Social Welfare Lawyers in the Centre of Birmingham

The Community Law Partnership’s Response to the Consultation about Enforcement of Possession Orders and Alignment of Procedures in the County Court and High Court

1. The Community Law Partnership (‘CLP’) is a radical, progressive and award-winning SRA Regulated firm of Solicitors specialising in representing clients in the field of Housing, Public, and Community Care Law.  Based in Central Birmingham, CLP incorporates the ground-breaking national Travellers Advice Team.

2. CLP has been at the forefront of the development of the areas of law that is specialises in and over the last 20 years has seen cases in the superior courts including the Supreme Court and the European Court of Human Rights.

3. Even in the County Court it has been instrumental in drawing attention to the problems associated with the way in which County Court orders for possession are enforced.  Birmingham City Council v Mondhlani and Gill v Kassam are two widely reported County Court decisions where High Court Enforcement of possession orders led to unnecessarily protracted and expensive litigation.

4. With this background in mind we now turn to the specific questions raised by the consultation paper.

5. Question 1: (a) Should there be a process in the County Court of providing a notice of the time and date of eviction prior to the retaking of possession? And if so then (b) should it be put on a statutory basis?

Yes, there should be notice of the date and time of the eviction.  This is particularly important given the real difficulties occupiers of residential property face when attempting to obtain advice and assistance with defending proceedings for possession.  Sometimes there is not enough time for them to obtain the advice that they need, or they will be unable to attend a hearing notwithstanding the fact they have a sound defence.  Many people are terrified by the prospect of engaging with court processes and it is not until they know for a fact that they will otherwise lose their home that they seek advice.

When District Judge’s make possession orders, experience shows, that the Court does so, even if the occupier is not present, on the basis that, if there is a change in circumstance or further information comes to light, the occupier can apply to the Court to seek relief.  Given that most tenancies with statutory protection do not end until the possession order is executed, that is not an unsurprising approach.

Many months or even years can pass between a possession order being made and it being executed.  This is often the case in the context of social housing where suspended possession orders are made on the basis that rent and rent in arrears are paid.

Not knowing when the eviction will take place presents considerable logistical difficulty, and often can mean having to trouble the court on a certificate of urgency to obtain a stay, ex parte, at short notice to the court, if the occupier is not sure when the bailiffs or high court enforcement officers (HCEOs) are going to turn up – this is one of the biggest issues with High Court enforcement of possession orders.
Additionally forced evictions can be extremely traumatic events and should be avoided at all costs.

Ideally, the requirement would have statutory footing.  But given the amount of other business Parliament has, there should be no delay to an amendment to the CPR in order to make it a requirement that on the issue of a warrant, the Court Office will send Notice in the prescribed form to the occupier.

6. Question 2: Should the notice be based on the current Form N54?

Yes¸ but the N54 should be amended to make it clearer that the occupier may be entitled to set-aside the possession order, and not simply suspend the warrant.  It would also be in the interests of justice for occupiers to be provided with a list of advice agencies that may be able to help in the locality for where the land/court is situated.  This is particularly important given that, in our experience, most people who face eviction are on a low income.

7. Question 3: What information should be included in the notice?

Please see response to Q2.

8. Question 4: a)To whom should the notice be addressed and b)where should it be delivered? In particular should it always be addressed “to the occupiers” and delivered to the premises?

The Notice should be addressed to the ‘Tenant/Occupier/Person living at the Property’ and also sent to the Defendant where the address for service is different.  The envelope should be prominently marked to make it clear that ‘THIS LETTER IS ABOUT YOUR EVICTION – IT IS NOT TOO LATE – OPEN NOW!’.  This is because many people in difficulty with their housing circumstances are often unable to open their post either through fear, illiteracy or disability.

9. Question 5: What should the standard length of notice be? (a) seven days (b) 14 days (c) other (and what length) Please provide your justification for a) or b) or c)

14 days as delays in obtaining an appointment for legal advice and then the need to wait to be able to get an appointment at the Court office to issue the application, and then get a return date are problematic.  More notice of eviction will mean that there are fewer last-minute applications where there is not enough time to tell the Claimant it is being heard.  14 days appears to strike the right balance.

10. Question 6: Should the court have the power (i) to dispense with or (ii) to reduce or (iii) extend, the notice period?

No.  Given the catastrophic consequences of the loss of one’s home, there can be no rational justification to someone not being told when they are going to be physically evicted from their home.  The Court should have the power to extend or reduce the length of notice, provided that there is a test contained in the Rules as to how that judicial discretion ought to be exercised.  This is important so that justice can be done in particular cases.  Some occupiers may necessarily need greater notice than others as a result of disability or other protected characteristic.  This may be important to avoid a breach of Convention rights.  Some possession orders expire ‘forthwith’, which further adds the need for the Court to be able to give the appropriate period of notice.

An application to vary the notice period must, as a matter of natural justice, be on notice to the occupier.  This could either be contained with the Particulars of Claim or be by way of Application Notice, as defined in CPR Part 23, if the application is not made when the Particulars of Claim are served and filed.

11. Question 7: Should there be an exception to the requirement for advance notice of the eviction to be given in the case of trespassers?
– Should there be any limits on such an exception; if so then what and why?

No. The same arguments advanced above also apply to trespassers.

A significant proportion of the Gypsy and Traveller population have to resort to unauthorised encampments due to the failure over many years of both central and local government to ensure that there are sufficient authorised caravan pitches, both permanent and transit. Gypsies and Travellers suffer some of the worst outcomes of any ethnic groups in England and Wales with regard to health and education and this is linked to the accommodation problems that exist.

There is guidance to both local and other public authorities from both the English and Welsh governments concerning the eviction of unauthorised encampments. Central to this guidance is the need for welfare enquiries to be carried out. If there is a significant gap between the making of a possession order and the enforcement of that order, then the Gypsies and Travellers concerned may need the opportunity of bringing any changes in circumstances to the attention of the authority in question.

Some landowners will rely on a previous possession order obtained against a different group of Gypsies or Travellers. This is only permissible where there is a sufficient link or nexus between the two groups (Wiltshire Council v Frazer refers). The Gypsies or Travellers may need the opportunity to argue that there is no such link or nexus in this kind of situation.

12. Question 8 – Should there be any other exceptions to the requirement for advance notice of the eviction to be given (e.g. commercial premises or mortgages)?

In respect of mortgaged residential premises, no – there is no logical reason to treat people who have a home which is the subject of a mortgage any differently.  In respect of commercial premises, if the occupier knows when they are to be evicted, they may clear the debt and seek relief from forfeiture, or pack up and leave, either of which will be to the benefit of the land owner who will either get their money or not have to spend so much on enforcing the order for possession.

13. Question 9: Should procedures, (in terms of enforcement of possession orders in the High Court and in the County Court) be aligned by a similar requirement for HCEOs to provide a Notice to occupiers of the date and time of eviction delivered to the premises prior to the retaking of possession?

Quite clearly, yes.  The CPR was intended to align the processes as between the High Court (which used to be governed by the RSC) and County Courts (which used to be governed by the CCR).  The current system of non-alignment is confusing and there are real procedural and practical problems.  It would be better to be able to apply to a County Court District Judge to deal with issues such as suspending warrants/writs etc. rather than hope that there is a DJ with District Registry of the High Court jurisdiction.  High Court Judges/Masters/DJs may be situated miles away from the court centre containing the possession file where the possession order was made.

14. Question 10: If it is accepted that provisions for enforcement of possession orders in the County Court and High Court be aligned, should there still be the need for judicial permission to enforce possession orders in the High Court?

No, provided that the possession order was unconditional.
Yes, if enforcement way stayed or suspended on terms.

15. Question 11: Should the current exception regarding the absence of need for judicial permission for a Writ to issue against trespassers continue?

No, For the reasons given above with regard to trespassers and especially with regard to Gypsies and Travellers, permission should be required.

16. Question 12: Should there be any limits on the trespassers exception?;
– Yes
– No
– Please explain your answer

No. For the reasons given above, there should be no such exception.

17. Question 13: Should the current exception regarding the absence of need for judicial permission for a Writ to issue in mortgage cases continue?

No, if the possession order was suspended on terms.

18. Question 14: Should the requirement of occupiers having “sufficient notice of proceedings” be defined; and if so then how and in particular as to notice of:
(i) the proceedings seeking possession?
(ii) the original order for possession?
(iii) any order transferring enforcement to the High Court?
(iv) the last order or writ or warrant for possession or order staying or suspending such?
(v) an intent to enforce or
(vi) something else?

Any of the above – please specify which

Notice should be in relation all of the above.

Yes, it should.  At the moment the rules are too opaque.  There should be a prescribed form served setting out all of these matters.  This would not be too onerous.  The owner of the land will have all of this information available to him or her readily.   The advantage of all of this information being contained in one document is that it would be apparent to the court and anyone advising an occupier who may not have the papers leading to the possession order being made to hand, what the procedural history has been.  This information can be very helpful when advising whether a warrant should be suspended – both to advisers and to the Court.  It means that District Judges on applications to suspend warrants would not need to rummage through a file to find key information as it would be contained in one place.  The Notice should also make it clear the basis on which/grounds on which possession was awarded, to avoid meritless applications to suspend orders made where the court had no choice to, or where s89 HA 1980 bites.

19. Question 15: Should there be a need to justify transfer of enforcement of possession orders  between the County Court and the High Court (i) if the procedures for possession are
aligned and (ii) if they are not?
Please explain your answer; and give any particular considerations that should be taken into account as to whether or not transfer should take place

Given the procedural problems if the processes are not aligned, then yes, there should be a need to justify the use of a High Court process.  If aligned, then no – there is no need.  Social Landlord should not be routinely using HCEOs in rent arrears cases.

20. Question 16: What (if any) information should the court be provided with on application to transfer?

The High Court should be sent a copy of the court file – at the landowner’s expense.

21. Question 17: Where a landlord wishes to transfer a case for the purposes of enforcement,  should there be a specific provision that these applications are made on
notice to the defendant using Form N244 or some other means?
If Yes:
– Form N244
– Other – please specify

Yes, on notice.  There should be a bespoke practice form that is easy to complete and easy to understand.  Understandably defendants in such cases can find court procedures very difficult or impossible to follow.

22. Question 18: Should such an application be capable of being determined on paper without a hearing?
No, they should be listed as short enforcement hearings.

23. Question 19: Should there be any provision made regarding the higher costs of the HCEO over the County Court bailiff procedure?
If so, what provision should be made?

There should be a fixed costs regime that applies to both bailiffs and HCEOs, and the landlord can bear the rest of the costs if s/he chooses to transfer to an HCEO for enforcement purposes.

24. Question 20: Should there be any provision made regarding notice having to be given to occupiers in advance of eviction if a transfer order is made and a Writ obtained?

Please explain your answer

Yes, for the reasons given above.

25. Question 21: Should any applications for stays or suspensions of the possession order (made by the tenant) be made to the (home) County Court rather than the High Court?

Yes, in the home County Court hearing centre, because it is easier to access justice for a whole host of practical reasons.

26. Question 22: In cases where there is a request for a warrant or writ of possession, should  the applicant have to certify that all occupants have had sufficient notice of proceedings
To be able to apply for relief (i) if advance notice does have to be given of the date and time of  eviction and (ii) if such advance notice does not have to be given?

Yes, always.

Should there be exceptions (e.g. trespassers)?

No, for the reasons given above.

 Should the Court be able to waive such a requirement?

No, It should be permissible to abridge the notice, but not waive it – for the reasons given as a matter of principle above.

27. Question 23: If there is to be a need for such certification; then should it be defined?

 If yes, then should be defined as all or any (and if so which) of notice of:
(i) the proceedings seeking possession?
(ii) the original order for possession?
(iii) any order transferring enforcement to the High Court?
(iv) the last order or writ or warrant for possession or order staying or suspending such?
(v) an intent to enforce or
(vi) something else?

 Notice of matters (i) – (v).

28. Question 24: What form should such certification take so as to give confidence that all occupiers who may be affected by a possession order are informed; a) a statement of truth/declaration or b) some other means?

By statement of truth, with the usual consequences for not verifying unless you have an honestly held belief in the truth thereof.  These are people’s homes after all.

29. Question 25: How will the proposed changes affect work in the enforcement sector?

It will make the administration of justice for defendants better and reduce the stress and anxiety for them. There is also serious concern over the practices of certain bailiffs and HCEOs.

1st May 2019