Public Health (Coronavirus) (Protection from Eviction) (England) Regulations 2021
(Limited Text - Ministerial Extracts only)
Read Full debate14:38 - Division conducted remotely on Lord Kennedy of Southwark’s amendment. - Ayes: 270 / Noes: 267 - Lord Kennedy of Southwark’s amendment agreed.
Lord Wolfson of Tredegar
That the Regulations laid before the House on 8 January be approved.
Relevant document: 42nd Report from the Secondary Legislation Scrutiny Committee
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, this draft instrument prevents enforcement agents—bailiffs—attending residential premises in England to execute a writ or warrant of possession except in the most serious circumstances. The instrument applies to enforcement action in England. It has been in force since 11 January and will expire at the end of 21 February. I refer to my interest as set out in the register.
The instrument renews the restrictions on enforcement agents carrying out evictions that were in place between 17 November 2020 and 11 January 2021. This will ensure that we continue to protect public health during this national lockdown, at a time when the risk of virus transmission is very high, and avoid placing an additional burden on the NHS and local authorities. The instrument continues to provide for exemptions from the ban in cases where we consider that the competing interests of preventing harm to third parties or taking action against egregious behaviour are sufficient to outweigh the public health risks.
The exemptions are as follows. The first is where the claim is against trespassers who are persons unknown. The second is where the order for possession was made wholly or partly on the grounds of: anti-social behaviour or nuisance; false statements; domestic abuse in social tenancies; substantial rent arrears, equivalent to six months’ rent; or where the order for possession was made wholly or partly on the grounds of the death of the tenant and the enforcement agent attending the property is satisfied that the property is unoccupied. The instrument contains a requirement for the court to be satisfied that an exemption applies on a case-by-case basis. This will ensure that there is a clear, uniform and transparent process for establishing whether an exemption to the ban applies.
As noble Lords will appreciate, this legislation is an extension of the previous ban on the enforcement of evictions in all but two respects. The first difference is that we have redefined the exemption for “substantial rent arrears” to mean arrears of more than six months. The definition in the previous instrument was arrears of more than nine months, not including any arrears that had accrued since March 2020. We have made this change to balance the impact of the ongoing restrictions on landlords with the need to continue to protect tenants. Because of action that the Government have taken as a result of the pandemic to protect renters, we expect that most cases that will fall within this exemption will relate to possession claims that began before the six-month stay on possession proceedings commenced in March 2020. In those cases, landlords may have been waiting for more than a year without rent being paid.
The second difference between this instrument and the one it replaces is that it permits writs and warrants of restitution to be enforced. These orders are issued in cases where a person who has been evicted from premises re-enters those premises illegally. It is therefore appropriate that they be excluded from the ban.
The regulations will be in place until the end of 21 February. We are considering whether and, if so, how to extend them, including how long any such further extension should be in place, and will provide more details as soon as possible.
It is important to ensure that our approach remains proportionate and strikes the right balance between continuing to protect tenants and ensuring that landlords can access justice. On 8 December last year, during the debate on the previous statutory instrument, concern was raised that the Government had not gone further to protect renters and support landlords, many of whom are individuals. The Government believe the best way to support landlords at this time is to provide support to tenants to enable them to continue to pay their rent, and have provided an unprecedented package of financial support which is available to tenants. This includes the fact that, in April 2020, we increased the local housing allowance rate to the 30th percentile of local market rents in each area to help prevent people getting into financial hardship. It also includes an increase of nearly £1 billion in additional support for private renters claiming universal credit or housing benefit in 2020-21, which will benefit over 1 million households, including those in work. Claimants will gain on average an additional £600 this year in increased housing support.
The Secretary of State for Work and Pensions recently announced that the increase to local housing allowance rates in April this year will be maintained in cash terms in 2021-22, even in the large number of cases where the 30th percentile of local rents has gone down. The continued investment in local housing allowance will support claimants in the private rented sector to manage housing costs. That is on top of the other provisions in place, which the House will know of, to help businesses pay salaries, with the furlough scheme extended to April and the welfare safety net boosted by billions of pounds. In this context, the Government have made £180 million available to local authorities and discretionary housing payments to help renters with their housing costs. All that is critical factual background when considering this statutory instrument.
We continue to require landlords to provide tenants with six months’ notice before eviction in all but the most serious cases until the end of March. That means that most renters served notice now can stay in their homes until June 2021, with time to find alternative accommodation. The six-month stay on possession proceedings put in place at the start of the pandemic could only ever be temporary.
The new court rules also respond to the pandemic and will be reviewed. These include a requirement for cases from before 3 August last year to be reactivated by the landlord and subject to a new review hearing at least four weeks before the substantive hearing. There is a need for landlords to provide courts and judges with information on how tenants have been affected by the pandemic—if that information is not provided, an adjournment will be made. There is a new review stage at least 28 days before the substantive hearing so that tenants can access legal advice, and all enforcement agents must provide a minimum of 14 days’ notice before enforcing an eviction. That is on top of new listing prioritisation arrangements which have been introduced by the judiciary.
Further, we are piloting from early this month a new mediation service to support landlords and tenants in seeking to resolve disputes before a formal hearing takes place. That will be free to use for both landlords and tenants, if it is considered at a review that the case would benefit from mediation and the parties so agree.
Our approach strikes the right balance between prioritising public health and supporting the most vulnerable renters, while at the same time ensuring that landlords can access and exercise their rights to justice. Landlords can action possession claims through the courts, but evictions will not be enforced except in the most serious cases. This SI strikes the right balance, and I therefore commend the regulations to the House.
Lord Wolfson of Tredegar (Con)
My Lords, in this short debate I feel I have been assailed from all sides. I have been attacked for not giving enough protection to renters and challenged for not giving sufficient thought to landlords. The noble Lord, Lord Kennedy of Southwark, said that I would satisfy no one—that may be the story of my life. I bear in mind the point made by my noble friend Lord Naseby that housing never was an easy job. It is certainly less easy when you are in the middle of a global pandemic and even more difficult when you are actually a Minister in the Ministry of Justice.
The experience of being castigated from all sides, however, has been ameliorated by the cogency, force and evident passion of many of the contributions to this debate. But the fact that I have been challenged from all sides is important. I am not making the simple, perhaps simplistic, point—attractive though it would be to do so—that the fact that both renters and landlords consider they have cause for complaint shows that we have got it about right. That would be superficially attractive, but it would not necessarily follow.
What does follow is the point that this is not a simple issue. It is not just a question of focusing on the position of renters or landlords, or even a question of focusing on renters and landlords. We also need to bear in mind the position of others, including neighbours, for example, who have a right to be protected from anti-social behaviour or nuisance. I agree with the noble Baroness, Lady Uddin, who said that this is not a matter of ideology. It is rather, as my noble friend Lady Gardner of Parkes said, a matter of balance. This statutory instrument, as I have explained, seeks to balance those interests against an ongoing pandemic and, as I said in my opening remarks, in the light of the various financial support mechanisms that the Government have provided both for renters specifically and for people more generally.
It is against that background that I turn to the regret amendment put down by the noble Lord, Lord Kennedy of Southwark. I sincerely thank him for his warm words and I am sure that we will work together, both in and out of the Chamber, on this and other matters.
However, there have been no broken promises. On the point made by the noble Lord, and repeated by the noble Baronesses, Lady Bennett of Manor Castle and Lady Uddin, because of measures taken in response to the pandemic, we calculated that it would be unlikely that a case would have yet reached the enforcement stage where a landlord had initiated possession proceedings as a result of rent arrears that had begun to accrue since the start of the pandemic.
First, the Coronavirus Act 2020 provides that landlords must give tenants longer notice periods before starting possession proceedings in the courts, apart from in the most egregious cases. Previously, two weeks’ notice was required, and between 26 March and 28 August last year, three months’ notice was required. Since then, landlords have been required to give six months’ notice where arrears are less than six months, and four weeks’ notice where the arrears are at least six months. We also take into account the amount of time it takes possession proceedings to progress through the courts, and the new arrangements that are in place to deal with the resumption of cases following the resumption of possession proceedings at the end of September.
Importantly, at each stage of the process the tenant is provided with time in which to seek advice or make alternative arrangements. If we were to consider a hypothetical case, where a tenant has rent arrears that only started to accrue since the pandemic began, that case will have been affected by the requirement for longer notice periods, the six-month stay on possession proceedings and then the need to follow due process in the courts. When we assess it, it is unlikely that such a case would yet have reached the enforcement stage.
There could, however, be cases where landlords have been waiting to recover possession orders where the rent arrears began to accrue before March 2020. In such cases, where there are very significant rent arrears, we consider that those landlords ought to be able to enforce those orders. But even in those extreme cases, where a court decides that an exemption to this instrument applies, and taking into account one of the points made by the noble Lord, Lord Mann, bailiffs will not carry out an eviction if they are made aware that anyone living in the property has Covid-19 symptoms, is self-isolating or has been identified as clinically extremely vulnerable.
I now turn to the regret amendment put down by the noble Baroness, Lady Grender, whose experience and knowledge in this area must be acknowledged by everyone in this debate; they are certainly acknowledged by me. Despite the fact that she is not pushing her amendment to a vote, I have to say that, with respect, the terms of the amendment do not meet the issue which faces the Government, and which the statutory instrument seeks to deal with.
The terms of the noble Baroness’s amendment state that it is regrettable that the statutory instrument does not
“link protection from evictions automatically to the extension of restrictions in place to address the COVID-19 pandemic”,
which is a point also made by the noble Baroness, Lady Uddin. It would be wrong to make such an “automatic” link—to use the word in the amendment—because policy in this area should not operate on an automatic basis. It would be wrong for a number of reasons. When assessing the issue of protection from evictions, it would mean that we would look only at the existence of restrictions resulting from the pandemic, which would be to look at only half the picture. It would mean that we would not consider that those restrictions have changed, and no doubt will change further over time. It would mean that we would overlook the help that has been made available and remains available to renters specifically and to people generally. It would also mean ignoring the protections that we have built into the system, and, as my noble friend Lady Altmann reminded us, taking no account of the interests of landlords, who also deserve consideration. Many landlords depend on the rent that they receive for their sole income; if no rent comes in, they can be placed in a precarious financial situation. Over and above all of that, linking protection from evictions automatically to the existence of Covid-19 restrictions assumes a correlation, and indeed a causation, where neither might exist. By contrast, the statutory instrument seeks to find and maintain a balanced approach, taking all matters into account.
I will write to noble Lords whose comments I have not been able to refer to specifically. In the time that I have left, I will pick up on a couple of the main points which were put to me during the debate, beginning with the limited-time nature of this statutory instrument and what my noble friend Lord Bourne of Aberystwyth called the “bi-monthly ritual” of this SI. I would always be grateful for any opportunities to come to your Lordships’ House for an interesting debate, but I accept in principle that we may wish to raise our eyes and look for a longer period. That is difficult in the midst of a continually changing pandemic, but we will do our best. We are looking at the future and, if we can, we certainly will.
As to the loans scheme, which was put to me by a number of noble Lords, the problem is that any loan scheme must have affordability criteria, which may make it tricky for those most in need to access. With a loan, you must be able to get it and then you must be able to pay it back. We believe, therefore, that the best way to support people in need is through the existing welfare system that provides ongoing support, and that is what the extensive pack of economic support is doing. In that context, the increasing of the local housing allowance rate to the 30th percentile is extremely important.
My noble friend Lord Bourne of Aberystwyth and other noble Lords asked about the change from nine months to six months. The rent arrears exception has been redefined to cases with rent arrears that are greater than six months because that is proportionate, given where we are in the pandemic, given the other protections in place and given the support that has been put in place for renters specifically and for people more generally. It is a question of balance, and that is where we consider the balance is best struck. We anticipate that most of the cases in which an exemption applies will involve a significant level of rent arrears that predate the pandemic and where landlords may have been waiting over a year without rent being paid.
I hope that I have replied to the main points that were put to me in this debate. I am conscious of the limited time that I have had to reply. The noble Lord, Lord Mann, asked a very specific question about the Traveller community. I hope that he will forgive me for not dealing with it now, but it would perhaps be more appropriate for a housing Minister to respond on that point.
We consider that the balance that this statutory instrument has struck is the appropriate one. It provides tenants with protection from eviction and provides landlords in appropriate cases with the ability to recover sums due. Therefore, I commend this instrument to the House.