ON FRIDAY afternoon, the government announced that the stay on housing possession hearings (“the eviction ban”) will be extended for a further four weeks, until September 20. 

The  organisations calling for the ban to be extended included the charities Shelter and Crisis, the London Councils, the District Councils Network, the Labour Party, the House of Commons’ cross-party housing, communities and local government committee, the mayors of London and Greater Manchester, and 16 of the UK’s leading public-health organisations. 

On the other side of the argument was the landlords’ organisation the National Residential Landlords Association – and hardly anyone else.

This was not the first time that the government had extended the ban. Made at the start of the lockdown on March 26, the ban had already been extended on June 5, with a promise that the extra time generated by the extension would be used to find a long-term solution to the problems faced by tenants as a result of Covid-19. 

Two months later, we are still waiting to see even draft legislation setting out what that answer will be.

The frustrating thing for housing lawyers is that there is a widespread consensus as to what needs to be done. 

Because of the lockdown, many people have lost their jobs. Around a third of all families in Britain rent, from either a private landlord, a council or a housing association. 

A significant proportion of them are now in rent arrears. Shelter estimates that 230,000 private renters have fallen into arrears due to the coronavirus crisis, while a YouGov poll reveals that 174,000 private tenants have already been threatened with eviction. 

Given that the average household contains several people, we are looking at around half a million people at risk of losing their home. 

Justice, during the pandemic, requires us to make it harder for landlords to evict tenants in rent arrears.

When a private landlord wants to evict a tenant, they usually serve a “section-21” notice on the tenant and then commence possession proceedings. 

This is a “mandatory” route to eviction. A judge cannot refuse possession, for example, on the grounds that it would be unfair to evict someone made redundant through no fault of their own. 

When a private landlord wants to evict a tenant for rent arrears, they usually rely on “ground 8” in possession proceedings – a procedure which can be used when the tenant is in eight weeks’ rent arrears. This is, again, a “mandatory” route to eviction. 

We need to have laws which convert section 21 and ground 8 proceedings from mandatory to “discretionary,” so that a court would be able to evict only where it would be reasonable to do so. 

Where proceedings are brought under a discretionary ground, one of the court’s powers is to order possession but on a suspended basis: ie the tenant can remain in their home so long as they pay the arrears. 

Give the courts the power to do that, and much of the injustice caused by Covid-19 would be addressed.

There would need to be some consideration of tenants whose arrears are presently insurmountable: this could be done, for example, by increasing the funds held by local authorities to make Discretionary Housing Payments (DHP) to those in need.

In the general election, the Conservatives had already pledged to take by far the boldest of these steps and abolish section 21. 

Compared to that, the reform of ground 8 and extension of DHP would be mere tidying-up exercises.

Given the support among people who work with these issues for the reform of ground 8 and section 21 — why haven’t they happened? 

The answer, unfortunately, goes back to the political character of the government 

For, despite their manifesto pledge, the Conservatives have in practice decided to hand over housing policy to the National Residential Landlords Association, a body which has started to appear in government press releases with alarming frequency.

The government was briefing journalists — as late as Wednesday last week — that, in the words of Housing Minister Lord Greenhalgh, allowing possession cases to resume would be “an important step towards ending the lockdown and will protect landlords’ important right to regain their property.”

In the middle of a pandemic, the idea of making up to half a million people homeless to protect landlords’ rights to evict is grotesque.

On Friday, at the same time as extending the eviction ban, the government set out what might come next. After September 20, cases can proceed to court. 

For some time into the future, landlords will not be able to issue proceedings except after giving tenants six months’ notice. 

Some tenants will be refused even these protections: those who have not paid their rent in a year, or those accused of anti-social behaviour. 

I emphasise “might” because the drafting of any such laws will be harder than the government grasps.

British housing law is already overcomplex and these reforms will make that worse. 

The government seems to assume that every time a family is accused of anti-social behaviour the allegations are true, and the family must be forced out with the greatest possible speed. 

I often represent clients accused of such behaviour. The large majority suffer from illness, often psychiatric illness. 

In one high-profile case which is currently before the higher courts, the supposed “perpetrator” is a young, disabled child. Such people need justice and protection, not eviction.

Second, the government does not seem to have thought through the impracticality of extending notice periods after hundreds of thousands of eviction notices have already been issued. Our law does not allow legislators to extend the duration of notices retrospectively. 

So, we will have the unjustifiable result that if landlords want to enforce eviction notices issued early in the lockdown, they can do so with a relatively short delay. But if notices are issued later, the landlord will have to wait for months.

Third, under a section 21 the landlord must “use it or lose it”, ie issue a notice in six months or it will lapse. How could that work if the landlord is not allowed to rely on that notice during the same six-month period?

The only things we can say for certain are that the government will legislate at the last minute and badly, and that its mistakes will clog up the courts for years to come. 

While hundreds of thousands of tenants will be left feeling insecure in their own homes and uncertain as to how much longer they can stay.

David Renton is a barrister at Garden Court Chambers, he writes in a personal capacity.