The Pre-Action Protocol for Possession Claims based on rent arrears sets out a code of good practice for social landlords and private registered providers in the collection of rent arrears. The Protocol encourages more contact between landlords and tenants.
When does the Pre-Action Protocol for Possession Claims based on rent arrears apply?
The Protocol applies to residential possession claims by social landlords and private registered providers of social housing which are based solely on claims for rent arrears.
Social landlords include local authorities, Registered Social Landlords and Housing Action Trusts.
The Protocol does not apply to claims for possession where there is no security of tenure or to claims in respect of long leases.
What are the requirements of the Pre-Action Protocol for Possession Claims based on rent arrears?
Initial contact by the landlord
Where a tenant falls into arrears the landlord is expected to contact him as soon as reasonably possible to discuss the cause of the arrears, the tenant’s financial circumstances, his entitlement to benefits and repayment of the arrears. The contact can be in person or in writing. Where it is in writing the landlord is required to write to each named tenant separately.
Repayment of the rent arrears
The landlord and tenant are expected to try to agree affordable sums for the tenant to pay towards the rent arrears. The sums payable should take into account the tenant’s income and expenditure where such information has been supplied by the tenant. The landlord is required to clearly set out in correspondence any time limits with which the tenant should comply.
The landlord is expected to arrange for the arrears to be paid by the Department for Work and Pensions from the tenant’s benefit, where the tenant meets the appropriate criteria.
The landlord is also expected to offer assistance to the tenant in any claim the tenant may have for housing benefit.
Provision of rent statements
The landlord is expected to provide the tenant with a rent statement on a quarterly basis. This should be in a comprehensible format showing the rent due and sums received for the past 13 weeks.
The landlord is also expected, upon request by the tenant, to provide him with copies of rent statements from the date when the arrears first arose. These should be in a comprehensible format and should show all amounts of rent due, the dates and amounts of all payments made, whether through housing benefit or by the tenant, and a running total of the arrears.
If the landlord is aware of any difficulty the tenant may have in reading or understanding any information given, the landlord is expected to take reasonable steps to ensure that the tenant understands the information. The landlord may be required to demonstrate that he took reasonable steps to ensure that the information has been communicated in a manner in which the tenant can understand.
If the landlord is aware that the tenant is under the age of 18 or is particularly vulnerable, the landlord is expected to consider at an early stage the following matters:
- whether or not the tenant has the mental capacity to defend any possession proceedings. If the landlord considers that the tenant does not have such capacity he is expected to apply to the Court for the appointment of a litigation friend;
- whether or not any issues arise under the Disability Discrimination Act 1995; and
- whether or not, in the case of a local authority landlord, there is a need for a community care assessment of the tenant in accordance with the provisions of the National Health Service and Community Care Act 1990.
Possession proceedings to be brought as a last resort
The Protocol takes the view that possession proceedings should be brought as a last resort.
Where a statutory notice has served, for example a Notice to Quit, the landlord is expected to make reasonable attempts to contact the tenant, before commencing possession proceedings, to discuss the amount of the arrears, the cause of the arrears, repayment of the arrears and the position as to housing benefit.
If the tenant agrees to pay the current rent and a reasonable amount towards the arrears, the landlord is expected to agree to postpone Court proceedings so long as the tenant keeps to such agreement. If the tenant fails to comply with any such agreement, the landlord is expected to warn him of his intention to commence possession proceedings and to give him clear time limits within which to comply.
The Protocol states that possession proceedings for rent arrears should not be commenced against a tenant who can demonstrate that:
- he has provided to the local authority all the evidence required to process a claim for housing benefit;
- he has a reasonable expectation of being granted housing benefit; and
- he has paid other sums due not covered by housing benefit.
The landlord is expected to make every effort to establish effective ongoing liaison with the relevant housing benefit department. With the tenant’s consent, he is expected to make direct contact with the relevant housing benefit department before commencing possession proceedings.
The Protocol expects landlords and tenants to work together in resolving any housing benefit problems.
The landlord is also expected to advise the tenant to seek assistance from the Citizen’s Advice Bureau, debt advice agencies or other appropriate agencies as soon as possible.
Alternative dispute resolution
The Protocol expects the parties to consider whether it is possible to resolve the issues between themselves by discussion and negotiation. The Courts take the view that litigation should be a last resort and may require parties to provide evidence that alternative means of resolving their dispute were considered. Claims should not be issued prematurely when a settlement is still being actively explored.
Action required of the landlord where Court proceedings have been commenced
Where possession proceedings have been commenced the landlord is required to provide the tenant with up to date rent statements and disclose what knowledge he has of the tenant’s housing benefit position to the tenant. This must be done at least 10 days before the date of the possession hearing.
The landlord is required to inform the tenant of the date and time of any Court hearing and the order applied for. The landlord is required to advise the tenant to attend the hearing as his home is at risk. The landlord should keep records of such advice.
If the tenant agrees to pay the current rent and a reasonable amount towards the arrears, the landlord is expected to agree to postpone Court proceedings so long as the tenant keeps to such agreement. If the tenant fails to comply with any such agreement, the landlord is expected to warn him of his intention to restore the Court proceedings and to give him clear time limits within which to comply.
What happens if a party does not act in accordance with the Protocol?
If a landlord unreasonably fails to comply with the terms of the protocol the Court may make an order requiring him to pay the tenant’s costs. In cases other than those brought solely on mandatory grounds the Court also has the power to adjourn, strike out or dismiss the claim.
If a tenant unreasonably fails to comply with the terms of the Protocol, this is something which the Court may take into account when considering whether it is reasonable to make an order for possession.