The end of the eviction ban

By Liz Davies

Are we going to see a “tsunami” of people made homeless shortly? The government’s ban on bailiffs carrying out residential evictions in England came to an end on 31st May 2021. In stark contrast, the equivalent ban on bailiffs carrying out evictions of commercial leases was extended on 16th June 2021 to March 2022. Businesses which cannot afford to pay rent have a respite; people do not.

The short answer is “yes and no”. Covid-19 and lockdown have definitely made what was already an insecure existence for private renters worse. Housing campaigns, charities and the National Residential Landlords Association have all reported that significant numbers of private renters (figures vary from 500,000 to 800,000) are in rent arrears and face eviction. Shelter’s research found that one in six private renters fear being asked to leave their homes now. Generation Rent reported in April 2021 that one in 12 private renters were given notice to leave since the beginning of lockdown in March 2020 and one in three fear that they will lose their homes in the next year.

Private renters have been hit hardest by lockdown, worse than tenants renting from councils or housing associations, and owner-occupiers. Private renters spend a higher proportion of their income on rent than the other two groups do; they are more likely to have lost their job or suffered a significant loss of income during lockdown; they are least likely to have savings and they are least likely to have been given respite from housing costs – only 1% of private renters were given a rent holiday.

Private renters are also most vulnerable to eviction. They can be served with a s.21 “no fault” eviction notice. When the period of notice ends, the landlord can apply to the Court for a possession order. If the landlord has served the right notice and complied with other requirements, the Court must make a possession order, without considering why the landlord wants possession or the tenant’s personal circumstances.

In March 2020, the government moved relatively swiftly to prevent evictions. The normal two month notice period for “no fault” evictions was extended first to three months and then, from 29th August 2020, to six months. The hearing of possession claims by the Courts was suspended from 26th March 2020 to 21st September 2021. From 21st September 2021, Courts have resumed hearing possession claims, but slowly. The process has lengthened and fewer cases are being listed.

In December 2020, as the number of Covid-19 cases was on the increase, the government brought in the ban on bailiffs carrying out residential evictions, initially just for the Christmas period (11th December 2020  to 20th January 2021) but then extended several times until 31st May 2021. As a result, there were only 812 bailiff evictions between April 2020 and 31st March 2021, compared with 29,347 in the previous year. And the increase in notice period required has meant that fewer landlords applied to the Courts for possession in the first quarter of 2021 – only 26% of the applications in January to March 2020. In order to send the bailiffs in, landlords must first wait until the relevant notice period has expired, and then apply to Court for a possession order. The “tsunami” of repossession that was warned about in summer 2020 by politicians and housing campaigners has not materialised.

However, there is going to be a steady trickle of evictions and people, predominantly private renters, losing their homes. As Aditya Chakrabortty noted in the Guardian, “Warnings about the end of a government ban in England overlook the methods landlords have already been using to turf out tenants.”

While it may  take time for landlords to start court proceedings, and the government’s final assistance to tenants was to require that the notice period from 1st June 2021 until 30th September 2020 should be four months (shorter than the period of six months during lockdown, but longer than the norm of two months), Chakraborty’s point is correct. Many tenants do not stay to the bitter end, insisting that their landlord obtain a court order, not least because the tenant will be required to pay the landlord’s costs in obtaining the order.

They leave when the notice expires. They use the notice period to look for another private rented property, in a market where private rents are increasing and incomes are dropping. By definition, most of the tenants whose landlords want them to leave will be those in arrears, whose income has decreased, and will find it harder to rent a new property. If they were saving up to buy, they face house-price inflation of over 10%, driven by richer households already on the property ladder, who have responded to lockdown by seeking to change their lifestyles.

What could have been done? The last 12 months have been a massive missed opportunity. The government could have legislated to abolish s.21 “no fault” evictions, implementing its existing commitment in the Tories’ general election manifesto in 2019. It could have brought greater humanity to the court process, legislating to make “Ground 8” discretionary, so that whenever a landlord sought possession for rent arrears, the court could consider whether the tenant could repay those arrears and make an order permitting the tenant to remain in his or her home provided that the rent was paid and the arrears paid back.

It could have heeded the call not only of housing campaigners, but of local government, the House of Commons Select Committee on Housing, Communities and Local Government, and the National Residential Landlords’ Association to come up with an arrears relief package, similar to that provided by the Scottish and Welsh governments, of grants or loans to repay rent arrears. The Labour Party called for the immediate abolition of s.21 evictions and for making Ground 8 discretionary. It had a panic in April 2020 and refused to support calls for help towards rent arrears, at that time described as waiving rent, and has kept quiet on that point since.

Instead the government relied on its short-term increase in benefit rates – increasing local housing allowance and an additional £20 per week universal credit temporarily – and relied on Discretionary Housing Payments (DHP), administered by councils, to pick up cases of greatest hardship. The problem with relying on the benefit system is that benefits, even when temporarily increased, are insufficient, and only 45% of private renters are in receipt of benefits. The punitive benefit cap was not suspended or repealed, and so the increase in universal credit was pointless for many families, who hit the cap as a result of the increase and so saw no actual increase. And, as Seema Chandwani pointed out on Labour Hub, the already inadequate safety net of the DHP fund is to be cut.

As we emerge from lockdown, the figures of people applying to councils for help as homeless are already beginning to rise. At least 130,000 households were made homeless between April 2020 and March 2021, roughly the same amount as in the previous year, despite the significant reduction in evictions over that period. So these figures represent people who were asked to leave by family or friends, or were leaving abusive relationships, rather than tenants evicted.  As tenants start to be evicted, the figures are expected to rise.

And those official figures are just the tip of the iceberg. Most tenants asked to leave either manage to find somewhere else or become the hidden homeless, sofa-surfing, staying with friends or relatives, and do not approach the council unless they are desperate. And some, of course, end up sleeping rough. The government took urgent steps to provide emergency accommodation to rough sleepers during the pandemic, and those steps are thought to have prevented several hundred deaths. But again, as lockdown eases, that emergency accommodation is no longer available and rough sleeping – the most visible form of homelessness – is expected to rise.

Shelter has challenged the government in its campaign “Building Back and Levelling Up”. It calls for the urgent building of 50,000 new social rented homes, plus another 95,000 “affordable” homes at lower private rents or prices. All housing campaigners agree that building more social rented houses, particularly council housing, is a necessary start to what the Chartered Institute of Housing said in its 2020 UK Housing Review was a “sense of crisis looming”.

Liz Davies is a barrister specialising in legal aid housing and homelessness law.

Image: https://www.elliotcolburn.co.uk/news/renters-reform-bill, licensed for reuse.

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