As possession lists begin to return to ‘normal’, now seems a good time to reflect on the extraordinary changes that took place between March 2020 and November 2021. Given the prediction that the impact of the COVID-19 pandemic will reverberate around the system for many years to come, it seems unlikely (and I doubt anyone familiar with the process would expect) that we will simply be able to pick ourselves up, dust ourselves down and return to the old ways of doing things. What lessons, if any, then can we learn from the court system’s response to the pandemic in housing possession cases?

In offering an answer to that question, this article draws on a nine-month study, generously funded by the Economic and Social Research Council, into the practical operation of the Overall Arrangements for Possession Proceedings (OA). The findings and recommendations arising out of that study (Assessing the court system’s response to the COVID-19 pandemic in housing possession cases in England and Wales, January 2022) combine existing research with original first-hand accounts (obtained using online surveys) from those most closely associated with the possession process, namely, occupiers, debt advisers, landlords (private and social), claimant representatives and Housing Possession Court Duty Scheme (HPCDS) providers (176 responses were received).

Assessing the ‘effectiveness’ of any reform is always fraught with difficulty, not least in arriving at an agreed definition of what constitutes ‘effective’. That task was assisted here, however, by the inclusion of very clear objectives by the architects of the court system’s response, the Master of the Rolls Working Group on Possession Proceedings. Those objectives were:

The review date (R date) seemed like a win-win. The provision of early (ie, earlier than under the pre-COVID-19 system) advice to the parties in the hope of arriving at pre-court settlement had the potential to resolve cases before a substantive hearing was necessary (particularly those cases that were likely to be adjourned in any event). The evidence, however, suggests that the R date, rather than reducing the number of cases, served mainly to delay them progressing to a full hearing.

A significant number of duty advisers (28 out of 33) and legal practitioners (nine out of 10) who took part in the study said that the majority of cases they dealt with proceeded to a full hearing. It is perhaps not surprising, therefore, that landlords and claimant representatives had little good to say about the R date. One private landlord said: ‘It just wasted more time and extended the time for tenants to stay and not pay anything.’ A legal practitioner commented: ‘It is not an improvement. It has no function other than to increase delay and costs’ (para 4.62, page 77).

A major criticism levelled at the pre-COVID-19 housing possession process by practitioners and researchers was the system of ‘block listing’, which allocated only a few minutes to each possession hearing. Under the OA, substantive hearings (S hearings) were instead allocated 15 minutes. The intention, perhaps, was that this would allow cases that would previously have been adjourned to be resolved, thereby reducing the number of cases churning through the system. This raised concerns for some duty advisers, who acknowledged the adverse impact that this could have on some of their clients. One explained: ‘On occasion additional time allows issues to be explored. However, this can be to the disadvantage of the defendant as cases which previously would be adjourned are being determined at the first hearing as the judge has more time.’ Others, however, felt that the extra time allocated to S hearings was being used effectively in most cases. Another duty adviser said: ‘It is less rushed which means you can put your arguments forward in a more structured and thoughtful way’ (para 4.103, page 92).

As part of the OA, claimants were required to provide ‘enhanced information’, setting out what knowledge they had as to the effect of the pandemic on the defendants. Duty advisers responding to the survey praised the ‘enhanced information’ or ‘R bundle’. As one duty adviser noted: ‘The provision of the court bundle is a massive improvement on the pre-COVID situation and very helpful to duty advisers’ (para 4.118, page 98).

Amidst the many and varied responses received during this study, there was one recurring theme: tenant engagement, or rather, the lack of it. This will not come as a surprise to anyone associated with the possession process. While large-scale data on tenant engagement has never been available, it has long been known that a large proportion of tenants do not engage in the arrears and possession process.2See, for example, Susan Bright and Lisa Whitehouse, Information, advice & representation in housing possession cases, University of Oxford/University of Hull, 25 April 2014. That was certainly reflected in the responses to the surveys for this study.

As regards the R date, for example, a majority of duty advisers (23 out of 35) and legal practitioners (seven out of 10) said that the occupier had engaged in 0–10 per cent of the R dates they had been involved with. One legal practitioner said they had ‘not yet had a claim where there has been engagement by a defendant at the review stage’. A duty adviser remarked: ‘[I]t is rare to be contacted by more than two or three defendants where there are 10 on the list for any given day’ (para 4.46, page 72).

The reasons for tenants’ non-engagement in a process that could result in them losing their homes are difficult to assess. This is particularly the case given that occupiers’ voices are rarely heard in research studies. Respondents to this study, however, offered some possible reasons: ‘Burying head in sand, fear of being judged, feeling of hopelessness and “what can I do about it” attitude, refusal to believe that they will be evicted,’ said one social landlord (para 4.51, page 74).

For some private landlords, however, it seemed clear that many tenants were simply ‘playing the system’. One said: ‘They do not engage as they know the “system” and how long it takes to remove them’ (para 4.51, page 74).

Whatever the reason for the non-engagement of tenants, it appears to have played a pivotal role in undermining the success of the OA. It is crucial, therefore, that innovative research is conducted to learn more about occupier engagement. Only then will it be possible to ensure that the voice of occupiers is heard, and only then will it be possible to propose reforms that might encourage meaningful engagement.

The findings of this (albeit rapid) assessment of the OA suggest that they served mainly to delay rather than resolve cases. This is of concern given the predicted ‘tsunami’ of possession claims waiting in the wings. It does not, however, mean that a radically different response is needed. Initiatives such as the R date, the R bundle, and extra time for S hearings have the potential to address the challenges facing the civil justice system in the next few years. These, or any other reforms, however, will only succeed if tenant engagement is understood, addressed and resolved.