News, events and consultations
House of Commons
Rt Hon Thangam Debbonaire, Shadow Secretary for Housing
Rt Hon David Lammy, Shadow Secretary of State for Justice
6th January 2021
Dear Rt Hon Robert Jenrick, Secretary of State HCLG
Rt Hon Robert Buckland QC, Lord Chancellor
On 4 January 2021 a further national lockdown was announced. The public health crisis is worse now than in March 2020 and the new, more virulent strain of Covid-19, has accelerated the crisis alarmingly. It is 50-70% more contagious than it was in March and it is considered that up to 1 in 50 people have it.
During relatively less torrid periods of the pandemic, possession claims were stayed to protect parties, advocates and court staff from the inherent dangers in conducting possession lists at court, as well as the unthinkable consequences of tenants and borrowers being made homeless.
There is no logical or persuasive reason why the measures put in place in March 2020 should not be put in place again pending roll out of the vaccine:
Nobody should lose their home during a pandemic where their personal and economic circumstances are entirely beyond their control . These are unprecedented times and peoples’ incomes and financial circumstances are worse than they were in March 2020.
Nobody should lose their home where they are unable to effectively access legal advice and representation and the courts. In April 2020, HLPA submitted written evidence in the Court of Appeal case of Arkin v Marshall to illustrate the difficulties faced by HLPA members and their clients. That evidence, which was not disputed, remains as relevant now as it was then.
Nobody should be forced to travel to court to try to save their home. Individuals must always have the absolute right to act in a way which does not to place their life at risk; and they must not be forced to choose between that right and preserving a roof over their head.
Nobody should be out on the streets. People without a home or at risk of losing their home must engage in frequent and repeated contact with others in order to keep themselves and their families safely housed. That is simply not compatible with public health guidance and regulations.
HLPA calls for the government to act now:
(i) extend the moratorium on eviction beyond 11 January 2020;
(ii) put the ‘everyone in’ policy on a formal footing so that councils are obliged to accommodate everyone at risk of rough sleeping, including those with no recourse to public funds; and
(iii) there must be an immediate stay on possession proceedings.
We welcomed the commitment of the Secretary of State for Housing when he said on 18 March 2020, that “no renter who has lost income due to coronavirus will be forced out of their home.” It follows, therefore, that he must also:
• Abolish s.21 (as promised in the government’s manifesto).
• Suspend Ground 8 in Schedule 2 of the Housing Act 1988 to allow judges to decide in rent arrears cases.
• Reform the benefits system to ensure that at the very least it acts as an effective welfare safety net.
HLPA is also deeply concerned that its members, the ones who have only just survived brutal attacks on legal aid through LASPO, will again be at risk of financial meltdown. Many will not survive. It is imperative to the administration of justice, the rule of law, and the government’s stated aim of a fair deal for renters that our sector is sustained. Housing lawyers need to be supported, not attacked, and they need it urgently.
Co-Chairs of HLPA
The conference will focus on how we combat inequality in housing,
with the emphasis on sex and race discrimination. The scene will be set
by our keynote speakers David Lammy MP (Shadow Secretary of State
for Justice) and Thangam Debbonaire MP (Shadow Secretary of State
HLPA is surveying members and others in order to help respond to (i) the Justice Select Committee’s inquiry in to Future of Legal Aid and (ii) the Government’s review of Administrative Law.
These two inquiries deal with existential issues not just for HLPA members, but also affect our clients and their rights very deeply. The same is true for many other areas of law and advocacy.
Please help to re-publicise the survey widely.
Legal aid – the rights of ordinary people to access the law have already been eroded. This process is not inevitable and must be reversed to prevent inequality between those who can and can not afford access to justice.
Administrative law – HLPA members use administrative law to guarantee the legal rights of homeless people in the county courts and the High Court, tenants facing eviction in the county courts, and people needing social care for themselves or their children.
Please complete the survey and urge anyone else who you think should in order to that we can make sure ourselves heard at this critical moment.
We’ll leave the survey open as long as we can but please respond as soon as you can.
HLPA welcomes the short extension of the stay on possession proceedings announced on 20 August 2020. However, the stay itself will not prevent an unmanageable flood of evictions, many of which will be manifestly unjust unless the government uses this time constructively to address the longer term protections needed for renters.
Our message is clear: We call on the government to honour its manifesto commitment to abolish s21 ‘no fault’ evictions, to let judges decide on ALL possession cases, to urgently reform the chaotic benefits system and to extend homelessness duties for those who are evicted as a result of this pandemic. This must include those with No Recourse to Public Funds.
HLPA is working hard with the Master of the Rolls’ Working Group on making the eventual lifting of stay work as best as possible for our members and our clients. We will continue to do so while campaigning on the issues above which are outwith the Working Group’s remit.
On Wednesday 5th August 6:30 our friends Justice Alliance will host by Zoom a first public meeting to discuss the government’s Independent Review of Administrative Law.
Many are deeply concerned about this review. Judicial review provides an essential check on Executive power.
Sign up here and please share the link with friends and colleagues: https://eventbrite.co.uk/e/judicial-review-matters-tickets-115699711953
The Court of Appeal have handed down judgment in this important case convening Practice Direction 51Z (“PD51Z”) in which HLPA intervened and the Lord Chancellor joined as interested party.
The outcome is that PD51Z is lawful, applies throughout possession proceedings and in all but the most exceptional cases should not be lifted. The court found it hard to envisage examples of when a matter will be ‘exceptional’ for the purposes of lifting the stay.
PD51Z was introduced by the Master of the Rolls on 26.03.2020 and was amended on 20.04.2020. The purpose of PD51Z is to stay all possession proceedings brought under CPR part 55 and to stay all residential eviction action (whether or not commenced by part 55) until 25th June 2020 with an option to extend that period. The appeal was brought by a fixed charge receiver in private mortgage possession proceedings but the key issues of general importance in the appeal were:
(i) did the Master of the Rolls have the power to make PD51Z in the terms of the original and/or the amended practice directions ? The appellant argued that PD51Z was ultra vires.
(ii) if he did was it intended to apply throughout the full duration of a part 55 possession action? The appellant argued that it did not apply once a claim had been allocated to the multi-track.
(iii) was it possible for a judge on the application of one of the parties (other than by agreement between the parties) to lift the stay? The judge in the county court considered not.
HLPA gathered evidence from 50 lawyers throughout the country in 2 short days in order to ensure that HLPA members’ expert view from the ‘coalface’ was before the court.
Judgment of Sir Geoffrey Vos, Chancellor of the High Court
The court had little difficulty in finding that PD51Z was lawful on its own term and not inconsistent with the Coronavirus Act 2020. Article 6 of ECHR was of no assistance to the Appellant.
Likewise it was found that the practice direction applies throughout the duration of a part 55 case. Part 55 case which have been allocated to track, even if it is the multi-track, are not excluded.
It is no surprise that the last of the grounds of appeal engendered the most consideration, mainly around the tension between the general nature of the stay in PD51Z and the case management powers at CPR 3.1 and s.49(3) of the Senior Courts Act 1981. Ultimately this point too was simply decided. PD51Z is subject to CPR 3.1. However the very purpose of PD51Z is the key to understanding in which circumstances a judge could properly lift the stay:
(§ 42) That purpose is of its nature blanket in character and does not allow for distinctions between cases where the stay may operate more or less harshly on (typically) the claimant. It would be fatally undermined if parties affected by the stay were entitled to rely on their particular circumstances – however special they might be said to be – as the basis on which the stay should be lifted in their particular case. Thus, while we would not go so far as to say that there could be no circumstances in which it would be proper for a judge to order that the stay imposed by PD 51Z should be lifted in a particular case, we have great difficulty in envisaging such a case.
(§ 44) The approach of a blanket stay reflects the balance struck by the Master of the Rolls, and makes clear that possession claims are not to be dealt with on a normal case by case basis during the stay. We would strongly deprecate parties troubling the court with applications that are based only on such reasons and which are in truth bound to fail.
(§ 46) We do not, however, rule out that there might be the most exceptional circumstances in which such a stay could be lifted, in particular if it operated to defeat the expressed purposes of PD 51Z itself.
HLPA welcomes the judgment which is clear and unequivocal. The Appellant in this case had strong arguments to suggest that the Respondents would not have particular difficulty in complying with directions but the Court of Appeal nevertheless found that the judge was correct not to lift the stay.
Our members provided vital evidence of the difficulty we and our clients would have faced in meeting not only case management directions but also the many applications for the stay to be lifted that may have followed, absent the clear judgment of the Court of Appeal. We therefore welcome the fact that following this judgment our clients and our members can be confident that we retain the proper protection of PD51Z and applications to lift the stay, based on the individual facts of the case, are unlikely to succeed.
The evidence provided by our members is here: Arkin v Marshall HLPA evidence.
HLPA’s application to intervene by way of written submissions in Arkin v Marshall has been granted. This is a first for HLPA and was only made possible due to the overwhelming response from our members, provided in record time. The responses received were detailed and shows the real and substantial difficulties faced by our members in representing their clients during this crisis. It has formed the evidence relied by us in the appeal. By taking part, HLPAs members can be assured that their voices will be heard in this profoundly important case.
The government has also applied to intervene.
Arkin v Marshall will consider whether Practice Direction 51Z is (a) ultra vires, (b) whether it applies to cases that have been allocated to the multi-track, and (c) whether the stay can be lifted.
HLPA’s position is that PD 51Z is not ultra vires and the stay cannot be lifted. If it can be, this should only be in exceptional circumstances.
Thank you to all of our members and we will continue to keep you updated.
We are writing to you with an urgent call for information on a vital legal issue pertaining to Practice Direction 51Z.
Next Thursday, 30th April, the Court of Appeal is set to hear an appeal in the case of Arkin v Marshall, considering: (i) whether the 3-month stay of possession proceedings in PD 51Z is unlawful, (ii) whether the stay applies to the requirement to comply with case management directions in all cases and (iii) whether the stay should be lifted in individual cases.
HLPA intend to apply to intervene. The basis of the intervention would be that we can provide evidence of the borrower/tenant legal advice sector and the ability in a range of cases to comply with directions in the current circumstances.
This is therefore a call for evidence to submit to the Court of Appeal.
Time is of the essence and we need your responses by close of business Friday 24 April 2020.
Please indicate whether you are happy for your evidence to be attributed and/or your response to be exhibited to any witness statement.
- What percentage of your work is housing law which would be affected by PD51Z?
- What percentage of that is legally aided, charity funded or pro bono?
- What percentage and number of your housing team are furloughed currently?
- What working arrangements do you have for:
- Seeing clients face-to-face
- Seeing clients digitally (Zoom, Skype etc)
- Sending and receiving documents to and from clients and other parties
- Getting signatures on documents
- What percentage of your clients (if any) are able:
- safely to travel to receive advice face to face if you are presently able to provide this service.
- adequately to respond to you using the alternative arrangements you have in place (such as Zoom, email, Skype?).
If any of your clients are unable to do so then why is this?
- While understanding that clients’ skills and abilities vary, please provide details of any experience or observations as to your client group’s ability or otherwise, in the current circumstances, to:
- receive advice as to their obligations in law and the civil procedure rules (including but not limited to disclosure obligations and the implications of a statement of truth);
- collate and get to you documents such as those required for disclosure under CPR 31;
- provide adequate instructions (including on documents disclosed by other parties) in order to finalise witness statement evidence under CPR 32;
including any comments on your experience with any particular subsets of your clients and/or any particular difficulties you may have experienced.
- Please provide details of any experience and/or observations in relation to the practicalities, in the current circumstances, of:
- dealing with the Legal Aid Agency;
- instructing expert witnesses to .
- Please provide any other comments on your/your organisation’s and your clients’ ability to manage case management directions in possession actions of all kinds in the current situation.
Please respond to Chandra_Rao@shelter.org.uk
HLPA has added a page to this website setting out the timeline of events in the ongoing public health crisis and with links to guidance relevant to HLPA members. The webpage is http://www.hlpa.org.uk/cms/home/housing-in-the-covid-19-era/?et_fb=1&PageSpeed=off