Hardship tests: Separating substance from speculation
Recent claims that the Government plans to introduce ‘French-style’ hardship tests to the possession process have, understandably, raised concerns within the landlord community. But how reliable are these reports? Senior public affairs officer, Eleanor Bateman, considers the rumours.
Recent press reports suggest that the Government is poised to introduce a hardship test under the forthcoming Renters’ Rights Bill. Combined with the abolition of Section 21, there has been speculation this week over the circumstances in which a landlord could regain possession of their property once the new legislation is in force.
Where did the story originate?
The source of the article’s claims is unclear, and it remains uncertain whether the content accurately reflects government policy. Following its publication last weekend, we met promptly with officials at the Ministry of Housing, Communities and Local Government (MHCLG) to raise the matter and wrote to the Housing Minister, Matthew Pennycook MP, to seek clarity; we await his response.
In the meantime, we will continue to engage constructively with the Government to ensure that the Renters’ Rights Bill is workable and fair, and have been assured that MHCLG is committed to ongoing engagement with the industry.
Until the Renters’ Rights Bill is published and we see the full detail of what’s proposed, we cannot completely rule out the possibility of a hardship test being implemented.
However, it is important to note that the Government has not confirmed that such tests are being considered, nor that they would mirror those in France if they are. The ‘French-style’ hardship test has been in place since 2008 and enables a tenant to appeal a possession claim if they have no alternative housing to go to.
Hardship amendments previously tabled
During the last government’s attempts to pass the Renters (Reform) Bill, Matthew Pennycook (who was Shadow Housing Minister at the time) tabled several amendments that sought to introduce a hardship component to certain grounds for possession, and it is likely that the story’s roots lie in these proposals.
These amendments were not agreed by MPs at the time. They would have required the courts to consider a tenant’s circumstances when determining possession under three grounds proposed under the Bill - ground 1 for occupation by the landlord or landlord’s close family; ground 1a for sale of the property; and ground 6a for possession to facilitate compliance with enforcement action. Essentially, the amendments proposed that if a court considered that granting a landlord possession under these grounds would place a tenant in greater hardship – such as in cases of terminal illness, job loss or homelessness – the court could deny the landlord possession.
This is similar to temporary changes brought in by the Scottish Government during the Covid-19 pandemic and later made permanent, wherein a court must assess the ‘reasonableness’ of a case when determining possession.
Speculation or substance?
Until the Bill is published, reports of hardship tests remain speculative. We will continue to seek clarity on these issues to provide members with a clearer understanding of the evolving policy landscape.
