Pre-Action Protocol for Possession Claims by Social Landlords
|Table of contents||Paragraph|
|Aims and scope of the protocol||1|
|Possession claims based upon rent arrears||2|
|After service of statutory notices||2.8|
|Alternative dispute resolution||2.10|
|Mandatory grounds for possession||3|
1.1 This Protocol applies to residential possession claims in England and Wales brought by social landlords (such as local authorities and housing associations). This Part sets out the aims and scope of the protocol. Part 2 relates to claims which are based solely on rent arrears. Part 3 applies to claims brought by social landlords where the court must, in principle, grant possession and where s89(1) Housing Act 1980 applies. The protocol does not apply to claims in respect of long leases .
1.2 Part 2 reflects the guidance on good practice given to social landlords in the collection of rent arrears. It recognises that it is in the interests of both social landlords and tenants to ensure that rent is paid promptly and that difficulties are resolved, wherever possible, without court proceedings.
1.3 Part 3 seeks to ensure that, in cases where human rights, public law or equality law matters are or may be raised, the necessary information is before the Court at the first hearing so that issues of proportionality may be dealt with summarily, if appropriate, or that appropriate directions for trial may be given.
1.4 The aims of the protocol are:
(a) to encourage more pre-action contact and exchange of information between landlords and tenants;
(b) to enable the parties to avoid litigation by settling the matter, if possible; and
(c) to enable court time to be used more effectively if proceedings are necessary.
1.5 Courts should take into account whether this protocol has been followed when considering what orders to make. Social landlords should also comply with guidance issued from time to time by the Regulator of Social Housing, the Ministry for Housing, Communities and Local Government and, in Wales, the Welsh Ministers.
(a) If the landlord is aware that the tenant has difficulty in reading or understanding information given, the landlord should take reasonable steps to ensure that the tenant understands any information given. The landlord should be able to demonstrate that reasonable steps have been taken to ensure that the information has been appropriately communicated in ways that the tenant can understand.
(b) If the landlord is aware that the tenant is particularly vulnerable, the landlord should consider at an early stage–
i. whether or not the tenant has the mental capacity to defend possession proceedings and the extent to which CPR 21 applies;
ii. whether or not any issues arise under the Equality Act 2010; and
iii. in the case of a local authority landlord, whether or not there is a need for a community care assessment in accordance with the Care Act 2014.
2.1 If the tenant falls into arrears, the landlord should contact the tenant, as soon as reasonably possible, to discuss: the cause of the arrears; the tenant's financial circumstances; the tenant’s entitlement to benefits; and repayment of the arrears. Where contact is by letter, the landlord should write separately to each named tenant.
2.2 The landlord and tenant should try to agree affordable sums for the tenant to pay towards the arrears, based upon the tenant's income and expenditure (where such information has been supplied in response to the landlord's enquiries). The landlord should clearly set out, in pre-action correspondence, any time limits with which the tenant should comply.
2.3 The landlord should provide, on a quarterly basis, rent statements in a comprehensible format showing rent due and sums received for the past 13 weeks. The landlord should, upon request, provide the tenant with copies of rent statements in a comprehensible format, from the date when arrears first arose, showing all amounts of rent due, the dates and amounts of all payments made (whether through housing benefit, discretionary housing payments or directly by the tenant) and a running total of the arrears.
2.4 If the tenant meets the appropriate criteria, the landlord should apply for arrears to be paid by the Department for Work and Pensions [‘DWP’] by deductions from the tenant’s benefit.
2.5 The landlord should offer to assist the tenant in any claim that the tenant may have for housing benefit, discretionary housing payments or universal credit (housing element).
2.6 Possession proceedings for rent arrears should not be started against a tenant who can demonstrate that –
(a) the local authority or DWP have been provided with all the evidence required to process a housing benefit or universal credit (housing element) claim;
(b) there is a reasonable expectation of eligibility for housing benefit or universal credit (housing element); and
(c) they have paid other sums due that are not covered by housing benefit or universal credit (housing element).
The landlord should make every effort to establish effective ongoing liaison with housing benefit departments and the DWP and, with the tenant’s consent, make direct contact with the relevant housing benefit department or DWP office before taking enforcement action.
The landlord and tenant should work together to resolve any housing benefit or universal credit (housing element) problems.
2.7 Bearing in mind that rent arrears may be part of a general debt problem, the landlord should advise the tenant to seek assistance from citizens advice bureaux, debt advice agencies or other appropriate agencies as soon as possible. Information on debt advice is available on the Money Advice Service website https://www.moneyadviceservice.org.uk.
2.8 After service of a statutory notice, but before the issue of proceedings, the landlord should make reasonable attempts to contact the tenant to discuss: the amount of the arrears; the cause of the arrears; repayment of the arrears; and the housing benefit or universal credit (housing element) position. The landlord should send the tenant a copy of this protocol.
2.9 If the tenant complies with an agreement to pay the current rent and a reasonable amount towards arrears, the landlord should agree to postpone issuing court proceedings for so long as the tenant keeps to such agreement. If the tenant ceases to comply with such an agreement, the landlord should warn the tenant of the intention to bring proceedings and give the tenant clear time limits within which to comply again and avoid proceedings.
2.10 The parties should consider whether it is possible to resolve the issues between them by discussion and negotiation without recourse to litigation. The parties may be required by the court to provide evidence that alternative means of resolving the dispute were considered. Courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored.
2.11 The Civil Justice Council and the Judicial College have endorsed The Jackson ADR Handbook by Susan Blake, Julie Browne and Stuart Sime (2013, Oxford University Press). The Citizens Advice Bureaux website also provides information about ADR:
Information is also available at: http://www.civilmediation.justice.gov.uk/
2.12 Not later than ten days before the date set for the hearing of the possession claim, the landlord should–
(a) provide the tenant with up-to-date rent statements; and
(b) disclose what knowledge it possesses of the tenant's housing benefit or universal credit (housing element) position to the tenant.
2.13 (a) The landlord should inform the tenant of the date and time of any court hearing and provide an up-to-date rent statement and the terms of the order that will be applied for. The landlord should advise the tenant to attend the hearing as the tenant's home is at risk. Records of such advice should be kept.
(b) If the tenant complies with an agreement made, after the issue of proceedings, to pay the current rent and a reasonable amount towards arrears, the landlord should agree to adjourn the court proceedings for so long as the tenant keeps to such agreement.
(c) If the tenant ceases to comply with such agreement, the landlord should warn the tenant of the intention to restore the proceedings and give the tenant clear time limits within which to comply again and avoid restoration of the proceedings.
2.14 If the landlord unreasonably fails to comply with the terms of this protocol, the court may make one or more of the following orders–
(a) an order for costs;
(b) an order adjourning the claim; or
(c) an order striking out or dismissing the claim (other than a claim based on a mandatory ground).
2.15 If the tenant unreasonably fails to comply with the terms of this protocol, the court may take such failure into account when considering whether it is reasonable to make a possession order.
3.1 This Part applies in cases where, if a social landlord proves its case, the court must, in principle, grant possession and where s.89(1) Housing Act 1980 applies
3.2 Before issuing any such possession claim a social landlord—
(a) should write to the occupants explaining why it currently intends to seek possession and requiring the occupants, within a specified time, to notify the landlord in writing of any personal circumstances or other matters which they wish to have taken into account. In appropriate cases, such a letter could accompany any notice to quit or notice seeking possession and so would not necessarily delay the issue of proceedings; and
(b) should consider any representations received and, if they decide to proceed with a claim for possession, give brief written reasons for doing so.
3.3 The social landlord should include with its claim form, or in any witness statement filed under CPR 55.8(3), a schedule stating—
(a) whether it has (by a statutory review procedure or otherwise) invited the defendant to make representations of any personal circumstances or other matters which they wished to be taken into account before the social landlord issued the proceedings;
(b) if representations were made, whether and how they were considered and with what outcome; and
(c) brief reasons for bringing proceedings.
Copies of any relevant documents which the social landlord wishes the court to consider in relation to the proportionality of the landlord’s decision to bring the proceedings should be attached to the schedule.