Pre-Action Protocol for Possession Claims by Social Landlords: Pt 2 Possession Claims Based Upon Rent Arrears

Part 2 of the Pre-Action Protocol for Possession Claims by Social Landlords sets out a code of good practice on claims for rent arrears. The Protocol encourages more contact between landlords and tenants.

When does the Protocol 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 Protocol?

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 must write to each named tenant separately.

Repayment of the rent arrears

The landlord and tenant should try to agree affordable sums for the tenant to pay towards the rent arrears. Such payment should take into account the tenant’s income and expenditure. The landlord must clearly outline in writing 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 should also 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 must also, upon request by the tenant, 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.

Vulnerable tenants

If the landlord is aware of any difficulty the tenant may have in reading or understanding any information given, the landlord should take reasonable steps to ensure the tenant understands the information and be able to show that such steps were taken.
If the landlord knows the tenant is under 18 or is particularly vulnerable, he should, at an early stage, consider whether or not:

  • the tenant has the mental capacity to defend any possession proceedings. If the landlord considers the tenant does not have such capacity he is expected to apply to the court for the appointment of a litigation friend;
  • any issues arise under the Equality Act 2010; and
  • 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 stipulates that possession proceedings should be brought as a last resort.
Where a statutory notice has been served, for example a Notice to Quit, the landlord should make reasonable attempts to contact the tenant before commencing possession proceedings, to discuss the amount, cause and repayment of the arrears, and the housing benefit position.

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, the landlord should 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;
  • a reasonable expectation of being granted housing benefit; and
  • 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 should directly contact this 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, 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 by discussion and negotiation. The courts consider that litigation should be a last resort and may require parties to prove 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 begun the landlord must 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 possession hearing.

The landlord must inform the tenant of the date and time of any court hearing and the order applied for and 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 should postpone court proceedings so long as the tenant keeps to such agreement. If the tenant fails to comply, the landlord should warn him of his intention to restore court proceedings and 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 can also adjourn, strike out or dismiss the claim.
If a tenant unreasonably fails to comply with the terms of the Protocol, the court may take this into account when considering whether it is reasonable to make an order for possession.