When the lockdown ends what will happen to tenants? Almost nine million households, more than a third of all families in Britain, rent from a private landlord, a council or a housing association.
Because of coronavirus, many are now in financial need. Nearly two million claims for universal credit have been made since lockdown measures were announced in the UK. Welfare claimants are entitled to payments equivalent to housing benefit. But, as a result of changes made to benefits over the last decade (like the bedroom tax and restrictions to local housing allowance), it is increasingly rare for housing benefit to pay all of a tenant’s rent.
Others, although ineligible for universal credit, are also in difficulty: because they have received a redundancy cheque that will soon be spent, or their self-employed grant hasn’t arrived yet. Then there are furloughed workers, paid now, but waiting for news of redundancies from their employer.
Right now, all possession hearings – the main step in evicting a tenant – are “stayed”. This is the legal equivalent of putting food in a freezer. The cases are still there, ready to be thawed out at any moment.
Where a tenant is behind with their rent, landlords can issue them with a notice instructing them to leave, but (for the moment) the tenant can ignore it. On 25 June the housing courts will reopen for business. Judges will have to determine thousands of stayed pre-coronavirus cases, and the even greater number of new claims for possession arising from the lockdown.
Ministers have grasped that hundreds of thousands of homes are at risk. Earlier this week the housing minister, Robert Jenrick, announced that the government was working closely with judges to draft a “pre-action protocol” for when the stay is lifted.
He told MPs that the protocol will “enable tenants to have an added degree of protection, because instead of embarking upon the eviction proceedings immediately, there will be a duty upon their landlords to reach out to them, discuss their situation, and try to find an affordable repayment plan”.
The problem with the protocol is that it is toothless – essentially depending on the benevolence of landlords.
The two most common ways landlords seek possession are under “section 21” and “ground 8”. Section 21 provides that where a landlord has complied with certain procedural requirements (like issuing a notice using the correct form and waiting for a prescribed time before applying to court) the court must order possession.
The statute does not require a landlord to have complied with the government’s proposed pre-action protocol. For that reason, even where landlords have rushed to issue proceedings, and have ignored requests from tenants to defer payments for a short time, judges will be required to approve evictions.
Ground 8 provides that where a tenant is in rent arrears (eight weeks if the rent is due weekly), both when the landlord serves a notice on them and when the hearing takes place, the court must order possession.
Again, the court takes no account of the landlord’s conduct; it focuses simply on the amount of the tenant’s arrears. In these circumstances, if the new protocol is as the minister describes it, it will not protect tenants at all.
There are alternatives. In last year’s general election, the Conservatives committed to abolish section 21 as part of their “better deal for renters”. The government reaffirmed that commitment in the Queen’s speech, announcing a renters’ reform bill to include the abolition of section 21. They should be held to that promise. As for ground 8, it too needs to be abolished. Or, if that is impossible, rescinded for such time until tenants have had a chance to reduce their debts once they’re able to go back to work.
Abolishing or rescinding ground 8 would not prevent landlords relying on other grounds of possession. But, without it in place, judges will be free to order possession only if reasonable – thereby giving effect to the tenant defences the government says that it wants in place. One further advantage of abolishing ground 8 is that courts can turn to other possession proceedings in which possession orders are made but suspended, while tenants are given the chance to repay arrears to a realistic plan.
Muddling on without the abolition of section 21 and ground 8 will lead to millions of people forced out of their homes. It will send those evicted scattering – some to stay with elderly relatives, some into local authority housing (although it is at breaking point) and many into homelessness.
The government accepts that street homelessness speeds the transmission of coronavirus: this is the grim calculation that underpins the government’s granting of resources to councils to house rough sleepers. Drifting into a future where huge numbers of people lose their homes needlessly would be just as dangerous – for those who are evicted, and for everyone else.
• David Renton is a housing barrister at Garden Court Chambers