Through March 2020, the UK government’s strategy for dealing with the COVID-19 public health crisis shifted from the policy known as ‘herd immunity’ (whereby, notwithstanding modest public health interventions concerning the elderly and vulnerable, the virus would be allowed to take its course) to the more interventionist policy leading to measures such as school closures (20 March), a strict national lockdown (23 March) and the Coronavirus Act 2020 (25 March).

I propose an analogy between the measures taken in the UK to deal with the pandemic and those taken to manage possession proceedings. Immediately following the strict public health measures set out above, we saw, first, the ending of block possession lists of 60 or so cases per day, and then, second, on 27 March, the general stay on possession proceedings brought about by way of Civil Procedure Rules 1998 (CPR) Practice Direction (PD) 51Z. This PD was later amended on 20 April 2020 and then replaced on 25 June 2020 by CPR 55.29, which was itself amended to extend the general stay to 20 September 2020. I am highlighting the fact that possession proceedings were at first subject to limited controls and then, when the dangers of allowing proceedings for possession and evictions to go ahead in the midst of the crisis were appreciated, all possession proceedings were strictly locked down.

What had been apprehended was the fact that: (i) the financial impact of the lockdown meant that rent and mortgages were at serious risk of default; and (ii) evictions would mean people searching for alterative accommodation – an activity not compatible with a strict national lockdown. Letting agents were closed. Local authorities would not be able to cope with applications for housing on that scale. In any event, there has been a long-term housing crisis pre-dating and quite separate from the COVID-19 public health crisis, and so the sector as a whole was, and is, in no place to cope with a large influx of new accommodation seekers.

Throughout the crisis, there have been those who are sceptical about the need for the public health measures imposed by the government. This scepticism has ranged from the libertarian exceptionalism view that the measures are disproportionate and should be struck down, to bizarre conspiracy theories that the crisis is caused by 5G mobile phone equipment.

The stay on possession proceedings has also had its sceptics and some have tried to strike it down. On 30 April 2020, the Court of Appeal heard the case of Arkin v Marshall and Marshall [2020] EWCA Civ 620, in which the appellant argued that this particular case was not of the usual run of possession cases and so should not be subject to the stay or, in the alternative, the general stay was ultra vires. Judgment was handed down on 11 May and the appeal dismissed. Subsequent appeals brought by litigants seeking to dismantle the stay were also dismissed and even the National Residential Landlords Association, with its extensive access to the minister of state for housing, has not been able to prevent extensions to the stay.

However, while the courts were upholding the law and the principles supporting the imposition of the general stay, the government and judiciary were also very concerned with: (i) the backlog of cases that, at the imposition of the stay, were not concluded and so were held in stasis; (ii) the backlog of cases that, in the normal run of things, would have been issued during the period of the stay and that would be issued as soon as the stay was lifted (in fact, nothing prevented their issue but they would be immediately stayed and nothing would happen with them); and (iii) the backlog of extra cases brought about because of the financial situation and the effect on rent and mortgage accounts. The worry was that once the stay was lifted, there would be a tsunami of possession proceedings leading to a tidal wave of evictions. The authorities would not be able to cope with the numbers requiring assistance. The curve of resulting homelessness would be too steep.

Certain courts informally consulted on a plan to conduct possession proceedings remotely by way of telephone hearings and there would be no housing possession court duty scheme advice. Essentially, cases would be rushed through at the same or higher block listing rate as prior to the COVID-19 crisis. If that led to a massive upsurge in homelessness, then so be it – that was the price to be paid to lift the lockdown and get back to ‘business as usual’.

However, it was clear a plan was needed. In early June, the master of the rolls convened a working group, led by Mr Justice Knowles, with the aim of drawing up arrangements for the courts to manage when the stay was lifted. I have the privilege, along with my Housing Law Practitioners’ Association co-chair, Marina Sergides, to sit on that working group.

The stated aims of the arrangements are as follows:

To that end, there are four main innovations introduced by the arrangements into the process and timeline of housing possession proceedings. Alongside those are new mechanisms, primarily for dealing with cases held in the backlog. Finally, there are attempts at behavioural nudges directed at landlords and lenders in the background. While the mechanisms have been inscribed in amendments to CPR Parts 55 and 83, and in the new PD 55C, the main innovations do not arise out of any new rules, regulations or PDs. They will be managed by way of existing CPR with Part 3, the court’s general case management powers, doing virtually all of the heavy lifting. The attempts to attenuate the behaviour of landlords and lenders are as I have described above: behavioural nudges.

First, the mechanisms. PD 55C provides that any case already in the court system before 3 August 2020 will require a ‘reactivation notice’ to bring it back to the court’s attention. That can be filed and served by either party, and a practice form has been prepared for that purpose. If directions are outstanding, then fresh dates must be proposed and there is a requirement to ‘set out what knowledge that party has as to the effect of the coronavirus pandemic on the defendant and their dependants’ (para 2.3(b)). Any hearing listed or relisted following such a notice will be on 21 days’ notice to the parties. For any new claims brought on or after 3 August 2020, there is now a requirement for the claimant to show at the hearing compliance with any applicable protocol – this brings claims by social landlords in line with mortgage claims to an extent.

The innovations are, as mentioned above, fourfold. First is the ability of the court of its own volition, or on the information of the claimant or on the request of the defendant, to mark the file as having COVID-19 case marking, meaning the pandemic is relevant to the grounds on which possession is sought. Second is a new requirement for the claimant to file and serve a bundle of documents. These innovations are closely linked to the third, which is that there will be, in all new possession claims, a review date. This is primarily an opportunity for the defendant to get free, non-means-tested advice from a duty adviser, almost certainly remotely by telephone, in advance of the first substantive hearing (where there will also be duty advice available in the normal way). Having taken instructions, the duty adviser will, on the review date, try to reach an agreement with the landlord/lender so that the substantive hearing can be vacated. The case file will also be referred separately to the judge for the documents and claim requirements to be checked. If the requirements are not met, the judge will be able to make directions or, in hopeless cases, strike out the claim. There is not intended to be any jeopardy for the tenant at the review date stage of proceedings.

The fourth innovation is described as ‘independent facilitated negotiation/mediation’. At the time of writing, this is not set out in the official arrangements document. In my view, this is better described simply as facilitated negotiation. The scheme is a pilot and if both parties agree, the duty adviser providing advice on the review date can refer up to two cases per court duty day for facilitated negotiation. This will be carried out by an independent negotiator whose experience would qualify them to be a duty adviser and is most likely to be a duty adviser from another area. The scheme is funded for the negotiator and the referring duty adviser who is on hand to assist, and again the purpose is to see if the parties can reach a settlement that leads to an agreed order.

What is not in the arrangements is what, in my extended analogy, would equate to a vaccine: greater protections for renters and borrowers. Notices in some cases have been extended to six months,4‘Government has changed the law so most renters have a 6 month notice period’, Ministry of Housing, Communities and Local Government (MHCLG) press release, 28 August 2020. eviction will not take place in areas where there is a local lockdown and there will be a ‘winter truce’ where people are not evicted over the Christmas period.5‘Government sets out comprehensive support for renters this winter’, MHCLG press release, 10 September 2020. Let us be clear: these are further measures to flatten the curve of evictions and homelessness, but ultimately homelessness will not be prevented.

COVID-19 case marking will not allow a judge discretion in a proven Housing Act 1988 Ground 7, Ground 7A or Ground 8 mandatory possession case or a s21 no-fault eviction case. In those cases, people will be evicted from their homes into a public health crisis, regardless of their circumstances, including their health. And that is where the analogy breaks down. The government cannot magic a COVID-19 vaccine from thin air, but it can legislate to protect tenants in this unprecedented public health crisis. It has so far declined to do so.