16 December, 2020 Open access
16 December, 2020 Open access
Letter to Committee Chair sets out process by which courts will determine whether one of permitted exemptions to stay applies
The Lord Chancellor Robert Buckland has provided the Chair of the Justice Committee Sir Robert Neill with further information about the stay on evictions that is due to expire on 11 January 2021.
In a letter dated 10 December 2020, the Lord Chancellor responds to a letter from Sir Robert dated 24 November 2020 which requested information on a range of issues relating to the Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020 which, from 17 November 2021, reintroduced a stay on bailiff enforcement of eviction action in England until 11 January 2021.
In particular, responding to Sir Robert's question on why the government initially decided to rely on guidance to limit enforcement activity rather than legislating, the Lord Chancellor highlights that, having made a commitment in September 2020 that evictions would not take place over the mid-winter period, the government also took action to protect people from the enforcement of evictions during the national restrictions that were introduced in England from 5 November 2020. The Lord Chancellor adds that -
'In order to provide consistency throughout the time when the national restrictions applied, and the following mid-winter period, and to ensure landlords were able to recover their properties in the most serious circumstances, the government wished the exemptions to the ban to apply during the national restrictions. This led to a delay in legislating as we finalised the details of the exemptions and how they would be implemented. We continue to keep the position following the expiry of the ban on 11 January 2021 under review and we will keep the committee informed of progress.'
In addition, in response to Sir Robert's request for more information about how the exemption to the stay on evictions for substantial rent arrears that pre-date 23 March 2020 will operate, the Lord Chancellor says -
'The exemption for rent arrears is tightly drafted so that only landlords with the most extreme cases of arrears pre-dating the pandemic can enforce evictions at the current time. This ensures that landlords can take action in the most serious cases whilst preventing the enforcement of evictions for the majority of cases due to public health concerns.'
Finally, the Lord Chancellor sets out the process by which courts will determine whether one of the permitted exemptions to the stay on evictions applies -
'New applications for possession orders and those currently before the court
While the prohibition is in force, when making an order for possession, if the court is satisfied that the order falls within one of the exemptions the court will record that in the order (specifying which regulation).This includes the exemption for pre-COVID rent arrears, although in this instance for the court to be satisfied the claimant will need to provide a detailed calculation of rent arrears showing precisely how they meet the definition in the exemption.
Existing orders where an exemption is not identified on the order
Where there is an existing possession order and an exemption is not identified on it (for example orders made prior to 17 November), in the event that the claimant believes an exemption applies, they should make an application to court by filing a form N244 under Part 23 of the Civil Procedure Rules. Pursuant to the guidance issued by the judiciary, this application should request the Court 'to declare itself satisfied of the following matter set out at [specify which paragraph of Regulation 2], namely [specify the matter]'. The application should be on notice to the defendant. No fee is payable for this application. The application should be sent to the court that made the original possession order. The court will then seek to list the application for hearing on the next possession day with time available, having regard to the possession proceedings listing priorities issued by the Master of the Rolls.'
The letter to the Chair of the Justice Committee from the Lord Chancellor is available from parliament.uk