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This is Housing
Possession Matters – Understanding the Renter’s Reform Bill with Annabel Heath
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- [00:00]
A
Foreign.
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B
Welcome to another episode of the this Is Housing podcast. My name is Richard Mahal, your host, and I'm joined again today by my wife, wonderful colleagues Dalget, Rita, Manginda and Ovais. I'm very pleased to say that we're joined by a special guest, Annabel Heath, self described cat lover, obstinate, headstrong girl, according to her Twitter, and also, more importantly, a barrister at 45 Gray's Inn Square, specializing in homelessness litigation, general housing litigation and anything else. Annabel, I'm sure you can tell us what else you do as well. Thank you very much for your time, Annabel. Today to speak about the Renters Reform Bill.
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C
Hi Richard, thanks for having me. And thank you for the accurate description. I think cat lover, an obstinate, headstrong girl does tend to cover most aspects of me.
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B
So today, as I say, we're going to be speaking about the government's Renters Reform Bill. Annabel, if we can just jump straight into it, if that's okay. Obviously we're not sure whether we're going to see the Renters Reform Bill enacted into legislation, but what do you think are the key provisions of the Renters Reform Bill?
- [01:31]
C
Well, Richard, I mean, I have to agree with you. At the moment I'm not even convinced that it's going to get through this Parliament. And at the moment it's in such a state of flux, especially with the proposed amendments from the Conservative backbenchers and what the Labour Party have said they're intending to do when it gets to the House of Lords. What we're looking at now may not bear any resemblance to the final version, but I think the key headlines are clear. It's the end of no fault evictions and that's what most people are focusing on. But also from my perspective, there's quite an interesting point, which is the end to Midland Harton Richardson, which is the case which says that shared ownership leases are actually assured tenancies. Because what the act aims to do is in effect, stop these from being assured tenancies because it stops any lease for over seven years from being an assured tenancy. And I think that's going to have quite a wide impact on those who are in the social housing sector who have bought a lease. They maybe bought these shared ownership leases years ago and they are facing potentially possession claims where they could in essence, lose everything because it's found to be an assured tenancy. And I think once the Renters Reform Bill does come in, we are going to have some quite interesting cases on how that is going to impact assured tenants. But I think from my perspective those are the two big headlines. How about you? What's your view?
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B
What's my view?
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C
I'm not sure I have a view.
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B
Dalget, what's your view?
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A
Hi, Annabelle, it's Dalget. Hi. So our view, well, biggest change that we keep on reading about is at the end of the no fault section 21 evictions. If that goes ahead for tenants that's it's almost a double edged sword. It's. We're not too sure how it really would impact and I think with all the changes going on and I know this promise of canceling ending of no fault evictions sounds promising and it's been going on forever as in like it's been mooted for a while, its impact is going to be unknown until it actually comes into place about what sort of defense or what sort of grounds landlords can then rely on and what sort of defenses defendants would have. I think without the no fault with, with Section 21s at the moment, there's so many technical defenses and there's so many requirements of landlords, you know, they don't always get it right. And it does give protection to tenants in an odd sort of way because it is quite a rigid formula. Getting rid of it, it does open it up a lot more, I think.
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C
Well, well that's, that's very true I think and also with my homelessness practitioner hat on. A lot of the time you cases where well, a landlord served a Section 21 notice, well, it's a no fault eviction and it means when there is a section 21 notice served, you do have the argument, well it was a Section 21 notice. The landlord has his own reasons, we're not intentionally homeless. But when you're having to make out a ground for possession, actually it's going to make it potentially and I say this potentially, we don't know how it will work in practice but harder to, to argue unintentional homelessness and that's a wider implication that I don't think people have really thought of and how it's going to impact tenants and homeless applicants down the line.
- [04:48]
A
That's such a good point. Actually. It's one of those things that we almost take it as a given. I suppose when someone, a landlord's looking at Section 21 possession proceedings, it's almost accepted that you can't hold a tenant at fault. It's not their fault, any notice has been issued. But you're right with giving Reasons, Yes. Yeah, I suppose the landlord's looking for reasons, aren't they? And if you're looking for reasons, then the council or local authority is going to be finding reasons within that to find intentionality or find reasons where, you know, a full housing duty might not be owed. That's actually a very good knock on effect. That's a very good point and I
- [05:19]
C
think we're going to see how the case law develops in light of this. I can just imagine there's going to be a string of new cases on intentional homelessness in light of whatever this bill says when it comes into effect, if it comes into effect. I suppose that's the other big question.
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D
Annabelle, hello, it's Manginda. In relation to this bill, what implication could the bill have for tenants, particularly in terms of the security and rights?
- [05:44]
C
I think it will have for the vast majority of tenants, a very positive impact. So I'm starting off with something probably on the lighter side of the things. As Richard mentioned, I am a cat lover and there's a very important provision regarding the fact that there's a presumption that pets will be allowed, which I'm sure all the animal lovers will be very pleased to hear. On an entirely serious note, though, I think it's going to greatly help tenants have some form of security and some form of stability. A lot of the time tenants will go through, they'll move into a property, then they could be having a fixed term, they want to make plans, they want to lay down routes and then before you know it, the landlord served a Section 21 notice and they've got to go through the whole process of finding another property and that can be very stressful and difficult for tenants. There's no security, you don't know how long you're going to be there for and this should hopefully give them some grounding. Another implication, which I think is very positive, is the provisions regarding rent increases. So that now has to be done via a notice and tenants can go to the tribunal if they disagree with the rent level. I suppose the negative to that is that there isn't, as we used to have under the days of the Rent act, fair rent. It's now, in essence, a market rent. And suppose the question then becomes, well, what's the market rent? The market rent is what the person next door has let at. The person next door is let at this amount. Oh, so we'll let it at that amount. This tenant goes, they can't afford it, so this property is then let at an even higher amount. And we could still end up with what we have at the moment in a lot of places at very high rents and still a complete lack of affordability for tenants who are trying to live somewhere near where they work, which is probably in quite a nice area, a very central area, but they're just being priced out of the market.
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D
Yeah. This bill, my opinion is this bill does little to address affordability. I mean, the tenants can either negotiate the rent or challenge the rent, but they can't stop what the rental market is going to be. So it does. It does little to address. You know, one of the main concerns in, I believe, in the UK is affordability and homelessness. But let's just see what happens. What, what do you think are. Are the potential challenges and drawbacks for. For landlords if the bill is enacted?
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C
I think landlords are going to have a lot more regulation. I think that, see, they don't have the power that they had before. They will not just be able to serve a notice and ask someone to leave, they're going to have to make out one of the grounds for possession. There's also the proposal for there to be a portal for landlords so that a tenant can look up the potential landlord, in essence, to see what they're getting. There's going to be a lot more scope for the private landlord's ombudsman who can levy fines. So there's going to be a lot more pressure on landlords. And without meaning to sound cynical, I think it's going to impact the landlords who take their obligations seriously a lot more, because they're going to want to comply, they're going to try their hardest. One hopes to comply with all the different legislation, make sure that they are fulfilling all of their obligations. But to what extent are the. I use the phrase rogue landlord advisedly, but I think we all have an idea of these. These landlords who just do ignore the requirements, they don't protect deposits. If you're lucky, they'll serve a Section 21 notice, but then just require a tenant to leave. A lot of the time, the tenants can be very vulnerable. I think we've all done quite a few unlawful eviction cases where tenants who are more vulnerable don't necessarily have such good access to legal advice, are told at the end of their notice, you've got to go, landlord comes along, changes the locks. And I don't think this bill is really going to assist the tenants or penalise the landlords in those sort of situations as much as it's going to have an additional burden for the landlords who want to be slightly better regulated and want to make themselves the best landlords they can. I expect that's quite a cynical approach, but I think spending time doing unlawful eviction work makes you quite cynical towards most landlords, I'm afraid, who, who operate in certain ways. I don't know if that probably needs to be cut. I think that could a bit controversial.
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B
Yeah. Hi again, Annabelle. Something that I wanted to get your view on is although the bill nominally abolishes Section 21, do you think there is a risk that ironically, a tenant tenants could have less ability to challenge their claim for possession? Because if a landlord isn't perhaps serving a Section 21 notice, they may be saying I want to sell the property or. And they serve notice on something on, on grounds that they're going to sell the property. And you as the tenant don't have any of the, the rather mundane sounding procedural defenses, but you've actually then got to impugn the, the motivation of the landlord. I mean, in a way I feel that as Dalget alluded to earlier, there are often so many, a landlord, particularly one who is doing Section 21 or serving a Section 21 notice without assistance, often gets things wrong, whereas now those kinds of procedural protections wouldn't apply and the tenant themselves find themselves ironically, maybe in a more difficult position. What do you think about that?
- [11:30]
C
Well, I think that's entirely correct. I mean, how on earth these. I mean, they'll end up with a lot of trials. There'll be a lot of arguments regarding how you prove it. I can just foresee a situation where you have various cases setting out the level of intentionality, the level of evidence required, time scales. If you look by analogy to the commercial landlord and tenant framework under the 1954 act, and you have swathes of cases regarding possession claims, especially on the issue of redevelopment. And it's still evolving today and the 54 act came in quite substantial many, many years ago and it's still, it's still going strong. So to the extent that this is hope coming in as a. It's going to help all tenants, I'm not certain it will. And I think a lot of tenants will find it very difficult to challenge these decisions. In addition, they are going to find themselves having some difficulty, I think, with getting legal representation because on the legal aid side of things, if, for example, you've got a case where the landlord saying, well, I'm going to sell, but it's very difficult to challenge that and obtain funding, I Think I'm not certain. Absent some very strong prima facie evidence that what they're saying is complete nonsense. I just don't see how you're going to be able to successfully challenge it with the way legal aid funding is at the moment for housing law.
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E
Hello, Annabelle, it's Rita here. I have a question for you. Do you think there's any specific clauses or provisions within the bill that landlords or even tenants should be particularly aware of?
- [13:14]
C
Well, I'll accept I have. That's not something I've looked in, in great detail. I think that the. From a landlord's perspective, I think they should be very aware about the establishment of the ombudsman and the increased requirements for regulation. So in particular, just regarding the need to have this centralized portal, this login system, I think it's going to be something that a lot of smaller landlords just won't be aware of and I think they'll have quite a bit of a challenge. And the smaller landlords, I'm thinking of the older people who maybe bought these houses, using them as their pension. I think a lot of that is going to be very difficult for them to understand, to be able to manage. It's going to be fine for the larger institutional landlords, but I think this additional monitoring, it's something they really need to be aware of and to make sure they're getting it right. And it's not just the IT side of things as well, it's the financial side of things for them. Because this is going to cost them quite a bit of money to have to comply with. I expect a lot of them will need to get proper legal advice and honestly I think that's going to probably end up with an overall increase of rents or landlords will do what I think quite a few are planning on doing, which will just sell their properties because it's going to make it so challenging for them to be able to work within what seems to me a very complex system that they might just throw in the towel and want to sell.
- [14:47]
D
One of my concerns, Annabelle, about this, about this bill was the landlord serves. I mean, correct me if I'm wrong, my understanding is if the landlord serves a section 21 on the basis that they want to either move into the property or they want to sell, they. Is it three or four months they're not allowed to re let the property? Yeah, for some reason, yeah, for some reason. Three months is popping in my head and then re rent after on the fourth month. And my concern is, is that the, the Government has given underfunded local authorities the power to look into this. As you know, you and I both know from what we, we do as a job that the local authorities, you know, are understaffed, underfunded. So the reliance on the local authority to determine whether or not the landlord has breached, you know, the bill or the act. My concern is there's so many loopholes there that have not been addressed in this bill. Do you agree with that interpretation?
- [15:51]
C
I agree with that entirely. If you look at the current landlords regulatory schemes in relation to HMO licensing, there is no consistency across all the local authorities as to the level of investigations that are happening. Whether every breach is investigated and pursued, there is no equality because it comes down to the cold hard fact that most local authorities are in dire straits. You will need to, to start doing these investigations, they'll need to clearly be more investment, there'll need to be funding. I don't know where that funding is going to come from. If you, if you have a look at all of the list authorities that are in financial difficulty, these are all very large authorities which have a large number of those who are renting. I just can't see it working. I'm hoping that in a year, two years time, we'll probably sit down, we'll have a conversation about this and we'll say, look how wrong Annabelle was. Why was she so cynical? Look how fantastically this system is working. But I'm not certain if that's actually going to happen. I will wait and see and try and be positive and hope that either this government or the next government, whichever party gets in, does provide the local authorities with sufficient funding to be able to enforce the provisions contained within the Renters Reform Bill.
- [17:15]
D
I think, as you said, whatever government does come in, I think there needs to be a focus on housing and investment in affordable housing. I don't think, as my opinion that this bill is anywhere near. I mean, if it does work, if it, if it is enacted, it could potentially help tenants and it could empower tenants. But I'm very doubtful that this bill would go through. I mean, I believe the House of Lords will probably not be too keen on the, on the bill.
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A
It's, it's amandeep. With regards to the Renters Reform Bill, are there any specific or further reforms to the existing law that you believe could improve the possession process for both landlord and tenants? As we were talking about the balance,
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C
I think they're going to amend it quite significantly. If you look, for example, at the new ground 8A that isn't just if you're in two months rent, Because, I mean, with the House of Lords, I know the Labour Party want to make a lot of significant amendments. There's also a concern that I have regarding this and I think it goes back to an earlier point as to evidence that it's also tying in the tenants for a period. I don't know if that. That provision is going to stay in there and I think currently it's a plan for it to be about six months that a tenant has to stay in there, but they can, but they can leave after, give earlier notice. And I will need to double check if it's six months. I have that in the back of my mind. It's the mandatory period. But if there's, I think the phrase is extreme disrepair or unfitness or domestic abuse, then they can leave earlier. And so you've obviously got the position, the situation where you say, well, I'm leaving because this property is a health hazard, it's so run down and in such a poor state of repair. And the landlord obviously just goes, no, it isn't. What's your problem? I'm going to sue you for this. However many months of rent or. And then you have got to go through the process of defending, you're going to be approving that. And if the person has already left, well, how are you going to get funding for that? Because unless you can pay for private representation, I doubt civil legal aid is going to cover this. The other issue that you have is victims of domestic abuse. Domestic abuse isn't just physical abuse. It can be coercive and controlling behaviour. It's absolutely horrendous that a victim of domestic abuse will have to prove, not to the court but to her landlord and persuade her landlord she is a victim and then she's going to have to. Or he. It's as I say, both. Both genders, both. They. Everyone can be a victim of domestic abuse. But I think 84% of victims are women. And victims are going to have to prove to their landlord and persuade their landlord and then if their landlord doesn't believe them, then they're going to have to go through a trial to prove they were victims of domestic abuse, which for a lot of them is just going to be far too much. You're in a vulnerable position as it is. So I think there are some concerns in respect of this. Definitely. And then you have ground 8A, which if you read it, it's to do with. Says within a three year period ending with the date of service of the notice seeking possession. You're entitled to possession if rent is payable monthly, at least two months rent was unpaid, or for at least a day on at least three separate occasions. That just seems absolutely ridiculous to me. That's just going to be wide opening the gates so much because of course, in three months, in the three year period, you, you could have lost your job. Then you get another. You go through some difficulties and then you finally get to the stage where for whatever reason, you can no longer afford the rent. You have very good reasons why you can't afford it. And then arguments go back. We go back to the issue of intentional homelessness, because they say, well, it wasn't just this is an understandable reason why you're in arrears now, but actually you had these two other occasions why you were in these areas and the ground was made out. So I think this is going to be an. There'll be a lot of interesting arguments, not just on these sorts of cases, but also when we go into the homelessness. And I think there is going to be a flurry of applications for assistance to local authorities as soon as this bill is finalised, because you'll have people being served with Section 21 notices whilst they still can be, and then you'll have people who are being faced with possession proceedings. And the latter half, we just won't know how the courts are going to handle it and we won't know what's going to happen. So I think the only people who really are going to win are the lawyers, I'm afraid.
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D
Hi, Annabelle.
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C
It's base.
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F
So you've mentioned quite, quite a few issues here in terms of the renters reform bill, including how it might impact homelessness applications, domestic abuse victims. What I wanted to know further is are there any potential unintended consequences of the bill which stakeholders should consider? I mean, it already seems that it would be impacting a whole hoard of areas, not only for tenants, but landlords as well. So, I mean, do you have any. Are there any further thoughts that you might have in terms of that?
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C
I think the unintended consequences are going. I don't think the government or whoever drafted this bill wanted this to happen, but I think it's going to cause a fundamental reshaping of the housing market and I think that is going to be an unintended consequence because we are probably going to have a number, as I said earlier, I think a number of landlords, smaller private landlords, are going to pull out of the market. I also Think that it's going to cause quite a lot of logistical problems. There are going to have to be a swathe of statutory instruments to bring some of these provisions into effect. There's going to have to be setting up of schemes and systems and I just think it's going to. We'll have the bill and then we just won't have the required framework to be able to implement this bill. So, again, I don't want to sound pessimistic, but it will be interesting to see how it is brought into effect, if it is even brought into effect in its current form.
- [24:00]
D
Annabelle, at the moment we are seeing concerning number of possession claims listed at court. We at Duncan Lewis do court duty possession claims at Willesden, Edmonton, most of the London courts and Walsall. We are seeing a large number of cases, possession claims being being listed in court for five minutes, for instance. And the courts have extended because they've got severe backlog, so they're extending court duty days. And obviously this, this bill, it was, in my understanding is from the government aimed to. To avoid further possession claims ending up in court. Do you think that this bill, if it is addressed properly or enacted properly, do you think that this, this bill will reduce the number of possession claims?
- [24:50]
C
It's difficult to say. I expect to begin with there won't be as many whilst both sides, landlord and tenants, try and understand how it works. But I expect the reasons that landlords want to evict people will not go away. And I think once an understanding is reached as to how the bill and the legislation will work in its final form will be going back to having a substantial number of possession claims. They will probably be more straightforward. Anyone who has had to defend a Section 21 claim will know that they are not straightforward. There is a minefield of regulatory requirements that you have to meticulously check to make sure the landlord has complied with. And I expect what is going to happen is with the next set and the next swathes of possession claims will have to go through and understand what other matters, what other hoops the landlords have to go through. And once there is this understanding of how you do get possession, I just think that there will be many, many more possession claims.
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D
I agree, I agree with that. From your experience, what are the main reasons why possession cases end up in court? What. Are there any recurring themes that you've noticed?
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C
Well, leaving aside the local authority social landlord side of things, because with them it tends to be one of three areas, either antisocial behaviour, rent arrears or succession Disputes. What I think that we are going to see is a lot of cases where you have landlords who want to evict either because they want to sell or they want to get a tenant in who's going to pay more money, or they want a tenant in who's not going to make so many complaints. Because a lot of the time you'll have tenants who come in and say there's mould on the walls and the landlord will just serve notice. And whilst that shouldn't be happening, and we do have retaliatory eviction provisions, the reality on the day is that if you complain to your landlord repeatedly, a landlord at the moment is just going to be at liberty to serve a section 21 notice, get rid of what they consider to be a bad tenant and get in what they would say is a good tenant. And I think they're the sort of main. Aside from obviously rent arrears, they're the main reasons why landlords really want to evict. Tenants either get more money or get rid of difficult tenants, or they want vacant possession to either sell it on or to renovate it.
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E
Annabelle, in your opinion, what are some effective strategies landlords can employ to prevent possession proceedings from escalating to legal proceedings?
- [27:41]
C
Well, I think a lot of the time you need to talk to your tenants if you're a landlord and have an open discussion with them. Sometimes a landlord will serve a notice on a tenant saying, well, I want to sell the property. And actually if they had said to the tenants, I want to sell the property, sometimes tenants will go, great, I'll buy it off you. Sometimes the landlord will say, well, I want to sell up because I just can't afford the mortgage anymore. And in these sorts of situations, when you have that dialogue with your tenants, actually a tenant may say, oh, I understand, right, we'll happily start looking for somewhere else. Or, okay, well, we understand. We've gone to the local authority and the local authority have said, you've got to service with a notice. And I think a lot of the time that landlords and tenants sometimes just don't speak to each other. Or what you have is situations where you have an agent who's involved and there can be a miscommunication between the three parties because both of them are communicating via the agent. And a lot of the time, if you can just sit down and have a frank discussion, hopefully very polite and ideally over a cup of tea, then I think a lot of these disputes may not go as far a lot of the time as well, if you are speaking with your tenants as a landlord, you can find out if there are repair problems and if you are keeping good records when you're having a conversation with your tenants or you're going frequently into the property, you should be inspecting and making sure there aren't these problems. And that can, hopefully, with the more proactive approach, try and prevent there being so many cases that are being litigated before the courts. And when matters do start looking towards either going to court or even going towards a trial, I think a lot of landlords and tenants may want to look into mediation. And I think in housing there is scope for there to be effective mediation. I've had cases where we've had mediations and they've settled and we've managed to get the right outcome for the client and all parties have gone away with what was probably a much better deal for all sides than you would have got if the matter had gone to trial.
- [29:52]
B
Annabel, I was just going to. If I can jump back to the Renters Reform Bill and ask you your overall view on it. It sounds to me as if you think it's a poorly thought through piece of potential legislation. So, I mean, maybe, maybe I'm putting words in your mouth.
- [30:09]
C
I think that the Renters Reform Bill in the theory is brilliant. What it aimed to do was to provide protections for tenants. It aimed to provide security. It aimed to stop the practice of landlords from just hiking up rent so that tenants are being forced to leave, aimed to provide a portal to try and stop road landlords. Where I think it's fallen down is the politicization. And due to the overall political uncertainty at the moment and the fact we're coming up to an election, I think there's been far too much grandstanding and amendments and attempts to water it down. I'm not advocating for us to go back to the days of the Rent act by any means, but I think that some of the amendments that have been put in are just not going to work. And when there is a election and a new government, regardless of which government and which party is in power, I think that this should be looked at after the election and both, whoever is in power can do so with a proper mandate from their manifesto. At the moment, it's just not making. It's just not coherent, I think.
- [31:31]
A
Well, it's a good point, but the thing is, how do you assess and balance, you know, the protecting landlords, property rights and the treatment of tenants? I think that's always the difficult thing, isn't It, I think you, you're totally right. The idea that the bill is brilliant in theory, it does provide tenants with more protection. But how do you balance that against the landlord's right to return, you know, to regain their property and in practice would, I suppose that's any possession case, how do you balance it? It's such a hard thing to do.
- [31:58]
C
Well, it is a hard thing to do and I do think that a landlord, if they want their property back, should be entitled to have it back if they want to sell it or they want to move back in. These are all very important points, but I think the way it's currently drafted is very much open to abuse. Of course, we can't, you know, we can't go back. I don't think we should be going back to the days of the Rent act when it was nigh on impossible to regain possession. But it's, it's a very difficult and tricky situation and I just think that this bill, as it currently stands, doesn't put into effect what the people who came up with the concept wanted. It just doesn't do what it needs to do because it's being watered down so much. And I'm not saying that no landlord should ever be able to obtain possession. Of course they should. And as long as they can make out the ground, they should. And we shouldn't be in situations where it is nigh on impossible to get possession. When a landlord, say, requires a property to pay their pension and the tenants haven't paid rent for a year and the landlord can barely keep up with their mortgage payments and the tenants, you know, and there's no issues of disrepair, etc. I'm not saying that we should be in this situation where you can have a, you can't get possession, but I just don't think the way it is at the moment works very well.
- [33:18]
A
It's something you actually said earlier as well, isn't it, really? The idea that if the extra regulation, it's all going to make it harder for even good landlords to try to maintain. So if they can't maintain it and they just think, look, we will get rid of the property, we'll get all the tenants out, we'll sell it, then the shortage of the housing market already is just going to get even worse. You've got local authorities that unfortunately they can't, they can only do certain amount with their hands tied behind their back. And if you take the private landlords away by making it impossible for them to get their house back or their properties Back in the future, you know, you're ultimately going to affect the tenant who can't find the property. And a few, the, the few properties that are still available, are they going to get massively high rents or they are going to kind of exploit potentially. Tenants are saying, well, it's not ideal. Yeah, the property might be in a bad condition, but where else you're going to go because there's nothing available so we're going to charge you an extra rent anyway. Yes, the supply and demand. Yeah. So the balance is so difficult and not just the renters reform bill, just, it's just difficult in any event really, the way things are, the way they are going now.
- [34:17]
C
Well, there's just a chronic under supply of housing in the right areas in the big cities there is a huge demand for housing and there just isn't the affordable housing. I suppose the answer is that we start building more social housing in the areas that need it. But I think that's another podcast for another day, Annabelle.
- [34:39]
D
I again, correct me if I'm wrong, I. I think the rent controls were abolished in the 80s, yes, but they
- [34:49]
C
were abolished when the, the rent controls were abolished. And this is me going back to, to my undergraduate and my bar course days. Rent act tenants are very rare for me to come across these days, but I have a feeling that it was the 1988 Housing act with the creation of assured and assured shorthold tenancies that replaced the Rent Act 1977. But you still can have, and you still do come across, even however many years later, you still come across Rent act tenancies which are subject to fair rent control.
- [35:29]
D
They are like gold dust, them tenancies.
- [35:31]
C
There are people who live in some very nice places at very affordable. Do you think if we brought back
- [35:38]
D
rent controls this potentially could balance the, the problem we're seeing now when a lot of there are, you know, concerning, as I said earlier, concerning a number of possession claims and landlords taking possession. Do you think if you bought back rent controls and then balanced the rent that that could assist help the UK's house and rental market?
- [36:01]
C
I think that's probably going to be unworkable at the moment. I think that the market is such that it just wouldn't be workable because the rents are so high as it is. If you brought in a fair rent, all of the rents would in reality need to be reduced. What level would you reduce it to? Well, I think it would probably end up being local housing allowance rates or something similar and then you would have a horrible situation where people who have bought on a buy to let basis wouldn't be able to afford their mortgage. So they'd then have to sell up because they wouldn't be able to pay the mortgage because the rental yield will be so low. So I don't think it's necessarily workable. I do think however that the expansion of the social housing and rented social housing and when you say social housing a lot of the time while it's affordable rent or affordable housing or shared ownership, I think that's the wrong narrative. It needs to be proper old fashioned council houses, social landlord at a social rent for people so they can actually afford to live.
- [37:08]
B
I agree.
- [37:09]
D
I think the government announced that the local housing allowance is going to be increased. I think it's been frozen since 2018, so hopefully that may assist. I mean I was looking at the rates the other day. I mean they're not, I mean they're a lot better than they have been. But I still don't think it probably address the, the issue that we're having in the UK at the moment.
- [37:31]
C
And I think one of the wider issues we're having is there is a demand to build more houses but they're not being built in necessarily the right places. They're being stuck where you can fit them. They're not having. It doesn't assist anyone to build a five bedroom luxury housing estate in the home Counties when what's needed are one and two bedroom houses or flats in central London housing. I think the approach overall to development and planning needs to be revisited and I think a target based approach of we need to build X amount of houses really misses the point. What you need is the right number of houses but in the right place for the right people. And blanket. I'm not a big fan of blanket targets and blanket approaches.
- [38:20]
E
So Annabel, in relation to the court systems, what do you think would be the most pressing issues or inefficiencies that actually impact possession cases from your experiencing, from your experience?
- [38:35]
C
I think that from a landlord's perspective, from a tenant's perspective, I think that it could be improved if there is clarity as to when a tenant can leave earlier. Ideally, I think that a tenant should be able to leave after a month. I don't think we should be going through this making a tenant show that they can, that one of the grounds is made out. So, you know, a tenant shouldn't have to show that they're a victim of domestic abuse. I think that should really be amended from a landlord's perspective. I think that the proposed framework does seem a bit complex and if they are going to implement the Private Landlord Ombudsman, if they're going to have this centralised portal, it needs to be made very user friendly so that not just Mr. Commercial Landlord can do it, but as I like to always use as an example, my mother could use it, and my mother is in her 70s. I hope she doesn't listen to this because I've given away her age and not necessarily the most technically savvy person there is. So I think it does need to be managed and the implementation needs to be done correctly. I think that that's one of the big concerns a lot of people have in the industry, in the sector. Yes, definitely.
- [39:57]
E
I think on a few of my cases in central London, actually, I think in one case we got a trial date but no directions, and the trial is in June, so it's a bit of a nightmare, definitely.
- [40:12]
C
The point is that there aren't enough court staff to process the number of claims, there aren't enough courtrooms, there aren't enough judges who can hear these claims. So I've had to do cases, which are fairly complex cases, to do with issues of capacity, where you're in a block possession list and you've been allotted five or 10 minutes and inevitably these cases just get adjourned off because they don't have the time, the courts just don't have the time to be able to deal with these. And what you end up with is landlords and tenants in cases where matters need to be heard quickly, proactive case management needs to happen, but you end up being adjourned off and you don't have another hearing for two or three months.
- [40:58]
A
So aside from the backlog. Sorry, Annabelle, aside from the backlog, in your experience, what are the main challenges faced by landlords or tenants in navigating a court system? Because we obviously you do it day in, day out, you're very, very comfortable with it. But seeing someone you know, seeing your clients, or seeing your opponents at times trying to muddle through, you know, we've seen it, it's a minefield.
- [41:17]
C
Sometimes it is. And it's funding as well, because going to court is expensive. And to be able to actually work out how the system works, you need to ideally have some advice. And that all costs money. And if you do not have the money or you're not eligible for funding, or if you're a small private landlord, you don't have the funds to be able to get legal advice, I think that's the biggest Challenge also, I think it can be very intimidating going into court when you've never really been into a court. You don't really know how it works. You don't know the system. You, you don't know the language and you're faced with either a judge who's got a very busy list, who just wants to get things through, who's just trying to rush. You assume that the judge and the court staff and your opponent and everyone knows all the details of your case because you've lived and breathed this for so long and you end up, and I think they come out quite shocked as to how quickly it gets done through and how the judges, you know, doesn't have the necessary the time to go through everything. And I think that can be a real shock to the system for those who are acting impersonal, who aren't lawyers going into the court system.
- [42:33]
D
Anwa, during COVID as you know, we didn't attend court, so most of the hearings were done online. Did you find doing your advocacy online was helpful and did. Do you think it helped progress cases a lot more?
- [42:50]
C
Well, I did interim hearings online and I actually did some trials online and a judicial review over, I think we did it over four days online. So I saw a range of hearings. I think that doing trials remotely, it actually didn't. It wasn't as effective. Things took a lot longer. You were having the inevitable IT issues. Also, it was very difficult to gauge the witnesses and get a feel for the witnesses, either for your own witness or when you were cross examining a witness. And there wasn't the same ability that you had to just over lunch, nip out, speak to your opponent or beforehand and try and see if you could narrow the issues because of. It was. Because it was remote. However, I thought interim hearings, it was brilliant directions hearing or an interim application via CVP where you don't have evidential issues or witness handling, I think was very good. And I'm glad that the courts are still doing interim hearings by video. In terms of doing a judicial review remotely by video, I don't necessarily think that's an experience I would want to repeat. It was very difficult and challenging, but I don't think that's really the norm anymore. But I do think interim hearings remotely are really sensible way of doing it.
- [44:16]
D
I agree. I think the difficulties I had, I encountered doing hearings remotely was dealing with vulnerable clients or clients who don't have access to the Internet or do not have, you know, any laptops to have access to access. And I think that's the difficulties I encountered, but I agree with you. I think having interim hearings remotely saves a lot of time and also I think it can be efficient and especially, you know, if you, if you're instructing a legal aid solicitor, for example, that doesn't live close to. To the court, I think that is quite helpful as well. So more, I believe having, for example, a hybrid approach in court could perhaps help more people across the country if they are eligible for legal aid, for example, because, you know, we, we all know there are, you know, fine few legal aid law firms operating in the UK and a lot more law firms are removing themselves from housing, especially legal aid, because of, you know, the, the lack of funding. The hourly rates haven't increased for, for 20 years. Yeah, fund is going to be issue and I think one of the biggest problems, I'm hoping it doesn't come to play is the fixed costs for housing dispute. I think if that is implemented next year, I think because they put it on half for two years, that is going to cause a lot of problems and I think that will defeat the objective of reducing possession claims because I think there'll be more and more claims in court because there will be lack of solicitors, especially legal aid, dealing with these types of cases.
- [45:55]
C
It's just going to put more pressure on the court system because you won't have legal aid experts being able to help, so you'll have increasing numbers of litigants in person, which will just cause further delays. You're right. There are housing legal aid deserts in this country and it's very concerning. It's very much a postcode lottery. If you are in, in particular in rural areas and you have a housing problem and on occasion I've been in a rural court and there's no. You ask, well, who's the duty adviser and the court staff. We just don't have duty advisers, I'm afraid. And. Well, where's the local cab? There isn't one nearby.
- [46:40]
E
So.
- [46:41]
C
I am concerned very much regarding the future of housing legal aid. I think it's very important that there is funding and people are encouraged to come into the system rather than having no choice but to leave. And if we end up with fixed costs, I just.
- [47:00]
E
It.
- [47:00]
C
It's a concern. That's. That's a polite way of putting it.
- [47:03]
A
Yeah. So going back to something you mentioned before as well, actually, about landlords and tenants, sometimes even just sitting down, having a chat, have a cup of tea, see if they can hash things out, we found personally, actually ADR and mediation or Things like that have been pursued quite more frequently nowadays. I suppose, again, it could be because of funding issues and it could be to prevent trial. And courts also push for it as well. Do you think they play a role going forward or even now to actually help narrow issues and resolve things, or how do you, in your experience, how do you think they pan out?
- [47:34]
C
I think that mediation, especially in housing, is going to be really important going forward and I think at the moment it does work. I've had quite, as I say, I've had cases where it's gone to mediation and I know of colleagues in chambers and in other chambers where they've had mediation on housing cases. And it's worked, it's very positive. Each party comes out of it going well. Actually, now I can see we've got a deal that we wouldn't necessarily have gotten if we'd gone to trial. But the difficulty with mediation, it comes back to what we were saying earlier, is funding and making sure that there are, if you, both parties can afford it. And in particular, there are not that many mediators who will undertake a mediation on legal aid rates. Yes, I mean, I know there are plenty of mediators in my chambers who do do mediation on housing legal aid rates. Not that I am trying to like 4 or 5 Gray's Inn Square mediation services, but there are, there are very much mediators who do mediation on legal aid rates in a lot of the housing sets as well. I am not a mediator. I have not done the course and I don't actually think I have time to do the course.
- [48:53]
D
Yeah, I've done the course on the mediator. I love the course, but I've just never mediated. But yeah, it's a really interesting course and I think it does help you as a solicitor, as a lawyer. But also it's, it's. When I was doing the course, one of the, one of the issues, what they said to me was, try not to have your solicitor hat on. And that was quite difficult for me. So I, I, I definitely recommend the course. Annabelle, if you're thinking about it, Annabel,
- [49:22]
B
you've been very, very generous with your time and you've answered everything that you've. Every answer you've provided has been really, really very interesting. We don't want to take up too much more of your time, but I do have one last question, which I'm going to read off my script, which is based on your experience, what recommendations would you make to policymakers and court administrators to enhance the effectiveness and accessibility of the court system? For possession cases, I think there are
- [49:50]
C
a few recommendations that I would make for policymakers and for the court administrators. I think not having block lists, possession claims being listed for a longer period of time, minimum 15 minutes, that whenever there is a possession list, the court staff make every effort to ensure there is a duty adviser on and ensuring that the duty advisers are adequately funded and remunerated. And that could help with the system. There's got to be a change in policy. The policy has to be to fairly remunerate housing lawyers to make sure that they can afford to provide that advice. The system needs to be altered to make sure there's enough time and resources for these hearings to be heard effectively. And as well, having a duty advisor in court, I think, can only make the situation for everybody much easier. It's not nice to go to court. I think all of us, we do it for a living. We go into court, it's entirely normal. Wander in, you've got your bar pass, you have your laptop, you're in your suit, you usually, if you're me, have a can of Red Bull or a coffee in hand, have a chat with the court staff, you go, you know where you're going. If you are a tenant or a landlord or just any party to litigation proceedings and you go into a civil court, it must be overwhelming for a lot of people and just having the information there, someone who can show you where to go, someone, say, a duty adviser who can sit down with you, explain what's going on, they have enough time to be able to explain and you have enough time to interview the person, put them at ease, find out about. But if you've got a list of about 30 cases that morning, you don't have time to. You need to speak with your clients, you just don't have the time. I think that's a bit of a rambling answer and I think I started ranting also, there should definitely be more coffee machines at court, maybe make the
- [51:53]
B
water less cold as well. So, you know from the machines. Okay, well, on that note, Annabelle, thank you. Thank you for your time.
- [52:09]
C
It was lovely to chat to you. Thank you for having me very much
- [52:13]
B
for joining us for today's episode, which has been really, really eye opening. And we hope you will join us for the next.