A law firm is seeking a Judicial Review of government guidance to put evictions on hold while local and national lockdown restrictions are in force.

In October Lord Chancellor Robert Buckland wrote to enforcement bodies asking them pause repossessions in areas covered by Tier 2 and Tier 3 rules.

When the second national lockdown began on November 5, Buckland again wrote to the High Court Enforcement Officers Association extending the demand to halt repossessions across England, apart from in exceptional circumstances which related to domestic abuse, anti-social behaviour, squatting or criminal activity.

Buckland also said in the letter that he also planned to introduce an exception for cases where “extreme” rent arrears had built up pre-Covid. 

However, JMW Solicitors, acting on behalf of two landlord clients, is disputing the legal grounds for the government to demand that enforcement officers do not carry out evictions.

Its claim states: “Our clients challenge the legality of the Lord Chancellor issuing letters or guidance to County Court Bailiffs and HCEOs and HM Courts and Tribunals Service adopting a policy which provides that warrants and  writs of possession should not be enforced without appropriate primary or secondary legislation being approved by Parliament.”

JMW partner David Smith says: “Such an important decision cannot simply be made by writing a letter on a whim. 

“Many cases of rent arrears were in place before Covid-19 hit – and landlords must be able to tackle the most serious cases. 

“This letter from the Lord Chancellor does not constitute a legal framework and has breached the landlords’ civil and human rights as well as usurping the power or Parliament. 

“This must be corrected, and quickly.”

Others have also criticised the government’s approach, including those who campaign on behalf of tenants’ rights.

Anthony Gold Solicitors partner in the housing department Giles Peaker, who blogs as Nearly Legal, recently described the government guidance as “a complete farce”.

He wrote: “Evictions, or the lack of them, who gets evicted and who doesn’t, are not at the whim and fiat of the Lord Chancellor. 

“This needs to be put on a statutory footing immediately. 

“I don’t know a single housing lawyer, no matter who they act for, who thinks this is lawful.”

Generation Rent director Alicia Kennedy says: “The government had an opportunity to protect renters from losing their homes, and have instead chosen not to act. 

“A non-binding pause on bailiff action is completely inadequate. 

“Eviction notices will be dropping through renters’ doors throughout lockdown, and the courts will be open the entire time, putting pressure on renters to move out while the pandemic rages on. 

“Although the government has asked bailiffs not to enforce possession orders, it’s not clear if tenants are legally protected. 

“In the event that a bailiff goes against the guidance, renters will have few options.”

Mortgage Strategy has contacted the Ministry of Justice for comment.

JMW says its proposed claim for judicial review was received by the government on 6 November 2020 and a response is due this week.