Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020

Baroness Scott of Bybrook Excerpts

Tuesday 8th December 2020 Lords Chamber

Moved by

[Baroness Scott of Bybrook]

That the Regulations laid before the House on 16 November be approved.

Relevant documents: 35th Report from the Secondary Legislation Scrutiny Committee and 33rd Report from the Joint Committee on Statutory Instruments (special attention drawn to the instrument)

[Baroness Scott of Bybrook (Con)]

My Lords, this instrument prevents enforcement agents—bailiffs—from entering residential premises in England to execute a writ or warrant of possession until 11 January, except in the most serious circumstances. The purpose of this measure is to protect public health by preventing people from being evicted from their homes by enforcement agents at a time when the risk of virus transmission is high and when local authorities and NHS services are typically under additional strain over the Christmas period.

The instrument builds on the Government’s previous guidance on enforcement activity during the national lockdown in England, introduced by the national health protection regulations, and the intention for the “winter pause” on evictions that was announced by the Government on 10 September. It also prevents enforcement agents from entering residential properties in order to take control of goods during the national lockdown, which ended on 2 December. This instrument applies to enforcement action in England.

The Government have taken unprecedented action to ensure that renters were protected from eviction at the height of the coronavirus pandemic, including providing significant financial support and agreeing with the courts to use powers in relation to court procedure to stay possession proceedings for a total of six months, until 20 September. However, that stay could only be temporary; the civil justice system and the rules that underpin it must be accessible, fair and efficient for tenants and landlords alike.

Ahead of the end of the stay on possession cases in the courts, the Government put in place a number of measures to carefully manage the resumption of cases so that the courts were not overwhelmed and could make decisions so that the most vulnerable could get the help and support that they need and, in particular, so that tenants could have access to legal advice and support.

The Government also worked with the judiciary and others to put in place new court arrangements that seek to ensure appropriate support to all parties. Those court arrangements are in place and working well, and I pay tribute to the working group convened by the Master of the Rolls, chaired by Mr Justice Knowles, for the key role that it played in these matters.

In addition, the Government took legislative action. The Housing Minister laid a statutory instrument on 28 August to amend Schedule 29 to the Coronavirus Act 2020 to require landlords to provide tenants with six months’ notice in all but the most serious cases. This approach ensures that tenants will remain safe and have additional time to find new accommodation while empowering landlords to take action where necessary—for example, if a tenant’s antisocial behaviour is severely impacting their neighbours’ quality of life.

We have also taken some targeted action in respect of the enforcement of evictions to protect public health during the extraordinary circumstances of the coronavirus pandemic. In September, guidance was issued to bailiffs to request that the enforcement of possession orders did not proceed in areas where local lockdown regulations restricted gatherings in residential properties. This was in order to prevent tenants being forced out of their homes at an unsettling time in areas where the public health risks could be greater.

In September, the Government also announced that we would take steps to prevent eviction action from taking place over the Christmas period, ensuring that vulnerable tenants are not forced from their homes at a time when public and local authorities may be dealing with unusual levels of increased demand on services during this time. Bailiffs were issued with guidance that they should not enforce writs or warrants of possession other than in the most serious of circumstances between 11 December and 11 January during the winter pause.

At the beginning of November, following the introduction of the Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020, enforcement agents were asked not to enforce evictions nationally at a time when the risk of transmitting the virus was high and a number of significant restrictions were in force. Because the national restrictions were due to end just before the start of the national winter pause, the Government decided that it was appropriate to build on the guidance not to enforce evictions in England during that time with this legislative measure. We therefore laid the instrument in Parliament on 16 November, to come into effect on 17 November.

The draft instrument is consistent with the policy that the Government have adopted in this area since the start of the pandemic. It aims to strike a balance between prioritising public health and supporting the most vulnerable while ensuring that landlords can access and exercise their right to justice in the most serious cases. For that reason, the instrument contains some limited exemptions to the ban on the enforcement of evictions. These exemptions relate to circumstances where the Government feel the health risk is lower or the competing interests of preventing harm to third parties or taking action against serious behaviour are sufficient to outweigh the public health risks of enforcing an eviction.

The instrument provides for the following exemptions to the restrictions on enforcing evictions: first, where the claim is against trespassers who are persons unknown; secondly, where the order for possession was made wholly or partly on the grounds of antisocial behaviour or nuisance, false statements, domestic abuse in social tenancies or substantial rent arrears equivalent to nine months’ rent that predate 23 March 2020; or, thirdly, 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 Government believe that it is important that there is a clear, uniform and transparent process for establishing whether an exemption to the ban on evictions applies. For that reason, the instrument contains a requirement for the court to be satisfied that an exemption applies on a case-by-case basis.

The measure will be in force until 11 January. New rules require that all bailiffs must give 14 days’ notice of an eviction. This means that in most cases evictions will not resume anywhere in England until 25 January at the earliest. We continue to keep the position under review regarding the enforcement of evictions in local tiers following the expiry of these national restrictions over the midwinter period.

The statutory instrument also set out a nationwide prohibition on enforcement agents taking control of goods inside residential properties while the national restrictions were in place. This measure did not prevent enforcement agents from taking other steps to enforce debts and fines under the taking control of goods procedure, including making contact by remote means such as telephone; visiting but not entering properties; taking control of goods located outside homes or on the highway; and enforcement at business premises. The Government believe that such steps may be safely undertaken in line with the Government’s published Covid-secure guidance for enforcement agents using the taking control of goods procedure. The Government’s view is, therefore, that this policy strikes a proportionate balance between protecting against the risk of virus transmission and allowing the continuation of the administration of justice.

I know that there has been significant interest from noble Lords about the effect of removing tenants’ protection from eviction, which was provided by the stay on possession proceedings between 27 March and 20 September this year. Concern has also been expressed by noble Lords about the impact of that stay on the rights of landlords who are dealing with difficult situations in which there is no reasonable alternative to possession proceedings. These restrictions on bailiff enforcement build on protections introduced earlier this year, including the introduction of six-month notice periods, which mean that renters now served notice can stay in their homes until June 2021, with time to find alternative support or accommodation.

Courts remained open during the national restrictions in November. The court rules and procedures introduced in September will ensure protections for tenants and landlords. For example, landlords are required to send the court information about the impact that the pandemic has had on their tenant. The Government have published comprehensive new guidance for landlords and tenants to explain all these new arrangements and how they impact on court possessions. Our approach strikes the right balance between prioritising public health and supporting the most vulnerable renters, while ensuring that landlords can access and exercise their right to justice. Landlords can action possession claims through the courts, but evictions will not be enforced apart from in the most serious cases.

The Ministry of Justice is grateful for the consideration of this instrument by the Joint Committee on Statutory Instruments. In its 33rd report, the committee reported this instrument to both Houses for elucidation and defective drafting. The committee asked for further information about how the exemptions to the eviction bans should be applied and has confirmed that our explanation was helpful. We accept the committee’s findings that the department should have relied on Section 16 of the Interpretation Act 1978 rather than inserting a provision at Section 16(1) and (2) of the instrument that does no more or less than the same thing.

This instrument provides protection to tenants from eviction, ensuring that vulnerable tenants are not forced from their homes at a time when public and local authorities may be dealing with an unusual level of increased demand on services. I beg to move.

--- Later in debate ---

[Baroness Scott of Bybrook (Con)]

My Lords, I shall give a big thank you for a very balanced debate on this subject, which is a difficult one. The pandemic is serious and impacts all members of our society—not just tenants but landlords, as has been said. I shall not get through all of the questions, but I will go through the debate and send answers in writing to those I do not respond to.

I want to start with a couple of points, before I forget. First, the noble Lord, Lord Mann, talked about mobile homes. I had quite a lot of experience of mobile homes in my other life. I would quite like to look into where we are on that issue and write him with an answer. Secondly, the noble Baroness, Lady Grender, asked me about tenancies. It is about social tenancies and domestic abuse, not all tenancies. I wanted to make those points clear first of all.

Some themes definitely emerged in the debate. Of course we need support for tenants. The noble Lord, Lord Kennedy, talked about that, as did the noble Lord, Lord Bird, and the noble Baroness, Lady Wheatcroft. I absolutely agree that when children are involved, it is even more critical that we look after them. The Government have provided an unprecedented package of financial support which is available to tenants and will remain in place over the whole winter period. Nearly £1 billion of additional support will be available to private renters claiming universal credit or housing benefit in 2021, which will benefit over 1 million households. That will include households in work, so not just those who are out of work. This year, claimants will gain an average of an additional £600 in increased housing support, and that measure has been well received.

The other issue is that we cannot forget the furlough scheme, which has now been extended until March, or the Self-employment Income Support Scheme, which has also been extended. We have provided £180 million in discretionary housing payments so that local authorities can help renters with their housing costs. This also emphasises the importance of local authorities in giving much-needed support and help during difficult times for tenants, not only those in social housing but those in private rented accommodation.

Tackling homelessness has been another priority for the Government. We remain committed to that work because the homeless are some of the most vulnerable in our society. In this year alone, we are spending over £700 million to tackle homelessness and rough sleeping, and the spending review has just committed a further £750 million for next year. We are continuing the project of “Everyone In”, which supports rough sleepers. The noble Baroness, Lady Bennett of Manor Castle, asked what we are doing about homelessness support for those facing eviction. The Homelessness Reduction Act, which came into force in 2018, was the most ambitious reform to tackle homelessness. It is interesting to note that over 270,000 households have had homelessness successfully prevented or relieved by securing accommodation for more than six months. We are looking at the whole issue, from before people receive eviction notices right through to if they do, unfortunately, become homeless.

I was pleased to hear—this was the second part of it—that this is about landlords as well as tenants because it is important that we take a balanced view. We have been supporting landlords as well with buy-to-let mortgages while the mortgage holiday will be extended, with applications open until 31 January 2021. We are very grateful to our landlords for their forbearance during this unprecedented time and we continue to strongly encourage tenants to pay their rent, or at least to have an early conversation with their landlord if they have difficulty in doing so. Often, things can be dealt with during that early stage.

The noble Lord, Lord Kennedy, and the noble Baroness, Lady Fox, rightly asked what will happen if tiers 2 and 3 are extended past January. We know that there are concerns about the period from January and perhaps through to Easter, when the vaccine will start to take control of the pandemic. We will continue to keep this policy under constant review because it is important to do so. If any changes need to be made, the Government will consider them. However, we have to remember that occupiers now must be given 14 days’ notice of an eviction before the bailiffs can come in. Also, on any new possession, the landlord will have to give six months’ notice to any tenant if they require them to leave the property.

We talked a lot about poverty. The Government have put £500 million into a hardship fund to help further reduce the council tax bills of some of the most vulnerable households, those we are talking about. That fund can help them by up to £150 a year.

I thank the noble Lord, Lord Campbell-Savours, for some of his ideas and we will look into them. However, the best way in which to help landlords is to help tenants pay. That is why programmes such as the furlough scheme are so important because if families still retain an income, tenants can pay and landlords are secure. In addition, mortgage payment holidays of up to six months are available and can help landlords.

The noble Baroness, Lady Bennett of Manor Castle, was absolutely right about having more housing. We have committed at least £44 billion over five years to build more homes in this country.

Lastly, my noble friend Lady Neville-Rolfe mentioned impact assessments. This measure is only temporary, lasting less than 12 months, as part of our Covid emergency response. Therefore, requirements for a formal impact assessment do not apply.

I am sure that I have not answered a number of other questions, but time has taken over.

Motion agreed.