New Pre-Action Protocols introduced

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13 January 2020 saw the introduction of the new and revised pre-action protocol for possession claims by social housing landlords and a new pre-action protocol for housing condition cases in England.

Whilst not yet published on the Government website, the key changes are as follows:

Pre -Action Protocol for Possession Claims by Social Landlords

Whilst most of the changes are minor, such as small alterations to wording and numbering, the main differences are:

In cases which raise human rights, public law and, most importantly, Equality Act issues, Part 3 of the protocol now aims to ensure that the necessary information is before the Court at the first hearing.

Paragraph 2.12 has been changed so 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.

Paragraph 1.1 now states that Part 3 applies to claims brought by social landlords where the Court must, in principle, grant possession and where s89(1) Housing Act 1980 applies. The protocol does not apply to claims in respect of long leases.

Paragraph 3.1 has been amended to state “this part applies in cases where, if a social landlord proves its case, there is a restriction on the Court’s discretion on making an order for possession and/or to which Section 89 of the Housing Act 1980 applies (e.g. non secure tenancies, unlawful occupiers, succession claims and severing of joint tenancies).”

These amendments make it clear that Part 3 clearly applies to mandatory grounds and also to cases where there is no security of tenure.

Pre-Action Protocol for Housing Condition cases (England)

This addresses the housing disrepair protocol which has been amended to deal with Housing (Fitness for Human Habitation) Act 2018, which comes in to force in full in March 2020. The protocol replaces the words “housing disrepair” with “housing conditions” throughout.

The pre-action letter of claim has been amended with the word “repairs” being replaced by “works” throughout.

There is a replacement section “Housing Conditions” which states:

Your tenant complains of the following defects at the property (set out nature of defects).

We enclose a schedule of conditions which sets out the defects in each room. The history is as follows: (set out history of defects).

You received notices of the defects as follows: (list details of notice relied on).

The defects at the property are causing (set out the effects of the defects on the client and their family, including any personal injury element. Specify if there will be any additional claimants).

Please arrange to inspect the property as soon as possible. Access will be available on the following dates and times (list dates and times as appropriate).

Please confirm whether you intend to carry out remedial works at this stage or whether you wish to wait until the property has been inspected by the expert(s) as set out below.

If you intend to carry out works at this stage, please set out a full schedule of intended works, including anticipated start and completion dates and a timetable for the works.”

The “Claim” section has also been amended and now reads: “We take the view that you are in breach of your obligations in respect of housing conditions. Please provide us with your proposals for compensation).”

There are changes to the letter of instruction to the expert and advice can be given on this if necessary.

We would suggest that if any letters of claim in respect of disrepair (or housing conditions as it should now be termed) land on your desk, it’s important to check that the letter follows the new protocol. If it doesn’t, then you need to refer back to the sender to explain that, in your view, they have not adopted the protocol.

It is likely that there will be a far more substantial review of the housing conditions protocol but, currently, we do not know when this will be finalised.