Page 2 Contents

Page 3 Introduction / About the Money Advice Trust

Page 4 Introductory comment

Page 5 Responses to individual questions

Page 16 Contact details

The Money Advice Trust is a charity founded in 1991 to help people across the UK tackle their debts and manage their money with confidence. The Trust’s main activities are giving advice, supporting advisers and improving the UK’s money and debt environment. In 2018, our National Debtline and Business Debtline advisers provided help to more than 204,000 people by phone and webchat, with 1.7 million visits to our advice websites. In addition to these frontline services, our Wiseradviser service provides training to free-to-client advice organisations across the UK and in 2018 we delivered this free training to over 820 organisations. Furthermore, Money Advice Trust Training and Consultancy services have worked with over 224 commercial organisations to identify and support their customers in vulnerable circumstances. We use the intelligence and insight gained from these activities to improve the UK’s money and debt environment by contributing to policy developments and public debate around these issues.

Please note that we consent to public disclosure of this response.

We welcome the proposals from the Civil Procedure Rule Committee (CPRC) to align the procedures that apply in the County Court and High Court in relation to the enforcement of possession orders. The current rules have given rise to inconsistency between the two systems. The confusion in the rules is potentially detrimental to occupiers and defendants. It is important that the rules are clear and there can be no ambiguity for any party in following the legal requirements particularly in housing cases where there is a risk that someone can lose their home. We are reluctant to agree to the removal of the requirement to seek judicial permission to enforce possession orders. We think on balance, that there should be a requirement to seek permission for housing cases in both the County Court and the High Court. It would make sense if the rules for the issue of warrants in the County Court and writs in the High Court should be aligned as far as possible. We would like to see a clear set of rules aligned to County Court processes. We do not believe that cases should be transferred to the High Court for enforcement unless there are exceptional circumstances. We also do not believe that HCEOs should be able to add higher fees and costs on to the cases transferred. We are very concerned by the increase in cases transferred to the High Court for enforcement. This practice should also be reconsidered. We would not like to see more evictions for rental and mortgaged properties following action in the High Court or a transfer for enforcement, as this leads to the generation of increased costs and complexity for all. We would also query whether such cases should be allowed to be issued in the High Court at all. We have set out our thoughts in the answers to the individual questions below.

We are in complete agreement with the proposal that there should be a process in the County Court to provide a notice of the time and date of eviction. It is vital that the law is clarified and good practice adopted. Therefore we believe that this process should be put on a statutory basis. The procedure should set out the notice period that is required for the notice to be sent. This will provide certainty to all parties as to the expectations of the court.

We would support the notice being based upon the current form N54. However we would like to see this form revised to ensure that the process is set out in more accessible English, e.g. conforming to the Plain English standard. The tone and language used should be simplified and encourage recipients to seek advice about their housing situation immediately.

We would like the information in the notice to use the current N54 as a basis to build a clearer and simpler form. We would also like to see a more comprehensive section for signposting to sources of free housing and debt advice. We would also like to see clearer and more prominent instructions telling defendants about the process to suspend the warrant.

We think the notice should be addressed to both the tenant (s) and to the occupiers to ensure everyone affected is included in the notice. The notice should be delivered to the tenant personally, or to be left at the property in an envelope that is addressed to the named defendant and “all other occupiers”. This will ensure that the notice is most likely to come to the attention of those who are affected.

It is also vital that the notice is sent to the premises concerned as well as any other contact address.

We would want to see as much notice as possible for the tenant or occupier to take action to resolve their circumstances. We would therefore suggest 28 days would be a reasonable amount of notice to provide the breathing space needed to give the occupier time to seek advice. Advice agencies are extremely overburdened and under-resourced and will find it very hard to respond for a request for urgent help within 14 days. Occupiers will also need time to sort out their finances and find alternative accommodation if required.

We would like to see the court having to power to extend the notice period depending upon circumstances. We would find it hard to support giving the court the power to dispense with a notice period that has been set as a statutory minimum.

We do not have experience of advising trespassers generally. We would not be qualified to comment on the typical circumstances that apply in trespass cases or to comment on what would be fair for both parties in such cases. However, we would normally argue for equal treatment in such circumstances, but can imagine that there will be exceptional cases where an expedited process would be desirable. A trespasser may still need to seek advice and will inevitability need time to find alternative accommodation.

We do not see any reason to agree exceptions to the requirement for advance notice of the eviction in such cases.

We strongly support a new requirement on the High Court to provide an identical notice to occupiers, as that in the County Court. We can see absolutely no reason why High Court enforcement should follow different procedures in relation to enforcement of possession orders. There should be an identical process which adopts the fairest and clearest process for defendants, across the board. The ability for HCEOs to attend to evict without defendants receiving any notice of the date or time of the eviction is unfair to defendants and occupiers. With no warning, they will have no further time to see advice, or apply to the court for a suspension of the warrant or alternative housing. Defendants or occupiers may well be in vulnerable circumstances and this process may cause unmerited stress and trauma to the occupants, children and older people. It is often too late to apply for a suspension or other relief after the warrant has been enforced and the eviction takes place.

We are reluctant to support the removal of the requirement to seek judicial permission to enforce possession orders. In housing cases, we are concerned that court permission should be required due to the severity of the possible consequences, e.g. of a defendant potentially losing their home. If the requirement to seek judicial permission to enforce possession orders is retained, then the processes should be identical in both the County Court and High Court. Any removal of this judicial safeguard should be balanced by making a requirement for a mandatory notification and ‘breathing space’ period of 28 days to inform defendants of the breach and of the application for possession by the claimant. This would give the defendant an opportunity to seek advice and take action, and would help in situations where someone may be vulnerable, or may have breached the suspended order due to reasons beyond their control.

We are generally unable to comment on trespass cases. However, we are not convinced that there should be an exception to the requirement to seek judicial permission in trespass cases. As the paper says: “Trespassers may be of various different types and categories, such as a recently arrived squatter or a child of a deceased tenant who may have been occupying for years.”

We would tend towards treating trespass cases in the same way as other eviction cases, and not have an exception to the requirement to seek judicial permission at all.

We would agree that the rationale for an exception for mortgage cases is not entirely clear. We do not support an exception for mortgage cases in the High Court. Regulations regarding notification should be identical for both the County Court and High Court. If the requirement to seek judicial permission is to apply to mortgage cases, this should be applicable in the High Court as well as the County Court. We can see no reason for mortgage cases to be treated as an exception.

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It is vital that occupiers are provided with all information relating to the case and enough notice to enable them to seek advice and take action to suspend or delay proceedings. We would very much support a definition of “sufficient notice of proceedings” that applies across the County Court and High Court. Consequently, we think it is very important that there should be definitions attached to include all the items listed above. As the paper recognises: “…a, possibly vulnerable, defendant may require a notification of substance to push them into seeking advice and defending their rights.” We would always support a clear notice in simple English to accompany any proceedings. This may need an individual covering letter addressed to the defendant and the occupiers. It is vital that any opportunity for the defendant to seek advice or suspend action is not lost. Any notice must clearly and simply set out how to seek advice or take the appropriate action, and to emphasise how much time there is for the defendant to take such action.

We do not support the transfer of enforcement of possession orders from the County Court to the High Court. We believe possession orders should stay in the County Court and not be transferred for enforcement. It would appear that for most applications, these are made for reasons that are intended to disadvantage the defendant or occupier through the speed of the process in the High Court, the perceived harsher attitude of HCEOs to enforcement, and the lack of a requirement to provide notice to the defendant. If procedures are aligned, then there is even less reason for such a transfer to take place. The extra costs that pertain to High Court enforcement action, is reason enough for the case to stay in County Court. It seems to be particularly unfair that the extra costs of HCEO processes will be added to the amount owed by the defendant or occupier, even though they had no choice to prevent the transfer to the High Court by the claimant. However, if such a transfer is to continue to be allowed under the rules, then we believe that there should be explicit rules and guidance that states when a case can and cannot be referred to the High Court for enforcement. We would also very much support a requirement on the claimant to justify the transfer to the court. The court must have the discretion in such cases, and we believe that this should be allowed only in a set of specific defined exceptional cases. The court should not allow higher High Court costs to be added in such cases.

The court would require full information as to why the case had defined exceptional circumstances attached that justify such a transfer.

We do not support the ability of a landlord to transfer a case to the High Court for the purposes of enforcement, except perhaps in defined exceptional circumstances. However, if such an enforcement option is to be retained, then it is important that the application should be on notice, using a specific simplified form, such as an adaptation of the current N244. This should attract a specific fee to help to reduce potential costs. This should be a requirement in the rules.

As we would only like to see such an application being made in exceptional circumstances, it is difficult to envisage a situation where the application is capable of being determined on paper without a hearing. The requirement to hold a hearing will, at the very least, mean that the applicant has to put together suitable reasons why they have made the application that they have to be prepared to put forward in front of the court. This may prevent the development of a cavalier attitude to paper applications.

As we have said, we do not support the claimant’s ability to routinely transfer cases from County Court to High Court for enforcement. We do not see any justification for HCEOS to be able to make higher charges or add greater costs as compared to the fees and charges allowable under County Court enforcement. We therefore believe that the rules should only allow HCEOs to charge the same as County Court enforcement agents to enforce writs of possession.

Yes, there should be exactly the same notice requirements on claimants to provide advance information to occupiers as in the County Court as the current procedures disadvantage occupiers significantly. As the paper says: “However, the Writ and HCEO procedure also has the advantage to Claimants that as a result of the absence of advance notice under the present High Court procedure, there is a lower chance of either an application being made to suspend in time or of any resistance from the occupier(s). If the possession procedures are aligned in the County Court and the High Court so as to introduce an advance notification requirement then this advantage, and the concomitant disadvantages to occupiers, should disappear.”

We can see no justification for applications for a stay or suspension of the possession order by the tenant to be made to the High Court. These should be made to the home County Court where the case originated. We would make the following points.

Such applications are more expensive for all parties. Defendants in possession order cases are very unlikely to have the means to pay for such applications or the court costs. They will also be unable to bear the burden of the increased costs of HCEO enforcement.

The use of the High Court is disproportionate in such cases where potentially vulnerable

people are trying to keep their home.

The use of the High Court for enforcement of possession orders introduces an unmerited degree of complexity and formality into the enforcement process.

The language and procedures of the High Court are both arcane and intimidating. In our

experience, this has the effect of putting potentially vulnerable people off from engaging in the process.

The process in the High Court as it stands would be inaccessible to most of our clients who

would be unable to deal with the application process. We predict that as a result vulnerable tenants or occupiers would have no access to justice.

The case file may well be retained by the home County Court and not have been transferred to the High Court. This makes the process administratively burdensome and could lead to poor decision-making.

In the absence of a specialist housing court, it seems most appropriate for such cases to stay

in the County Court where it is most likely that there will be housing expertise.

We do not generally support a blanket exception for specific classes of occupier. If there are genuine good reasons for the applicant to wish to waive the requirement to provide advance notice of the proceedings this should be at the discretion of the court on a case-by-case basis.

The court should have the power be able to waive such requirements in a limited range of exceptional circumstances.

We would expect that the requirement to certify that the occupants have been given notice of proceedings to be rigorous and include all key documents. However, there may be cost implications to take into account, if the landlord or lender is required to demonstrate that all these documents have been provided to all occupants under the certification process. Proof may need to be restricted to key documents, to limit the potential additional costs, although in many cases, some of the documents listed will not be applicable e.g. where no order to transfer enforcement has been made, or no application to stay the warrant has been made.

We do not have a firm opinion on this. It may be sufficient for the claimant to provide evidence by way of dated copies of letters and notices, visits and a sworn statement of truth for such certification to be accepted by the court. There should be a required list of documents and other acceptable forms of evidence laid out in the rules.

We are unable to comment on how the proposed changes will affect the work of the enforcement sector.

mailto:meg.vanrooyen@moneyadvicetrust.org

The Money Advice Trust

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