“The government needed to do more to manage stayed possession cases. It failed.”
When the CEO of the National Residential Landlords Association (NRLA) equates the legal process of losing your home to being caught speeding, you know there isn’t any hope of him seeing what you see as a tenant’s representative – that a rented house is a home, not just an investment opportunity, and that good-quality secure housing should be a right.
In the 13 August 2020 episode of 'The Landlord and Lawyer Podcast'
, co-host and NRLA CEO Ben Beadle referred to the court process as a ‘sausage factory’ and face-to-face possession hearings as ‘a very old-fashioned approach’. After 30 years of representing tenants in court, I see the process very differently: that the first hearing is a chance to make change for someone who has complex needs and a cluster of problems; that the duty solicitor is essential and face-to-face advice is the only way to ensure access to real justice – but just call me old-fashioned.
So, what will happen after 23 August?
Nothing. Well, nothing in England and Wales for around three weeks as the court will not list cases until after the stay has ended. This is likely to be from 14 September and then cases will be listed in order of priority, with anti-social behaviour and extreme rent arrears cases first. Scotland is taking a different approach as Nicola Sturgeon is recommending
that the stay on possession cases continue until March 2021.
How will cases be listed?
No claims brought before 23 August 2020 will be listed at all unless a reactivation notice has been served by one of the parties. There will be a change in block listing, which, historically, has had around 30–40 cases listed each possession day. This will now be cut down to 10 cases per day to ensure social distancing but with no extra court or judicial time provided. To address this reduction in listing in some small way, the proposal is to list cases in two stages, with a review hearing and then a substantive hearing 28 days later. However, the review hearing seems to be a bit of a fudge and is not really a hearing at all, but a way of weeding out cases and encouraging the tenant to seek early advice from the duty solicitor, which will, in turn, ensure the duty solicitor is paid under the housing possession court duty scheme contract.
The court will now list 10 review hearings and 10 substantive hearings each possession day. The default position will be face-to-face hearings for the substantive hearing unless the tenant requests otherwise. It seems unlikely, though, that the review hearing will be in person and will most probably be just a telephone call. The logistics of speaking with the tenant and the landlord and getting hold of the papers for the review hearing, if remote, are still not clear and are likely to be left to judicial discretion for each individual court.
There was everything to play for, or so we thought, but as the stay ends, we still have s21 (no-fault possession) and mandatory Ground 8 (just two months’ rent arrears). Even if the arrears are caused entirely by the pandemic, judges will have no discretion. Managing the stayed possession cases is now just an administrative process with some rule changes. The government needed to do more. It failed.
Most social landlords don’t want their property back, they just want the rent paid. Welfare benefits advice is essential and cheaper than court proceedings. It doesn’t make sense to put so much effort into amending civil procedure without looking at the cause of most rent possession cases. If we had a welfare benefits adviser or a crisis navigator employed with every duty contract, we could resolve the rent arrears issues. Or, even better, if early welfare benefits advice was brought back into scope for legal aid, that would cut the backlog of unnecessary hearings and save an awful lot of stress on families and, in turn, public money.
There is still time for change and, as we know from this government, it’s never too late for a U-turn. It needs to happen soon, though, before the COVID-19 snowball gathers more dismissals, redundancies and rent arrears as it rolls towards the winter and the evictions begin.
Protecting judicial review
The A level fiasco is enough to show why judicial review matters – or at least should – for everyone. As lawyers, we know why it’s important, but we need to get the public to see this too. The government is currently reviewing the process – mainly because of two high-profile cases last year – but in the fallout, it may curtail the rights of everyone. And this could go unnoticed by the public because you kind of don’t know you need it until you need it.
Justice Alliance, very much aware of this, organised a meeting on 5 August 2020 to start a conversation on what we might do in response to the review. In just three days, we organised a variety of high-profile speakers and had more than 300 people sign up. We need to keep this momentum. We need to find a way to tell the stories we see and hear and to show why judicial review really does matter.