Since March last year, every lockdown has been accompanied by an ‘eviction ban’ – but what that phrase has meant has changed every few months. In the first lockdown, when the press and politicians spoke of a ‘ban’, they meant each of the following: first, that no claims by landlords for possession could be heard by the courts, and second, that where a court had already ordered possession, that order could not be enforced.
(Normally, if a landlord wants to remove a defaulting tenant, the landlord applies to the court for a date at which bailiffs attend and extract the tenant from their home. Between March and September 2020, bailiffs were stood down. So if you look at the table of repossessions by country court bailiffs in England and Wales in 2020, it reads: between January and March, 6,903 evictions. Between April and September, none.)
Since December, only the ban on bailiffs’ attendances has continued. Hearings have resumed, and possession orders have started to be made. Some tenants have been protected from eviction, but many have not – including those in high arrears or accused of anti-social behaviour, among others.
Recently, one of my clients, Matteo, was told to attend a possession hearing. The landlord’s case was simple enough: Matteo’s partner, Ewan, had died the year before; Ewan was the only occupant named in the tenancy agreement, and Matteo had no right to occupy. As far as the housing association landlord was concerned, Matteo was a mere lodger, with no right to stay. The claim had been brought in the name of ‘Persons Unknown’.
The halt on bailiff evictions does not apply to trespassers – so if the landlord won, Matteo would have to leave. The bailiffs would attend within a few days to remove him and his possessions.
Matteo’s solicitor had fixed up a telephone conference so we could speak, but when the time came, Matteo’s voice was almost inaudible over the London traffic.
There was a reason why he was roaming across the city. Matteo had little faith that his lawyers would be able to save his home. He’d been to the council, who’d said that if he was evicted, they wouldn’t help. He was going from night shelter to night shelter, pleading with the emergency managers to see if they would take him in. He was mere weeks away from his 60th birthday, and the thought of rooming with strangers alarmed him. All he could say, over and over, was ‘I need to get to the shelter.’
I spoke to the barrister on the other side of the case, Wystan – one of my most decent opponents. But even he was offering my client nothing. ‘I’m instructed to oppose,’ Wystan said. ‘Just between you and me, the solicitor and I have been trying to drum some sense into the housing officer. But she won’t budge.’
The afternoon was upon us, and the hearing five minutes from starting. It would be a telephone hearing. The idea was that if the landlord said anything unexpected, Matteo and I would be able to talk via WhatsApp.
‘Has the court rung?’ I asked. ‘I haven’t been connected,’ the solicitor messaged back. ‘I’ll call the court now.’
Meanwhile there was no sign of Matteo. We passed the fixed start-time of 3:30, then 3:40… The solicitor rang a customer services number he had been given. Yes, she confirmed, the court had everyone’s number. But what about the judge, where was he? She couldn’t say.
I asked Wystan if he had been added. He wrote back, ‘All Quiet on the Western Front.’ The solicitor spoke to Matteo. He’d made it to the shelter. At least there was a line there and he would be able to listen to the hearing.
At 4:15 the court rang, and at last the hearing began. I made the best points I could. Matteo was not a trespasser, he was Ewan’s partner. Matteo had written a witness statement, and it described every detail of their relationship: how they had lived together without every splitting up, how they had called each other their husbands. I showed the judge the letters from his and Ewan’s friends, and from the pharmacist, from the restaurant where they ate in together every Saturday for 15 years.
Under the law, you don’t need to be married to be entitled to succeed. And if you are entitled, then you’re the tenant. Matteo was the lawful occupier, and nothing the landlord had said or done since learning of Ewan’s death had brought the tenancy to an end.
Then it was Wystan’s turn. The landlord had emails from neighbours who were claiming that Matteo and Ewan had split up before Ewan’s death. And how anyway was Matteo going to pay the rent? He was an EU citizen who had failed to regularise his immigration status post-Brexit. He wasn’t allowed to work, or even claim benefits. Yes, he had promised to apply and change his status, but right now he couldn’t afford the rent. If Matteo was to leave now, he could stay in the night shelter. That’s where he belonged.
Matteo messaged me, ‘The shelter have given me two weeks. And I only got that because of Covid.’
The judge decided to let Matteo stay in his home. She said that my client was a man ‘of mature years, being sent from pillar to post during a pandemic – I don’t lose sight of that.’ She agreed with me that if the judge at the next hearing was persuaded that Ewan and Matteo had remained a couple until Ewan’s death then Matteo was entitled to succeed to the tenancy, whether he could afford it or not. The judge wanted to bring the case back in the autumn, with a chance for both sides to put in as much evidence as they could.
At the end of the case, what had it taught me? First, that online hearings are no way to make decisions of this significance. Matteo was frozen out of the hearing: the judge didn’t address him. Matteo didn’t get a chance to speak. In so far as he could communicate anything, it was only with me via WhatsApp, and I was focussing on choosing my own words with care, not looking every moment to see if another message had come in.
Second, that the system can in no way provide justice to the many tenants who are forced to go through the hearings without legal assistance. The County Court system is held together by legal aid, but every year the number of people eligible for legal aid is reduced. I can’t think how Matteo could have got the hearing without a solicitor to take his statement, without someone to represent him, without anyone he could speak to when the hearing began 45 minutes late.
The main reason that people are threatened with losing their homes is that they are behind with their rent. The day after representing Matteo, I represented a single woman who’d made redundant from her work in a shop because of Covid. She insisted that it wasn’t her fault she’d been dismissed.
The day after that, my clients were a couple. He’d been sacked after his wife gave birth, late, during the pandemic, and was then required to remain in hospital for the next month as she waited for treatment. He’d stayed at her side and ignored his job. They’d got onto benefits eventually, but not before accruing a five thousand pound debt.
Tenants have lost work, and been obliged to accept pay cuts. The number of people on Universal Credit increased from two million in April 2020 to six million in November 2020. It is almost impossible to avoid rent arrears on Universal Credit. HouseMark estimates that total social housing debt has risen under the pandemic to over £1 billion.
Government policies such as the eviction ban have delayed the impact of the crisis, but the same essential conditions are all still in place, as they have been ever since last March. Hundreds of thousands of tenants have fallen behind with their rent, while ministers have refused to make the legal changes that would keep homes safe.
Since December, the number of possession claims has been rising, as has the number of evictions, which is already back in the thousands every month. How many people are going to have to lose their homes—ten thousand, fifty thousand—before the government agrees to legislate and protect tenants in the period after the lockdown has ended?