2
Staying Eviction Warrants
Procedure and tactics
1. Background
These notes are aimed at evictions for rent arrears by local authorities and housing associations.
It is almost always worthwhile applying to stay an eviction warrant. Do not be overawed by the level of rent arrears.
The court has wide power to suspend a possession order at any time before the warrant is executed (Housing Act 1985 s.85(2) for council tenants and Housing Act 1988 s.9(2) for Assured tenants)
Possession orders obtained on ground 8 cannot be suspended for more than a few weeks but see Diab v Countrywide Rentals 1 plc 2001 Nic Madge’s Housing Law Casebook at D5.17
Any judge will need persuading to exercise discretion in your client’s favour. Your job is to find grounds to enable the judge to exercise discretion – “hooks” to support his decision.
You also need to address the cause of the arrears. You need to help the client to turn the situation round, not just to postpone eviction by a few months.
2. Funding
§ Give initial advice under Legal Help. See Funding Code volume 3c part 19.3. Whilst cases with a poor prospect of success will not justify public funding, a borderline prospect of success will.
§ Always get the client to sign Legal Representation forms at the first interview.
§ Where you can identify a “hook” that could justify a judge exercising discretion, you ca argue that there is a “substantive legal defence to the proceedings” (Volume 3C—159 para 19.4 of the funding code). This justifies applying for legal representation. If so, exercise devolved powers and grant emergency Legal Representation, limited to an application for a stay of execution.
3. First appointment
When making the first appointment ask the tenant to bring a full rent statement, court documents, letters (especially any relating to housing benefit) and proof of income.
Analyse rent statements to discover:
§ Current housing benefit position – does client receive any housing benefit? If so, is it full housing benefit or reduced because of recoupments?
§ Gaps in entitlement that need exploration – and which may result in back payments?
§ Efforts by the client to pay rent arrears - which could be highlighted to the judge.
§ Arrears transferred from a previous property, which should not count against the client in these proceedings.
§ Sometimes although the client has defaulted recently, when you add together all their payments from the date of possession you may find they have actually complied with the total payments required by the order.
4. Information from the client
§ Was the client present at the possession hearing? If not, why not?
§ Efforts to pay / problems with housing benefits / receipts as evidence.
§ Ability and willingness to make a realistic instalment offer.
§ Ability to make a lump sum payment (often impossible if the client is on benefits, but may help an application if one can be made).
§ Any medical / mental health problems
§ Other personal problems contributing to gaps in housing benefit / non payment?
§ Any substantial disrepair that might be used to set aside the possession order and counter claim for disrepair? But N.B tolerated trespass.
§ The effect of homelessness if evicted.
5. Early action
§ Always fax letters to the housing office seeking a postponement of the eviction – although very rarely granted, this letter will help you with your application for legal representation.
§ Always fax a letter to the housing benefit department asking for information about past and present housing benefit – they rarely reply, but again it is useful to exhibit to your client’s witness statement to show the judge that there are outstanding queries which need time.
§ If the client might qualify for housing benefit and/or a backpayment but has not claimed – submit a written request on their behalf, which they must sign, or send them to the Housing Benefit Office to submit a claim – and obtain a receipt, which you can exhibit to a witness statement.
6. Advice to the client
§ You should calculate the minimum weekly payment to be made by your client to the rent account, i.e. the current rent (not met by housing benefit) plus £2.80 (if on income support) or £5/ £10 (if working, depending on income).
§ The client must start to pay regular instalments (every “payday” even if on benefit). This will show the judge that past problems are under control and that if a stay is granted, the arrears will continue to reduce in the future.
§ Where a client receives income support, consider setting up direct deductions from benefit to cover weekly current rent plus arrears – the client can sign a form in your office and you can send it to the direct payments officer at the relevant DWP office. The DWP will ask for the landlord’s consent but if they refuse, this could be another “hook” for the exercise of the judge’s discretion.
§ Where the client is employed, consider setting up a standing order from the client’s bank account (or more unusually, direct deductions and payment by the employer).
§ Tell the client that they must attend court when you apply for a stay of eviction.
7. Notice of application
§ Prepare a notice of application seeking a stay of execution and a draft order: have pro formas on computer that you can re-use each time.
§ Always seek to vary the possession order (i.e. to suspend it in the case of an outright order or to postpone the date for possession if suspended already).
§ Because it takes time to prepare a witness statement properly, it is very common to issue the notice of application on its own, simply indicating on the notice of application that the witness statement is “to follow”.
8. Evidence
§ Always prepare a chronology, to understand the sequence of events in the client’s life which has contributed to the current problem and cross reference with housing benefit / rent statements.
§ Prepare a witness statement in chronological order, inserting as many “hooks” as you can find.
§ Where there is extremely good evidence of serious disrepair can you consider also applying to set aside the possession order and seeking leave to defend and counterclaim. The possession order must be quite recent for this to have any chance of success. See CPR 39.3
§ Make sure that you fax a draft copy (if not a final copy) of the witness statement to the opponent at least the day before the application (if not sooner). Judges often ask whether you have done this and may criticize you if you do not.
9. The hearing
§ Emphasise to your client that he or she must attend court for the hearing – judges will usually dismiss an application for a stay if the client fails to attend (without an extremely good reason).
§ Where your client has a very poor record, go for an adjournment on terms – this will give you much more time for your client to prove themselves by establishing a regular pattern of payments - and this will improve your client’s chances.
§ Very often there has been insufficient time for you to obtain information from different sources – in these cases always seek an adjournment. This also gives you time to sort out any underlying problems with budgeting or housing benefit.
§ Consider issuing a witness summons to the adjourned hearing, against the housing benefit officer if there is any housing benefit unexplained or owing which would make a real difference to the level of rent arrears. (CPR 34.5- 7 clear days notice needed).
10. Post hearing
§ Ensure that you confirm the terms of the stay to the client, especially the weekly, fortnightly or monthly payments that he or she has to make.
§ Once your funding certificate has been discharged, be sure to send a notice of discharge to the court to remove yourself from the record.
Tim Powell and Deirdre Forster
November 2004
04/11/10