Lockdown has laid bare the vulnerabilities of our under-resourced legal ecosystem. Housing law is among the most exposed areas
The low down
The predicament of tenants shines a light on many of society’s wider problems – from dysfunction in the benefit system to antisocial behaviour, joblessness and income inequality. Loaded on to an undersupply of housing and the withdrawal of funded legal advice has been the burden of coronavirus. Some vulnerable clients have been pushed into online hearings without even minimal legal support. A widely applied stay on evictions is a sticking plaster over a gaping wound, while having the side-effect of starving law centres and solicitors of work. Shouldn’t housing be a basic human right, with all that this entails for the law?
‘Covid-19,’ observes Sue James, director and solicitor at Hammersmith and Fulham Law Centre, ‘has highlighted the structural inequality in our society. Social care has all but disappeared, we have insecure employment contracts, a welfare benefit system that creates extreme poverty and a housing market that is unaffordable for most.’
Simon Mullings, co-chair of the Housing Law Practitioners Association (HLPA) and a senior case worker at Edwards Duthie Shamash, likens Covid-19 to ‘a receding tide that is revealing a whole range of issues’ – from social and racial inequalities, to ‘the austerity of justice’ in part ushered in by the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO).
LASPO left just a few areas of housing law in scope for legal aid, including homelessness, harassment, and defence of possession proceedings, but only at the point where loss of the home is imminent and the landlord is seeking an order for possession. There is no legal aid for ‘early advice’ on rent and mortgage arrears that may ultimately result in possession proceedings.
An increasingly crisis-driven approach to legal aid over the past decade is leading people to fall through the net
John Gallagher, Shelter
Under government regulations introduced in March 2015, solicitors and barristers bringing judicial review challenges of decisions made by local authorities (for example, to refuse a homeless application and to provide interim accommodation) only receive legal aid payments if the court grants permission to proceed with the case.
Many housing legal aid providers have thrown in the towel, creating ‘advice deserts’. Research published by the Law Society last year showed that over half of the population of England and Wales lived in a local authority that has one or no housing legal aid provider.
John Gallagher, principal solicitor at Shelter, says: ‘One of the major problems in housing cases is the lack of early legal advice and assistance, which would enable tenants to address the underlying issues that give rise to possession cases, especially welfare benefits and debt issues.’ Instead, he says, ‘an increasingly crisis-driven approach to legal aid over the past decade is leading people to fall through the net’.
Adding to this dire picture is ‘an underfunded, less accessible justice system, in retreat from the local and physical landscape,’ observes Nimrod Ben-Cnaan, head of policy and profile at the Law Centres Network.
And then there is Covid-19 – which has at least offered some respite. Under the Coronavirus Act 2020, which came into effect on 25 March, landlords must now give at least three months’ notice before they can start proceedings to evict tenants (an emergency measure in place until 30 September). Furthermore, a new practice direction (51Z) issued on 27 March suspended all possession proceedings brought under part 55 of the Civil Procedure Rules initially for 90 days until 25 June to protect private and social renters, and those with mortgages and licences covered by the Protection from Eviction Act 1977. This includes appeals, the Court of Appeal said in May.
These measures have been welcomed by housing lawyers representing tenants. Duncan Lewis director Bernadette Chikwe says: ‘Clients do get more time, if, for example, they lost their jobs or were furloughed, to get their financial circumstances in order.’
HLPA had lobbied for an extension of three months ‘so that mitigation measures can be put in place, to allow the courts to develop a strategy for face-to-face representation and enable representation at the county court by the duty solicitor scheme’, according to its 27 April submissions to the master of the rolls.
Put simply, many courts are not currently in a position to provide safe face-to-face hearings. And due to court closures the estate is even less able to adapt than it would have been in the past. As Mullings explains, ‘possession hearings have become denser and denser in the way in which they are listed, and that of course means, in a Covid-19 situation, that they are more and more dangerous because of physical contact and proximity to people’.
Adding to the perceived risk is the high incidence of defendants from BAME and poor backgrounds in eviction proceedings often arising from rent arrears. Mortality has been markedly worse among many BAME groups.
Another unintended consequence is the financial impact of postponing hearings on those who advise tenants. As Ben-Cnaan relates: ‘Our initial reaction was joy and relief as this was the right thing to do for tenants… [but] it does of course mean that law centres are losing out on vital income that they now cannot earn as duty solicitors, as well as new clients with more complex cases that they would have normally picked up at court.’
Moreover, as Gallagher points out, the stay on possession proceedings has ‘only postponed the reckoning which many tenants who have fallen behind with their rent because of the crisis will face when the stay ends’.
Landlords in the private rental market and registered social landlords have been affected by the suspension of many evictions. Both groups are concerned about their ability to respond to anti-social behaviour by tenants by threatening or carrying out evictions.
David Smith, a partner at JMW Solicitors in London, represents landlords in the private rented sector. ‘If you have got people carrying out anti-social behaviour, why should they be entitled to three months’ notice?’ he asks, citing cases of ‘serious’ anti-social behaviour made worse by lockdown.
While many clients have tenants who ‘genuinely can’t pay’, others are ‘just bluntly refusing to pay’, Smith relates.
Matthew Wilson, principal associate at Weightmans, acts for social landlords. He too reports ‘increased levels of anti-social behaviour’. In addition, he notes, because proceedings to recover abandoned properties or properties where vacant possession has not been returned cannot be progressed, ‘this has prevented properties being re-let in a time of greater social need.
‘For an association with tens of thousands of properties, it will result in a substantial amount of debt,’ adds Wilson. ‘This could have a profound effect upon social landlords.’
For lawyers representing landlords, there is no appetite for a move to remote hearings in housing cases – a point of agreement with those who represent tenants.
Reflecting a broad consensus in the sector, Smith says that remote hearings are not suitable or practical for rent and mortgage possession proceedings. ‘The problem with remote hearings is how are you then going to provide the duty solicitor advice to people who just walk in?’ asks Smith. He says that while ‘the vast majority’ of defendants who are in rent or mortgage arrears do not attend court, those who do rely on the help of a duty solicitor on the day of the court hearing.
Not all tenants, Gallagher stresses, are protected anyway. The courts are ‘powerless’ to protect tenants from mandatory possession orders when landlords use ‘section 21’ no-fault procedure or bring proceedings on ‘ground 8’ if the landlord can prove more than eight weeks’ arrears. As James notes, with a typical five-week wait for a first universal credit payment, ‘it doesn’t take very long to reach the threshold’. For ground 8 the landlord must give tenants two weeks’ notice, compared with two months for section 21.
Master of the rolls Sir Terence Etherton has convened a judiciary-led cross-sector working group to consider and address matters affecting litigants and the courts when the suspension is lifted. But Gallagher says that procedural improvements can only go so far. What is needed, he says, is ‘to give courts greater powers and guidance in dealing with possession claims’.
Shelter has recommended that the government legislate to amend the Coronavirus Act to disapply ground 8 so that the court would have discretion in rent arrears cases to make a possession order only if it is reasonable to do so; and to amend section 21 to give the court power to refuse possession where it would be unjust to grant an order for reasons related to coronavirus. The government is also working closely with the lord chief justice on a ‘pre-action protocol’ for the private rented sector for when the ban is lifted, mirroring the protocol in the social housing sector.
‘The government claims that extending the pre-action protocol to private tenancies will enable tenants to reach an agreement with their landlord,’ Gallagher comments, ‘but in fact the protocol provides no protection against mandatory possession grounds.’
The Law Centres and HLPA are broadly supportive. Ben-Cnaan points out that the government has already committed to repealing section 21. Moreover, The Rented Homes Bill, introduced in the Queen’s speech on 19 December 2019, would abolish the use of no-fault evictions, but also extend the grounds for possession by residential landlords.
James urges: ‘We need to consider the drivers that push possession cases to the court… If legal aid was available for benefit problems, [for example], then we would see a reduction in the number of cases at court.’
There are 138,000 possession claims brought each year, and as Matthew Wilson, principal associate at Weightmans, observes: ‘With the backlog of cases and the potential number of new claims that will be issued it is hard to see how courts will manage. I foresee further delays in claims progressing.’
Remote hearings can have a negative impact on tenant representation. This is because ‘on-the-day’ emergency face-to-face advice is provided by the Legal Aid Agency-funded Housing Possession Court Duty Scheme. In the absence of a physical hearing, there is no duty solicitor.
James argues: ‘Failure to provide access to the duty solicitor could raise article 6 [ECHR] issues.’ She cites a report by Dr Natalie Byrom, on behalf of the Civil Justice Council, which concluded that litigants in person had most difficulty accessing the courts remotely – especially by telephone.
In Byrom’s report, which looked at the impact of the Covid-19 lockdown on the civil justice system, many respondents (mostly lawyers) emphasised the ‘inherent unsuitability’ of remote hearings for possession cases, primarily because of the ‘over-representation of vulnerable defendants’ and their inability to access the technology for remote hearings.
Lawyers representing tenants in these proceedings are ready to take a stand on the issue. ‘It is a “line-in-the sand” for us that duty advice must be available,’ says Marina Sergides, co-chair of HLPA and barrister at Garden Court Chambers. She adds that ‘if there is to be any option for the judge to make a possession order then the hearing must be face-to-face’.
Other reform proposals were put forward before the Covid-19 crisis. In November 2018, the MHCLG launched a two-month consultation to establish if a specialist housing court ‘could make it easier for all users of court and tribunal services to resolve disputes, reduce delays and secure justice in housing cases’.
The proposal has attracted support from lawyers who represent landlords, but divides opinion.
David Smith, partner at JMW Solicitors, was formerly policy director for the Residential Landlords Association (now the National Residential Landlords Association), which recommended the creation of the designated court. Smith, who acts for private rental landlords, argues that streamlining the process would be advantageous for both landlords and tenants. ‘It doesn’t,’ Smith says, ‘make a huge amount of sense for the first-tier tribunal, the magistrates’ courts, the county courts and on occasion the High Court, [to all be] courts of first instance, relating to housing standards and housing possession.’
With the backlog of cases and the potential number of new claims that will be issued, it is hard to see how courts will manage. I foresee further delays in claims progressing
Matthew Wilson, Weightmans
The Law Society is sceptical. Responding to the consultation, the Society said the case for a housing court ‘has not been properly put and further evidence is needed as to why improvements within the current system will not suffice’.
But the housing court is not the only proposal on the table.
The Housing Disputes Service (HDS) is an idea promoted by thinktank Justice in a report published in March. HDS would be ‘an entirely new and distinct model for dispute resolution’, that would ‘fuse elements of problem-solving, investigative, holistic and mediative models’.
This would be a radical change. Could HDS make it onto the statute book via the Rental Homes Bill? Certainly, it could be seen to reflect a policy aim of keeping disputes away from the courts.
The proposed HDS, though, has not been well received by the sector as a whole. Criticism has come from the Law Society, housing lawyers on both sides of the divide, and HLPA, a member of the Justice working party that drafted the proposals. In its dissenting report, HLPA called the disputes service ‘a fundamentally misconceived proposition, which is wrong in principle and unworkable in practice’ and ‘far more expensive than the existing system’.
The fear is that the proposal would disproportionately harm tenants. As Ben-Cnaan argues, landlords and tenants ‘have interactions that are transactional and highly imbalanced in nature. Taking away equalising factors like court, judges and legal assistance only heightens this imbalance. So does a focus on resolving disputes by compromise, rather than on upholding rights’.
So is there a silver lining to Covid-19 for housing lawyers and their clients? More litigation on the horizon promises a return of fee-paid work, especially for privately paid lawyers.
Legal aid lawyers have remained busy with other casework, especially homelessness. Since the lockdown local authorities have managed to find temporary accommodation for people who are either homeless or threatened with homelessness, Chikwe notes. ‘So they are capable of rehousing people,’ she says, despite past arguments that there were no available homes.
James concludes that what has happened in the past four months is an opportunity to look at structural inequality in our society: ‘Good secure housing should be a basic human right – we need to take the opportunity now to make sure that we start working towards that goal.’
Marialuisa Taddia is a freelance journalist