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Pre-action Protocol for Possession Claims by Social Landlords - a brief summary and update

The Pre-action Protocol for Possession Claims by Social Landlords, commonly referred to as the Possession Protocol, sets out the procedure that social landlords and tenants must follow before commencing possession proceedings.

The Possession Protocol applies to claims for possession of residential premises by social landlords, such as local authorities, private registered providers of social housing, Registered Social Landlords and Housing Action Trusts, which are based solely on rent arrears (Part 2) and mandatory grounds for possession (Part 3). The Protocol does not apply to claims in respect of long leases

Aims of the Possession Protocol

The primary aims of the Possession Protocol are to:

• Encourage the landlord and tenant to make contact and exchange information with each other before the issue of proceedings.
• Avoid litigation by settlement where possible.
• If court proceedings become necessary to enable the effective use of court time.

Therefore, if a landlord who wishes to bring possession proceedings under Part 2 or Part 3 and is aware that their tenant:

• Has difficulties reading or understanding information provided to them then, the landlord should take reasonable steps to ensure that the information given to the tenant is communicated to them in an appropriate manner and that the tenant is able to understand the information given to them.
• Is vulnerable then, the landlord should give consideration at an early stage:

1. Whether the tenant has the mental capacity to defend the possession proceedings. If not, an application for the appointment of a litigation friend under CPR 21 should be made by the landlord;
2. Whether there are likely to be any issues under the Equality Act 2010;
3. If the landlord is a local authority landlord, whether a community care assessment under the Community Act 2010 is required;

Consequences for non-compliance with the Possession Protocol

When possession claims of residential premises are brought by social landlords, prior to making of any orders, the Court will consider whether the Protocol has been followed. If the landlord has not complied with the Protocol without good reason, the Court may make an order for costs and / or adjourn, strike out or dismiss the claim if the claim is based solely on rent arrears.

In circumstances where the tenant has not complied with the Protocol, the Court may take this into account when considering whether it is reasonable to make a possession order.

Updates to the Possession Protocol

The Pre-action Protocol for Possession Claims by Social Landlords, which came into force on 6 April 2015, has been recently updated with the revised version coming into force on 13 January 2020. The changes are minor and apart from the mere tweaks, the fundamental differences are:

• Part 3 of the Protocol, which applies to mandatory grounds for possession, has been amended to ensure that in cases where issues of human rights, public law or equality matters may arise then, the necessary information is to be placed before the Court at the first hearing so that the issue of proportionality may be dealt with summarily or directions for trial given.
• The wording of the Protocol has also been updated to clarify that Part 3 clearly applies to mandatory grounds for possession and to 'no security of tenure' cases, thereby removing any of these contradictions that may have existed in the previous version.
• In relation to Part 2, possession claims based solely on rent arrears, the Protocol has been amended to state that not less than 10 days before the hearing, the landlord should "disclose what knowledge it possesses of the tenant's housing benefit or universal credit (housing element) position to the tenant."

The revised version also confirms that the Possession Protocol does not apply to those possession claims that involve long leases.

Those who regularly deal with issuing possession claims will no doubt be familiar with the Protocol, but a regular refresher of its terms is always useful, particularly to keep up to date with amendments.

For more information contact Emily Jordan in our Housing & Regeneration department via email or phone on 0333 207 1130. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Housing & Regeneration department here

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