An update on possession claims part 2: publication of the overall arrangements and guidance

September 18, 2020

Further to our update on possession claims earlier this week, as of yesterday there is now a wealth of guidance online ahead of possession claims resuming in the courts from Monday (21 September).

Overall arrangements

First, as noted in the previous update, the Master of the Rolls’ working group had finalised its overall arrangements for possession proceedings in England and Wales. On 15 September, the overall arrangements document sent out was confirmed as the final version and ready for wider distribution.

However, yesterday,  the overall arrangements were published on the judiciary’s website and they are different. A guidance note for civil judges is also now available.

Specifically, there is no longer mention of a pilot mediation (facilitated negotiation) scheme to be funded by the Ministry of Housing and the Ministry of Justice. This is confusing especially as it was such a late addition to the overall arrangements and, on Twitter yesterday Giles Peaker (tweeting as Nearly Legal) confirmed it was Tuesday’s version of the overall arrangements that had been sent to the courts.

Confusing it may be, but not a complete surprise given that during the final discussions on the overall arrangements, the idea seemed very much in its infancy.

What does this mean for housing lawyers?

I suspect there will be more to come on a mediation pilot. And practitioners should keep an eye out for its reintroduction to the landscape of possession claims.

Practitioners should also bear in mind that mediation more generally could work in certain types of social housing cases and should be considered in the course of litigation where appropriate.

Ministry of Housing, Communities & Local Government guidance for landlords and tenants

Yesterday Understanding the possession action process guidance was published by the MHCLG. There are 4 documents for England and Wales:

The guide for private landlords includes an annex with details as to the minimum notice periods for section 8, Housing Act 1988 notices as amended by the Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations. The guidance should be read in full but it includes:

  • explanations of the possession claim process (for claims before and after 3 August as well as claims at warrant stage) and what is required of private landlords;
  • details of alternative actions that can be taken short of possession;
  • details of mediation services and other places where advice and assistance can be located; and,
  • warnings as to local lockdowns and the consequences of such measures.

The guide for social landlords includes a similar annex giving details as to the minimum notice periods in England and guidance as to the possession claims process.

The guides for tenants also provide details of the court process and what to do if a tenant has been served with a notice. Tenants are pointed towards advice agencies.

There are sections on what to do if a tenant is worried about rent arrears and the guides highlight the ability to defend claims based on invalid notices, discrimination or disability and, for tenants of social landlords, public law or the public-sector equality duty under section 149, Equality Act 2010.

For private tenants there is also information on tenancy deposits and other issues which will impact on whether a valid section 21, Housing Act 1988 notice has been served.

Other guidance

The National Residential Landlords Association has now published its Pre-Action Plan: Managing arrears and avoiding possession claims containing 9 “golden rules” and steps to be taken before a notice is issued by a private landlord.

Court service documentation

 Finally, HMCTS has published various other documents with its reactivation notices that came out on Tuesday.

Plenty of reading ahead of Monday!

If you would like any advice on these issues or any related matters, our housing barristers can help, please contact our clerks for details.