Renters’ Rights: NRLA warns of chaos in the courts

It’s just a few short months to implementation of the Renters’ Rights Act, with the industry still in the dark as to how the courts will cope with the predicted influx of cases. We are now calling on the Justice Committee to ask difficult questions on how the courts are getting ready – and how we will know if the system is becoming overwhelmed. NRLA chief executive Ben Beadle explains more.

Court capacity has been a hot topic since the proposed abolition of section 21 was first mooted.

From the very start we have raised serious concerns on the ability of the county courts to cope with the expected avalanche of cases – and the lack of a meaningful way of assessing whether they are coping at all.

Now, with just three months until section 21 goes we are calling on the Justice Select Committee to seek answers on these key questions and  plans to digitise the processing of possession cases, a system promised this spring.

What do we know?

It is important to stress that is not just us, but the Government and the judiciary that recognise demand on the courts will skyrocket.

Speaking at the Housing Law Practitioners’ Association Conference recently, the Master of the Rolls warned that ending section 21 ‘will undoubtedly create more contested possession cases than we have had hitherto,’ acknowledging: ‘We remain seriously concerned about how ready the county courts are for such an increase in cases for both tenants and landlords.’

There are also official figures on waiting times.

Government statistics show it now takes an average of more than eight months between a private landlord making a claim to the courts to possess a property under the grounds-based Section 8 process and a property being repossessed – the highest level since the start of 2022.

Once all possession claims must go through this process goodness know what that figure will rise to.

During report stage of the Act, Housing Minister Matthew Pennycook told the Commons: “Court readiness is essential to the successful operation of the new system”.

I heartily concur, but what we need to know as a matter of urgency now is: what exactly does ‘ready’ mean? And how will it be measured?

That brings us on to the next big question:

How will we know if and when the courts reach breaking point?

In my letter to Chair of the Justice Select Committee Andy Slaughter, I have asked for an update on the new digital platform to process possession cases, in terms of what it will look and feel like in practice for tenants and landlords and the extent to which it will speed up the processing of legitimate possession claims.

I have also called for clarity over the confused messages we are getting on two other major aspects of the Act.

Challenging rent increases

New rules giving tenants greater powers to challenge ‘unfair’ rent increases will also inevitably increase demands on the court, not least as rent payments – as it stands – cannot be backdated, meaning there is no disincentive for tenant to challenge ANY proposed increase.

Yet the Government messaging around this this seems somewhat confused.

An amendment – a contingency plan that would allow backdating if the tribunal becomes at risk of being ‘overwhelmed’ – was introduced at Report stage of the Act, with the HCLG Minister in the Lords, Baroness Taylor of Stevenage on record as saying she doubted there would be the ‘significant number of cases’ needed to trigger it.

These comments, however, are completely at odds with the Master of the Rolls who, in his speech to the Housing Law Practitioners’ Association, made clear that the Act creates “an incentive for tenants to apply to the First Tier Tribunal (FTT) in respect of every increase to delay its [a proposed rent increase] implementation.”

He went on, explaining: “what is likely to push up the numbers of applications to the FTT considerably is the fact that making an application will prevent the increase taking effect until the FTT has reached a decision.”

So, which is it? Insufficient numbers – or tenants actively incentives to make court challenges?

Measuring impact

The other major issue concerns how exactly the Government will ascertain whether the tribunal is overwhelmed.

Again, we are getting mixed messages.

In response to a recent written question from Lord Carter of Haslemere, the housing minister reaffirmed that the Government would use the (above) proposed safeguard in the Act ‘if the Tribunal appears at risk of being overwhelmed by a sharp increase in challenges’.

However, in reply to a related written question, the Justice Minister, Baroness Levitt, stated that HM Courts & Tribunals Service does not, in fact, hold data on the average time for the FTT Property Chamber to consider, process and rule upon rent appeal cases – and that such data could only be obtained at ‘disproportionate’ cost.

You can see the obvious issue here.

Ministers say the Government will intervene if the Tribunal becomes overwhelmed, but the which the Ministry of Justice does not hold the basic data needed to assess this.

In short, how will we know?

What do we want to happen next?

We are now calling on the Justice Select Committee to question the Government on how it intends to reconcile these positions, and for clarification on what steps will be taken to ensure tenants, landlords and the Tribunal all know the circumstances in which the backdating power would be triggered.

We know that the Committee has received the letter and will continue to push for action on these vitally important points. In the meantime be sure to keep an eye on our news site and social media channels for more updates on this and all things Renters’ Rights.

More information

• You can read the letter in full here.
• To visit our Renters' Rights Hub, packed with information and resources to help you manage the transition, click here.
• We have also developed an exclusive Navigator tool, offering you your personalised "to-do list” tailored to your needs, which can be accessed here. 
• The NRLA's award-winning training academy runs a comprehensive Renters' Rights Act training offer. Click here to book your place.
• We are also running exclusive member webinars on different aspects of the new legislation. Visit our events pages for more.