Providing a lifeline – the court duty scheme

With the stay on evictions having been lifted in September, the courts are again listing possession cases, initially for review by a judge and subsequently for final substantive hearings where final possession orders may be made.

Our housing solicitors are offering free emergency advice through the court duty scheme at two stages during the court process:

• firstly, on the date the judge carries out their initial review, and
• secondly, on the date of the final substantive hearings.

The review stage is an entirely new opportunity for tenants and borrowers to obtain free professional legal advice and potentially avoid the need for a substantive hearing. Free advice and representation will continue to be available on the day to those with final substantive hearings.

Jeinsen Lam, Housing Solicitor in our Croydon branch, answers some common questions about the court process for possession cases and explains how to access help from the court duty scheme.

What is the procedure for possession cases now that the courts have reopened? Does the lockdown affect this?

Since 20 September 2020 the County Court has again started dealing with possession cases and this has been unaffected by the national lockdown imposed on 5 November 2020. The courts will continue to list cases to be reviewed and for substantive hearings right through to the lockdown potentially ending on 2 December 2020.

The court has the power to list substantive hearings to be held virtually by video link/telephone (but only where the parties agree); however, it is generally not in a tenant/borrower’s interests to request a virtual hearing as it may make it more difficult to access the duty advice scheme on the day of the hearing.

Why has the review stage been introduced?

The aim of the review stage is to allow tenants and borrowers to get advice before their final substantive hearings. If the parties can reach settlement at this stage, they can inform the court and it will go no further. If the case is contested then it will be listed for a longer substantive hearing at least 28 days later.

Being forewarned is forearmed – getting advice early can mean the difference between keeping your home or losing it.

Understanding your rights and the court processes often takes the stress out of the eviction process. A duty adviser can also point you in the right direction should you need further substantive assistance before your final hearing.

You should not agree to settle a case simply because you do not want to attend court, nor because you will agree anything to save your home. You should only settle cases on terms that you both understand and can sustain having had professional independent advice. If you have questions over your settlement and have a review date listed then please get advice from the county court duty scheme.

How does the duty scheme work in practice?

Any tenant/borrower facing eviction whose case has been listed for a review date can access free advice through the duty scheme on their review date. The court should send you a notice stating that your case has been listed for a review and how to access the duty scheme. The advice is free, irrespective of your means, and has been put in place especially to help people avoid eviction due to the effects of coronavirus. You can find out how to access the duty scheme on your review date here.

Tenants and borrowers seeking advice at the review stage at Croydon, Wandsworth and Kingston Courts will receive this advice by telephone unless a reasonable adjustment is required as a result of disability. Advice and representation for substantive hearings will be carried out on a face-to-face basis. You should notify the court of how Covid-19 has affected your case in advance of your hearing and explain if you will have difficulties attending as a result.

If you cannot obtain advice prior to your substantive hearing and (for whatever reason) have not managed to instruct a solicitor to file a defence, you should write to the court (with your case number/name of the parties) setting out why you believe you have a defence so this can be considered at your substantive hearing. You should also bring to court copies of what you sent so you can show it to a duty solicitor on the day of your substantive hearing.

You can read up on the eviction process and what your landlord has to do to evict you by accessing the Shelter website. Please note the Shelter website is not a substitute for accessing professional legal advice nor having legal representation on the day of your hearing.

What is the substantive hearing?

Where a case is potentially complex, is contested, or where no agreement has been made at the review stage, then a longer substantive hearing will be required. You will be sent a notice indicating when a substantive hearing will be held. This will generally be 28 days after the review date.

The substantive hearing is where a judge will look at the papers, listen to the parties and try to decide whether the case needs to proceed as a fully contested matter through the court system or whether it can be dealt with there and then.

Substantive hearings are generally held face to face at court. It is vital to engage with the process and to attend court in person on the date of your substantive hearing.

What help is on offer at the substantive hearing?

If you have not obtained your own legal representative for your substantive hearing, you can access free emergency legal advice/representation through the court duty scheme. Duty advisers can help negotiate settlements, identify defences and go into court with you.

Duty advisers will be present on the day of substantive hearings at all three courts listed above. You can only get advice under the duty scheme if you have a hearing or review date that day. You can find out how to access the service here.

Can I still be evicted during the national lockdown? If not, then when?

The government has stated that most evictions won’t be allowed during the national lockdown, due to end on 2 December. There are some exceptions to this for certain types of cases, such as anti-social behaviour and trespassers. It is unclear whether landlords/lenders will seek to challenge the government’s request for bailiffs not to evict people during the lockdown.

There is also talk of a Christmas ‘truce’, meaning that evictions won’t be carried out during Christmas period. Court bailiffs generally need to give tenants/borrowers notice before they evict people (generally 14 days). If a Christmas truce is implemented by the government, this will mean in practice most evictions will not take place until the new year, and even then there is likely to be a backlog.

Whilst the Law Centre welcomes any pause on evictions it is vital tenants and borrowers do not bury their heads in the sand if they are faced with possession proceedings.

Get legal advice as soon as you can and take advantage of the court duty scheme to ensure you understand your legal rights and make the right decisions to save your home.