Pre-Action Protocol Amendments: what you need to know

The new protocols can be viewed here.

We thought we would provide you with a timely reminder that the purpose of the protocols is to ensure that parties exchange information with a view to:

• Understanding each other’s position
• Making decisions about how to proceed
• Trying to settle issues without proceedings
• Considering Alternative Dispute Resolution to assist with settlement
• Supporting the effective management of proceedings
• Reducing costs

The failure of a party to comply with a protocol might of course result in proceedings being stayed, or cost sanctions being applied.

There are two new protocols that affect housing law:

Pre-Action Protocol for Possession claims by Social Landlords
The Pre-action Protocol for Possession claims by Social Landlords was introduced on 6 April 2015, both replacing and expanding upon the Pre-Action Protocol for Possession claims based on rent arrears.

The former Protocol, as its name suggested – was solely for rent arrears claims. The new Protocol is wider.

Part 2 of the Protocol now governs rent arrears claims. It largely adopts the requirements of the previous protocol, and there should be no need for Social Landlords to amend their policies and procedures in claims based solely on rent arrears.

Part 3 is new, and relates to claims based on a mandatory ground for possession, such as claims against non secure tenants, failed succession claims, unlawful occupiers, severed joint tenancies etc. In those claims, s89(1) restricts the Court’s discretion to postpone possession; possession must be ordered in no more than 14 days – unless exceptional hardship can be demonstrated, in which case the maximum postponement can be six weeks.

Part 3 is new, and relates to claims based on a mandatory ground for possession, such as claims against non secure tenants, failed succession claims, unlawful occupiers, severed joint tenancies etc. In those claims, s89(1) Housing Act 1985  restricts the Court’s discretion to postpone possession; possession must be ordered in no more than 14 days – unless exceptional hardship can be demonstrated, in which case the maximum postponement can be six weeks.

Part 3 of the Protocol should be used in all cases where mandatory grounds apply (except where the Landlord of an Assured tenant relies solely on Grounds 1 – 8 Schedule 2 Housing Act 1988), to ensure Proportionality (for Article 8 purposes) is addressed, and communicated to the occupant. Assured Shorthold, Introductory/Starter and Demoted tenants are not mentioned – but it would not harm to follow the process.

In such cases where a decision is taken to issue proceedings there is a requirement for the social landlord to:

• Write to the occupants explaining why the intend to seek possession and require the occupants to notify the landlord in writing of any personal circumstances to be taken into account within a specified time limit. This letter might accompany any notice served.
• Consider any representations received, and if a claim is to be issued, give brief written reasons for doing so.
• Within the Particulars of Claim for possession or the witness statement, a summary:
  • Of whether (by statutory review procedure or otherwise) the landlord invited the Defendant to make representations as to their personal circumstances/other matters to be taken into account
  • If representations were made, that they were considered
  • Brief reasons for bringing proceedings
  • Copies of any relevant documents supporting proportionality of the decision

The Protocol re-iterates that if a tenant has difficulty in reading or understanding information, reasonable steps should be taken to ensure understanding, and if a tenant is under 18 or particularly vulnerable, appropriate steps should be taken to address issues of capacity, any matters arising under the Equality Act 2010 and, for a Local Authority, whether there is a need for a community care assessment in accordance with the National Health Service and Community Care Act 1990.

Pre-Action Protocol for Housing Disrepair Cases
The Disrepair Protocol has been in use since 2008 and it sets out very clearly the process that ought to be followed by tenants who wish to bring a claim for disrepair.

A new version of the Protocol was introduced on 6 April 2015. Whilst it largely streamlines the old Protocol, there are a few noteworthy changes:

• The Protocol is clear that it does not apply in relation to claims that originate as part of a defence to possession proceedings in order to offset a landlord’s claim for rent arrears.
• The two stage process of issuing an Early Notification Letter followed by a Letter of Claim has been replaced with the issue of one Letter of Claim at the outset (although the Protocol does still allow a tenant to send a notification letter if appropriate – e.g. if urgent repairs are needed).
• The 20 working day time limits in relation to a response to the Letter of Claim and instruction of experts remain.
• The new Protocol requires the parties to “take stock” of their respective positions, if the dispute has not been resolved after the Protocol has been followed, as a last ditch attempt to avoid Court proceedings – or at least narrow the issues that remain in dispute.
• Where a limitation period is due to expire, tenants should now ask landlords to agree not to rely upon a limitation defence so that the parties can comply with the Protocol.

For those of you who deal with disrepair claims, it is important to get to know the new version – both so you are fully aware as to your obligations but also to keep opponents (and particularly no win no fee solicitors) on their toes.

Further information
Please do not hesitate to get in touch for further information on the amended protocols or any housing law queries you may have.