This past weekend (5-6 September 2020) was celebrated by housing practitioners and lawyers alike. We were able to enjoy it without changes being made late on a Friday afternoon to take effect over the weekend!

However, the number, timing and complexity of the recent changes—with the added jurisdictional difference between England and Wales—have caused some confusion and uncertainty. With the stay on possession cases due to be lifted on 20 September 2020, we summarise where we are now, and what you need to be doing in preparation for the lifting of the stay.

The stay on possession proceedings

The stay on possession proceedings—imposed by CPR 55.29—remains in force in England and Wales until Sunday, 20 September 2020. There are no soundings about this date being extended further, but with numbers of COVID-19 cases seemingly on the rise, the announcement from the WHO yesterday that the UK is heading towards a second wave, and the tightening of lockdown restrictions at both a local and national level we cannot be sure.

We also continue to await publication of the ‘guidance’ from the cross-sector working group led by Mr Justice Knowles on how the court will prioritise cases in order to get through the backlog. However, we are aware of the likely priority that will be given to ASB, domestic violence and abuse, and tenancy fraud cases. Priority is also likely to be given to cases involving significant rent arrears although precisely where that boundary will be drawn remains unclear.

The rules made by CPR PD55C will now apply between 20 September 2020 (previously 23 August) and 28 March 2021, and so you can begin filing your Reactivation Notices from Monday, 21 September 2020.

‘New’ notice periods

Wales: With effect from 24 July 2020, the Welsh Ministers extended the minimum notice periods for all Assured Tenancies in Wales to six months unless either Ground 7A or 14 was being relied upon, in which case three months’ notice could continue to be given. These minimum notice periods currently remain in place until 30 September 2020 although it is widely anticipated that the Welsh Ministers will extend the duration for which these modified notice periods will apply to a date beyond 30 September 2020.

England: With effect from Saturday, 29 August 2020, notice periods have undergone substantial changes. Frustratingly, these changes were announced late on the preceding Friday afternoon before the Bank Holiday weekend giving providers and lawyers little time to digest the changes before they took effect. The minimum notice period to be given depends upon the combination of Grounds used.

Summary: We have produced a series of tables to make the notice periods in both England and Wales more comprehensible at a glance: Assured and Assured Shorthold Tenancies is available here and the table for Secure, Flexible, Introductory and Demoted Tenancies is available here.

New prescribed forms

With effect from Saturday, 29 August 2020, new prescribed forms for Assured (Form 3 and Form 6A) and Secure tenancies (periodic and fixed term) must now be used in England for the relevant notices.

Importantly, providers who served notices by post on Thursday 27 or Friday 28, August 2020 will probably find that they are not valid as they will not be on the correct prescribed form and will likely be deemed served no earlier than 1 September 2020. Likewise, any notices hand delivered after 4.30pm on Friday, 28 August 2020 will be invalid.

What should you be doing now?

We would advise providers to revisit notices sent out by post on Thursday 27 and Friday 28, August 2020 or by hand after 4.30pm on Friday, 28 August 2020—they are all likely to be invalid.

In addition (as mentioned previously), we would encourage you to be taking the following steps prior to Monday, 21 September 2020...

Step 1

Check all of your possession cases to ensure that any seeking possession of assured shorthold or starter tenancies are not relying upon a s.21 notice ‘given to the tenant’ more than six months ago: 

• after six months from the date they were ‘given to the tenant’, you can no longer rely upon them
• you should urgently consider whether to issue proceedings for any approaching that date.
  

Step 2 

Send a letter to all tenants subject to possession proceedings to make enquiries as to: 

• the effect that the pandemic has had upon them and their dependents (we suggest a slightly wider enquiry requesting information on all persons in the household)
• whether you have up-to-date phone and email contact details for the tenant
• any reasons why the court should not hear the case by video or telephone.

Step 3

Consider any changes in the circumstances of tenants and other household members and how they might affect the proportionality of possession proceedings under:

• Article 8, ECHR
• the Equality Act 2010 duties (including the Public Sector Equality Duty under section 149).

Step 4

Update any pre-existing ‘Proportionality Assessments’ or ‘Justification Exercises’ to reflect any changes in circumstances of tenants and their household members, and/or your position on proceedings.

Step 5

Prepare—in draft—any ‘Reactivation Notices’ ready to file and serve on Monday, 21 September 2020.

How Capsticks can help

We are well placed to assist you with a one stop service on all your cases. We are happy to draft notices for you or check the validity of those you produce.

In respect of CPR PD55C and the new notice requirements, we can provide advice on the steps you need to take in any given case and draft the necessary notices for you. However, we also appreciate that many providers will be looking to draft, serve and file their own notices. With that in mind we have devised two products that may be of interest.

Template forms

We have developed a comprehensive set of template ‘Reactivation’ and ‘Compliance’ notices with detailed accompanying notes, together with the suggested text of letters which are ‘customised’ to your organisation. 

Once you have paid for the initial notes and templates:

• any updated notes and templates will be complimentary
• should any other rules change between now and 28 March 2021, you will receive updated notes and templates informing you of the changes.

Accordingly, you can be confident that you will always have the most up-to-date templates and know the latest position as soon as we become aware of it.

Online training

We have also developed a training course which covers the ‘Reactivation’ process, the new notice periods (and the traps to avoid) and tips for presenting possession cases effectively by telephone or video link – likely to be the new norm for some time to come.

The course is provided with a comprehensive presentation and handout: any updates to the position contained in these notes will be sent out – again, complimentary. You can also record the course and distribute the recording internally for team members who were unable to attend the ‘live’ session.

If we can assist you to navigate through these difficult times, please do not hesitate to contact us.