Renters (Reform) Bill (Fourth sitting)

Karen Buck Excerpts

Committee stage
Thursday 16th November 2023 Public Bill Committees

[Lloyd Russell-Moyle]

Simon?

Simon Mullings: I have nothing to add on that.

[Ms Karen Buck (Westminster North) (Lab)]

Q Can I ask for your views on the Government’s intention to delay the abolition of section 21 pending court reform? You are all litigators. Is that necessary, given the present state of play? What do you think the delay might entail? What reforms would be required in order to ensure that the courts were meeting the standard that the Government are setting?

Simon Mullings: No, it is not necessary.

[Ms Buck]

Short answers are fine.

Simon Mullings: We are lucky because we have had very recent statistics. The timescales for the various stages of possession and litigation are exactly as they were in 2019, when this Bill started its slow journey to where we are today. There is no doubt that there is a need to improve processes through the courts. What we have at the moment is an extremely good network of county courts, with a very evolved set of civil procedure rules that deal with possession claims very well. What we lack is resources for the county courts for both the physical estate and the personnel in the court to be there to provide the sort of first-class service that you would like to see in possession cases.

HLPA members have been campaigning on court reform and improvements to the court system since around 2015 or 2016, so we are all for it. I echo what Shelter’s director said earlier in the week: it is so important that we move forward with the Bill and the abolition of section 21, which is a key driver of homelessness and of misery, particularly for families with children in schools, who want the stability of knowing that the children can go to the local schools. Section 21 is also a driver of rent increases in various ways—I am telling you things you all know. I do not think there should be any further delay whatsoever.

Giles Peaker: I do not think it is necessary. I am reluctant to think that the process of legislation should be based on whether the courts are functioning as they should be. I agree with Simon: the actual process of possession proceedings is probably one of the quicker processes within the county courts at the moment and is fairly well honed. I would add that the current time from issue to a possession order under the accelerated possession proceedings—an “on the papers” process, without a hearing—is roughly the same as under the section 8 process with an initial hearing. There is no great time lag for the section 8 process as opposed to accelerated possession proceedings. Most possession claims will go no further than first hearing—if there is no defence, that is it. There would not be such a significant impact on the courts’ functioning to make this a concern that should cause further delay.

[Jacob Young]

Q We heard evidence this morning that suggested that the courts are currently overwhelmed and that the abolition of section 21 would increase contested cases. That is not your assessment?

Giles Peaker: I do not see that it would necessarily increase contested cases. It would inevitably involve the process that leads to an initial hearing—those are 10-minute hearings on a list day. I really do not see why it would increase the number of contested hearings, because unless there is a defence, the possession order is highly likely to be made at the first hearing. On at least some of these new grounds, if the ground is made out, there is no defence. So I am unsure of the amount of additional burden.

Liz Davies: I think that is the point. Currently, under section 21, landlords can get possession on the papers. There is no court hearing: the papers go in; the tenant has the right to respond; the district judge considers on the papers whether or not there is a defence. If there is no defence, the possession order is made; if there is a defence, it is put over to a hearing. Once section 21 is abolished, the starting point is that there will be a five or 10-minute hearing, which is usually about eight weeks after issue. That is about the same period of time as for the paperwork procedure I just described. At that hearing, the question for the court is, “Is the case genuinely disputed on grounds that appear to be substantial?” That is set out in the rules.

The great thing about that hearing is that there are housing duty solicitors at court. If a tenant does not have legal advice or advice from a citizens advice bureau beforehand, they turn up and talk to a duty solicitor—I am sitting next to one of them. Duty solicitors give realistic advice. If there is a defence—if the landlord has got it wrong—the duty solicitor will go in front of the court and say, “Actually, there is a defence,” and it gets adjourned for a trial, and that is right and proper. But if there is not a defence, the duty solicitor will say, “I’m sorry, there is absolutely nothing that can be said legally to the court,” and a possession order will be made.

One of the important things about advice, and indeed early advice, is that tenants get realistic advice, so they know whether they have any realistic chance of prolonging the proceedings, and so forth. In many ways, a hearing with a duty solicitor will be beneficial to landlords, and, as Giles says, it takes about the same length of time. There is lots to be said about county courts’ efficiencies and inefficiencies, but I do not think that is the problem.

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[Matthew Pennycook]

Q Can I ask about the portal? At the moment it is a broad framework of powers, and we think that there are requirements that should be woven into it. I am thinking, for example, of all the preconditions and requirements surrounding section 21 that will fall away. Do you think there should be other information as a condition in that portal that goes much further, such as previous applications for grounds of possession, or even rent levels under previous tenancies? How much information should be transparent and available to tenants, in your view, on the portal?

Simon Mullings: I am tempted to say, “As much as possible.” For example, with ground 1 or 1A, if it were decided that post-possession order information was needed to ensure that they operate correctly, the portal is an ideal way of dealing with that. Very often, information relating to tenancies is a cause of disputes in possession proceedings—all the time. You have mentioned the conditions that attach to a section 21 notice at the moment; it will be extremely advantageous to landlords and to tenants, in an information and communication sense, to be able to essentially deal with those through a transparent portal.

Giles Peaker: To very quickly follow up on that, there is certainly the dropping of consequences for not providing gas safety certificates, energy performance certificates and so on. Everything except the deposit has effectively been dropped. Those are very important documents that are important for maintaining housing standards, so there need to be some consequences, other than a hypothetical prosecution by the Health and Safety Executive, for failing to provide that. Those kinds of things do need to be in there.

[Ms Buck]

Q I want to ask your views on the amendment to ground 14 on antisocial behaviour. What safeguards do you think would need to be incorporated to ensure that, for example, that does not lead to vulnerable people—people with mental health problems, or those experiencing domestic violence and so forth—being at risk?

Liz Davies: The change from “likely” to “capable” is a worry. Ground 14 remains discretionary; I made the point about the wisdom of the courts, and one would hope that, where it is a case of domestic abuse, or a case of mental health, and so forth, the courts would have the wisdom to see that that person was not at fault. However, I do not see any need to reduce the threshold. If antisocial behaviour is such that a private landlord needs to get their tenant out because of the effect that that behaviour is having—usually on the neighbours but sometimes on the landlord themselves—then it is going to cross the threshold of “likely to cause”. I do not see the point in lowering it.

[Jacob Young]

Q Thanks for that, Liz. We heard evidence this morning to suggest the contrary, as some build-to-let landlords were having to evict six or seven properties because of one that was causing antisocial behaviour. I guess that the whole thread through this Bill is about creating a system that is fair and balanced. Do you think that it is fair that a landlord would have to put up with a tenant creating antisocial behaviour and would potentially have to move other tenants on because they could not get that tenant out through the court process?

Liz Davies: No, clearly that is not fair, but the current ground 14 allows for a possession order when the tenant or somebody residing in or visiting the tenant’s property

“has been guilty of conduct causing or likely to cause a nuisance or annoyance”

to other people residing, living nearby or next door, visiting, and so on. So, that test is there. There is an antisocial behaviour ground for possession. It is discretionary, but the Bill will continue it as a discretionary ground; it simply lowers the threshold by a small amount from “likely to cause a nuisance” to “capable of causing a nuisance”. I really cannot see the circumstances in which a very difficult tenant who has been causing the sort of antisocial behaviour that you have just talked about will not meet the threshold of “likely to cause” but will meet the threshold of “capable of causing”. It is a very narrow distinction.

The point is that antisocial behaviour grounds are there—they really are—and courts use them. At the moment, they are used only by social landlords because of section 21, but we can all tell you that courts are very heavy on antisocial behaviour, and it is impossible for a tenant to remain in possession unless the court is satisfied that that behaviour has stopped and will continue to stop. Courts do not allow tenants to remain in possession under the current test.

--- Later in debate ---

[Jacob Young]

Q To explore that final point you made about not charging rent having issued a notice to vacate, when someone has gone through that process, for a landlord that would mean two months of not getting rent from the property plus three months when the property could not be let again through one of the section 8 grounds. In the event that the landlord was intending to sell the property, but was unable to sell it and had to go back to market to re-let it, they will have gone five months without rent. Do you think that is fair? I appreciate that we would both agree that we want to stop bad landlords, but for a good landlord who wanted to sell their property but was unable to, is that fair, to be in the situation where they have five months’ rent withheld?

Ben Leonard: I think it is fair to place a reasonable barrier to the abuse of those grounds. These things are always a balancing act. Would it be fair for someone to have to continue paying rent while having to uproot their life and sort things out? They are not really getting what they are paying for in those two months, because those two months are spent preparing to leave, moving their children’s schools or saving for a deposit. They need to pay for all those sorts of things.

For the landlord, it comes down to the cost of doing business. Landlords make a hell of a lot of money on those properties, and I think it is reasonable that sometimes there are times when the amount of money they are getting in will dip because of such things. If it is a choice between landlords’ profits coming down for a series of months and tenants potentially being impoverished, I would choose the former.

[Ms Buck]

Q I want to ask you about the decision not to proceed with the proposal in the “A fairer private rented sector” White Paper on limiting the amount of rent that the landlord can ask for in advance. Is that an experience you found with the people you work with? You talked about frequent moves being very inconvenient, as well as extremely expensive.

Ben Leonard: Yes, absolutely. The limit on deposits was a huge step forward, but they are going by the back door, so not much has changed, because people ask for rent in advance. I can speak from my own experience: I had to pay six months’ rent in advance before moving to my current flat. A lot of the people I know and work with do, and often they are borrowing money to do it, because not a lot of people have that kind of money lying around. In a way, it is often discrimination—it is a way of saying, “Well, you might be able to afford the rent, but we don’t like the look of you. Let’s see if you can stump up this much cash up front.” It is totally unjust, basically. If you are earning enough income to pay the rent, the property should be available to you. That is the bottom line; extra barriers should not be put in the way, such as rent up front.

Bidding wars are a big thing as well. Something should be done about landlords pitting tenants against each other to drive up rents. If a landlord wants more rent for a property than it is on the market for, they should have listed it as that in the first place, because again tenants end up chasing properties for months at a time, because everything they think they can afford suddenly goes up £300 or £400 a month by the time they can actually let something. It is an absolute nightmare. Imagine you have been evicted, then you are put in a situation of rent in advance and all that. It just doesn’t work. It is a broken system.

[The Chair]

Very quickly, Minister.

--- Later in debate ---

[Nickie Aiken]

Q Do you think that that will change under this?

Samantha Stewart: Not without a significant increase in safeguards around the new grounds for possession.

Linda Cobb: In the 2021 Chartered Institute of Environmental Health report, 56% of local authorities reported vacancies in their teams, so that phone call is going to go unanswered, and that email is going to go right to the bottom of the pile, even if they did complain. Then people will say, “My auntie complained to the council and nobody got back to her”—that sort of mentality—and they will not feel that they will be listened to. The report also said that 87% were relying on agency staff to fill that gap, and they are obviously expensive, so you can have only one of them as opposed to two full-time equivalents.

We are looking to stem that bleed with local authorities, and we are looking at ways to increase the training in the industry. We are losing very good local authority environmental health officers, because they are either retiring or leaving the sector because they are tired of it. We want more of the one-year private rented sector enforcement training courses, so we are working with our local university and training providers to get those up and running. We also want an apprenticeship-levied housing practitioner training course, which would help with these multidisciplinary teams. The team could then deal with all aspects—as well as physically going out, it could offer information about what the tenant can do themselves.

Samantha Stewart: I will just finish by saying that we also fund seven organisations across the UK that are working with tenants, particularly in the more vulnerable part of the sector, to help them strengthen and increase their voice. One of the reasons we are doing that—helping them to enact and effect these changes themselves, speak up for themselves and know their rights—across the UK with very different types of organisation is so that we can learn what works best and then use that evidence to inform policy.

[Ms Buck]

Q Can we go back to the issue of illegal evictions? Roz, you said that there is a lack of data in that area, which is absolutely right. Your organisation, probably more than almost any other, has a wealth of anecdotal information about what is happening. What can you tell us about the trends and characteristics? Is there any sense that some people pursue that route because of the problems in the court system? We have had quite a lot of discussion—other witnesses may have a view on this—about the proposed delay because of the problems in the court system, and some witnesses were very clear that there are no justifications for delay. What does your experience tell us about that, and what have you picked up about the reasons for such evictions?

Roz Spencer: Thank you for asking. You heard it here first: the safer renting count, which was first established in 19—sorry, 2021; I am showing my age—established a methodology that looked at five different sources of data that could be collected on an established, reliable basis, and did not involve any significant overlap between the data points, and we have just updated those figures from 2021 to 2022. The trend between those two years is an 18% increase in reported offending under the Protection from Eviction Act 1977—so, those are illegal evictions and cases of extreme harassment likely to give rise to the loss of a home. That 18% uptick is of significant concern. I have no evidence to suggest that the performance in courts has had any bearing on that, and I would be surprised if it had.

There is another figure that is interesting—I think it is buried in the Government’s H-CLIC data. All local authorities report on trends in Protection from Eviction Act offences leading to homelessness. That is a very big, stable and reliable time series for the data. Interestingly, during the pandemic, when there was a ban on section 21 and a subsequent inability to use bailiffs to enforce lawful evictions, there was a substantial drop in lawful evictions between 2020 and 2021. There was no such drop in the number of unlawful evictions. In fact, those numbers held up, sadly, at more or less the same level. As a proportion of evictions leading to homelessness, the figure came close to doubling.

The interesting suggestion buried in that statistic is that it is so important, when you are quite rightly considering replacing section 21 with new grounds for possession, that you avoid the unintended consequences of those changes in access to lawful eviction increasing the number of landlords who feel that they can get away with just doing it anyway.

I have another statistic to offer you. If you look at our count of what we think is a very conservative estimate of the number of unlawful evictions and the Ministry of Justice statistics for the number of convictions in a year, the figures show that in more than 99 out of 100 offences, the person who commits the offence, the landlord who undertakes the unlawful eviction, walks away scot-free, so it is little surprise that people do not regard the enforcement of the law as adequate.

Your clause 58 in the Bill is so important because it corrects one of the major defects in what is a 46-year-old piece of legislation, the Protection from Eviction Act, which does not do what it says on the tin. It has not been preventing evictions because nobody has a duty to enforce it. That is a very long answer to your question, but there is a lot of support for what I am saying in those data.

[Jacob Young]

Q We have spoken a lot about data and the portal in this session. How do you think we can use that data to judge the effectiveness of the reforms? Going back to our discussion about lessons learnt, in 10 years’ time we will need look back on this and are, “Where were the improvements that we could have made differently?” How do you think we can use the data to help to shape that thinking?

Roz Spencer: Our count report is in the House of Commons Library. It argues strongly that the Government need to start counting the data. I would not have thought it would be problematic for the Government to introduce their own mechanism for counting, and we talk about the methodology at some length in the report. I would advocate that you start showing, as Government, not only that the law and enforcement matter, but that you understand that the impact assessment needs to be based on data that you simply do not have at the moment.

Samantha Stewart: I am not saying that we are going to fund this, but we should all think about something similar to what we are doing with funding in Scotland. If you want to really understand how impactful the legislation is, we should start tracking it pretty soon, using the data and everything else at our fingertips.