no longer have to pay rent and it is now asking the government to clarify its guidance that rents should continue to be paid: ‘Rent payments must be maintained where possible say landlords’ (RLA press release, 6 April 2020)

Tenants in financial difficulty can access help through housing benefit, universal credit, discretionary housing payments and/or from local authority financial support for those in need.

Local housing allowance (LHA) rates on which assistance with rent through benefits is based were frozen in April 2016 for four years. The UK government had announced that the freeze would end in April 2020 with an uprating of 1.7 per cent in line with the consumer price index. However, in a speech on 20 March 2020, the chancellor announced nearly £1bn of support for tenants, by increasing housing benefit and universal credit, so that LHA would cover at least 30 per cent of market rents in each area: The chancellor Rishi Sunak provides an updated statement on coronavirus.

The change was implemented with effect from 1 April 2020 by Social Security (Coronavirus) (Further Measures) Regulations 2020 SI No 371 reg 4. The new rates by area are set out in tables available via Local housing allowance (LHA) rates applicable from April 2020 to March 2021 – amendment as instructed by the Social Security (Coronavirus) (Further Measures) Regulations 2020 (Valuation Office Agency, 30 January 2020; last updated 25 March 2020). (See also the Social Security (Coronavirus) (Further Measures) Amendment Regulations 2020 SI No 397, in force from 6 April 2020.)

There have been no measures to lift or modify contractual or statutory obligations imposed on landlords and tenants during the present crisis, although the UK government’s non-statutory guidance (see above) contains much useful advice for tenants, landlords and local authority enforcement officers.

In particular, the landlord’s obligations to arrange gas safety inspections and comply with the new requirements in relation to electrical safety (see below) continue to apply, as do the tenant’s obligations to give reasonable access.

In relation to the former, the Coronavirus (COVID-19) guidance for landlords and tenants (above) states:

In any event, Gas Safe engineers have suspended routine inspections: COVID-19 advice and guidance (Gas Safe Register, last updated 16 April 2020).

Notices given by landlords to tenants for recovery of possession and issued on or before 25 March 2020 will operate unaffected by the current emergency if validly made under normal housing legislation.

By operation of Coronavirus Act 2020 s81 and Sch 29, notices served in England or Wales on or after 26 March 2020 must give a minimum notice period of three months. The three-month minimum requirements apply to notices seeking possession, notices to quit and Housing Act (HA) 1988 s21 notices whether served on assured, secure, protected, flexible, demoted or introductory tenants. These additional requirements will apply until 30 September 2020, although there is power in the Act to extend that period by regulations. They do not apply to service-occupiers (employees who live in accommodation for the better performance of their employment duties) who lose their employment in the current emergency.

The UK government is working with the master of the rolls to extend the Pre-Action Protocol for Possession Claims by Social Landlords to landlords in the private rented sector: ‘Complete ban on evictions and additional protection for renters’ (MHCLG press release, 18 March 2020). But there is presently no embargo on the issue of new possession claims by landlords. New claims issued under Civil Procedure Rules 1998 (CPR) Part 55 are, however, being stayed (see below).

On 26 March 2020, the 117th update – practice direction amendments introduced a new Practice Direction (PD) 51Z: Stay of Possession Proceedings, Coronavirus. It took effect on 27 March 2020.

The stay on claims operates until 25 June 2020 but it only applies to claims for possession made under CPR Part 55. Where a possession order is a remedy sought in a different form of claim, PD 51Z has no application to that claim. The new PD operates until 30 October 2020, enabling, if necessary, the current stay until 25 June 2020 to be enlarged, if necessary, by amending the PD rather than making a new one.

That power has already been utilised. On 18 April 2020, PD 51Z was further amended by 120th update – practice direction amendments. The amended version of PD 51Z now reads:

Whatever the nature of the proceedings in which a possession order was obtained, all ‘proceedings’ seeking to enforce such an order by a warrant (county court) or writ of possession (High Court) are similarly stayed until 25 June 2020: PD 51Z para 2.

There are no legal restrictions on evictions/exclusions of unprotected tenants or licensees, eg, lodgers, holiday let tenants, those in hostels and those in accommodation provided for asylum-seekers.

On 28 March 2020, the Home Office announced the voluntary suspension of all evictions from asylum-seeker accommodation (sometimes known as NASS accommodation) for three months: ‘Home Office announces it will not evict asylum seekers during coronavirus crisis’ (Inside Housing, 31 March 2020, log-in required).

MB was admitted to a University College London Hospital (UCLH) in February 2019. She had a diagnosis of functional neurological disorder manifesting as variable upper and lower limb weakness, variable and intermittent upper limb tremor and speech disturbance. She had other complex needs and needed help with personal care. In August 2019, it was decided that she could be discharged from hospital provided suitable accommodation with a care package was in place.

In March 2020, Camden granted MB a tenancy of a property that had been adapted to meet her needs and put in place a care package. UCLH notified MB that she was to be discharged to her new property on 23 March 2020. On 23 March 2020, UCLH terminated MB’s licence to remain in the hospital. MB was informed that she was at risk of contracting COVID-19 should she remain in hospital and her bed was required to treat patients who had the virus. MB refused to leave.

On 2 April 2020, UCLH issued a claim for possession in the High Court. On the same day, Chamberlain J notified UCLH that the claim was stayed by CPR PD 51Z, but gave it permission to apply for an interim injunction requiring MB to leave the room she was occupying in the hospital.

In September 2019, Mr Arkin brought a claim for possession under CPR Part 55 against Mr Marshall. In March 2020, the parties agreed directions for a trial to take place between October 2020 and January 2021. On 27 March 2020, the claim was stayed by CPR PD 51Z until 25 June 2020. The directions required disclosure to be given during this period. Mr Arkin applied to the court for an order lifting the stay to enable the parties to comply with the directions.

The Coronavirus Act 2020 received royal assent on 25 March 2020. The explanatory notes to the Act state its purpose as being to ‘enable the government to respond to an emergency situation and manage the effects of the COVID-19 pandemic. A severe pandemic will lead to a reduced workforce, increased pressure on health services and death management processes. The Act contains temporary measures designed to either amend existing legislative provisions or introduce new statutory powers which are designed to mitigate these impacts’ (para 1, page 7). In so far as the Act relates to mental health and social care in England and Wales, it aims to ease the burden on front-line health and social care staff by relieving them of certain existing statutory obligations, outlined below.

The way that the legislation is structured, as regards mental health and social care in England and Wales, is as follows:

Beyond the above, the Act is silent about the circumstances in which the MHA 1983 modification provisions and the social care modification provisions will be switched on or off. This will all be left to regulations passed by Westminster or the Welsh assembly and possibly by guidance. Indeed, regulations have already been passed switching on all social care modifications and limited MHA 1983 modifications relating to the Mental Health Review Tribunal for Wales.

The approved clinician in charge of treatment may certify under s58(1)(b), which is for the appropriateness of administration of medicine without consent for more than three months, if they consider that getting a second opinion appointed doctor (SOAD) is impractical or would involve undesirable delay.

Sections 35(7) and 36(6) (remand from court to hospital for a report or treatment) are normally for a maximum of 12 weeks but this timescale is being removed.

The Act also allows a reduction in the number of medical recommendations from two to one, if it is impractical or would involve undesirable delay to get two recommendations, in the following circumstances:

The timescales for transferring or admitting a person to hospital within a specified period have been amended so that they should be done within that period or as soon as practicable after the end of that period. Those provisions are:

This part of the Act, which came into force on 27 March (see the Coronavirus Act 2020 (Commencement No 1) (Wales) Regulations 2020 SI No 366), allows for the composition of the Mental Health Review Tribunal for Wales to be changed to either one or two tribunal members if the president (or someone on her behalf) considers that it is impractical or would involve undesirable delay for the tribunal to be constituted by at least three members. There must always be the legal member who will be the chair.

The tribunal can determine a case without a hearing if it considers that:

Section 15 of the Act gives effect to Sch 12 and effectively removes the majority of local authority duties in adult social care during the emergency period. These provisions came into force on 31 March 2020 (England) (see the Coronavirus Act 2020 (Commencement No 2) Regulations 2020 SI No 388) and 1 April 2020 (Wales) (see the Coronavirus Act 2020 (Commencement No 1) (Wales) Regulations 2020).

Local authorities now have the power to suspend the following social care duties in the Care Act 2014 (England) and the Social Services and Well-being (Wales) Act 2014:

The duty to make provision to meet care needs (for individuals or carers) will now only apply as follows:

The local authority still has a power to assess needs and make eligibility determinations in order to comply with the amended duty to meet needs.

In England, various provisions under the Chronically Sick and Disabled Persons Act 1970 and the Children Act 1989 (duties to make provision to meet the needs of children transitioning to adult services) are also suspended so, even if a local authority hasn’t assessed a child for adult services, social care for a child can be stopped as soon as they turn 18.

If a local authority starts meeting needs during the emergency period, but does not complete a financial assessment, it can carry out a financial assessment at a later period and then impose charges for meeting needs during that period.

Once the emergency period has ended, if an individual wishes to bring a court challenge against a local authority for failure to comply with its duty to assess needs, the court will need to consider how long the emergency period lasted and how many assessments need to be carried out, when determining whether the local authority’s delay is reasonable.

This legislation does not prevent local authorities from complying with their full social care responsibilities and the government has said that the easement of social care should only be applied if necessary (see the explanatory notes to the Coronavirus Bill, para 176, page 29). The health and social care secretary and the Welsh ministers may issue guidance on how the legislation is applied in England and Wales respectively and they can direct local authorities to comply with that guidance. The Department of Health and Social care has published guidance for England (Care Act easements: guidance for local authorities, 1 April 2020), alongside an ethical framework for the provision of social care (Responding to COVID-19: the ethical framework for adult social care, 19 March 2020).

Aside from the exceptions above, these changes do not affect social care duties owed to children. Local authority safeguarding duties also remain unchanged. Section 14 of the Act suspends the duty on clinical commissioning groups (CCGs) in England to assess eligibility for NHS Continuing Healthcare.

Although possession proceedings are not mentioned in the Coronavirus Act 2020, various administrative measures have been put in place. In particular, Civil Procedure Rules 1998 (CPR) Practice Direction 51Z provides that all proceedings for possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession are stayed for a period of 90 days from 26 March 2020.

The government is said to have ‘agreed with mortgage lenders that they will offer repayment holidays of three months to households in financial difficulty due to COVID-19’, provided they are up to date with their payments and not in arrears: Support for those affected by COVID-19 (HM Treasury guidance).

On 20 March 2020, the FCA issued guidance to mortgage lenders to enable consumers to take ‘mortgage holidays’ for three months (or less if in the best interests of the consumer – a position that appears to be more nuanced than the government announcement) and provides that the amount should not be capitalised other than when sufficient information has been given to the customer: Mortgages and coronavirus: our guidance for firms. It provides that:

A clear steer has also been given about possession proceedings during the COVID-19 outbreak (even were they capable of being brought or continued):

The main provisions in the new Act affecting education are ss37 and 38, together with Schs 16 and 17, which deal with the education secretary’s powers to close all educational institutions (including privately run institutions) and childcare premises temporarily, and to give directions for temporary continuity. Before exercising such powers, the secretary of state must have regard to advice from Department of Health medical officers, and must be satisfied that giving the direction is a necessary and proportionate action in response to the incidence or transmission of coronavirus.

Section 37 and Sch 16 give the secretary of state power to order the closure of educational institutions or to restrict attendance. Closure powers are wide-ranging and may include provisions relating to attendance in general, or to the attendance of specified persons, for specified purposes, or to specified parts of premises.

Sch 16 also covers the effect of closure on related statutory provisions, including:

Section 38 and Sch 17 give the secretary of state power to require the provision or continuing provision of education, training and childcare. These powers have been used both to close educational institutions to the majority of pupils but provide for some at least to be open to vulnerable pupils (including those with education, health and care plans (EHCPs)) and the children of key workers.

A direction under s38 may require the taking of reasonable steps in general terms, or particular steps in relation to various matters, including:

Under Sch 17 para 5, the secretary of state may issue notices disapplying or modifying specified enactments for specified periods, which must not exceed one month, although notices can be renewed. Notices must state why they are considered to be appropriate. Some provisions that can be disapplied are fairly self-evident and uncontroversial, for example, requirements in relation to providing school meals, attendance, and inspections.

The secretary of state can disapply the duty under Children and Families Act (CFA) 2014 s43 for schools and other institutions to admit pupils when named in EHCPs: it is to be hoped that this will not be used in relation to vulnerable pupils who need to be in specialist institutions for safety and other reasons. CFA 2014 s44(1), providing for reviews of EHCPs and reassessments, can also be disapplied, but we would suggest that the secretary of state should hesitate to use the power in relation to reviews in particular as, on the face of it, with some children with EHCPs still attending schools and the availability of arrangements for work from home, video and telephone conferencing and the like, there are no obvious reasons why universal disapplication is essential.

The Act provides for a long list of statutory provisions that may be modified – in the majority of cases on the basis that duties may be treated as discharged if the person with the relevant duty has used reasonable endeavours to discharge the duty. Many provisions listed are fairly obvious corollaries to the need to close schools, for example, local authority functions under EA 1996 s14 for provision of primary and secondary schools, provisions in relation to school admissions and the like.

However, there are considerable concerns about potential use of this power in relation to children with special educational needs (SEN), particularly given the recognition that children with EHCPs are vulnerable. The potential modifications causing most concern are in relation to:

While these powers are subject to the duty to use reasonable endeavours to discharge statutory duties, nevertheless early indications of the response to the legislation and guidance is that some local authorities are in effect treating them as giving them carte blanche to ignore their duties.

Ministers have power under s92 to make consequential modifications to other Acts. An open letter sent on 24 March 2020 indicated an intention to amend regulations on timescales for EHCP processes but, at the time of writing, this has not been progressed.

At the time of writing, the secretary of state has exercised a number of powers, notably in relation to closing schools and other educational institutions, but directing them to stay open for the children of key workers and vulnerable pupils, including those with EHCPs where they cannot safety remain at home. He has also issued several guidance documents, including, in particular, guidance for schools about temporarily closing and SEN and disability risk assessment guidance. The latter helpfully clarifies that the risk to be assessed goes considerably further than the potential risks from COVID-19, and includes matters such as the risk to the individual if some or all elements of an EHCP cannot be delivered, the ability of parents and carers to meet health and care needs safely, and whether the child or young person may benefit more from remaining at school or college. However, no notice has been issued in relation to CFA 2014 ss42 and 43.

The Act has caused some concern in SEN circles, since a number of local authorities have sought to use it to effectively cease most SEN functions even before any notice or regulations have been put in place allowing them to do so. However, the Act emphatically does not authorise such wholesale action, and the recognition in official guidance that children with EHCPs are vulnerable is significant. The secretary of state is required to demonstrate that any notice is reasonable and proportionate, and even when a notice is issued in relation to CFA 2014 s42 or other modification powers, the duty is still to use reasonable endeavours. The requirement for reasonableness implies a duty to think creatively, for example, by close liaison with parents educating their children at home, using remote working and personal budgets to ensure continued special educational provision (SEP). Blanket withdrawal of local authority SEN services will not be lawful and may be challenged by judicial review and otherwise.