NRLA Deep Dive: Court reform and possession: where are we at?
The subject of court reform has been getting a lot of attention lately, particularly after the Government’s announcement that it would ‘not proceed with the abolition of section 21, until reforms to the justice system are in place.’
This announcement was welcomed by the NRLA as we have long made the argument that a rental sector without Section 21 could only work if the courts could grant possession promptly when needed.
This follows on from concerns raised by the Levelling Up, Housing and Communities Committee that ‘not clear whether the Government fully appreciates the extent to which an unreformed courts system could undermine its tenancy reforms.”
However, it has understandably raised concerns that it is kicking reforms into the long grass in some quarters. Particularly given the lack of clear targets for what constitutes suitable court reform.
What has the Government committed to doing?
In its response to the Levelling Up and Housing Committee, the Government identified four areas of court reform that they are focused on:
Digitising possession proceedings to make it simpler and easer for landlords to use;
Prioritisation of certain cases, specifically antisocial behaviour;
Improving bailiff recruitment and retention; and
Providing early legal advice and better signposting for tenants.
Of these, it is arguable that three of them are already either in place or well under way, with only the digitisation project needing to be dealt with. So, it is possible that the Government may consider it reasonable to remove Section 21 shortly after the Bill receives royal assent. Particularly if the digitisation project has progressed.
The Government announced 1.2 million pound in initial funding for the digitisation project. This project was originally part of the much larger project of court reform which was allocated 1.3 billion pounds in funding. However, it was paused to focus on implementing other civil court projects. While ringfenced funding is welcome, there are concerns the figure too low, given the scale of the project.
The Public Accounts Committee has also criticised HMCTS for consistently underestimating the scale and complexity of court reform. Its Chair also pointed out this week that the courts were ‘backed up’
How are the courts currently operating?
Even with accelerated claims available, the MOJ notes that ‘Timeliness figures are higher than the legal guidelines.”
It currently takes a mean average of 28.6 weeks from a landlord starting a private landlord possession claim to a bailiff attending the property to enforce it. In some areas of the country, like London this figure is far higher.
While this figure has dropped from the extreme delays caused by the pandemic, it is still over six weeks longer than pre-pandemic figures.
In some areas of the country, we have also seen bailiff appointments paused due to a lack of protective equipment.
Given that initial hearings are being heard relatively promptly (eight to 11 weeks), the delays affecting landlords appear to be largely built up where the tenant either contests the initial claim, the initial hearing is rescheduled, or the landlord must rely on a bailiff to enforce possession.
This likely reflects the fact that only the initial hearing has a clear legal guideline for timeliness, meaning that more difficult cases and repossession often suffers long delays.
In some contentious cases, a first hearing may be scheduled within eight weeks, but a subsequent hearing could be scheduled over a year afterwards.
Will court reform definitely happen before Section 21 is removed?
The commitment to reform the courts is not part of the Bill. In fact, the Secretary of State has powers to remove Section 21 notices on a day of their choosing. Depending on its progress, this could mean the Government may choose to remove Section 21 notices without court reform; or remove Section 21 notices before court reform is shown to be working.
Is it court reform or resourcing that is needed most?
It is not clear whether the Government’s proposed reforms will improve timeliness in the courts, potentially digitisation may even exacerbate delays in the court if done poorly.
For example, most landlords appear to have a positive experience with the digitised small claims service (Moneyclaim Online) but the Law Society has identified widespread delays with the probate and family law digital portals.
Given this, it is vital that the court reforms are adequately resourced and shown to be reducing existing court wait times before Section 21 is removed for most tenancies.
Court reform is a key element of the NRLA's campaigning on rental reform. For more information click here.