The COVID-19 pandemic has led to a number of challenges and changes to practice in the area of Housing Management. Below are a selection of some of the many questions that Housing Associations have been asking us.

We have divided them into topics and will update this page and the answers regularly as the position changes.

A) Possession 

A1) How long does the Coronavirus Act 2020 “ban evictions” for?

The Coronavirus Act 2020 does not actually ban evictions at all: it ‘simply’ lengthens - to three months - the period of notice a landlord should give before issuing possession proceedings for most residential tenancies: this includes assured, starter and fixed term tenancies (which are assured shorthold in law) and secure tenancies.

The reason the question is asked is because on 18 March 2020, in a Press Release, the government announced a “complete ban on evictions” during the pandemic and promised “emergency legislation”  to achieve that. However, the Coronavirus Act 2020 fell short of that – making only changes to the periods of notice as described above.

Instead, the Master of the Rolls and the Lord Chancellor made an emergency Practice Direction to the Civil Procedure Rules  (CPR PD51Z) which provided for a 90-day ‘stay’ on all current and new possession proceedings and enforcement by warrant/writ of possession with effect from 27 March 2020: this stay currently expires on 25 June 2020. The effect of this was that no steps could be taken on any possession case to secure a possession order or enforce a warrant in respect of an existing order.

With effect from 18 April 2020, CPR PD51Z has been amended to allow certain trespasser claims to be heard (see question A3 below) as well as making it possible for the court to deal with applications for directions where the parties to a claim have agreed them. This enables parties to work together to ensure that when the stay is lifted the matter is trial ready or progress towards it being ready has, at least, been made. However, the majority of possession claims remain ‘stayed’ until 25 June 2020.

On 30 April 2020, the Court of Appeal will be hearing a challenge to the legality of CPR PD in the case of Arkin v. Marshall. When the judgment is released we will update this response.

A2) Can we still issue possession proceedings when the notice expires?

Yes – it is still possible to issue proceedings although the claim will then be stayed until 25 June 2020 once issued under the provisions of CPD PD51Z (unless it is one of the exceptions made for certain trespasser cases).

Some landlords will be asking: what is the point of issuing if the claim is stayed? It seems to us that there are the following benefits in Anti-social Behaviour cases:

• Although cases will be stayed, Defendants will have a longer opportunity to seek legal advice and obtain legal aid (if eligible);
• Directions can now be made - following the recent change to the PD - if they are agreed between parties (which may include e.g. the court giving permission for obtaining medical reports relating to Equality Act 2010 defences which can often take upwards of six weeks in ‘normal’ times);
• The case will be further up the ‘queue’ than it would be if issued  once the stay is lifted;
• The issuing of proceedings and the reality of the risk of losing their home, may act as the incentive a tenant ultimately needs to control their behaviour or that of others who live with them.

A3) With regard to trespassers, would it be better to issue injunction proceedings to exclude them given CPR PD51Z?

The appropriateness of such a course depends entirely upon the nature of the trespasser you are dealing with.

On Monday, 20 April 2020, the judiciary’s website published details of an amendment to CPR PD51Z (with it says took effect from Saturday, 18 April 2020) excluding possession claims to which CPR 55.6 applies (claims against “persons unknown”) and Interim Possession Orders from the 90-day stay on possession claims (which currently ends on 25 June 2020).

However, where persons who lived with a deceased tenant, who are not entitled to succeed, remain in occupation as trespassers, these claims are (or if now issued, will be) stayed. In our view, seeking injunctions to exclude this category of trespasser would be inappropriate, in all but the most exceptional case, and unlikely to find judicial favour.

Any applications seeking exclusion should be considered carefully in light of the underlying reasons for the various restrictions being to protect public health and limit the strain on public services.

A4) What length of notice do we have to give to a licencee? We have a series of temporary accommodation properties and the anti-social behaviour has been uncontrollable.

The Coronavirus Act 2020 does not alter the period for notices to quit (except those served to determine a protected tenancy under the Rent Act 1977).

What will need to be considered is the proper nature of the notice which must be given and whether it needs to comply with the Protection from Eviction Act 1977 where accommodation is provided in consequence of homelessness duties: seeR(N) v. Lewisham LBC [2015] AC 1259; Dacorum BC v. Bucknall (aka Acheampong) [2017] EWHC 2094 (QB).

Civil Injunctions remain available to deal with Anti-social Behaviour: CPR PD51Z makes this plain and the civil listing priorities are such that injunctions and committal applications are being prioritised over other civil work in the County Court.

A5) What changes have been made regarding the period of notice we have to give to an assured tenant where we serve a notice to quit because we suspect they are unlawfully subletting?

Where a tenant has unlawfully sublet their property, they lose their ‘assured’ status and the remaining ‘contractual’ tenancy is ended by notice to quit. The Coronavirus Act 2020 makes no changes to period of such notices.

If, however, you wish to serve a section 8 notice on a ‘without prejudice’ basis as well relying upon breaches of related conditions of the tenancy - which is often done just in case the case relying on the notice to quit does not succeed - then the notice period in respect of this notice will be three months under the Coronavirus Act 2020.

B) Civil injunctions and anti-social behaviour

B1) What about civil injunctions – are these still available?

The ability to apply for a civil injunction - including an exclusion order - remains unaffected by any changes.

However, applying to exclude a person from their home is likely to meet significant judicial resistance in this ‘stay at home’ climate. The position is likely to be seen differently where COVID-19 restrictions are being flouted by e.g. partners/friends of tenants who live elsewhere but continue to visit the property.

Applications may still be made ‘without notice’ in appropriate cases.

There are practical issues to consider regarding personal service of any Injunction Order. Consider applying for service by an alternative method such as by mobile phone using WhatsApp, or more conventional alternatives such as posting through the letterbox or affixing to the front door of the Property.

B2) Are there any data protection implications when using WhatsApp to serve documents?

There are no specific data protection implications beyond those which normally apply.

Providers will need to be reasonably sure that they are using the correct mobile number so as to comply with the ‘accuracy’ requirement within the GDPR.

It is conceivable that a recipient tenant might say:

(a)     they did not think we would get in touch with them that way: it would be prudent when signing up tenants (and ideally somewhere else in the RP’s privacy notice/tenant handbook) to make them aware that we may use their mobile number to get in touch (including via messaging services) with them about their tenancy if they provide it; and/or

(b)     that they do not like our use of WhatsApp specifically (as its owner, Facebook, may or may not read the messages sent through it to make money): I don’t think this is a substantive ground for complaint against its use in these circumstances that is likely to find traction.

It would be prudent for a provider to have a short policy or SOP covering how papers will be served which includes using WhatsApp, and if a provider wanted a ‘gold star’, they could do a short ‘data protection impact assessment’ to show they have thought about any privacy risks associated with using the technology. 

C) Arrears

C1) How does the Coronavirus Act 2020 alter existing licences and/or tenancies in respect of the payment of rent?

Nothing in the Coronavirus Act 2020 implies any additional provision into any licence or tenancy agreement. Accordingly, tenants are still required to pay the rent due under the tenancy agreement unless any other arrangement is agreed.

Due to the stay imposed on possession proceedings and the likely backlog of cases post-pandemic, landlords and tenants would be well advised to enter into discussions and make agreements for repayment of arrears.

There will be many tenants whose incomes will have been affected by Coronavirus. Social housing providers should seek to ensure tenants have access to their financial inclusion officers or are signposted to appropriate agencies in order to seek advice on this issue.

C2)If a tenant passes away or goes into a care home, normally the next of kin or person with power of attorney clears our properties and hands back keys to the landlord within the 4 weeks’ notice period. Given the restrictions on family members being able to access properties due to lockdown, would it be reasonable to continue charging rent and/or use and occupation charges or do landlords need to offer rent free periods until lockdown finishes?

As a matter of law, you are entitled to rent and/or use and occupation charges until such time as vacant possession is delivered up regardless of the COVID-19 pandemic.

It is a matter for each landlord as to whether they insist on their strict contractual rights at this time. Unless a tenant who has gone into a care home lacks capacity and has either appointed someone previously or had someone appointed by the CoP, you should deal with them. Where a tenant has died, the personal representative(s) should be dealt with.

You may wish to consider entering into an agreement regarding the removal of possessions and their storage by contractors either appointed by you or the tenant (and/or their representatives/family), if this allows you to re-let a unit of accommodation which would otherwise be accruing arrears and remain unoccupied.

D) Repairs, safety inspections and property maintenance

D1) Do landlords still have to undertake gas safety inspections?

Yes - the legal requirement to carry out annual gas safety inspections remains unaffected by any legislation or guidance on COVID-19.

Landlords should remember that inspections can be carried out any time from 10-calendar months after the last inspection and still retain the same 12-month anniversary/deadline date before the next inspection is due.

Landlords should carefully record steps taken to comply and difficulties encountered.

CIH have produced an excellent, comprehensive Fact Sheet dealing with Gas Safety during COVID-19: see Gas Safety - COVID-19, Fact Sheet #10 (15 April 2020).

D2) Is there any indication that the government or the Health and Safety Executive (“HSE”) will change their position on the requirement for gas safety inspections during the COVID-19 pandemic and, say, extend it for 6-months as they have with vehicle MOTs?

No – there is no such indication. The approach taken to date has been to suggest that regulators will be pragmatic in terms of breaches. The key for providers is to try to arrange inspections early (i.e. to take place 10-months post the last inspection) and to document carefully every step that they and their contractors take to undertake an inspection before it becomes overdue.

D3) What about general repairs and maintenance issues reported by tenants?

On 30 March 2020, the Ministry of Housing, Communities and Local Government (‘MHCLG’) published guidance to landlords and tenants which includes guidance on repairing obligations during the ‘lockdown’: see Coronavirus (COVID-19): Guidance to Landlords and Tenants, March 2020.

In a helpful statement, the following day, Robert Jenrick, the Secretary of State for Housing, Communities and Local Government advised:

“Work carried out in people’s homes, for example by tradespeople carrying out repairs and maintenance, can continue, provided that the tradesperson is well and has no symptoms.

“Again, it will be important to ensure that Public Health England guidelines, including maintaining a two-metre distance from any household occupants, are followed to ensure everyone’s safety.

“No work should be carried out in any household which is isolating or where an individual is being shielded, unless it is to remedy a direct risk to the safety of the household, such as emergency plumbing or repairs, and where the tradesperson is willing to do so. In such cases, Public Health England can provide advice to tradespeople and households.

“No work should be carried out by a tradesperson who has coronavirus symptoms, however mild.”

The guidance reiterates that landlords’ obligations have not changed and that tenants have a right to a “decent, warm and safe place to live” which is “kept in good repair and free from hazards”.

Landlords are encouraged to continue to “make every effort to review and address issues brought to their attention by tenants” and advised to consider using “technological solutions such as smartphones [to] reduce the need for in-person inspections of property issues”.

However, it is also recognised that these unprecedented times require landlords to take a “pragmatic, common sense approach to non-urgent issues which are affected by COVID-19 related restrictions”.

The guidance identifies a non-exhaustive list of urgent health and safety related issues which should be prioritised over those which can be considered non-urgent. These include:

• Problems with the fabric of the building such as a leaking roof;
• Boiler breakdown which leaves tenants with no hot water or heating;
• Plumbing issues leaving tenants without washing or toilet facilities;
• Security related issues such as broken windows or external doors;
• Equipment required by disabled person

The guidance advises that inspectors and contractors should still visit blocks of flats and multi-occupied properties for essential or urgent work such as inspecting and testing fire alarm and emergency lighting systems.

The wider public safety considerations mean that contractors who enter resident’s homes should ensure they do so in a way which protects both them and those in occupation by respecting the social distancing rules.

We would advise that prior to any visit, contractors ask residents to confirm whether any occupant is displaying symptoms or self-isolating, or is in one of the higher-risk categories. In so doing, contractors should look to ensure measures are agreed which protect both them and those in occupation.

E) Other issues

E1) What should Board members be asking with regard to the Act?

There are a number of factors that Board members will need to consider more widely than simply the relatively limited provisions of the Act. Board members will want to ensure financial viability is sustained during a period when arrears can be anticipated to increase. Ensuring affected tenants have good access to financial advice and assistance with making application for Universal Credit where needed, and that each tenants circumstances are ascertained to separate those who genuinely can’t afford to pay their rent from those who are simply not paying. Board members will also want to ensure that adequate staffing remains in place for dealing with urgent repairs and statutory gas and electrical safety obligations. Where landlords currently have building programmes in place, board members will wish to seek assurances that the correct mitigations are being put in place to protect any residual risks that may impact upon existing social housing stock.

How Capsticks can help

Our housing management specialists will review and update this page on a regular basis. Capsticks provides the full range of services on landlord and tenant matters, housing advisory law, as well as leasehold and shared ownership issues to hundreds of providers nationwide. If you have any questions about the content of this article, or need further advice on one of the issues addressed, please contact Simon Strelitz, or any of your contacts at Capsticks, to find out how we can help your organisation.