Writ of Possession | Enforcement | Enforcement, Eviction, & Empathy


Intro

Many people reading this blog post will not appreciate that High Court Enforcement Officers are licensed to operate under a statutory licence granted by the Lord Chancellor, the highest judicial officer in the UK. Enforcement is a function of the English legal system and has been for centuries. Whilst not popular with half of the people we come into contact with, we are a vital function for the other half, being people who went to Court to obtain a decision and now want it enforced. Regardless of our lack of popularity we must balanced and fair in our operations, and working during a pandemic means that balance is more necessary than ever.


So, in these challenging times, we have welcomed the decision by the Lord Chancellor to write to the High Court Enforcement Officers Association directly about what the Government expects. It means we are getting our Operational Guidance directly from “The Boss”. We can see for ourselves exactly what the Lord Chancellor needs and feels about enforcement.


In his letter of 16th November 2020 to the HCEOA, the Lord Chancellor refers to the statutory instrument introduced in March 2020 which brought all enforcement agents of any type into line on what was and was not possible during the time of COVID. The Government’s website continues to keep everyone who wants to know updated on the contents of these Regulations being The Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020


We were particularly pleased to note the Lord Chancellor’s opening remarks in his letter stating that, “The Government recognises the importance of enforcement as an essential part of the administration of justice.”


Below we have set out how the Lord Chancellor’s operational advice affects creditors and claimants in their pursuit of access to justice, for both Writs of Possession and Writs of Control.


Writs of Possession | Possession Claims Based On “Substantial Rent Arrears” | Updated Regulations Under SI 2021 No 164 | The Public Health (Coronavirus) (Protection From Eviction) (England) (No. 2) Regulations 2021


As we move through the phases of the pandemic and the UK’s vaccination programme continues to help eradicate the virus from our lives, the Regulations which banned evictions are starting to be relaxed. We don’t say it’s a wholesale return to the pre-March 2020 position, but the Government are taking careful steps towards getting the rented housing market back to normality.


For landlords, there is an opportunity to start to recoup lost rental income. We have set out the more “relaxed” position in our comments below …...


The “Relaxed” Regulations In Detail

Whilst Paragraph 2 of SI 2021 No 164 clearly states that enforcement agents cannot attend at a dwelling house to enforce a possession order, the position has changed as a result of Paragraph 3.


This states that the prohibition on eviction will not apply where the court is satisfied that

  1. the case involves substantial rent arrears; and

  2. the notice, writ or warrant relates to an order for possession made wholly or partly—

  3. on Ground 1 in Schedule 2 to the Housing Act 1985;

  4. on Ground 8, Ground 10, or Ground 11 in Schedule 2 to the Housing Act 1988(8); or

  5. under Case 1 of Schedule 15 to the Rent Act 1977.

“Substantial rent arrears” are defined in the Statutory Instrument at Paragraph 4 as meaning a case for possession involving where the amount of unpaid rent arrears outstanding is at least an amount equivalent to 6 months’ rent.


So, this is the key point. How many landlords now have tenants who are now more than 6 months in arrears with their rent and they want or need to evict them?


If you, as a landlord, are in this situation then it’s time to take stock of what you want to do. We think landlords should be thinking about the following |

  1. If you haven’t served your Notice yet, then take that step

  2. If you have served your Notice but not issued your claim for possession, then now is the time to get going

  3. Remember if you are preparing your claim then try and make room in your claim for a request for permission to enforce any Order for Possession in the High Court by asking the Court to use its discretion to allow the transfer under Section 42(2) of the County Courts Act 1984

  4. If you actually have a possession order based on substantial rent arrears which satisfy the requirements of Paragraph 3 of SI 2021 No 164 then dig it out and see if you can enforce it in the High Court

  5. If you don’t have express permission to enforce in the High Court, we can help you with a tailored application to get that permission


Writs of Control |

The SI currently prohibits enforcement agents from taking control of goods inside residential properties during the period when the national health protection regulations are in force, due to the high risk of virus transmission at this time.


This allows Shergroup Enforcement Agents to attend residential premises under a Writ of Control and speak to the Judgment Debtor using our strict COVID protocols for protecting everyone from the virus. Our protocol is published on our website at www.shergroup.com.


We have seen some enforcement agents try and take the high moral ground saying they won’t be attending during any lockdown period.


Can we say this in response – we are not appointed by the Church; we are appointed by Judiciary to carry out a function under a statutory licence. As such High Court Enforcement Officers are under a legal duty to enforce any Writ issued to them in their name. Judgment Creditors must have access to justice, as must Judgment Debtors. This function is not a question of morality or anything else. The law is as it is.


Visits during the period of the pandemic are difficult and must be dealt with in the spirit of empathy and understanding, but no High Court enforcement agency should be saying they will not attend for moral reasons, and that is certainly not what the Lord Chancellor is saying.


Drawing on his operational guidance, Shergroup’s enforcement operation has been able to operate through the permitted periods in the pandemic and do so with little complaint. If complaints have been raised, they have been investigated and checked to ensure all is in order.


Body-worn camera footage has been used to check actions taken by enforcement agents and our process for downloading, reviewing, and packaging video footage both for our complaints team, legal team, and the Court has been smoothed out into a first-class process.


On a human level, we continue as we always have, to innovate in the enforcement process by taking simple practical measures to allow enforcement to continue without putting anyone at risk of catching the virus. The Lord Chancellor’s Guidance was to doing the following, and we have managed each and every situation without creating a risk to transmission. We do the following |

  • make contact by remote means including telephone, text, and email.

  • visit but we do not enter residential properties;

  • we will take control of goods located outside the home or on the highway;

  • we will enforce and take legal control of goods at business premises

It is heartening to read that “The Government believes that such steps may be safely undertaken in line with the Government’s published COVID-secure guidance for those using the taking control of goods procedure”.


Writs of Control For Rent Arrears

For landlords and property managers who want to recoup rent arrears but who do not want to evict their tenants, we encourage them to issue a simple money claim for the amount of the arrears which has the benefit of compelling payment but not losing the tenant and also giving some tenants the opportunity to pay over time, rather than losing their home.


Summing Up |

As in all things COVID-related, the situation is changing rapidly – but the communication from Government is timely and has helped us continue to operate on the right side of the law during this difficult 12 month period.


For more information on how you can navigate your way through the COVID Rules and get access to justice please get in touch with Shergroup’s Business Solutions Advisors who are online and available to help you.


You can call them on 0845 890 9200, or use the live CHAT function on our website along with all our usual social media channels. And you can email our central inquiry portal where requests are actioned in real-time hub@shergroup.com.


We’re all here to help you move forward in the months ahead.

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