• Lawrence Talbot

S.21 and substantial rent arrears

Updated: Feb 15, 2021

Case update from the High Court: Trinity House v Prescott & anr [2021] EWHC 283 (QB) (11.02.21)

The right to enforce by warrant a possession order where at least 6 months’ arrears are due does not apply where a possession order was made under s.21 despite a money judgment for more than 6 months' rent.

The High Court so determined in a judgment yesterday.

The claim was brought in reliance on a s.21 notice, although a s.8 notice - on grounds 8, 10, and/or 11 - had also been served. The Claimant landlord used the “ordinary” rather than the “accelerated” procedure so there was a hearing for the Court to consider making a possession order on the s.21 notice and granting a money judgment for rent arrears (of more than 8 months). The possession order based on the s.21 notice and a money judgment of £27,633.36 were made (on 10 January 2020) and the landlord transferred the case to the Hight Court for enforcement but not until 8 December 2020.

Under the Public Health (Coronavirus) (Protection from Eviction) (England) Regulations 2021 SI2021/15 (“the Regulations”) a bar on evictions is in place, save for exceptions until 21 February 2021. One exception applies if there are at least 6 months’ rent arrears (“substantial rent arrears”) and the claim was made on grounds 8, 10 and/or 11 of schedule 2 to the Housing Act 1988. In order to permit a warrant, the Court has to be “satisfied” that the exception applies.

The Claimant made an application to the High Court, which was treated as an application for a declaration that the court was "satisfied" the exception applied.

The Claimant argued that the Regulations had to be “read and given effect” as if the exception applied where substantial arrears were owed even where the claim had been based on a s. 21 notice rather than a s.8 notice. This was necessary otherwise the Regulations would be incompatible with its rights under Article 1 of the First Protocol to the Human Rights Convention, including with regard to the protection of its property and the prohibition of discrimination.

The Court’s decision

For the purposes of the judgment, the Court proceeded on the assumption that the Claimant was discriminated against as opposed to those landlords who had brought claims based on ground 8, 10 and/or 11. However, it held that the discrimination in the Regulations was a proportionate means of achieving a legitimate aim.

The legitimate aim was to prevent tenants simply allowing rent arrears to accrue further after judicial determination of the fact of rent arrears which of themselves justified a possession order based upon them. Such conduct was “particularly both egregious and potentially capable of affecting the integrity of the housing market”.

In contrast, a s.21 claim was “simply a matter of Landlord’s choice”, the underlying reason for the claim being “irrelevant”. The claim had no necessary connection to rent arrears. Whilst it was also wrong for a tenant subject to s.21 proceedings to permit rent arrears to build “it [was not] so egregious” and did not “potentially affect the integrity of the residential market in the same way or to the same extent.”

The means of achieving the aim – the Regulations – were rationally connected to it and since no lesser measure could have sensibly used to achieve the aim, it was proportionate. In any event, it was not possible to read (or interpret) the Regulations in the way suggested, in particular because the Regulations clearly stated that not only were substantial arrears required, the claim had also to have been brought on grounds 8, 10 and/or 11.


All very interesting for lawyers but of cold comfort to landlords. Given the wording of the Regulations, the Court’s hands were effectively tied. However, landlords may well feel that the legislation should have been drafted to apply to any case where there were substantial arrears. Perhaps that would have shifted too much of the cost of housing too quickly from the private to the public sector!

N.B. It is notable that by the time of the hearing at the High Court there were arrears of more than £70,000- or 21-months’ arrears.

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