The wait of justice 2021: how covid legislation affected possession

Introduction

As part of the Government's response to the Covid pandemic, a number of significant changes to the rules around possession claims have been implemented since March 2020. These included -

• Closing the courts between March and September of 2020. Once they reopened there were a number of changes to the way that cases were heard and prioritised, with older cases needing to be reactivated. Court hearings were also broken up into an initial Review (R) hearing to check paperwork, and a Substantive (S) hearing if the paperwork was satisfactory.
• Extending the required notice periods for possession notices; during the court closures they were extended to three months in all circumstances, afterwards they increased to six months in all but the most serious cases.
• Preventing bailiffs and High Court Enforcement Officers from operating during the courts closures and during local and national restrictions. There were some limited exceptions available in cases of serious rent arrears or anti-social behaviour. 

Alongside these changes, the Government also published guidance encouraging landlords and tenants to work together to sustain tenancies and avoid possession where possible. 

Taken together, all of this was designed to reduce the number of claims being made, freeing up the courts time to deal with more serious cases and clear the backlog built up during the court closure.

Aims & Objectives of this paper

This working paper reviews the data on possession claims to assess the impact of these changes. It looks at how landlords and tenants have responded to the changes and the strains which have been placed on the court system.

This paper also seeks to find a future pathway which satisfies both landlords and tenants and avoids placing a future strain on the court system.

Key findings

• Possession claims have dropped significantly since the initial court closures. Landlords made less total claims in a year, than they made in any three month period before the pandemic. This suggests that landlords and tenants have reacted to the pandemic by working to sustain tenancies.
• While possession claims have dropped, possession orders are not keeping pace with the reduced level. Just over a third of all claims have led to a possession order since the courts re-opened. Hearings are also taking longer to proceed; in every region, wait times increased from 7-10 to 15-18 weeks for a possession order.
• Bailiff enforcement continues to lag far behind previous levels. Only 815 repossessions took place between April 2020 and March 2021. This is less than 20% of the warrants issued in the same time frame. Areas under local restrictions are significantly worse than this with seven bailiff appointments in the last year in Greater Manchester and six across the North-East of England.
• Based on the available data we estimate that 9-13000 warrants still need to be enforced. The majority of these warrants predate the pandemic entirely, meaning these landlords have waited 15-21 months to regain possession. 

Key recommendations

• To ensure claims remain at a low level as the temporary changes end and possession claims become easier to make, targeted financial assistance should be provided through no-interest loans and additional funding for discretionary housing payments.
• The administrative changes introduced during the pandemic should be either removed or adapted to reduce wait times between Review (R) and Substantive (S) hearings. This would free up more court time to deal with substantive hearings.
• Currently most warrants do not lead to repossession, leaving the process stalled once landlords establish they are entitled to possession. The Government should consider making it easier to access High Court Enforcement Officers to increase capacity and allow serious cases to be dealt with as soon as possible.

About the evidence

The evidence in this paper is based largely on a series of freedom of information (FOI) requests made to the Ministry of Justice (MOJ). The FOI requests asked for monthly statistics on the number of claims, possession orders, warrants and bailiff repossessions for the English Government Regions and Wales.

This data is supplemented by information provided by Landlord Action Solicitors and the Government’s quarterly Landlord and Mortgage Possession statistics.