A simple question was asked by one of our network in LINKEDIN today. It was simply this – can you evict someone under a Writ of Possession who is self-isolating due to COVID-19.
This led us to dig into the legal position and comment on the “human” situation posed by the eviction process.
Firstly, on the legal position we need to consider the Guidance issued by the UK Government on how enforcement agents should operate safely during the pandemic – please see https://bit.ly/35b2p2s.
Secondly, there is the Guidance for Landlords and Tenants – see https://bit.ly/3leWf87. Both are disappointingly silent on the specific point that was asked.
Guidance issued by The Master of the Rolls on 17th September 2020 says as follows, “Safety of defendants, occupants and High Court Enforcement Officers (HCEOs)/bailiffs in the specific case will be carefully considered by HCEOs/bailiffs.
The Ministry of Justice has issued guidance to ensure that no enforcement of possession orders will proceed
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Where local lockdown measures are in place to protect public health (in areas where the public health risks could be greater), and
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Other than in the most serious cases, over the Christmas period.”
This is the most official piece of advice we have been able to find in my research.
Official guidance does not anticipate the situation of evicting someone who is self-isolating due to COVID. In the absence of that we consider we have to lean on Health & Safety legislation to guide us on how to respond to such a situation.
As required by the Guidance for enforcement agents, we are required to carry out a dynamic risk assessment for each visit. When we cross-reference the Guidance for enforcement agents working safely, and in particular, the section on attending at Residential Premises (which we think is more attuned to enforcing a money judgment rather than an eviction), we can anticipate the risk of entering a residential property where a person claims to be self-isolating due to COVID-19.
This section reads as follows:
“When someone answers the door, the agent should introduce themselves, explain the need to maintain social distancing and ask if anyone in the household is symptomatic, self-isolating or shielding. If this is the case, or if the agent observes visible signs of COVID-19 such as a persistent cough or someone in the household obviously unwell, the agent should terminate the visit, withdraw safely and record the reason for doing so. Enforcement agents should not attempt to get people to make or agree to payments in these circumstances. They can notify the householder about when they will return (this should be no sooner than the end of any self-isolation or shielding period) and provide contact details. This should be done safely and while maintaining social distancing, for example by waiting for the householder to re-enter the property and then pushing a card through the letterbox.”
There is no mention of an eviction scenario when the symptoms of COVID-19 present or someone claims to be self-isolating.
So we must apply the logic of this Guidance along with Health & Safety protocols so that if a person says he or she is self-isolating then this has the potential to cancel the eviction on that day. It will not stop the eviction, but it may well delay it. We have no doubt we will be urged by Claimants, when faced with this situation, to go back to the address at the end of 14 days to try again.
The “human” side of this situation is that both landlords and tenants are caught in a dreadful situation where the process gets to the point of eviction. It was bad enough – pre-COVID. Now the downside has intensified for both parties. No landlord goes into a tenancy agreement hoping to evict their tenant – and now they are faced with coping with the moral dilemma of evicting someone who has the virus. A solution to this impasse may well be “mediation” and we are currently adding this service to our portfolio of services for landlords because it is in tune with Government Guidance to encourage an agreed way forward.
For enforcement agents faced with an unpopular task – we lean on the Writ as the authority for all that we do which is to enforce the Court’s Order. We are the agents of the Court – and it is not our decision to evict anyone.
But from our vantage point as High Court Enforcement Officers, we look for an element of compassion in the enforcement agents who operate under my authority and my entire team are trained to support the process in which safety comes first, and everyone is treated with care and respect. Mediation is a way through, careful risk assessment is another. Evictions will go ahead unless and until the Government uses its full powers to stop the process which incidentally it has done for the Christmas period.
If anyone has a better response, then let’s share it so we are all on the right side of doing the best we can for the public in this rotten situation.