The Master of the Rolls has approved an amended pre-action protocol for possession claims by social landlords. The protocol has been with us since 2015, and the new version is effective from 13 January 2020.
The new protocol makes no major changes, but wording and numbering is tidied up.
Part 2 of the protocol applies to possession claims based on rent arrears and sets out steps that a social landlord should take in trying to resolve rent arrears issues, come to a repayment arrangement, assist with any benefit claims and recommends that a tenant in arrears should be signposted to debt advice agencies.
Obligations under the protocol to continue to work with a tenant to try and resolve issues continue right up to the point of the court hearing.
Part 3 of the protocol “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.”
It applies where, if the landlord proves its case, the court must grant possession, and where s89 (1) Housing Act 1980 applies. So far as a social landlord is concerned, s89 does not apply to cases where the Court has to consider the reasonableness of making an order, and so any order made on mandatory grounds will be caught, whether that be as a result of an introductory tenancy, following a s21 notice, or indeed where the occupier has no security of tenure at all.
The occupier must be given an opportunity to notify the landlord of any matters it wishes to have taken into account in respect of the landlord’s decision to take possession. If representations are made, then the landlord must also consider those and confirm their decision. Information regarding this process must then be given to the Court, either with the Claim Form on in any witness statement.
The Court can consider various sanctions if the protocol is not complied with, including costs orders, adjournments, or striking out or dismissing a claim (other than one based on a mandatory ground).