New Pre-Action Protocol Possession Claims By Social Landlords for Rent Arrears Only

On 6 April 2015 the new pre-action protocol for Possession Claims was introduced. It is split into three parts entitled:

1. Aims and scope of the protocol.

2. Rent arrears.

3. Mandatory Grounds for Possession.

It is not possible to set out the detail of the new protocol in this article which can only summarise some of the key points. The detail is in the protocol which is found at https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/pre-action-protocol-for-possession-claims-by-social-landlords.

Part 1 sets out the aims and scope of the protocol:

(a) To encourage contact and the exchange of information between landlords and tenants.

(b) To enable parties to avoid litigation by settling the matter if possible and;

Essentially the primary emphasis is on communication and recording that communication.

Part 2 looks in detail at Possession and Rent Arrears

The new protocol adds to the old protocol. Some of the requirements are familiar, making initial contact and the sending of statements but there are new steps added.

The landlord already assists with Housing Benefit claims but is now also required to assist in relation to discretionary housing payments and/or universal credit.
As to providing tenants information on where debt advice and money advice is available landlords must now refer tenants to the appropriate website.
Another new feature is the requirement to send a copy of the protocol to a Tenant after service of the Notice and before issuing proceedings.
Landlord is also required to inform the tenant of the date and time of any Court Hearing and providing an up to date Rent Statement and confirm the type of Order being sought.
There are also new procedural steps relating to the provision of information after the issue of proceedings and before the court hearing.
The protocol confirms that if the Tenant complies with an agreement made after the issue proceedings to pay the current rent and a reasonable amount towards the arrears the Landlord should postpone Court proceedings so long as the Tenant adheres to the agreement. So no suspended possession orders – protocol states court proceedings should be postponed so long as the tenant keeps to the agreement. Will this result in more orders to adjourn on terms?
If the tenant breaches the agreement the landlord should warn the tenant of his intention to restore the proceedings and set clear time limits to be complied with.

The third part - mandatory grounds for possession.

This is new and relates to those cases where the Court’s discretion to postpone possession is limited including:

Non secure tenancies

Unlawful occupiers;

Failed succession;

Severed Joint Tenancies.

The protocol states that in cases where an Article 8 (often known as the public law) defence might be raised, the Court wants necessary information to be placed before the Court at the First Hearing so that issues of proportionality may be dealt with summarily and so the protocol specifies clearly those steps social landlords are required to take prior to issue.

The landlord must write to the occupant explaining why possession is sought and require the occupant to notify the landlord of any personal circumstances or other matters they wish to be taken into account. Any reply must be considered and if the landlord decides to issue proceedings then the reasons for that decision must be provided to the occupants and included in the Particulars of Claim or a Witness Statement providing a summary in schedule format.

Again there is an emphasis on communication and recording information and the need to explain the decision making process.

Why is it important?

If a social landlord cannot satisfy the Court that it has followed the protocol, then the Court may:-

(a) Adjourn, (postpone), strike out or dismiss the Landlord’s claim. This can only happen if the Landlord is trying to evict on discretionary grounds.

(b) Decide the Landlord must pay Court costs and this order could be made even if the Landlord is given the Possession Order.

It is now more important than ever to ensure your policies and procedures are compliant and that equality and disability issues can be clearly assessed. Your files evidence will need to evidence this process and the decisions made and reasons for the same.

It is important to ensure decisions are robust to challenge.

We have delivered training on the new protocol and assisted clients reviewing and developing compliant working processes and would happy to offer you a health check.

Please contact Pamela Bachu on 0208 290 7365 or email pbachu@judge-priestley.co.uk if you would like to discuss how we may help you.