DAS Legal Q&A: What you need to know about the government’s ‘pre-action protocol’

    15 July 2020

    DAS Law answers key questions about the government's 'pre-action' protocol, including what agents and landlords should consider before initiating any proceedings, what could the pre-action protocol for possession claims based on rent look like, and what to do if you've already served notice.

    The government has confirmed its intention to end the "moratorium on evictions" from social or private rented accommodation on 23 August. This means that from 24 August, “the courts will begin to process possession cases again.” When they do, there will be a new ‘pre-action protocol’ that letting agents and landlords will need to comply with.

    There’s already a protocol in place for claims by social landlords which seeks to help parties to work through issues before taking action through the court and it is believed this will be extended to private landlords. The aim of the protocol is to encourage more pre-action contact between the parties, the exchange of information and to avoid litigation. Anthony Di Palma, a solicitor at DAS Law, talks through what this could look like. Note that this is based on limited information available at this moment in time and we await further clarification from the government.

    What should letting agents and landlords consider before initiating any proceedings?

    They will have to consider whether the tenant has any difficulty in reading or understanding information given and take reasonable steps to ensure that the tenant does understand. They should be able to evidence that information has been communicated appropriately. Also, they’ll need to consider if the tenant is particularly vulnerable and consider any mental capacity issues to defend proceedings as well as any issues that may arise under the Equality Act 2010.

    What could the pre-action protocol for possession claims based on rent look like?

    The current protocol for social landlords provides certain steps that they need to meet and evidence before being able to issue proceedings:

    • The landlord should contact the tenant as soon as possible if the tenant falls into rent arrears to discuss the situation;
    • The landlord and tenant should try to agree a rent repayment plan;
    • The landlord should provide rent statements;
    • The landlord should assist the tenant in any claims for housing benefit, universal credit and other benefits they may be eligible
    • The landlord should advise tenants to seek debt advice from Citizens Advice Bureaux and appropriate debt advice services.

    No court action should be started if a tenant can evidence they have already made a claim for housing benefit, provided all the information and documents asked for, and they are likely to be entitled to housing benefit.

    What should you do if you have served an eviction notice?

    Before issuing any proceedings the landlord should contact the tenant to discuss the amount of the arrears, the cause, repayment and the position in relation to any benefits claim. If any agreement is reached, the landlord should agree to postpone issuing court proceedings. If the tenant then fails to comply with the agreement, the landlord should warn the tenant and give clear time limits within which to comply to avoid court.

    How could the pre-action protocol affect court proceedings?

    At least ten days before the court hearing, the letting agent or landlord must give the tenant any up-to-date rent statements and disclose any knowledge about the position of any benefit claim. They should also tell the tenant the time and date of the court hearing, what it wants from the court, and advise the tenant to attend the court hearing as their home is at risk. If an agreement is made to pay the arrears since court proceedings started, and the tenant has stuck to it, they should agree to adjourn the hearing for so long as the tenant keeps to the agreement. If the letting agent or landlord unreasonably fails to follow the above steps in the protocol, the judge can make an order for costs, adjourn or dismiss the claim.

    How could the pre-action protocol affect other grounds for possession?

    Part 3 of the protocol for social landlords deals with possession claims based on mandatory grounds. This states that prior to issuing any proceedings, the landlord must write to tenants explaining why it intends to seek possession and requiring the tenants to respond in writing detailing any personal circumstances or other matters which they wish to have taken into account. The letting agent or landlord should consider any representations received and, if they decide to proceed with a claim for possession, give brief written reasons for doing so.

    Disclaimer: This information is for general guidance regarding rights and responsibilities and is not formal legal advice as no lawyer-client relationship has been created. Note that the information was accurate at the time of publication but laws may have since changed.

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