In August, the government conceded that the eviction ban would need to be extended until September 20th. This story was well-reported in the news, and can be counted as a victory for those who demanded an extension of the stay: including Acorn, the London Renters’ Union, Shelter, Crisis, and the Labour Party. 

What has not been reported to anything like the same extent are the government’s long-term plans for addressing the problem that the economy has shrunk, hundreds of thousands of people have lost their jobs, and are now behind with their rent. 

Between May, when the story first made it into the news, and the end of August, a consensus emerged – between lawyers, campaigners and the opposition – about what needed to be done. We all agreed that it should be harder for landlords to evict tenants in rent arrears.

The Protection from Eviction Act 1977 has the effect that when almost every landlord seeks to evict a tenant they must take them to court and obtain a possession order. Evicting someone without having a court order is a criminal offence.

When a private landlord has decided to evict a tenant, they usually do so by serving a section 21 notice and then issuing court proceedings. This is a “mandatory” route to eviction. A judge cannot refuse possession, for example, on the grounds that the eviction is a strategy to solve rent arrears, and those arrears have come about because the tenant was made redundant, i.e. through no fault of their own. 

When a housing association wants to evict a tenant for rent arrears, they usually rely on ground 8 in possession proceedings, i.e. a procedure which can be used when the tenant is in 8 weeks rent arrears. This is, again, a “mandatory” route to eviction. 

Almost everyone agreed that the problem would be addressed if only section 21 and ground 8 proceedings were changed from mandatory to “discretionary”: so that a court could grant possession only where reasonable. 

This would not have solved the underlying problem that tenants were behind with their rent or the question of who should take on the burden of that debt. But it would have achieved a real good, which would have endured beyond Covid.

Even before March 2020, there were many different ways in which the benefits system has been leaving vulnerable people without enough money to pay their rent (the bedroom tax, the benefits cap, local housing allowance, etc). Reform would have protected these tenants as well as those impoverished by the coronavirus.

In emphasising section 21 and ground 8, housing lawyers thought we were pushing at an open door: after all, it was already government policy to abolish section 21. It was in the Conservative manifesto, and a bill promised in the Queen’s Speech.

In addition, if we had won under section 21 and ground 8, that could have opened the door to rent write-offs or other solutions, for example by increasing the funds held by local authorities to make Discretionary Housing Payments to those in need.

The government has ignored all those demands. Instead, it proposes to solve the problems by dividing tenants into two groups. In the “good” camp are those who are being evicted for ordinary rent arrears, most of whom are now going to be protected by extending the period a landlord has to wait between serving a notice seeking possession and issuing court proceedings to a minimum of six months.

In the “bad” camp are those who are being threatened with eviction for very high arrears (more than 26 weeks) or for anti-social behaviour (ASB). In those cases, the period a landlord has to wait between serving a notice seeking possession and issuing court proceedings to is being capped at a minimum of just 4 weeks.

UK housing law has long passed that threshold of complexity where any ordinary tenant or landlord can keep up with the law. The new changes will make that even worse.

Suppose you are a tenant and you have been given a section 21 notice. On October 1st, you receive a defence form from the court telling you that your landlord has issued court proceedings and asking you to respond.

In that document you can say whether the notice was lawful, i.e. after the landlord sent you the notice did they allow you the time required before issuing proceedings, or did the landlord delay too long after sending you the notice before issuing proceedings (a section 21 notice only has a limited life, before it expires)? They aren’t the only possible defences, but if either applies the claim must fail. 

The correct answer to each of these questions will be different if the notice was sent (i) before Covid, (ii) during the main period of the eviction ban (i.e. between March 25th this year and August 29th), (iii) right at the end of the notice (on August 27th or 28th), or (iv) clearly after the August 29th deadline has passed.

Lawyers, including judges, are going to find these rules unbearably complex. But we will also be relying on tenants to point us towards possible defences.

The government is acting as if there could never be a justification for a tenant falling six months behind with their rent. But the arrears cases I’ve had in the last year include:

• A council tenant whose housing officer accidentally “switched off” her rent account for two years without telling her, terminating her housing benefit claim, then switched the account back on without warning her.
• A landlord who had been ordered to pay a tenant compensation for disrepair but forgot to credit the rent account.
• A single mother living in homeless accommodation, where the rent was far higher than the maximum allowed under the benefits cap.

In each case, the arrears were largely the landlord’s fault.

The government assumes every time a family is accused of ASB, the allegations are true, and the family must be evicted with the maximum speed. But many, perhaps most, anti-social behaviour defendants suffer from chronic illness, often psychiatric illness. The idea of forcing vulnerable people to attend busy, crowded, courts in the autumn – with the pandemic unresolved – is grotesque.

This point that, under Covid, simply going to court can cause illness has been part of the case for extending the stay. The government has ignored it. 

Everything that lawyers are hearing from the courts, however, suggests that the judges have taken it more seriously. The next step seems to be that hearings will take place predominantly in person rather than by phone or online. (The judges grasped that many rent cases involve vulnerable tenants with limited access to computers and wifi; if tenants were forced online, many wouldn’t attend or be represented). 

Meanwhile, the number of hearings per judge per morning will be scaled down from 30-50 in a typical pre-Covid possession list, to a quarter of that number. 

That decision needs to be placed alongside the closure of court buildings which has taken place over the past 10 years. There aren’t the judges available, and there isn’t enough time in a court day, to sign off the wave of evictions which many of us feared would take place as soon as the courts reopened.

Neither the reduction of possession lists, nor the extension of notice periods to six months, will prevent the crisis of human misery which is heading towards the courts, nor will they give judges any new powers to deal justly with difficulty cases. But they will at least mean that the crisis is heading towards us much more slowly. 

How, then, should we expect landlords to react? One experience we will see repeatedly in the months to come is a spasm of fury on a landlord’s part when they grasp that an eviction, which they thought would only take a month or two from beginning to end, will require a year to work through every stage (from initial notice seeking possession, to court hearing, and then a bailiff’s date).

If I was a member of a tenants’ union, right now I would be preparing for what will inevitably be an increase in the number of landlords seeking to evict unlawfully, ignoring court proceedings and simply changing locks without an order. 

The press is already reporting an increase in illegal evictions. Housing lawyers have always had to deal with these cases, but there are going to be more of them.

The options available to the tenants’ union will include distributing materials informing tenants of their rights, assisting those affected in applying to courts for urgent injunctions to have tenants returned to their homes, and naming the worst of the repeat offenders.

The best that could be said about the government’s plans is that they defer the crisis; they have done nothing to address its causes or its bitterness.