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Social Housing Speed Read – Covid Case Marking

In England and Wales, legislation banning bailiff enforcement of residential possession orders has now been lifted, ceasing to have effect from 1 June 2021 and 1 July respectively.

Landlords are now able to enforce all possession orders provided they have a valid warrant. Bailiffs are permitted to carry out evictions, but must provide 14 days’ notice.

A significant caveat to this easing is that the new Government guidance asks bailiffs not to carry out an eviction if they have been made aware that anyone living in the property has Covid-19 symptoms, or is self-isolating.

As a result, bailiffs will cancel an appointment if the tenant informs them that;

  • They have Covid-19 symptoms
  • They have tested positive for Covid-19
  • They have been told to self-isolate by the NHS

In this case, Bailiffs will reschedule a new date, with another 14 days’ notice.

In such a case, there is little-to-no scope to question the authenticity of a tenant’s symptom claims. There have been social media reports of a High Court bailiff  skirting the guidance by issuing an on-the-spot lateral flow test to a tenant who had reported Covid-19 symptoms, and immediately evicting the tenant upon receiving a negative result. Such action is unlikely to be looked on favourably, and could give way to a costly claim. For the avoidance of doubt, bailiffs certainly have no right to demand a Covid-19 test, or any similar detection methods (a temperature gun, etc.).

It is worth being aware that the removal of the eviction ban still leaves some Covid-related instruments, in respect of possession claims, that can be utilised by a tenant/tenants.

Covid-19 Case Marking

A case can be marked to the court as a ‘Covid case’ where the facts informing a claim for possession are caused by Covid-19, or the pandemic generally. In this case, they may be given priority.

When can a case be Covid-19 marked?

When making a claim for possession, a landlord must also provide (by attaching to the claim) a notice setting out any knowledge they have about how their tenant(s) and any dependants have been affected by the coronavirus pandemic.

If a landlord possesses no knowledge of these circumstances, it should be made clear what attempts have been made to discuss this with the tenant(s).

If such a notice is not included with a claim for possession, it will be delayed (as claims that do have such a notice are prioritised). This applies to both standard and accelerated possession claims.

Your tenant can choose to mark the claim as a Covid-19 case when completing their defence form. To do so, they would need to provide brief details of the difficulties they have faced due to the pandemic, and show some of the following criteria apply:

Salient points include if a Tenant has been :

  • Furloughed due to Covid-19
  • Unable to work due to Covid-19
  • Shielding
  • Suffering from mental health conditions relating to Covid-19 (see below for further detail)
  • Receiving universal credit payments

Implications of being listed as a Covid-19 case

When marked as a Covid-19 case, a claim for possession is likely to be prioritised by the Court, so will receive an earlier listing. Given the extensive backlog of cases the Courts currently face this may seem, at first glance, an attractive option to landlords awaiting a warrant for eviction to be processed.

However, there are some key considerations to be aware of:

  • The guidance issued by the Government is that landlords should ‘give careful consideration’ about how they proceed when a Covid case is marked as such. In cases like these, ensure you are aware of the claimant’s condition and the facts surrounding it; be mindful of this when making any decisions regarding possession.
  • Though only guidance, this language strongly implies that that the exercise of discretion is going to balance slightly in the tenant’s favour, so this may deter landlords from applying for Covid marking simply to ‘jump the queue’.

Going forward

The lifting of the eviction ban is a further step taken by the Government along their phased return to normality. While this transitionary period is underway, landlords may be mindful of the limitations of each step, and the continued focus on safeguarding tenants suffering as a result of the pandemic.

Covid-19 case marking is, primarily, an instrument to favour the tenant, should they have been negatively impacted by the global pandemic. If a possession claim is marked as a Covid case, then ensure you have entered into a dialogue with your tenant(s) to discuss their circumstances, and whether an alternative course of action can be found, to avoid being given the cold shoulder in the Court.

If you have any questions on the above and how it will affect social housing providers, or any other questions as a social housing provider, please do not hesitate to contact Melanie Dirom or a member of our expert Social Housing Team.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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