Homelessness in post-coronavirus England
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Marc Bloomfield
Liz Davies examines the government’s response to evictions and homelessness during the COVID-19 pandemic and considers what further provisions it could make to tackle homelessness.
At the start of the COVID-19 crisis, Robert Jenrick MP, housing, communities and local government secretary, said: ‘No renter who has lost income due to coronavirus will be forced out of their home, nor will any landlord face unmanageable debts’ (‘Complete ban on evictions and additional protection for renters’, Ministry of Housing, Communities and Local Government (MHCLG) press release, 18 March 2020). The government implemented this through a moratorium on the courts’ hearing of possession claims and on execution of warrants (Civil Procedure Rules 1998 (CPR) Practice Direction (PD) 51Z, effective from 27 March 2020); extended notice periods for notices of intention to seek possession to three months (Coronavirus Act 2020 s81 and Sch 29); and encouraging landlords to adopt a flexible approach towards tenants in arrears (Coronavirus (COVID-19) guidance for landlords and tenants, MHCLG, March 2020, para 1.6, page 9).1In the current version of the guidance, which was last updated on 29 August, this appears at para 1.5, page 9.
Guidance was issued that local authorities in England should accommodate all rough sleepers, or those at risk, regardless of priority need or eligibility, and funding was provided (Letter from Luke Hall MP to local authorities, 26 March 2020, widely referred to as Everyone in). Local housing allowance (LHA) was restored to the 30th percentile of market rents and extra money given for discretionary housing payments.
By May 2020, there were warnings of tenants facing severe financial difficulties. The House of Commons Housing, Communities and Local Government (HCLG) Committee heard witnesses predict a ‘tsunami’ of possession orders, and subsequent evictions, based on mandatory grounds for possession, ie, Housing Act (HA) 1988 s21 or Ground 8 claims (Protecting rough sleepers and renters: interim report. First report of session 2019–21, HC 309, 22 May 2020, para 19, page 12).2The committee received documentary evidence from Citizens Advice estimating that around 2.6m private renters had already missed a rent payment or expected to do so at the beginning of April and from Generation Rent that only 44 per cent of residential rent had been collected in April 2020 (Protecting rough sleepers and renters: interim report, para 2, page 5). In July 2020, Shelter calculated that 227,000 renters were at risk of eviction (‘230,000 renters at risk of “COVID-eviction” when government ban lifts’, Shelter press release, 6 July 2020).
In April 2020, the Scottish parliament extended notice periods to six months and made all possession grounds discretionary (Coronavirus (Scotland) Act 2020 s2 and Sch 1). Extra funds were provided to house all rough sleepers.3There is no priority need test for homelessness assistance in Scotland: Homelessness (Abolition of Priority Need Test) (Scotland) Order 2012 SI No 330. The Welsh government published guidance to councils to accommodate rough sleepers (Coronavirus (COVID-19): local authority support for rough sleepers, Welsh government, 24 March 2020; last updated 12 May 2020) and the Assembly extended notice periods to six months from 24 July 2020 (Coronavirus Act 2020 (Assured Tenancies and Assured Shorthold Tenancies, Extension of Notice Periods) (Amendment) (Wales) Regulations 2020 SI No 778 (W 172)).
The remainder of this article considers policies in England.
Over the summer, the government acted, often at the last minute, to delay the prospect of evictions. On 11 June 2020, it extended the moratorium to 23 August 2020 (CPR 55.29 prior to amendment). It said it would introduce a pre-action protocol for possession claims by private landlords, and that ‘landlords and tenants should work together and exhaust all possible options … to ensure cases only end up in court as an absolute last resort’ (Government response to the Housing, Communities and Local Government Select Committee report on protecting rough sleepers and renters, CP 248, MHCLG, 25 June 2020, page 9).
By August, the concern about evictions had become a howl of protest, from housing campaigns, renters’ organisations, political parties, councils and health organisations (see, for example, Peter Blackburn, ‘Call to extend ban on evictions’, British Medical Association (BMA), 20 August 2020). On 21 August 2020, the moratorium was extended to 20 September (CPR 55.29 as amended). From 21 September, new possession claims can be issued and any existing claims (including those issued during the moratorium) reactivated.4The procedure for applying to reactivate stayed claims, the information required for issuing new claims and listing timescales are at CPR PD 55C, issued on 17 July 2020, in force 23 August 2020 and updated 24 August 2020.
In addition, since 29 August, s21 notices and notices where rent arrears are six months or less must give six months’ notice (Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI No 914). The period in which possession claims can be issued relying on the new six-month s21 notice is now 10 months (HA 1988 s21(4D) as amended).
This is welcome news and delays the prospect of eviction for rent arrears due to the economic consequences of lockdown. However, it assumes that renters can recover over the next six months, when the predictions are a serious economic downturn and job losses.
There are many occupiers who could still face possession orders after 20 September. Landlords may have served correct s21 notices and issued possession claims before or during the moratorium. They only need to apply to reactivate an existing stayed claim or issue a new claim if within the prescribed limit. The extended notice periods do not apply to possession for rent arrears exceeding six months, anti-social behaviour grounds and certain other grounds (Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 reg 3, which contains very complex provisions). Licensees, lodgers, and those staying with family or friends are entitled, at most, to four weeks’ notice to quit and a possession order, or may be entirely excluded from those protections (Protection from Eviction Act 1977 s3A prescribes occupation arrangements that are excluded from that Act and s5 contains the requirements for notices to quit). It is possible that landlords, frustrated by the six-month notice period, might evict without a court order, committing a breach of tenancy and a criminal offence (s1).
Homelessness
The initial Everyone in guidance accommodated around 14,600 people (Luke Hall MP, House of Commons Written Statement HCWS263, 3 June 2020). Two more letters, on 28 May (Moving onto the next phase of accommodating rough sleepers) and 24 June (COVID-19 response: funding support for those in emergency accommodation and EEA rough sleepers) advised local authorities to help them into longer-term accommodation. The 28 May letter stated eligibility had not changed, so those who are ineligible for homelessness assistance under HA 1996 Part 7 should only be helped for human rights reasons: ‘a risk to life’.5The extent of local authority powers and duties under the Human Rights Act 1998 is complex and beyond the scope of this article. £105m was earmarked for local authorities (‘£105 million to keep rough sleepers safe and off the streets during coronavirus pandemic’, MHCLG/HM Treasury press release, 24 June 2020). Despite the initial success, there are still people sleeping rough, many of whom lost insecure accommodation during lockdown (Lucie Heath, ‘Number of people seen sleeping rough in London increased by 33% during pandemic’, Inside Housing, 12 August 2020). The BMA has warned:
Unless the government continues to fund the placement of homeless people into suitable and safe accommodation, we could see large outbreaks amongst this population. This is particularly concerning considering the anticipated wave of newly homeless people as a direct result of COVID-19 (BMA position statement on COVID-19 and homelessness in England, 21 August 2020).
What next?
Since early in lockdown, politicians, local authorities and housing campaigners have been calling for more protection for the homeless and for renters. Before coronavirus, the government was committed to abolishing s21 (Queen’s speech December 2019 background briefing notes, Prime Minister’s Office, 19 December 2019, page 46), so legislation could have been introduced during the moratorium. The government has said ‘the proposals for tenancy reform would represent the largest change to renting in 30 years and it is only right that these reforms are taken forward in a considered manner’ (Government response to the Housing, Communities and Local Government Select Committee report on protecting rough sleepers and renters, page 8). As yet, neither a timetable nor draft legislation has been published.
In the interim, parliament could amend the HA 1988 so that both s21 and Ground 8 claims are discretionary. The courts would consider whether possession was reasonable, given the reasons for possession and the circumstances of the landlord and the tenant (s7(4)). Any housing adviser knows courts do not refuse possession orders where the tenant cannot pay rent. Importantly, this would permit the court to suspend or postpone a possession order, upon terms of payment of rent and contributions to arrears (s9). Where the tenant can manage those terms, their home is retained, and the landlord receives rent and recovers the debt.
The abolition of s21 and making Ground 8 discretionary was recommended by the HCLG Committee (Protecting rough sleepers and renters: interim report , page 4) and is widely supported by housing campaigns (‘230,000 renters at risk of “COVID-eviction” when government ban lifts’, Shelter press release, 6 July 2020), the mayor of London (‘One in four of London’s private renters are struggling to pay rent’, press release, 11 August 2020) and renters’ unions (for example, the London Renters Union and ACORN). Generation Rent and Shelter suggest government support for landlords, similar to the Self-Employment Income Support Scheme, so that landlords can retain tenants in rent arrears (Caitlin Wilkinson, ‘The government has protected jobs, now it’s time to protect homes’, Generation Rent news release, 1 July 2020, and ‘Landlords, letting agents and charities urge the government to help renters clear coronavirus (COVID-19) rent debts and stay in their homes’, Shelter press release, 28 August 2020).
The Chartered Institute of Housing (CIH) published detailed proposals on 31 May 2020 (Protect tenants from arrears, evictions and homelessness – an urgent call to government for action during and after the coronavirus epidemic). They echo the calls for s21 to be abolished and Ground 8 to be made discretionary, and recommend ending the five-week wait for universal credit, suspending the benefit cap and the two-child limit, increasing LHA to the 50th percentile and ending the shared accommodation rate.
A large coalition of housing campaigners, local authorities, health organisations and the HCLG Committee have called for the abolition or suspension of ‘no recourse to public funds’ (NRPF) conditions, so that benefit can be paid to renters and those provided with emergency accommodation (‘Councils call for suspension of no recourse to public funds during COVID-19 crisis’, Local Government Association, 12 June 2020). Recently published research found that:
… people with NRPF are more likely to become seriously ill or die if they contract COVID-19. Despite this, it has been difficult for many people with NRPF to access the help they need, including adequate food, shelter and subsistence support, during this public health crisis (Eve Dickson et al, Local authority responses to people with NRPF during the pandemic, University of Wolverhampton, August 2020).
Crisis, the homelessness charity, consolidated these proposals into draft legislation: Homelessness and the Prevention of Homelessness (COVID-19 Response) Bill. The draft bill provides that, for 12 months, local authorities continue to accommodate anyone with nowhere safe to stay, regardless of priority need or eligibility. They would be helped to find longer-term accommodation. NRPF conditions, the right to rent and other restrictions would be suspended, so accommodation costs could be paid through welfare benefits. The bill would make both s21 and Ground 8 discretionary and would require courts to consider coronavirus-related issues in all possession cases. It would also temporarily suspend the benefit cap. The draft legislation has been supported by over 40 other homelessness and migrant organisations (‘Open letter to the prime minister calling for emergency homelessness legislation’, Crisis news release, 7 July 2020).
Perhaps, in the breathing space provided by the six-month notice requirement, the government might listen and legislate to abolish s21, to increase welfare benefits and to end homelessness.
The author is a consultant to the Chartered Institute of Housing and, with colleagues Adrian Berry and Connor Johnston, to Crisis on its proposals.
 
1     In the current version of the guidance, which was last updated on 29 August, this appears at para 1.5, page 9. »
2     The committee received documentary evidence from Citizens Advice estimating that around 2.6m private renters had already missed a rent payment or expected to do so at the beginning of April and from Generation Rent that only 44 per cent of residential rent had been collected in April 2020 (Protecting rough sleepers and renters: interim report, para 2, page 5). »
3     There is no priority need test for homelessness assistance in Scotland: Homelessness (Abolition of Priority Need Test) (Scotland) Order 2012 SI No 330. »
4     The procedure for applying to reactivate stayed claims, the information required for issuing new claims and listing timescales are at CPR PD 55C, issued on 17 July 2020, in force 23 August 2020 and updated 24 August 2020. »
5     The extent of local authority powers and duties under the Human Rights Act 1998 is complex and beyond the scope of this article. »

About the author(s)

Description: Liz Davies - author
Liz Davies is a barrister specialising in housing law at Garden Court Chambers.