End of possession stay - new working group guidance

Two final pieces of the possession jigsaw have been published on 15 September 2020. Mr Justice Knowles’ working group on possession proceedings has issued its guidance on the “overall arrangements” for possession proceedings. The Government also published a template reactivation notice to use in cases which have been stayed before 3 August 2020.

As outlined in our previous e-briefings and our two possession podcasts (links below), we have been waiting for this key guidance from the possession working group. Published just a few days before the possession stay expires on 20 September 2020, the working group has consulted with representatives for landlords and tenants, the Court service, the Judiciary, the advice sector and the Legal Aid Agency, amongst others.

Headlines

• There will be greater access to legally aided advice and duty solicitors for tenants – this will clearly be helpful and improve access to justice.
• A pilot mediation scheme is introduced using mediators who are duty scheme advisors who have done a short mediation on-line course. We suspect it will be mostly helpful in rent arrears cases.
• The list of priority cases is helpful and important. Landlords need to refer to any priority clearly in their reactivation notices.
• Get used to the new terminology of Review hearings and Substantive hearings, (“R” and “S” hearings).
• Expect all possession cases to take longer to be heard.
• Ensure you can evidence your attempts to obtain information about how the pandemic has affected a tenant. If a tenant has not engaged, you need to say so. If you have made no attempts to contact them to find out, however, then an adjournment is going to be highly likely.

The details…

Compromise?
The premise is that an existing stayed case, or a new possession case, should not be revived or started “without careful efforts to reach compromise”. Ensure you can demonstrate what efforts you have made. That may of course be more likely in a case involving rent arrears or condition of property, rather than in a case involving fraud or serious ASB or unlawful occupation etc.

New reactivation notice template
In stayed cases which were brought before 3 August 2020 remember that in order to get them moving again, a reactivation notice is required. A template reactivation notice has now been published and can be found here.

Although we and many landlords may have already designed their own template reactivation notice, we suggest that you now use the Government template to avoid any queries about content, as judges will get used to looking at the same format. It is not however a prescribed form.

Court changes
Information is given about how the courts will be operating and staffing possession hearings and reference is made to special preparation and training being provided to all judges.

There will be a new facility for Covid-19 case marking where the court file will be marked to highlight a case that is claimed to be a direct consequence of Covid-19. A Defendant or a private claimant, (so not a social landlord organisation), is entitled to request a case be Covid-19 marked by providing information such as the particular hardship the party has faced, whether they have been furloughed etc.

Listing of cases
The court will not fix a date when it issues the claim form, whether issuing on paper or by PCOL. There will be no more possession block lists. The earliest possession date will be 21 days after a claim is reactivated.

There is now a two-stage process. Stayed and new cases will proceed with a review hearing, called an R hearing, and then where necessary a substantive hearing called an S hearing.

• Unless case management directions have been agreed, the case will be first listed for a review R hearing.
• 14 days before the date listed as the review R date, the claimant landlord will be required to:
  • provide an electronic bundle to the court and to the defendant, or a paper bundle if the defendant cannot receive an electronic one;
  • confirm that all required material is in the bundle; and
  • confirm that the claimant will be available during the review R date to discuss the case by telephone with the defendant or any duty scheme advisor for the defendant.
• The R date is not, therefore, a hearing when your officers attend court, but they have to be available during that time.
• The guidance describes the review R date at paragraph 50 as “an important new opportunity for the defendant to obtain free of charge duty scheme advice and for the parties to reach agreement…”.
• The new negotiation/mediation pilot is accessed at the R hearing. See below for more detail.
• The R date hearings will be at the end of each court sitting day, listed between 15:10 and 16:00 hours according to the typical listing timetable provided on page 14 of the guidance.
• Paragraph 53 makes clear that “to ensure that compromise is not deterred, local authorities will be expected to take the approach, guided by the Ministry of Housing, that signing a consent order or agreeing an order for possession, in itself, does not mean a tenant or borrower should be found intentionally homeless”.
• If the case is not resolved by agreement at the R date (for example, adjournment on terms or an SPO) then the judge will consider the bundle provided and the court file and list for a substantive S hearing 28 days later.
• Do note the warning that if the claimant’s documents are not in order, the court can be expected to dismiss the claim (albeit with liberty to apply for reconsideration at an oral hearing) or may give directions. Make sure then you know how to create pdf bundles!

The mediation pilot
The mediation proposed pilot is covered at paragraphs 55-60 and applies where:

• a defendant takes advice on the R date from the duty scheme advisor;
• the duty scheme advisor’s opinion is that the case has a reasonable chance of being compromised but the case is too challenging for the case to be resolved by negotiation at the review R date itself; and
• both the landlord and the defendant agree to participate in mediation within the next 7 days after the R date.

The duty scheme advisor can then refer cases to the new mediation pilot which is funded jointly by the Ministry of Housing and the Ministry of Justice.

The pilot is volume limited and only a set limit of cases can be referred from each review date listing, so if there are too many cases which are appropriate for mediation listed for review on the same day, then the quota could have been “used up” before it gets to your case.

Priority will be given to cases that are Covid-19 case marked, or otherwise appear to be a “direct consequence of the pandemic”. The independent professional mediator is, in fact, going to be a duty scheme advisor (not providing the particular duty scheme contract for that court) who will have undergone a “short bespoke online training course in mediation principles and technique”.

This does not therefore open up the opportunity to use existing qualified mediators. All the mediators will therefore be duty scheme advisors who are drawn from legal aid housing firms or advice agencies who generally advise tenants.

In rent arrears cases, duty scheme advisors are very helpful at helping tenants e.g. to access benefits advice etc and so we expect mediation could be helpful. Note of course that both parties have to agree to enter mediation, so in for example an ASB case, that may be considered by the landlord to be inappropriate due to the conduct of the defendant.

The substantive or S hearing date
The S hearing requires all parties to attend for a 15-minute hearing and the court will then either decide the case or give directions. Paragraph 64 warns that the question of adjournment will be considered without the need for any application to adjourn in any case, where there is no sign that advice has yet been made available to the defendant and the consequences of the order may be “serious in the context of the pandemic”.

There is a list of approaching milestones given at the end at page 13. An illustrative timetable for a claim is also found at page 14. As the requirement to list a hearing within 8 weeks of issue has now gone, generally, we expect a first hearing to be listed within about 3 months of issue. Note that priority cases will be listed first.

Priority Cases
This is the part of the guidance we have been waiting for as it is not covered in any of the existing changes to the Court Rules. The following cases will be listed with priority:

1. Anti-social behaviour cases, including the mandatory ASB ground
2. Cases with extreme alleged rent arrears i.e. rent arrears equal to at least 12 months rent for a social landlord, (or for a private landlord, 9 months rent where that amounts to more than 25% of a private landlord’s total annual income from any source)
3. Cases involving alleged squatters, illegal occupiers or persons unknown
4. Allegations of domestic violence where possession is alleged to be important for particular reasons set out in the claim form and with domestic violence agencies alerted
5. Fraud or deception cases
6. Unlawful subletting
7. Abandonment; non-occupation or death of the defendant
8. Cases concerning what was allocated by an authority as temporary accommodation and is specifically needed by the authority for reallocation as temporary accommodation

It notes that “other circumstances may warrant priority”. If therefore your case is urgent but does not fall within the above, make the case that it still warrants priority and falls within “other circumstances”.

Subject to the above list, priority will otherwise be given to claims issued before the stay commenced in March 2020 which have been stayed.

Paragraph 45 makes clear that the court will take into account, not only the impact on the claimant and defendant in the individual case but also the effect of prioritising a case on other cases.

Accelerated possession cases for assured shorthold tenancies
Accelerated possession claims issued before 3 August 2020 also require a reactivation notice. These will generally still be heard on paper only, although they can be listed for a review R date where the parties agree or there is no objection. See paragraphs 66-68.

Incidentally, after a few weeks with no N5B claim form available online for England, this has now been updated and can be found here. The defence form N11B sent to tenants has also been updated here. 

For more information

If you need to catch up do see our previous e-briefings on all of the possession changes about notices and reactivation notices at:

Eviction ban to end; weekend courts to catch up - 3 July 2020  
Reactivation of possession claims post stay - 22 July 2020 
Reactivation notices for possession claims that have been stayed - 3 August 2020  
Further stay of possession proceedings until 20 September 2020 - 21 August 2020
Possession notices - all change once more! - 2 September 2020

And our two podcasts at:

Possession Proceedings - 20 July 2020
Possession Update - 3 September 2020

Contact Helen Tucker or any other member of the housing litigation team for more information.